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HomeMy WebLinkAbout2011-148 a7 / 05/jf ia . A . I . INDIAN RIVER COUNTY JOBS GRANT AGREEMENTa C) 1 ) ` q y THIS INDIAN RIVER COUNTY JOBS GRANT AGREEMENT ("Agreement") is made as of the 5 `" day of July , 2011 by and between Indian River County, a political subdivision of the State of Florida, by and through its Board of Commissioners , hereinafter referred to as COUNTY, and SMI Telecoms, LLC a limited liability corporation authorized to do business in the State of Florida, hereinafter referred to as COMPANY. BACKGROUND RECITALS . WHEREAS, it is the policy of COUNTY to stimulate economic growth in Indian River County by either attracting new businesses to Indian River County or by encouraging the expansion of existing businesses within Indian River County ; and WHEREAS, the creation of new employment opportunities for residents of Indian River County and the increased tax revenues resulting from such business expansions or relocations within Indian River County is beneficial to the local economy ; and WHEREAS, COUNTY has determined that offering a Jobs Grant Program encourages businesses to expand within or new businesses to locate in Indian River County and thereby creates new employment opportunities for the residents of Indian River County ; and WHEREAS, Indian River County , through its Board of County Commissioners, has created a local Jobs Grant Program ; and WHEREAS, COMPANY, in accordance with the county ' s Jobs Grant Program criteria, will relocate to and expand its existing business in Indian River County to create new employment opportunities that pay at least 75 % of Indian River County ' s average annual wage level ; and WHEREAS, COMPANY has been determined to be eligible to receive a Jobs Grant ; and WHEREAS, COMPANY acknowledges that this Agreement shall be based upon compliance with County jobs grant program requirements ; and , WHEREAS, COUNTY finds and declares that it is in the public interest to award a Jobs Grant to COMPANY pursuant to the terms of this Agreement. NOW, THEREFORE , in consideration of the premises and mutual covenants hereinafter contained , the parties do agree as follows : 1 . Definitions . As used in this Agreement, the following terms shall mean : a . "Annual Wage" - includes salary , bonuses, and commissions . - 1 - b . " Default " - failure to comply with the terms of this Agreement. C . "Effective Date" - shall have the meaning set forth in Paragraph 2 herein. d . " Expansion of an existing business " - shall be defined as a business establishing 5 or more jobs to employ 5 or more full -time employees in the County . e . "Full -time Equivalent Job" - shall be defined as a position that is scheduled for at least 35 hours per week. f. "Indian River County Average Annual Wage " — shall be defined as the average annual wage per job in Indian River County as determined by Florida Agency for Workforce Innovation, Labor Market Statistics Center, Quarterly Census of Employment and Wages Program , in cooperation with the U . S . Department of Labor, Bureau of Labor Statistics . Currently , the County ' s average annual wage is $ 34 , 730 (2009 value, effective January 1st 2011 for the state QTI Tax Refund Program) . This dollar value shall be used for the duration of this agreement for determining local jobs grant incentives . g . "New Business " — shall be defined as a business establishing 5 or more jobs to employ 5 or more full -time employees in the County within the term of the Grant, (as such term is hereinafter defined) provided that such business first begins operations on a site in the County clearly separate from any other operation owned by the same business . h. "Quarterly Unemployment Compensation Report (UCT- 6 form) " — Form from the Florida Department of Revenue that businesses in the state of Florida must complete and submit to the state on a quarterly basis . Information collected on the form includes the names of employees , their social security numbers , and the gross wages paid to each employee on a quarterly basis . The information is used for unemployment compensation should employees cease to be employed . For purposes of this jobs grant agreement, this definition shall also include other similar county approved certified forms from COMPANY or COMPANY ' s professional employer organization. 2 . Term ; Termination. This Agreement shall be effective on July 5 , 2011 (the "Effective Date ") and shall automatically terminate after COUNTY has made the last payment to COMPANY unless terminated earlier by COUNTY because of a default by COMPANY. 3 , Grant Eligibility ; Payment Schedule . -2 - a. COMPANY will be eligible for total Jobs Grant Funding (hereinafter a " Grant" ) in an amount of up to $ 169,000 if COMPANY locates within Indian River County . Said Grant shall be payable in 3 one year periods by Phase as more specifically set forth herein . COMPANY acknowledges and agrees that the initial Grant under this Agreement is payable on a re -imbursement basis . There are a total of 3 separate Phases . The number of jobs estimated to be provided by phase is listed below. (i ) For Phase I , 5 new qualifying jobs meeting the wage level commitment in Section 6 of this Agreement will be provided by 12/31 / 11 . For each of the three successive annual periods that those jobs are maintained at the required wage level , COMPANY shall receive 1 /3 of the Grant amount for those 5 jobs . (ii ) For Phase II , 8 new qualifying jobs meeting the wage level commitment in Section 6 of this agreement will be provided by 9/30/ 12 . For each of the three successive annual periods that those jobs are maintained at the required wage level , COMPANY shall receive 1 /3 of the Grant amount for those 8 jobs . (iii) For Phase III, 12 new qualifying jobs meeting the wage level commitment in Section 6 of this agreement will be provided by 3 /31 / 13 . For each of the three successive annual periods that those jobs are maintained at the required wage level , COMPANY shall receive 1 /3 of the Grant amount for those 12 jobs . (iv) It is understood that the quantity and types of jobs proposed by phase , their annual wages, and dates of hire are estimates . Because of this, the quantity and types of j obs provided in each phase may shift between phases , and phase commencement dates maybe extended . Proposed jobs will remain eligible for local jobs grant incentives provided : a. The minimum number of qualifying jobs that must be provided in Phase I is 5 . b . The maximum number of jobs eligible for local jobs grant funds between Phases I , II , and III is 25 . c . The maximum extension for a phase commencement date shall be one year. Such commencement date may be approved administratively by County staff. If any of the total 25 eligible jobs proposed for Phases I , II , and III are created after their proposed commencement date or, if applicable , after their administratively approved extension to the proposed commencement date, those jobs shall not be eligible for local jobs grant funds unless an amendment is made to this agreement to allow for this . .3 - d. In no case shall the total local jobs grant award exceed $ 169,000 . (v) Failure of COMPANY to maintain claimed jobs for at least 3 years at required wage levels will result in the reduction of the Grant amount paid to COMPANY. If, by the end of any of the annual periods, COMPANY has not maintained the total number of claimed jobs required or if COMPANY has provided the total jobs required but the annual wage for any of those jobs is less than required for that year, COUNTY will lower the jobs grant award for the respective year. Thus, the total jobs grant award could be less than $ 169 ,000 by the end of this Agreement . b . Performance Evaluation for Payment . COMPANY ' s performance evaluation will be conducted on an annual basis by the information provided on the State ' s Quarterly Unemployment Compensation Report (UCT- 6 form) . COMPANY shall supply additional documentation to COUNTY, in a form acceptable to COUNTY, showing that positions for which jobs grant funds will be awarded are filled by people who live in the general area/region and listing the type of position filled by each employee . The Grant eligibility determinations will cover one year periods for each of the Phases , with each yearly period beginning and ending as follows : Phase Grant Eligibility Determinations 1st 2nd 3rd final Begin End Begin End Begin End I 12/31 /2011 12/31 /2012 1 / 1/2013 12/31 /2013 1 / 1 /2014 12/31 /2014 it 9/30/2012 9/30/2013 10/ 1 /2013 9/30/2014 10/ 1 /2014 9/30/2015 111 3 /31/ 13 3 /31 / 14 4/ 1 / 14 3 /31 / 15 4/ 1 / 15 3 /31 / 16 (i) Each job must meet the minimum wage requirements specified in this Agreement . Payment of Grant funds shall be made within forty-five (45 ) days after the date COMPANY submits the latest State Quarterly Unemployment Compensation Report comprising the Annual Job Status Report (as defined in Paragraph 7) , and this payment obligation shall survive the termination of this Agreement. Notwithstanding the foregoing, should the date for filing the last quarterly unemployment compensation report, as described above , not coincide with the date that an eligibility determination is made , COMPANY shall have the right to file a report, in a form substantially similar to a quarterly unemployment compensation report, and such report shall constitute the Annual Job Status Report, the fling of which shall begin the running of the forty - five (45 ) -day period within which payment shall be made . 4 . Relocation/Expansion Commitment. As a condition precedent to and as consideration for obtaining Jobs Grant Funds from COUNTY, COMPANY agrees to -4- locate in and expand its business operations on a suitable site in Indian River County as described on Exhibit "A" , whish is attached hereto and made a part thereof. 5 . Job Creation Commitment. COMPANY estimates that it will provide 25 new jobs within the county as set forth in Exhibit "B " , which is attached hereto and made a part hereof. The exact number of jobs actually supplied and their salaries , however, may vary . Local jobs grant funds will be awarded up to a maximum of $ 169 ,000 . The jobs grant award will be based on the following : Category Amount Per Job 75 % to 99 . 99% of Indian River County $300 Average Annual Wage 100% to 149 . 99% of Indian River County $ 5 , 000 Average Annual Wage 150% of Indian River County Average $ 75000 Annual Wage (or greater) 6 . Wage Level Commitment . COMPANY estimates that it will pay 1 employee whose job is eligible for a Grant hereunder an annual wage of not less than $26 , 047 . 50 ; will pay 1 employee an annual wage of not less than $ 34 , 730 . 00 ; and will pay each of 23 employees an annual wage of not less than $ 52 , 095 . 00 . The annual wage of the positions shall be determined without taking into account the value of any benefits . COMPANY shall, in accordance with the provisions of paragraph 7 herein below, provide written verification of such wages satisfactory to COUNTY . COMPANY ' S failure to maintain its wage level commitment for any one year will result in the reduction of the Grant amount for that year(s) . 7 . Annual Job Status . COMPANY must provide COUNTY with State Quarterly Unemployment Compensation Reports (Form UCT- 6) of its business operations within Indian River County on State form UCT-6 as amended, a sample of which is attached hereto and made a part hereof as Exhibit " C" . The cumulative Quarterly State Unemployment Compensation Reports required to be filed for the annual period correlated with each eligibility determination shall collectively comprise the Annual Job Status Report . For Phase I , there are 5 quarterly reports that must be submitted per grant eligibility determination time period ; for the first grant eligibility determination time period, the five quarterly reports are for calendar quarter 4 in 2011 , and calendar quarters 1 , 2 , 3 , and 4 in 2012 . For the second grant eligibility determination time period, the five quarterly reports are for calendar quarter 4 in 2012 , and calendar quarters 1 , 2 , 3 , and 4 in 2013 . For the third grant eligibility determination time period, the five quarterly reports are for calendar quarter 4 in 2013 , and calendar quarters 1 , 2 , 3 , and 4 in 2014 . - 5 - For Phase II , there are 5 quarterly reports that must be submitted per grant eligibility determination time period ; for the first grant eligibility determination time period , the five quarterly reports are for calendar quarters 3 and 4 in 2012 , and calendar quarters 15 2 , and 3 in 2013 . For the second grant eligibility determination time period , the five quarterly reports are for calendar quarters 3 and 4 in 2013 , and calendar quarters 1 , 2 , and 3 in 2014 . For the third grant eligibility determination time period , the five quarterly reports are for calendar quarters 3 and 4 in 2014 , and calendar quarters 1 , 2 , and 3 in 2015 . For Phase III , there are 5 quarterly reports that must be submitted per grant eligibility determination time period; for the first grant eligibility determination time period, the five quarterly reports are for calendar quarters 1 , 2 , 3 and 4 in 2013 , and calendar quarter 1 in 2014 . For the second grant eligibility determination time period , the five quarterly reports are for calendar quarters 1 , 2 , 3 and 4 in 2014 , and calendar quarter 1 in 2015 . For the third grant eligibility determination time period, the five quarterly reports are for calendar quarters 1 , 2 , 3 and 4 in 2015 , and calendar quarter 1 in 2016 . 8 , Default; Termination . In the event that COMPANY defaults in the performance of its guarantees and commitments as provided for in this Agreement, COUNTY may , at its option, terminate this Agreement. 9 . Indemnification. COMPANY shall indemnify and save harmless and defend COUNTY, its agents, servants , and employees from and against any and all claims , liabilities , losses , and/or causes of action which may arise from any negligent act or omission of COMPANY, its agents , servants, or employees in the performance of services under this Agreement. 10 . Forum; Venue . This Agreement shall be governed by the laws of the State of Florida. Any and all legal action necessary to enforce the Agreement will be held in Indian River County or the Federal District Court for the Southern District of Florida. No remedy herein conferred upon any party is intended to be exclusive of any other remedy , and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing by law or in equity or by statute or otherwise . No single or partial exercise by any party of any right, power, or remedy hereunder shall preclude any other or further exercise thereof. Parties hereby waive their right for a jury trial . 11 . Lobbyist Certification . COMPANY warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for COMPANY, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company , corporation , individual , or firm , other than a bona fide employee working solely for COMPANY, any fee, commission, percentage , gift, or any other consideration contingent upon or resulting from the award or making of this Agreement. -6 - 12 . No Discrimination Certification . COMPANY warrants and represents that all of its employees are treated equally during employment without regard to race, color, religion, disability , sex, age , national origin, ancestry , marital status, or sexual orientation . 13 . Attorneys Fees . If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, each party shall bear its own costs . 14 . Enforceability . If any term or provision of this Agreement, or the application thereof to any person or circumstances , shall to any extent be held invalid or unenforceable , the remainder of this Agreement, or the application of such terms or provision , to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of this Agreement shall be deemed valid and enforceable to the extent permitted by law. The Company ' s failure to maintain its job creation commitment or annual wage level commitment for any one year will result in the decrease of the Grant amount it was scheduled to receive for that year; however, such decrease will not preclude the Company ' s receipt of scheduled Grant amounts for those subsequent years in which it is able to maintain its job creation and wage level commitment . 15 . Assi ng ment . COMPANY shall not, directly or indirectly, assign or transfer any of its rights or obligations under this Agreement, or any interest therein (the foregoing herein collectively "Transfer") , without the express prior written consent of COUNTY . COUNTY shall not unreasonably withhold its consent to any Transfer. Any such attempted Transfer without the express prior written COUNTY consent shall be null and void and may , at the option of COUNTY, be deemed an event of default under this Agreement. COMPANY acknowledges and agrees that COUNTY has the right, in granting or withholding consent to any Transfer, to consider, among other things, the financial responsibility and business reputation of the proposed assignee or transferee (the foregoing herein collectively "Transferee") ; and any other items that the Indian River County Board of County Commissioners , in its sole discretion , deems appropriate . If COMPANY seeks COUNTY ' s consent for a Transfer, COMPANY shall submit to COUNTY a written request therefore , accompanied by the following documentation : (i) the name , address , and telephone number of the proposed Transferee ; (ii ) a description of the business and jobs , including wages, to be created in Indian River County ; and (iii ) a financial statement or other reasonably detailed financial information concerning the proposed Transferee . COMPANY acknowledges and agrees that : (a) the County Administrator or his designee , or the Indian River County Board of County Commissioners, has the right to request any additional information deemed necessary to make the decision relating to consent to the Transfer; and (b) any such request for a Transfer is expressly subject to the approval of the Transfer by the Board of County Commissioners at a formal meeting thereof, and such Transfer - 7 - shall become effective only when signed by the Transferee and approved by the Board, which consent shall not be unreasonably withheld . The foregoing covenant shall be binding on the permitted successors or assigns of COMPANY . The prohibition on Transfers shall not prohibit a change in the form in which COMPANY conducts business . COMPANY will be released from further liability under this Agreement in the event of an approved Transfer; provided that the County ' s consent to any Transfer will not otherwise relieve COMPANY from any pre- existing obligation to COUNTY under this Agreement. 16 . Conflict of Interest . COUNTY represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder, as provided for in Florida Statutes 112 . 311 . COMPANY further represents that no person having any interest shall be employed for said performance . 17 . Notices . All notices required in this Agreement shall be sent by certified mail , return receipt requested and if sent to COUNTY shall be mailed to : Indian River County Community Development Director 1801 27' h Street Vero Beach, Florida 32960 and if sent to COMPANY shall be mailed to (or current, official address) : SMI Telecoms , LLC 280 Madison Avenue , 9'h Floor New York, NY 10016 18 . Entire Agreement . COUNTY and COMPANY agree that this Agreement sets forth the entire Agreement between the parties, and that there are no promises or understandings other than those stated herein . None of the provisions , terms and conditions contained in this Agreement may be added to , modified, superseded or otherwise altered , except by written instrument executed by the parties hereto . 19 . No Pledge of Credit. COMPANY shall not pledge COUNTY' s credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness . 20 . Public Records . COMPANY shall comply with the provisions of Chapter 119 , Florida Statutes (Public Records Law) in connection with this Agreement . 21 , Counterparts. This Agreement may be executed in one or more counterparts , each of which shall be deemed to be an original copy and all of which shall constitute but one and the same instrument . - 8 - 22 . General . The Background Recitals are true and correct and form a material part of this Agreement. IN WITNESS WHEREOF, the Board of County Commissioners of Indian River County , Florida has made and executed this Agreement on behalf of the COUNTY and the COMPANY has hereunto set its hand the day and year above written . BOARD OF COUNTY COMMISSIONERS °daaaaanaa°°° °°° OF INDIAN RIVER COUNTY ° °�•��t , , . . . . . , , 5�0.� J' BY : ° a , o Bob Solari , Chairman ° : O ATTEST BY : 990 , o�a -0 4W0iWr49j @8a � cou Jeffrey K. Barton , Clerk APPROVED : Jul 201 ( .'. , A - o eph A. haird, County Administrator APPROXED , TO F A LEGAL SUFFICIENCY. 4 4 Man Polackwich , ounty Attorney COMPANY : SMI Telecoms, LLC BY : Title * C '� y2C� 0ks Typed Name WITNESS . �,� �,L, Title • "'� �'u Signature -9 - EXHIBIT " A " TO THE .LOBS GRANT AGREEMENT BETWEEN INDIAN RIVER COUNTY & SMI TELECOMS LLC Company Identification and Information : Application date : May 31 , 2011 Company description : COMPANY ' s proposed facility will be its national headquarters . COMPANY develops software solutions for the global telecommunications industry . COMPANY also provides implementation and support services for its products . While administrative , sales, support, project office (logistical management), research and development, and management staff will be located within the headquarters office , implementation and consultancy staff tend to be geographically dispersed . Because implementation and consultancy positions within COMPANY are geographically dispersed , some of the 25 proposed employees may ultimately not live within Indian River County or in the surrounding region (adjacent counties) , and those positions will not be eligible for jobs grant funds . The exact number of positions that will be eligible for the local jobs grant program will be determined as COMPANY proceeds with its hiring and expansion plans . Company ' s proposed new physical address in Indian River County : 10305 102nd Terrace Sebastian , FL 32958 Company ' s local mailing address : SMI Telecoms , LLC is proposing to locate its National Headquarters at the address listed above . If the location changes , COMPANY will promptly notify COUNTY of its new location . To be eligible for and remain eligible for the local jobs grant program, COMPANY must locate its National Headquarters within Indian River County . Positions eligible for the jobs grant program must be based out of the National Headquarters and meet other applicable requirements of this agreement. - 10 - EXHIBIT " B " TO THE JOBS GRANT AGREEMENT BETWEEN INDIAN RIVER COUNTY & SMI Telecoms , LLC (COMPANY) I. Target Industry Categories eligible for application : COMPANY qualifies for the jobs grant program under the "Telecommunications" category . Under the 2007 North American Industrial Classification System (NAICS ) , COMPANY ' s activities are classified in categories 5112 " Software Publishers" , 5415 " Computer Systems Design and Related Services" , and 5416 "Management, Scientific, and Technical Consulting Services" . II. Employment Commitment : The COMPANY is receiving this grant based upon its representation that it will bring the following employment opportunities to Indian River County : 1 ) 1 # of new, full-time employees whose annual wage is between 75 % and 99 . 9% of Indian River County' s average annual wage . 2) 1 # of new, full-time employees whose annual wage is between 100% and 149 . 99% of Indian River County ' s average annual wage 3 ) 23 # of new, full -time employees whose annual wage is 150% or greater of Indian River County ' s average annual wage III . Grant Amount Category Qualified Amount Per Total Jobs Job 75 % to 99 . 9% of Indian River County Average 1 $ 3 , 000 $ 39000 Annual Wage 100% to 149 . 99% of Indian River County Average 1 $ 500 $ 5 , 000 Annual Wage 150% or greater of Indian River County Average 23 $ 7 , 000 $ 161 , 000 Annual Wage Total 25 $ 1691000 * * The actual amount of the grant will depend upon the actual number of jobs provided and the salary paid for those jobs . In no case shall the total amount of the grant exceed $ 169 , 000 . F:\Community Development\Users\GDplannr\lncentives & FundingVobs Grant Program\SMI TelecomsUob Grant Agreement SMI Telecoms - Proposed 0 - For Creating PDF .doc - 11 - Exhibit " C " Use black ink. Example A - Handwritten Example B - ed Florida Department of Revenue Employer's Quarterly Report TY En•ptoyers are required to [lie crirartErty taxhvage rcixxis regardless Of enrbyntenR actnsil or svttClPkr any ;axes are due. 000 "M13000 0190 8 § o UCT-6 R . 01 /11 QUARTER ENDING DUE DATE PENALTY AFTER DATE TAX RATE UT ACCOUNT NUMBER 00 � 00 � 000 ❑ _._. 0 ❑ aa0 ❑ � Do not make any changes It you do not have an account number, you IIII1I1 to the pre-printed are required to register (see instructions). ( I ( II � I II � IIII III I III I 11chngesarnteesform. FELNU>r1QER rl changes are needed, ❑ ❑ ❑ ❑ r—� ❑ ❑ request and complete an Employer Account Change Form (UCS-3). FOR OFFICIAL USE ONLY POSTMARK DATE Reverse Side Must be Completed n ❑ / 1111 / F T U 11 Name 7. Gross wages pa9 this quarter Mailing ❑ a 90 09� 0 n . ❑ a Mailing must !mal all pages) Address i� City/BUZIP 3. 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L—I ❑ 0000 ❑ — ❑ - 0000 ❑ Last Name 0 ❑ ❑ ❑ ❑ ❑ 00 ❑ C11I ❑ 12a. ❑First ❑ ❑ 911011 :[111 ❑ ❑ • ❑ ❑ Name ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Initial ❑ 12b. t�T ❑ ❑ f1 ❑ . 1111 t3a. Total Gross Wages (add Lines 12a only). Total this page only. ❑ 0 11911 ❑ ❑ 91111 11 • ❑ ❑ Include this and totals from additional pages in Line 2 on page t . I 3b. Total Taxable Wages {acrd Lines 1 only}. Total this page only. F1 ❑ 9110 11 . 1111 include this and totals from additional al pages in Lune 4 on page T . 00 NOT _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ' - - " - - - - - - � .. . - _ ... _ _ . - - _ _ . _ - _ _ _ _. ._ _ _ _ _ - _ _ _ _ _ _ ` - _ - - - bETACH Mail Reply To : Social security numbers (SSNs) are used by the Florida Department of Revenue as unique Unemployment Tax identifiers for the administration of Florida's taxes. SSNs obtained for tax administration Florida Department of Revenue purposes are confidential under sections 213.053 and 119.071 , Florida Statutes .. and not 5050 W Tennessee St Bldg L subject to disclosure as public records. Collection of your SSN is authorized under state Tallahassee FL 32399-0180 and federal law. Visit our Internet site at www.mytlorida.com/dor and select " Privacy Notice" for more information regarding the state and federal law governing the collection, use, or release of SSNs, including authorized exceptions. Tired of paperwork? We can help ! File and pay your Florida unemployment tax online. It's fast , easy, accurate , and secure . Internet Address: www.mytlorida.com/dor - 13 -