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Backup Docs 01/24/2012 (CR)
COLLIER COUNTY Board of County Commissioners Community Redevelopment Agency Board (CRAB) Airport Authority FIT" 3A11111 Board of County Commission Chambers Collier County Government Center 3299 Tamiami Trail East, 3rd Floor Naples FL 34112 January 24, 2012 9:00 AM TIME CERTAIN 11:30 A.M. ITEM 10E 2:00 P.M. ITEM 1013 3:00 P.M. ITEM 9A Fred W. Coyle - BCC Chairman; Commissioner, District 4 Jim Coletta - BCC Vice - Chairman; Commissioner, District 5; CRAB Chairman Donna Fiala - BCC Commissioner, District 1; CRAB Vice - Chairman Georgia Hiller - BCC Commissioner, District 2 Tom Henning - BCC Commissioner, District 3 NOTICE: All persons wishing to speak on Agenda items must register prior to speaking. Speakers must register with the Executive Manager to the BCC prior to presentation of the Agenda item to be addressed. All registered speakers will receive up to three (3) minutes unless the time is adjusted by the chairman. Collier County Ordinance No. 2003 -53 as amended by ordinance 2004 -05 and 2007 -24, requires that all lobbyists shall, before engaging in any lobbying activities (including but not limited to, addressing the Board of County Commissioners), register with the Clerk to the Board at the Board Minutes and Records Department. Requests to address the Board on subjects which are not on this agenda must be submitted in writing with explanation to the County Manager at least 13 days prior to the date of the meeting and will be heard under "Public Petitions." Public petitions are limited to the presenter, with a maximum time of ten minutes. Any person who decides to appeal a decision of this Board will need a record of the proceeding pertaining thereto, and therefore may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, the provision of certain assistance. Please contact the Collier County Facilities Management Department located at 3335 East Tamiami Trail, Suite 1, Naples, Florida, 34112 -5356, (239) 252 -8380; assisted listening devices for the hearing impaired are available in the County Commissioners' Office. Lunch Recess scheduled for 12:00 Noon to 1 :00 P.M 1. INVOCATION AND PLEDGE OF ALLEGIANCE A. Reverend Richard Rogers - Unity of Naples 2. AGENDA AND MINUTES A. Approval of today's regular, consent and summary agenda as amended (Ex Parte Disclosure provided by Commission members for consent and summary agenda.) 3. SERVICE AWARDS A. EMPLOYEE 1. 20 Year Attendees a. Gail Bonham, County Attorney's Office b. Ronney Cox, Library C. Michael Sullivan, EMS d. Bobby Allen, EMS 2. 2 5 Year Attendees Pg. 1 -1 Pg. 2 - 2 Pg. 3 -3 Pg. 4 -4 a. Mark Burtchin, Road Maintenance Pg. 5 - 5 b. Steven Epright, EMS Pg. 6 - 6 C. Tracey Payne, Information Technology 4. PROCLAMATIONS Pg. 7 -7 A. Proclamation designating January 23-29,2012 as Bayshore Festival of Pg. 8 - 9 the Arts week in Collier County. To be accepted by Chick Heithaus, president of the Bayshore Cultural and Performing Arts Center and Chellie Doepke, vice - president of the Bayshore Cultural and Performing Arts Center. Sponsored by Commissioner Fiala. B. Proclamation designating January 23-29,2012 as The Band of the Pg. 10 - 11 United States Air Force Reserve Week. To be accepted by Chick Heithaus. Sponsored by Commissioner Coyle. C. Proclamation designating February 2012 as K is for Kids Foundation's Pg. 12 - 13 Bring a Book, Bring a Friend for Children's Literacy Month. To be accepted by Karen D. Clawson, Founder & Executive Director of K is for Kids Foundation and the Teen Advisory Team. Sponsored by Commissioner Coletta and Commissioner Hiller. D. Proclamation designating January 27, 2012 as United Nations Pg. 14 - 15 International Holocaust Remembrance Day. To be accepted by the Board of the Holocaust Museum and Education Center of Southwest Florida. Sponsored by Commissioner Hiller. 5. PRESENTATIONS A. Recommendation to recognize Amy Patterson, Manager- Impact Fees Pg. 16 - 18 and Economic Development, Growth Management Division as the Supervisor of the Year for 2011. 6. PUBLIC PETITIONS A. Public Petition request from Daniel McMahon requesting that the Pg. 19 - 21 Board restrict vehicle access on Woodland Estates Road. 7. BOARD OF ZONING APPEALS Item 7 to be heard no sooner than 1:00 pm unless otherwise noted. A. This item requires that ex parte disclosure be provided by Commission Pg. 22 -143 members. Should a hearing be held on this item, all participants are required to be sworn in. CUR -PL- 2011 -1177, SR 846 Land Trust requesting a Conditional Use Re- Review (CUR) and amending the Conditions of Approval in Resolution Number 08 -290 which allows for earth mining with excavation, blasting and processing of material in a Rural Agricultural Mobile Home Overlay (A -MHO), for property located MINIMUM OF 4 in the Rural Fringe Mixed Use District Receiving Lands, and east of AFFIRMATIVE Immokalee Road, approximately 2 miles north of Oil Well Road. The VOTES subject property is located within Sections 35 & 36, Township 47 South, Range 27 East; and all of Sections 1 and 2, Township 48 South, Range 27 East, less road right -of -way for County Road 846 ( Immokalee Road), Collier County, Florida; and repealing Resolution Nos. 08 -128 and 08 -290. [Coordinator: Fred Reischl, AICP, Senior Planner] 8. ADVERTISED PUBLIC HEARINGS A. MINIMUM OF 4 AFFIRMATIVE VOTES Item 8 to be heard no sooner than 1:00 pm unless otherwise noted. Continue Item BA to the February 14, 2012 BCC Meeting. This item continued from the January 10, 2012 BCCMeeting. This i requires that ex parte disclosure be provided by Commission mbers. Should a hearing be held on this item, all participants ar equired to be sworn in. PUDZ- 2003 -AR -3608: Orangetree PUD -- Ordinance amending Ordinance Numbers 2005 -42 and 4 -73, the Orangetree PUD, to add 1,050 residential units for ajofal of 3,150 residential units; to add 100,000 square feet of retail use to the existing 60,0( 332,000 square feet of development standayd A4fe and add 172,000 square feet of care feet of retail for a total of development; to revise the including building height and setbacks and to add allowable ! idential, commercial uses and mixed uses, and to eliminate environmental commitments, for property located in ins 11, 12, 13, 14,22 through 27, Township 48 South, 27 East, Collier County, Florida consisting of 2,138.76 acres; and by providing an effective date. (Coordinator: Kay Deselem, AICP, Principal Planner) (Commissioner Coletta's request) B. Moved from Item 17A. This item requires that ex parte disclosure be provided by Commission members. Should a hearing be held on this item, all participants are required to be sworn in. PUDZ -PL- 2011 -2115 Community School of Naples CFPUD. An ordinance of the Board of County Commissioners of Collier County, Florida amending Ordinance Number 2004 -41, as amended, the Collier County Land Development Code, which established the comprehensive zoning regulations for the MINIMUM OF 4 unincorporated area of Collier County, Florida, by amending the AFFIRMATIVE appropriate zoning atlas map or maps by changing the zoning VOTES classification of the herein described real property from a Community Facility (CF) zoning district to a Community Facility Planned Unit Development (CFPUD) zoning district for the project known as Community School of Naples CFPUD, located at 13275 Livingston Road in Section 12, Township 49 South, Range 25 East, Collier County, Florida consisting of 73 +/- acres subject to conditions; by providing for the repeal of Ordinance Numbers 2000 -06 and 2004 -33, as amended; and by providing an effective date. (Commissioner Hiller's request) Pg. 144 - 647 Pg. 2353 - 2395 C. Moved from Item 17E. Recommendation to adopt an amendment to Pg. 2418 - Ordinance No. 2011 -07, the Flood Damage Prevention Ordinance 2467 (FDPO) with an effective date of March 30, 2012. (Commissioner Hiller's request) 9. BOARD OF COUNTY COMMISSIONERS A. This item to he heard at 3:00 p.m. Request to discuss current Pg. 648 - regulations limiting the "stretched mesh" size of marine fishing nets to 677 two (2) inches and possible actions by the Board of County Commissioners to support efforts to rescind these regulations. B. Appointment of a member to the Vanderbilt Beach Beautification Pg. 678 - MSTU Advisory Committee. 686 C. Appointment of a member to the Bayshore Beautification MSTU Pg. 687 - Advisory Committee. 702 D. Appointment of a member to the Golden Gate Beautification MSTU Pg. 703 - Advisory Committee. 712 10. COUNTY MANAGER'S REPORT A. Recommendation to approve the required program agreements with Pg. 713 - Arthrex Manufacturing, Inc., Arthrex, Inc. and RES Collier Holdings, LLC 818 for the Fee Payment Assistance Program, the Job Creation Investment Program and the Advanced Broadband Infrastructure Investment Program, consistent with the provisions of Chapter 49 of the Collier County Code of Laws and Ordinances and the company's approved incentive application. (Fiscal Impact: $597,514 - Fiscal Year 2012) (Amy Patterson, Impact Fee Manager) B. This Item to be heard at 2:00 p.m. Recommendation to review the Pg. 819 - Phase II Master Mobility Plan report, accept the report and direct the 846 County Manager or Designee to move Recommendations into Phase III of the Master Mobility Plan. (Nick Casalanguida, Deputy Administrator, Growth Management Division /Planning & Regulation) C. Recommendation to award a construction contract in the amount of Pg. 847 - $1,076,737.62 to Lodge Construction, Inc. and reserve 10% 852 ($107,673.76) on the purchase order for funding contingency, for a total of $1,184,411.38 for ITB No. 10 -5817 - "LASIP - Naples Manor North Canal Stormwater Improvements; Project No. 51101. (Jay Ahmad, Director, Transportation Engineering) The Fiscal Impact portion of the executive summary should be revised as follows: Funds in the amount of $ 1,184,411.38 ($1,076,737.62 plus a 10% contingency of $107,673.76) are available in the Stormwater Capital Improvement Fund 325, project 51101 and in the Transportation Grant Fund 711. Source of funding is Ad Valorem and grants from the South Florida Water Management District. (Staff's request) D. RFP Number referenced is incorrect. The title should read: Pg. 853 - Recommendation to award a Design Build contract in the amount of 1022 $4,048,944 to Thomas Marine Construction, Inc. and American Consulting Engineers of Florida, Inc. for RFP No. 11 -5722 11-5572 - "Design Build Golden Gate Boulevard Bridge Replacements: 1) Golden Gate Canal #034026 and 2) Miller Canal #034028 ", Project No. 66066. (Jay Ahmad, Director, Transportation Engineering) Recommendation to award a Design Build contract' amount of $4,048,944 to Thomas Marine Const nc. and American Consulting Engineers i a, Inc. for RFP No. 11 -5572 - "Design Build ate Boulevard Bridge Replacements: 1) Golden Gate Canal #034026 and 2) Miller Canal #034028 ", Project No. 66066. (Jay Ahmad, Director, Transportation Engineering) E. This Item to be heard at 11:30 a.m. Recommendation to approve the Pg. 1023 - third amendment to the cooperative agreement with the South Florida 1087 Water Management District, Agreement No. C- 11759, regarding operation and maintenance of designated primary watercourses in Collier County, modifying the agreement terms and extending the term until September 30, 2024. (Gerald Kurtz, Principal Project Manager, Growth Management Division) F. Moved from Item 16D8. Recommendation to approve an agreement Pg. 1816 - and associated forms with the Florida Department of Economic 1943 Opportunity (DEO) to accept funding for the Disaster Recovery Enhancement Funds (DREF) in the amount of $3,335,131.91 and approve a budget amendment to allocate the funding. Commissioner Hiller's request) G. Moved from Item 16D10. Recommendation to approve reprogramming of Community Development Block (CDBG) Grant funds in the amount of $810,000, and approve a Sub recipient Agreement with the Collier County Community Redevelopment Agency (CRA) of Immokalee to purchase two adjacent parcels and construct design - build the First Street Plaza located in the downtown area of Immokalee, Florida. (Commissioner Hiller's request) H. Moved from Item 16E3. Recommendation to approve and ratify two additions to the 2012 Fiscal Year Pay and Classification Plan made from October 1, 2011 through December 31, 2011. (Commissioner Hiller's request) I. Moved from Item 16A13. Recommendation to direct the County Manager or his designee to work with the Finance Committee, the County Attorney, and the Clerk's Office to review and possibly establish a potential process which would authorize the solicitation for competitive bid proposals from interested firms willing to both finance and construct production -ready projects. (Commissioner Coyle's request) 11. COUNTY ATTORNEY'S REPORT 12. OTHER CONSTITUTIONAL OFFICERS 13. AIRPORT AUTHORITY AND /OR COMMUNITY REDEVELOPMENT AGENCY A. AIRPORT 1. Request Collier County Board of County Commissioners provide direction to the Airport Authority Executive Director as to whether County Commissioners should be provided a copy of Collier County Airport Security Plans. Under the Considerations portion of the executive summary, the last paragraph should read: The General Aviation Airport Security Plan update for the Immokalee Regional Airport was approved by FDOT on December 26,201120-12, after comments provided by FDOT were incorporated into the plan, and the warning statement regarding distribution of the plan was added to every page of the attachment. (Commissioner Coyle and Commissioner Fiala's separate requests) Pg. 1952 - 1988 Pg. 2049 - 2052 Pg. 1496 - 1499 Pg. 1088 - 1089 B. COMMUNITY REDEVELOPMENT AGENCY 1. Community Redevelopment Agency FY2011 annual performance Pg. 1090 - appraisal review for the Bayshore Gateway Triangle CRA 1125 Executive Director. (David Jackson, Executive Director, Bayshore Gateway Triangle CRA) 2. Recommendation to award Contract No. 11 -5709 - Immokalee Pg. 1126 - Downtown Stormwater Improvements to Douglas N. Higgins, Inc. 1276 in the amount of $2,718,000 (Project Number 33130), approve all necessary budget amendments and authorize the Chairman to sign the standard Board approved contracts after legal review by the Office of the County Attorney. 14. PUBLIC COMMENTS ON GENERAL TOPICS 15. STAFF AND COMMISSION GENERAL COMMUNICATIONS 16. CONSENT AGENDA All matters listed under this item are considered to be routine and action will be taken by one motion without separate discussion of each item. If discussion is desired by a member of the Board, that item(s) will be removed from the Consent Agenda and considered separately. A. GROWTH MANAGEMENT DIVISION 1. Recommendation to approve final acceptance of the water and sewer utility facilities for Triangle Parcel, 14250 Tamiami Trail North, and to authorize the County Manager, or his designee, to release any Utilities Performance Security to the Project Engineer or the Developer's designated agent. 2. Recommendation to approve final acceptance of the water utility facility for City Gate Commerce Center, Phase 1 and to authorize the County Manager, or his designee, to release any Utilities Performance Security to the Project Engineer or the Developer's designated agent. Pg. 1277 - 1283 Pg. 1284 - 1289 a 4. 5. Recommendation to approve final acceptance of the water and Pg.1290 - sewer utility facilities for City Gate Commerce Center, Phase 2 and 1296 to authorize the County Manager, or his designee, to release any Utilities Performance Security to the Project Engineer or the Developer's designated agent. This item requires that ex parte disclosure be provided by Pg.1297 - Commission members. Should a hearing be held on this item, all 1306 participants are required to be sworn in. Recommendation to accept an alternate security in the amount of $1,758,578.20 from the current owner of the subdivision known as Copper Cove Preserve, and authorize the Clerk of Courts to release the previously posted securities. Withdraw Item 16A5. Recommendation to direct the County P . Manager or Designee to have �the County's consults 1312 with the design of a pathway on the north =idef Immokal so known as, Alternative 1. (Staffs request to revise backup material) 6. Recommendation to approve a Job Creation Investment Program Pg.1313 - Agreement with Animal Specialty Center of Florida, LLC, a /k /a 1359 Animal Specialty Hospital of Florida, LLC, consistent with the provisions of the Job Creation Investment Program and the company's approved incentive application. (Fiscal Impact: $14,666 - Fiscal Year 2012) 7. Recommendation to approve a Job Creation Investment Program Pg.1360 - Agreement and an Advanced Broadband Infrastructure 1402 Investment Program Agreement with Florida Specialties LLC, consistent with the provisions of the Job Creation Investment Program and the Advanced Broadband Infrastructure Investment Program and the company's approved incentive application. (Fiscal Impact: $18,333 - Fiscal Year 2012) 8. This item requires that ex parte disclosure be provided by Pg.1403 - Commission members. Should a hearing be held on this item, all 1416 participants are required to be sworn in. Recommendation to acknowledge a Corrective Dedication / Reservation for the plat of Quarry Phase 3, and to direct the Clerk of Courts to make a notation on the recorded plat making reference to the recorded Corrective Dedication / Reservation. 9. Recommendation to approve a resolution directing the County Manager to revise and expand the duties of the Floodplain Management Planning Committee (FMPC) and amending Resolution No. 2006 -200. 10. Recommendation to approve Supplemental Joint Participation Agreement (JPA) No.1 providing additional revenue in the amount of $25,342 from FY 2011/2012 Federal Transit Administration Section 5311 American Recovery and Reinvestment Act (ARRA) funding. 11. Recommendation to enter into three Landscape Maintenance Agreements with condominium associations to ensure that the maintenance pathway along the Naples Manor North Canal is unobstructed, by requiring periodic maintenance of hedges that will be planted for the purpose of replacing the existing landscape buffer along their southerly boundaries that will be lost during construction of improvements to the canal. The proposed improvements to the Naples Manor North Canal is one of the many "sub- projects" which together comprise the Lely Area Stormwater Improvement Project 51101 (LASIP). (Fiscal Impact $132) Pg. 1417 - 1427 Pg. 1428 - 1463 Pg. 1464 - 1485 12. Recommendation to approve an agreement with the Abbington Pg. 1486 - Village Condominium Association providing for the conveyance of 1495 a Drainage Access and Maintenance Easement from the Association to Collier County without compensation. Project No. 51101 Naples Manor North Canal segment of the Lely Area Stormwater Improvement Project (Fiscal Impact $35.50) 13. Moved to Item 10I. Recommendation to direct the County Pg. 14 Manager or his designee to work with the Finance Committe 499 County Attorney, and the Clerk's Office to rev' possibly establish a potential process ould authorize the solicitation fo etitive bid proposals from interested firms to both finance and construct production -ready projects. (Commissioner Coyle's request) C COMMUNITY REDEVELOPMENT AGENCY 1. Recommendation for the Community Redevelopment Agency Pg. 1500 - (CRA) to approve an Extension and First Amendment to Lease 1536 Agreement with Budget Rent A Car System, Inc., permitting them to continue operating an existing business on CRA owned property located at 1933 and 1965 Tamiami Trail. PUBLIC UTILITIES DIVISION 1. Recommendation to approve Amendment No.1 to Agreement Pg. 1537 - MOA100 ( #12 -5842) between Collier County and the Florida 1544 Department of Environmental Protection to continue to conduct Ambient Air Monitoring in Collier County. 2. Recommendation to approve License Agreement # 12 -5841 with Pg. 1545 - the District School Board of Collier County to allow the County to 1569 continue to locate the Ambient Air Monitoring Trailer at Laurel Oak Elementary School, and to conduct ambient air monitoring for the urban area of the county. 3. Continued to February 14, 2012 BCC Meeting. Recommendation to approve removing uncollectible accounts receiv eir respective balances fro=nthe =o`=nt ecords of Collier County Public ivision f $42 3,644.77. (Staffs request based on Finance Department request for additional time to review all documents) 4. Recommendation to approve an increase to the annual estimated not to exceed amount for contract number 11 -5698 with N. Harris Computer Corporation for maintenance, licensing, and technical services, from $140,000 to $220,000. The increase is to include the credit card payment processing transaction costs associated with iWEB, a hosted payment system provided by Transaction Warehouse (a Harris sub - contractor) through contract number 11 -5698. 1583 Pg. 1584 - 1589 D. PUBLIC SERVICES DIVISION 1. Recommendation to approve a subrecipient agreement providing Pg.1590 - for a $35,000 State Housing Initiatives Program (SHIP) grant to 1614 the Housing Development Corporation of SW Florida, Inc. (HDC) to provide Homebuyer Education, Counseling and /or Pre - Purchase, Extended Credit and /or Foreclosure Prevention Counseling to benefit persons earning less than 120% of Family Median Income of Collier County. 2. Recommendation to approve a modification to Disaster Recovery Pg.1615 - Initiative Grant Agreement #10DB- D4- 09- 21- 01 -K09 between the 1639 Florida Department of Economic Opportunity (DEO), formerly known as the Florida Department of Community Affairs (DCA) and Collier County to change the grantor's name within the agreement, reallocate funds within the Immokalee CRA's Stormwater project and sign the associated sub recipient agreement amendments. 3. Recommendation to approve a resolution to authorize an upland Pg.1640 - lease application with the Board of Trustees of the Internal 1651 Improvement Land Trust Fund of the State of Florida for the Parks and Recreation Department to manage the newly constructed Isles of Capri Paddle Craft Park constructed by Rookery Bay National Estuarine Research Reserve. 4. Recommendation to approve execution of a Utility Facilities Pg.1652 - Warranty Deed and Bill of Sale to convey the wastewater utilities 1659 infrastructure at the Collier County public beach facilities at Bluebill Ave. to the Collier County Water -Sewer District, at an estimated cost of $35.50. 5. Recommendation to award Contract #11 -5791 to Pinellas Pool Pg.1660 - for renovation of Interactive Water Feature at Vineyards 1798 Community Park in the amount of $206,800; approve the necessary budget amendment to provide funds and establish a 10% contingency; authorize the Chairman to execute the attached contract after review by the County Attorney's Office. 6. Recommendation to approve and authorize the Chairman to sign Pg.1799 - one (1) release of lien for Affordable Housing Density Bonus 1805 agreement for a unit sold which is no longer subject to the terms of the agreement. 7. Recommendation to approve and authorize the Chairman to sign Pg. 1806 - one (1) satisfaction of mortgage for owner - occupied affordable 1815 housing units that repayment in full has been provided to Collier County. 8. Moved to Item 10F. Recommendation to approve an agreement and associated forms with the Florida Department of Ec 1943 Opportunity (DEO) to accept fundin f isaster Recovery Enhancement Funds in the amount of $3,335,131.91 and a udget amendment to allocate the funding. (Commissioner Hiller's request) 9. Recommendation to approve an amendment with the City of Pg. 1944 - Naples for $30,365 in Community Development Block Grant 1951 Recovery (CDBG -R) funds. 10. Moved to Item 10G. Recommendation to approve reprogramming Pg. 19 of Community Development Block (CDBG) Grant fun�eement the 988 amount of $810,000, and approve a Subreci i with the Collier County Comopment Agency (CRA) of Immokalee to parcels and construct d the First Street Plaza located in the downtown area of Immokalee, Florida. (Commissioner Hiller's request) E. ADMINISTRATIVE SERVICES DIVISION 1. Recommendation to approve the execution of a Corrective Pg. 1989 - Easement to FP &L at a cost not to exceed $19. 1996 2. Recommendation to approve Amendment 5 to contract 06 -3939 Pg. 1997 - "Northeast Regional Utility Program Management and Oversight 2048 Services" with Malcolm Pirnie, Inc., for services during Program hibernation and reactivation of the Northeast Facilities Program Projects 70899, 73156, 70902, and 75012. 3. Moved to Item 10H. Recommendation to approve and ratify two P i additions to �the 01 2 Fiscal Year Pay and C an made 2052 from Octobe g ecember 31, 2011. (Commissioner III request) 4. Recommendation to approve a Donation Agreement with Ginnie Pg. 2053 - Evans Poovey Kania for 10 acres under the Conservation Collier 2061 Land Acquisition Program, at a cost not to exceed $3,000. 5. This item continued from the January 10, 2012 BCCMeeting. Recommendation to approve and authorize the Chairman to sign the Assumption Agreement from Tectrans, Inc. to Keolis Transit America, Inc. to Keolis Transit America, Inc. d /b /a Tectrans, Inc. Contract for the Collier Area Transit (CAT) Fixed Route and Paratransit Program. 6. Continued to the February 14, 2012 BCC Meeting. Recommendation to award a contract to Commerce B r Letter of Intent (LOI) 10 -5562 E -P or the automation of payments to v obtain additional revenue / rebates to ounty. (Finance Department and the vendor's separate requests to make final clarifications to the contract) F. COUNTY MANAGER OPERATIONS Pg. 2062 - 2197 2215 1. Recommendation to adopt a resolution approving amendments Pg. 2216 - (appropriating grants, donations, contributions or insurance 2218 proceeds) to the Fiscal Year 2011 -12 Adopted Budget. 2. Recommendation that the Board approves a prepayment of the Pg. 2219 - 2007 State Infrastructure Bank Loan resulting in a interest 2221 savings of $59,983 and approve all necessary budget amendments. 3. Recommendation to approve and authorize the County Attorney Pg. 2222 - to advertise proposed amendments to the Tourist Development 2230 Tax Ordinance No. 92 -60, as amended, and return to the Board for final approval. Amendments include (1) revise language relating to Category B use of funds; (2) delineate the allocation of MINIMUM OF 4 administrative costs for tourism promotion and beach park AFFIRMATIVE facilities and beach improvements; (3) reallocate for a period of VOTES one year $100,000 from Fund 193, municipal owned museums and museums owned and operated by not - for - profit organizations open to the public, to Fund 198, County -owned or operated museums to be used for a one -time payment pursuant to a Category C(2) Agreement with the Marco Island Historical Society. G. AIRPORT AUTHORITY 5" 1. Recommendation to approve a License Agreement with Walker Pg. 2231 - International Events, Inc. at the Immokalee Airport for a two (2) 2238 day circus event. BOARD OF COUNTY COMMISSIONERS 1. Commissioner Fiala requests Board approval for reimbursement Pg. 2239 - regarding attendance at a function serving a Valid Public Purpose. 2241 Attended the U.S. Coast Guard Change of Watch on January 7, 2012. The sum of $50 to be paid from Commissioner Fiala's travel budget. 2. Commissioner Coletta requests Board approval for Pg. 2242 - reimbursement regarding attendance at a function serving a Valid 2244 Public Purpose. Attended the Eastern Collier Chamber of Commerce Breakfast at Roma Havana Restaurant, Immokalee, FL on January 4, 2012. $15 to be paid from Commissioner Coletta's travel budget. 3. Commissioner Coletta requests Board approval for Pg. 2245 - reimbursement regarding attendance at a function serving a Valid 2248 Public Purpose. Will be attending the Leadership Collier Foundation Alumni Box Lunch Speaker Forum at the Professional Development Center, Naples, FL on January 26, 2012. $10 to be paid from Commissioner Coletta's travel budget. 4. Commissioner Hiller requests Board approval for reimbursement Pg. 2249 - regarding attendance at a function serving a Valid Public Purpose. 2251 Attended the Pre Legislative Breakfast with Florida Senator Richter. $25 to be paid from Commissioner Hiller's travel budget. 5. Commissioner Hiller requests Board approval for reimbursement Pg. 2252 - regarding attendance at a function serving a Valid Public Purpose. 2257 Attending the Cato Institute Naples Luncheon February 6, 2012. $75 to be paid from Commissioner Hiller's travel budget. I. MISCELLANEOUS CORRESPONDENCE J. OTHER CONSTITUTIONAL OFFICERS 1. To obtain Board approval for disbursements for the period of Pg. 2258 - December 24, 2011 through December 30, 2011 and for 2270 submission into the official records of the Board. 2. To obtain Board approval for disbursements for the period of Pg. 2271 - December 31, 2011 through January 6, 2012 and for submission 2285 into the official records of the Board. 3. Recommendation to accept the investment status update report Pg. 2286 - for the quarter ending December 31, 2011. 2288 4. Pursuant to Florida Statute 318.18(13)(b) the Clerk of the Circuit Pg. 2289 - Court is required to file the amount of traffic infraction surcharges 2293 collected under Florida Statute 318.18(13)(a)(1) with the Board of County Commissioners. K. COUNTY ATTORNEY 1. Recommendation to approve an Agreed Order for expert fees and Pg. 2294 - costs and attorney's fees for Parcels 105FEE /TCE and 2302 106FEE /TCE, and a Stipulated Final Judgment for compensation as to Parcel Nos. 106FEE /TCE, in the combined amount of $41,219.17 in the lawsuit styled Collier County v. Annette Pocchi, et al., Case No. 10-2682-CA (Collier Boulevard Project No. 68056) (Fiscal Impact $28,819.17). 2. Authorize the making of an Offer of Judgment to Respondent, Pg. 2303 - Ariam Lopez, for Parcel No.173SE in the amount of $1,000 in the 2308 lawsuit styled Collier County v. Pablo Garcia, et al., Case No. 10- 2683-CA (Collier Boulevard Project No. 68056) (Fiscal Impact $300). 3. Recommendation that the Board of County Commissioners Pg. 2309 - authorize the law firm of Henderson Franklin Starnes & Holt, P.A. 2329 and John Potanovic, Esq. to represent Collier County in the matter entitled Donald Edwards v. Collier County, Florida; Case No. 09- 6111-CA. 4. Recommendation to approve the mediation settlement prior to Pg. 2330 - trial in the lawsuit entitled Maureen Benes and Laddie C. Benes v. 2336 Collier County, Florida, filed in the Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 11- 1879 -CA for the sum of $15,000 and authorize the Chairman to execute the Settlement Agreement. 5. Request for authorization to advertise and bring back for future Pg. 2337 - consideration an ordinance which would establish limitations, in 2345 addition to those set forth in Chapter 538, Part II, Florida Statutes, on the sale of regulated metals (secondary metals). 6. Recommendation that the Board of County Commissioners direct Pg. 2346 - the Collier County Supervisor of Elections to take appropriate 2352 action with respect to the Collier County School District's Resolution 12 -01, which seeks a millage referendum on the November 6, 2012 ballot for the scheduled general election. 17. SUMMARY AGENDA This section is for advertised public hearings and must meet the following criteria: 1) A recommendation for approval from staff; 2) Unanimous recommendation for approval by the Collier County Planning Commission or other authorizing agencies of all members present and voting; 3) No written or oral objections to the item received by staff, the Collier County Planning Commission, other authorizing agencies or the Board, prior to the commencement of the BCC meeting on which the items are scheduled to be heard; and 4) No individuals are registered to speak in opposition to the item. For those items which are quasi - judicial in nature, all participants must be sworn in. A. Moved to Item 8B. This item requires that ex parte disclosure be provided by Commission members. Should a hearing be held on this item, all participants are required to be sworn in. PUDZ -PL- 2011 -2115 Community School of Naples CFPUD. An ordinance of the Board of County Commissioners of Collier County, Florida amending inance Number 2004 -41, as amended, the Collier County Lan evelopment Code, which established the comprehensive zoni regulations for the MINIMUM OF 4 unincorporated area of Collier County, Flor' , by amending the AFFIRMATIVE appropriate zoning atlas map or map changing the zoning VOTES classification of the herein desc . ed real property from a Community Facility (CF) zoning distric a Community Facility Planned Unit Development (CFPU oning district for the project known as Community Sc of Naples CFPUD, located at 13275 Livingston Road in Sectio , Township 49 South, Range 25 East, Collier County, Flor" a consisting of 73 +/- acres subject to conditions; by providing or the repeal of Ordinance Numbers 2000 -06 and 2004 -33, as amended; and by providing an effective date. (Commissioner Hiller's request) Pg. 2353 239 B. Recommendation to adopt an Ordinance amending the Collier County Pg. 2396 - Consolidated Impact Fee Ordinance, Ordinance No. 2001 -13, as 2406 amended, to incorporate a provision clarifying the imposition of Water and Sewer Impact Fees on geographic areas within the Collier County Water -Sewer District until such a time when connection to the regional water and /or sewer system is anticipated within a ten -year period as identified by the most current Public Utilities Water and Wastewater Master Plan Updates and the Annual Update and Inventory Report. C. Recommendation to adopt an ordinance that amends Ordinance No. Pg. 2407 - 04 -12, as amended, for the purpose of revising the Class 2 Certificate of 2413 Public Convenience and Necessity for post - hospital interfacility transport services. D. Recommendation to adopt a resolution approving amendments Pg. 2414 - (appropriating carry forward, transfers and supplemental revenue) to 2417 the Fiscal Year 2011 -12 Adopted Budget. E. Moved to Item 8C. Recommendation to adopt an amendment to Pg. 2, Ordinance No. 2011 -07, t=�;=rch ge Preve a 2467 (FDPO) with an 30, 2012. (Co mmissioner i er's request) 18. ADJOURN Inquiries concerning changes to the Board's Agenda should be made to the County Manager's Office at 252 -8383. RE: Arthrex Contracts RE: Arthrex Contracts RaineyJennifer Sent: Tuesd Clannuary 7, 2 12 2:15 PM To: KlatrkG gia; OchsLeo CC: PattersonAmy; HillerGeorgia; Raineylennifer 10 A Page 1 of 1 ITEM #. �0 /T BCC DATE: BY.CO M 44 C S St-D N -`- 1-tt Lt Jeff/Leo, the Commissioner would like the contracts in their present state, should she need to review them again prior to the BCC meeting she will contact you. Thank you, Jennifer Rainey Executive Aide to Board of County Commissioners Aide to Commissioner Georgia Hiller, District #2 3299 Tamiami Trail East, Suite # 303 Naples, FL 34112 (239) 252 -8602 (239) 252 -6407 Fax - - - -- Original Message---- - From: KlatzkowJeff Sent: Tuesday, January 17, 2012 1:44 PM To: HillerGeorgia; OchsLeo Cc: RaineyJennifer; PattersonAmy Subject: RE: Arthrex Contracts Commissioner: I didn't forget your request. We were still finalizing this late last Friday. Will forward to you, along with the Executive Summary, as soon as they are finalize (hopefully before the end of today). Jeffrey A. Klatzkow County Attorney (239) 252 -2614 - - - -- Original Message---- - From: HillerGeorgia Sent: Tuesday, January 17, 2012 1:32 PM To: OchsLeo; KlatzkowJeff Cc: RaineyJennifer Subject: Arthrex Contracts Would like them today please. Thanks! :) Georgia Hiller Commissioner, District 2 Under Florida Law, e-mail addresses are public records. If you do not want your e -mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Under Florida Law, e -mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Under Florida Law, e -mail addresses are public records. If you do not want your e -mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. https:Hmail. colliergov. net/owa / ?ae= Item &t =1 PM. Note &id= RgAAAACBw7hYJwxlS... 1/24/2012 FW: Arthrex Contracts Page 1 of 2 O FW: Arthrex Contracts OchsLeo Sent: Tuesday, January 17, 2012 3:01 PM To: HillerGeorgia Cc: Klatzkowleff; IsacksonMark; CasalanguidaNick; PattersonAmy Attachments: Arthrex Fee Payment Agreem —Ldoc (271 KB) ; Arthrex Job Creation Agree— Ldoc (560 KB) ; Arthrex Broadband Agreemen —l.doc (602 KB) ; Arthrex Fee Payment Agreem -2.doc (407 KB) Commissioner, Re sted draft agreements attach VR, Leo - - - -- Original Message---- - From: PattersonAmy Sent: Tuesday, January 17, 2012 2:51 PM To: OchsLeo Subject: RE: Arthrex Contracts Please see attached. Thank you, Amy - - - -- Original Message---- - From: HillerGeorgia Sent: Tuesday, January 17, 2012 2:15 PM To: KlatzkowJeff Cc: OchsLeo; RaineyJennifer; PattersonAmy Subject: Re: Arthrex Contracts Jeff, I'd like the drafts as they existed when you reviewed them last week. Please email now. Thanks! Georgia Hiller Commissioner, District 2 On Jan 17, 2012, at 1:44 PM, KlatzkowJeff <JeffKlatzkow @colliergov.net> wrote: > Commissioner: I didn't forget your request. We were still finalizing this late last Friday. Will forward to you, along with the Executive Summary, as soon as they are fi a opeful re t o ay . > Jeffrey A. Klatzkow > County Attorney > (239) 252 -2614 • - - - -- Original Message - - - -- • From: HillerGeorgia • Sent: Tuesday, January 17, 2012 1:32 PM • To: OchsLeo; KlatzkowJeff • Cc: RaineyJennifer • Subject: Arthrex Contracts https:Hmail. colliergov. net/owa / ?ae= Item &t =1 PM. Note &id= RgAAAACBw7hYJwxlS... 1/24/2012 FW: Arthrex Contracts Page 2 of 2 >Would like them today please. >Thanks! :) >Georgia Hiller >Commissioner,District 2 >Under Florida Law,e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request,do not send electronic mail to this entity. Instead,contact this office by telephone or in writing. >Under Florida Law,e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request,do not send electronic mail to this entity. Instead,contact this office by telephone or in writing. Under Florida Law,e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request,do not send electronic mail to this entity. Instead,contact this office by telephone or in writing. Under Florida Law,e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request,do not send electronic mail to this entity. Instead,contact this office by telephone or in writing. Under Florida Law,e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request,do not send electronic mail to this entity. Instead,contact this office by telephone or in writing. https://mail.colliergov.net/owa/?ae=Item&t=IPM.Note&id=RgAAAACBw7hYJwxIS... 1/24/2012 Arthrex Page 1 of 1 1 0 A _cck . Arthrex Klatzkow3e• Sent: W:o nesday,January 04,2012 3:20 P To: IerGeorgia Cc: Patt• - •nAmy Commissioner: I spoke with Amy Patterson. We sent them draft agreement for their review with the hope of getting to the Board January 24th. We are now waiting on their response. If and when we finalize the matter,I will send you a copy of the agreements that would be going to the Board. Jeffrey A. Klatzkow County Attorney (239) 252-2614 Under Florida Law.e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request.do not send electronic mail to this entity. Instead,contact this office by telephone or in writing. https://mail.colliergov.net/owa/?ae=Item&t=IPM.Note&id=RgAAAACBw7hYJwxIS... 1/24/2012 RE: Arthrex RE: Arthrex Sent: Wednesday, December 07, 2011 9: AM TO HillerG\�nrnia Page 1 of 1 I have not seen any proposed contracts yet. My understanding is that staff is in discussions with Arthrex, with the hope to bring something to the Board in early 2012. I would probably get something for review in January or so. Jeffrey A. Klatzkow County Attorney (239) 252 -2614 - - - -- Original Message---- - From: HillerGeorgia Sent: Tuesday, December 06, 20116:06 PM To: KlatzkowJeff Subject: Arthrex What's up with the incentive contracts? Georgia Hiller Commissioner, District 2 Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. https :Hmail.colliergov.net/owa/ ?ae= Item& t = IPM .Note &id= RgAAAACBw7hYJwxlS... 1/24/2012 HillerGeoraia l0A Commissioner, It is my understanding that Arthrex did not place this on the 7/26 agenda. It would be up to them as to when they wish to have it heard. David, Do you have any additional information? Len Golden Price - - - -- Original Message---- - From: HillerGeorgia Sent: Monday, July 18, 2011 2:13 PM To: OchsLeo; PriceLen; CasalanguidaNick; JacksonDavid; Klatzkowieff Subject: Arthrex Contracts When will they be coming forward? Where in the negotiating is the county? Thank you - Georgia Hiller Commissioner, District 2 Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. 1 From: PriceL Sent: Mond , July 18, 20 14:36 PM To: HillerG r ia; O eo; CasalanguidaNick; JacksonDavid; KlatzkowJeff Cc: IsacksonMar Subject: RE: Arthrex Contracts Commissioner, It is my understanding that Arthrex did not place this on the 7/26 agenda. It would be up to them as to when they wish to have it heard. David, Do you have any additional information? Len Golden Price - - - -- Original Message---- - From: HillerGeorgia Sent: Monday, July 18, 2011 2:13 PM To: OchsLeo; PriceLen; CasalanguidaNick; JacksonDavid; Klatzkowieff Subject: Arthrex Contracts When will they be coming forward? Where in the negotiating is the county? Thank you - Georgia Hiller Commissioner, District 2 Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. 1 Agenda Item 10A- Economic Incentive Agreements TV A 2 ITEM #: C A BCC DATE: BY: #' Cif✓ Iii 7 Agenda Item 10A- Economic Incentive Agreements Peter Gaddy [petergaddy @gmail.com] LEE COUNTY ECONOMIC DEVELOPMENT Sent: Monday, January 23, 2012 6:39 PM CONTRACTS To: KlatzkowJeff Cc. Dwight E. Brock; Crystal Kinzel [CrystalKinzel @aol.com]; FialaDonna; CoyleFred; HillerGeorgia; ColettaJim; HenningTom Attachments: Source 6 -30 -09 Performance— 1. pdf (949 KB) Jeffrey Klatzkow Collier County Attorney Dear Mr. Klatzkow: I am concerned regarding the lack of definition and clarity contained in the economic incentive agreements proposed in item l0A on tomorrows County Commission Agenda. The proposed agreements suffer from a lack of definition and specificity. They are basically the same form agreements the EDC has been using since its inception. As you are aware the results have not been good. The agreements are insufficient for an economic development initiative of the scope and scale proposed which involves a large multi - national Company. An established formula for payment of incentives is essential for a healthy economic development program. Potential future disputes have the potential to disparage the county's economic development efforts. The following deficiencies are apparent: 1. There is no definition of "jobs" or where they need to be located. How many hours per week does an employee need to work and where? The definition of "jobs" contained in the ordinance is vague and ambiguous. 2. No year or interval is specified for "average wage ". 3. If the purpose of these agreements is to create new jobs, what is the base number of employees with which we are starting? What is the base number of jobs, who are they and where do they work? Without a base number of jobs to start with it will be impossible to determine if there has in fact been a net increase in jobs. 4. There are no clear provisions as to what should happen in the event of an acquisition, merger, consolidation, or other reorganization. 5. Arthrex, Inc. and Arthrex Manufacturing, Inc. cannot be treated as a single entity as there is no provision in the ordinance to permit such blending. Old and new jobs will need to be segregated as will east versus west jobs. https: / /maii.colliergov. net/owa / ?ae= Item &t =1 PM. Note &id= RgAAAACBw7hYJwxlS... 1/24/2012 Agenda Item 10A- Economic Incentive Agreements 10A 6. No copy of the land lease has been provided. What is the county collateral? Page 2 of 2 In stark contrast to the agreements proposed are the agreements used in the Lee County economic development program. For comparison a copy of Lee incentive agreement is attached. I will send all of the Lee agreements under separate cover. The Lee county agreements are noteworthy for their clear and concise definitions, which provide for simplified administration and reduce the likelihood of future disputes and litigation. The Coalition for Open Economic Development, Inc. does not support economic development agreements, such as those proposed, which are materially deficient so as to create uncertainty and lack a clear and concise methodology for verification. Respectfully submitted, Peter Paul Gaddy President Coalition for Open Economic Development, Inc. https: / /mail.colliergov. net/owa / ?ae= Item &t =1 PM. Note &id= RgAAAACBw7hYJwxlS... 1/24/2012 LEE COUNTY ECONOMIC DEVELOPMENT CONTRACTS Lee County Board Of County Commissioners Blue Sheet No. 20090611 A enda Item Summary 1. ACTION REQUESTED/PURPOSE: Approve Performance Agreement for project #LC- 09 -05 -02 an existing Lee County corporate headquarters for the Lee County FIRST Incentive Program in the amount of $1,000,000. Item was deferred on June 23, 2009. 2. FUNDING SOURCE: General Fund 3. WHAT ACTION ACCOMPLISHES: Furthers the goals of diversifying Lee County's economy through the creation of high -wage, high skill target industry based employment. 4. MANAGEMENT RECOMMENDATION: Approve 5. Departmental Category: C01 6. Meeting Date: 6/30/2009 7. Agenda: 8. Requirement/Purpose: (specify) 9. Request Initiated ❑ Statute Commissioner: All Carry Over ❑ Ordinance Department: ECONOMIC DEVELOPMENT ❑ Admin Code Division: No Divisions 12. Commission Action: ❑ Other By: James Moore 10. Background: On May 26, 2009, the Board of County Commissioners conditionally approved project #LC- 09 -05 -02 as a qualified application for the FIRST Incentive Program for $1.7 M. However, after negotiations with the company, the award amount is $1,000,000.00. Project #LC- 09 -05 -02 has selected Lee County as the site for the expansion project creating 350 new full -time jobs in the next twenty -four months effective date of July 1, 2009. These positions will pay an average wage equaling 179% of the Lee County average, plus benefits. In addition, 278 full -time existing jobs will be retained. The attached Performance Agreement sets forth the award amount, performance criteria the project must satisfy to obtain incentive payments, the disbursement schedule for performance based payments and any sanctions imposed for failure to attain specified benchmarks. Funds are available in GC5890100100.509922.743. 11. Required Review: �r�.. , ECONOMIC DEVELOPMENT Budget Analyst Budget Services County Attorney County Manager 12. Commission Action: 10A LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT - 1 - THIS INCENTIVE AWARD AGREEMENT is made and entered into this day of June 2009, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County") and LC- 09- 05 -02, ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 - Million bf budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, Company has applied to County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has established terms and conditions herein whereby Company by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commission purpose which includes promotion of economic County's tax base. In consideration for the mutual promises and a€ consideration, County and the Company agree as 1. RECITALS and declares that this Agreement serves a public dent, job growth, and the future expansion of the contained herein, and other valuable and good The above 'recitals, are,true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 2.1 "Job7, . shall rriean permanent, full -time equivalent employment. Each person or combination of persons who work at least thirty-five (35) hours a week at the Project site in a benefit enhanced non - temporary capacity, under the control and supervision of Company, shall be counted as one full -time equivalent Job. 2.2 "Average Project Wage" shall mean the annualized average of all wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2.3 "Qualified Capital Investment" shall mean investments made by or on behalf of Company for purchasing Project facility, constructing improvements to real property as would be included in the basis of such property for federal tax purchases, and acquiring or leasing furniture, fixtures and equipment. 10 _2_ 2.4 "Effective Date" is July 1, 2009. The Agreement shall not be effective against any Party until said date. 2.5 "Base Jobs" is two - hundred -sixty (260) Jobs for purposes of this Agreement. 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A ", attached and incorporated herein by reference. 3.2 Company represents and warrants that on July 1, 2009, Company has a total of 260 Jobs located or based at the Project site(s). Company commits to maintaining one- hundred percent (100 %) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any information derived from any such review shall be confidential and shall not be released by County or its representative to any third party. 3.3 Company shall create at least 350 new Jobs as part of Project that pay an Average Project Wage of at least $65,000.00 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. Company commits to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $1,300,000.00 pursuant to the schedule set ;forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress" report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified, by the Chief Financial Officer of Company, and be received by the County no later, than August 15th of each year. 4. COUNTY OBLIGATIONS 4.1 County has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $1,000,000.00 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. 4.2 A, payment of $250,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. 4.2.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection these conditions must be satisfied no later than June 30, 2010. 4.3 Payments of $2,143.00 per new Job created will be paid to Company on a calendar year quarterly basis, provided that the sum of all such quarterly payments made pursuant to this Subsection shall not exceed $750,000.00 over the term of this Agreement. 4.3.1 Incentive Award payments for new Jobs shall be calculated by: 10 A 4 -3- 4.3.1.1 Subtracting Base Jobs from the total payroll Jobs at the end of the quarter in question, then multiplying the difference by $2,143.00. Next subtract the sum total of previous payments made under this Subsection. If the total is a positive number, the County will pay that amount to Company. If the total is negative, no payment will be made for that quarter. A summary explanation and examples of payment of jobs related Incentive Award payments under this Subsection is attached as "Exhibit D," attached and incorporated herein by reference. 4.3.2 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.3.3 To receive payment under this Subsection, new Jobs are expected,to be created by June 31, 2011 and verification should be provided no later than August 1, 2011. However, Company may make a one -time election to extend the job creation schedule by one year. This election must be approved by County in writing, and County shall not unreasonably withhold such approval. Exercising this option shall result in a one -year extension of the term of the performance requirements and sanctions. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event company fails to create and retain the total number of Jobs specified in Sections 3.2 through 3.3, so that on termination of this Agreement Company's payroll Jobs total is less than six - hundred -ten (610), the company shall repay, all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1.1 Should the Company's total Jobs =lie less than four - hundred -fifty-three (435), the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement; If any, Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty- five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial leading rate from the date of termination until paid. 5.1.2 Should Company's total Jobs be equal to or greater than four - hundred -fifty -three (435) but less than six - hundred -ten (610), Company shall repay a portion of the sum total of any Jobs related Incentive Award payments previously made by County to Company pursuant to Section 4.3. Company's Section 4.3 Incentive Award payments will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid.. 5.2 Should the Average Project Wage of all Jobs in existence as of July 1, 2010 be less than $58,500.00, the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 10A -4- 5.3 In the event company fails to make or cause to be made a Qualified Capital Investment in the Project of at least $1,000,000.00 by the date this Agreement terminates, Company shall repay five percent (5 %) of the sum total of any Incentive Award payments previously made by County to Company. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand for same. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 6.2 Company is in default if any representation or warranty made by the, Company herein or in any report, statement, invoice, certificate or other documentation furnished to' the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not `been corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the County. 6.3 Company is in default if it fails to provide to the County the'written verification, satisfactory to the County, of its performance of obligations herein: ; 7. REMEDIES 7.1 Company's remedy for default by ( become obligated hereby. Such ch and shall not exceed the total Incent 7.2 County's remedies for default by Cc suit upon this Agreement, or both. 8. TERM AND TERMINATION [aim for the sums to which County has .ide consequential or special damages, specified in Section 4.1. may include, but shall not be limited to, a claim or 8.1 Unless terminated earlier in accordance with its terms, this Agreement shall terminate on the earlier of. 8.1.1 Five, (5) years from the Effective Date; $.1.2 The execution by all Parties of a written agreement terminating this Agreement; 8.1.3 At the option of a Party in the event the other Party is in default; or 8.1.4 At the option of County if Company suffers an event of bankruptcy or insolvency. 8.2 Section 3.5 and Section 5 shall expressly survive termination or expiration of this Agreement to the extent necessary to fully comply with the terms of Section 5. 8.3 Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration. 10A 9. ATTORNEY FEES AND EXPENSES -5_ Should County prosecute any action in connection with this Agreement for collection of payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of Company herein contained, County shall be entitled to the award of its court costs and reasonable attorney's fees. 10. NOTICES AND ADMINISTRATORS 10.1 All notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by County and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore COMPANY Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number: (239) 338 -3227 11. BINDING EFFECTS AND ASSIGNMENT 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by Company without the prior written consent of the County- 12. GOVERNING LAW_ 1 2. 1 This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida. Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. '12.2 Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 10A "I 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between Company and County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements," advertisements, or other forms of publicity concerning its efforts in connection with this Agreement. However, unless otherwise agreed, the Party publicizing its efforts shall provide a courtesy copy of any written material to the other Party for review and comment prior to publication. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNFICATION 18.1 Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind Company. 18.2 Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit Company from locating its facility in Lee County, Florida. 18.3 OTHER THAN COMPANY'S CLAIMS FOR DEFAULT BY COUNTY, COMPANY SHALL- INDEMNIFY AND HOLD COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10A DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the COMPANY presence of: Witness Witness ATTEST: CHARLIE GREEN CLERK OF COURTS BY: Authorized Signature Date APPROVED AS TO FORM: IC Office of the County Attorney 10 A r EXHIBIT A Project Description 10A EXHIBIT B Job Creation and Wage Schedule E Phase Number of net new full -time equivalent Jobs created in Lee County, FL Date by which jobs will be created I 50 12/31/2009 11 300 06/30/2011 Total 350 350 new Jobs will pay an average annual wage of $65,000 plus benefits.' lOk 10 EXHIBIT C Qualified Capital Investment Schedule 2009 2010 N/A Land $0 $0 Construction / Renovations $200,000 $200,000 Manufacturing Equipment $0 $0 R &D Equipment $0 $0 Other Equipment (computer equipment, office furniture, etc. ) $400,000 $500,000 Total Capital Investment $600,000 $700,000 10 EXHIBIT D New Jobs Incentive Award Payment Methodology 11 1. Document total employment at end of period (Q1, Q2, Q3, or Q4) 2. Subtract Base Jobs from total employment 3. Multiply difference by dollar award per new job created 4. Subtract sum total of payments previously made for new job creation (Section 4.3 payments) 5. Make payment accordingly Example New Jobs Payments (Illustration) 1. September 30, 2009 total Jobs = 378 a) 378 (Jobs) — 278 (Base Jobs) = 100 b) 100 X $2,134 (award/job) = $213,400 c) $213,400 - $0 (previous Section 4.3 payments) - $213,400 d) County pays Company $213,400` 2. December 31, 2009 total Jobs = 428 a) 428 — 278 = 150 b) 150X$2,134=$320,100 c) $320,100 - $213,400 = $106,700 d) County pays Company $106,700 , 3. March 31, 2010 total Jobs 418 a) 418 278 140 b) 140 X $2,134, $298,7. 50 c) $298,750 - ,($213,400 +$106,700) = ($21,340) 4. June 30, 2010 total Jobs = 483 a) 483 — 278 = 205 b) 205 X $2,134 = $427,470 C) $427,470 - $320,100 = $107,370 d) County pays Company $107,370 5. Sum of payments under Section 4.3 shall not exceed $750,000 10A 3 12 EXHIBIT E Repayment Amount Calculation STEP 1 Actual Jobs Created & Maintained (total # of employees) = Percentage of Committed Jobs 610 STEP 2 Cumulative Section 4.3 Incentive Award Payments for Jobs creation X Percentage of Committed Jobs Adjusted Award Amount STEP 3 Cumulative Section 4.3 Incentive Award Payments for Jobs creation — Adjusted Award Amount Repayment Amount Example — Partial Repayment Necessary.., Maximum Section 4.3 payment of $750,000 is made upon creation of 350 Committed Jobs, for a total payroll count of 610. However, upon termination of the Agreement the total payroll count is 600, indicating new Jobs creation and maintenance of 322. • Actual jobs delivered = 322 (92 %,of Camnutment) • Performance > 50% but < 100 6/o, so partial repayment of previously disbursed Section 4.3 Incentive Award payments is required. • $750,000 X 92% = $690,000 (Adjusted Award Amount) • $750,000 - $690,000. = 60, $000 (Repayment Amount) 10A LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS INCENTIVE AWARD AGREEMENT is made and entered into this 30th day of June, 2009, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County") and Source Interlink Companies, Inc., ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, Company has applied to County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has established terms and conditions herein whereby Company by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commissioners finds and declares that this Agreement serves a public purpose which includes promotion of economic development, job growth, and the future expansion of the County's tax base. In consideration for the mutual promises and agreements contained herein, and other valuable and good consideration, County and the Company agree as follows: I. RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 2.1 "Job" shall mean permanent, full -time equivalent employment. Each person or combination of persons who work at least thirty -five (35) hours a week at the Project site in a benefit enhanced non - temporary capacity, under the control and supervision of Company, shall be counted as one full -time equivalent Job. 2.2 "Average Project Wage" shall mean the annualized average of all wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2.3 "Qualified Capital Investment" shall mean investments made by or on behalf of Company for purchasing Project facility, constructing improvements to real property as would be included in the basis of such property for federal tax purchases, and acquiring or leasing furniture, fixtures and equipment. (f 1) 1 10 2.4 "Effective Date" is July 1, 2009. The Agreement shall not be effective against any Party until said date. 2.5 "Base Jobs" is two - hundred -sixty (260) Jobs for purposes of this Agreement. 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A ", attached and incorporated herein by reference. 3.2 Company represents and warrants that on July I, 2009, Company has a total of two- hundred- sixty (260) Jobs located or based at the Project site(s). Company commits to maintaining one - hundred percent (100 %) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any information derived from any such review shall be confidential and shall not be released by County or its representative to any third Party. 3.3 Company shall create at least 350 new Jobs as part of Project that pay an Average Project Wage of at least $65,000.00 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. Company commits to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $1,300,000.00 pursuant to the schedule set forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by the Chief Financial Officer of Company, and be received by the County no later than August 15`h of each year. 4. COUNTY OBLIGATIONS 4.1 County has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $1,000,000.00 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. 4.2 A payment of $250,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. 4.2.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection these conditions must be satisfied no later than June 30, 2010. 4.3 Payments of $2,143.00 per new Job created will be paid to Company on a calendar year quarterly basis, provided that the sum of all such quarterly payments made pursuant to this Subsection shall not exceed $750,000.00 over the term of this Agreement. 10 A .'1 -3- 4.3.1 Incentive Award payments for new Jobs shall be calculated by: 4.3.1.1 Subtracting Base Jobs from the total payroll Jobs at the end of the quarter in question, then multiplying the difference by $2,143.00. Next subtract the sum total of previous payments made under this Subsection. If the total is a positive number, the County will pay that amount to Company. If the total is negative, no payment will be made for that quarter. A summary explanation and examples of payment of jobs related Incentive Award payments under this Subsection is attached as "Exhibit D," attached and incorporated herein by reference. 4.3.2 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.3.3 To receive payment under this Subsection, new Jobs are expected to be created by June 31, 2011 and verification should be provided no later than August 1, 2011. However, Company may make a one -time election to extend the job creation schedule by one year. This election must be approved by County in writing, and County shall not unreasonably withhold such approval. Exercising this option shall result in a one -year extension of the term of the performance requirements and sanctions. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event company fails to create and retain the total number of Jobs specified in Sections 3.2 through 3.3, so that on termination of this Agreement Company's payroll Jobs total is less than six - hundred -ten (610), the company shall repay all or a portion of the Incentive Award ( "Repayment Amount ") less the amount designated for qualified capital investment. The Repayment Amount shall be determined as follows: 5.1.1 Should the Company's total Jobs be less than four - hundred - thirty -five (435), the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty- . five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.2 Should Company's total Jobs be equal to or greater than four - hundred - thirty -five (435) but less than six - hundred -ten (610), Company shall repay a portion of the sum total of any Jobs related Incentive Award payments previously made by County to Company pursuant to Section 4.3. Company's Section 4.3 Incentive Award payments will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid.. 5.2 Should the Average Project Wage of all Jobs in existence as of July 1, 2011 be less than $58,500.00, the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to 10A -4- repay the Incentive Award amounts to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.3 In the event company fails to make or cause to be made a Qualified Capital Investment in the Project of at least $1,000,000.00 by the date this Agreement terminates, Company shall repay five percent (5 %) of the sum total of any Incentive Award payments previously made by County to Company. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand for same. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 6.2 Company is in default if any representation or warranty made by the Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not been corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the County. 6.3 Company is in default if it fails to provide to the County the written verification, satisfactory to the County, of its performance of obligations herein. 7. REMEDIES 7.1 Company's remedy for default by County shall be a claim for the sums to which County has become obligated hereby. Such claims shall not include consequential or special damages, and shall not exceed the total Incentive Award amount specified in Section 4. I. 7.2 County's remedies for default by Company may include, but shall not be limited to, a claim or suit upon this Agreement, or both. 8. TERM AND TERMINATION 8.1 Unless terminated earlier in accordance with its terms, this Agreement shall terminate on the earlier of: 8.1.1 Five (5) years from the Effective Date; 8.1.2 The execution by all Parties of a written agreement terminating this Agreement; 8.1.3 At the option of a Party in the event the other Party is in default; or 8.1.4 At the option of County if Company suffers an event of bankruptcy or insolvency. 8.2 Section 3.5 and Section 5 shall expressly survive termination or expiration of this Agreement to the extent necessary to fully comply with the terms of Section 5. 8.3 Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration. 9. ATTORNEY FEES AND EXPENSES -5- Should County prosecute any action in connection with this Agreement for collection of payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of Company herein contained, County shall be entitled to the award of its court costs and reasonable attorney's fees. 10. NOTICES AND ADMINISTRATORS 10AAll notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by County and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number: (239) 338 -3227 11. BINDING EFFECTS AND ASSIGNMENT Cynthia L. Beauchamp, Esq. General Counsel Source Interlink Companies, Inc. 27500 Riverview Center Blvd., Suite 400 Bonita Springs, Florida 34134 Telephone number: (239) 949 -7624 Fax number: (239) 949 -7689 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by Company without the prior written consent of the County. 12. GOVERNING LAW 12.IThis Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida. Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12.2 Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 10A -. 6 ', .,,, N - 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between Company and County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement. However, unless otherwise agreed, the Party publicizing its efforts shall provide a courtesy copy of any written material to the other Party for review and comment prior to publication. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNIFICATION 18.1 Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind Company. 18.2 Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit Company from locating its facility in Lee County, Florida. 18.3 OTHER THAN COMPANY'S CLAIMS FOR DEFAULT BY COUNTY, COMPANY SHALL INDEMNIFY AND HOLD COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10A 10A ' 8 DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the presence of: ATTEST: CHARLIE GREEN CLERK OF COURTS Deputy Clerk h. rid SEA SOURCE INTERLINK COMPANIES, INC. BY: Authorized Signature ate MVP Title BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA BY: l QWC-Q Chairrnan6/ .... � • 10 A E EXHIBIT A Project Description The Project contemplated by this Agreement entails consolidating Source Interlink Companies, Inc., operations and transferring the functions and staffing from Coral Springs, FL, Middlebury, VT and New York City, New York into the Bonita Springs corporate location. This will result in the addition of 350 new positions being added at the Bonita Springs, Florida facility by June 30, 2011. The Company will renovate its current headquarters location at 27500 Riverview Center Blvd., Bonita Springs, FL 34134 in order to accommodate the following business unit activities and some of the associated personnel: Business Unit Activities SIC or NAICS Code Annualized Wage ($) Bonita Springs - Current 541114 $ 70,878 Coral Springs — Sales, Purchasing, Marketing, Legal, IT, HR, Finance, Customer Service, Creative Services, Audit, Accounting 424920 $ 62,980 Middlebury, VT — Customer Service, Telemarketing 511120 $21,925 New York, NY — Circulation 511120 $ 71,575 10A ' 10 EXHIBIT B Job Creation and Wage Schedule Phase Number of net new full -time equivalent Jobs created in Lee County, FL Date by which jobs will be created 1 50 12/31/2009 11 300 06/30/2011 Total 350 350 new Jobs will pay an average annual wage of $65,000 plus benefits. 10A EXHIBIT C Qualified Capital Investment Schedule 2009 2010 N/A Land $0 $0 Construction / Renovations $200,000 $200,000 Manufacturing Equipment $0 $0 R&D E ui ment $0 $0 Other Equipment (computer equipment, office furniture, etc. ) $400,000 $500,000 Total Capital Investment $600,000 $700,000 JOA � 12 EXHIBIT D New Jobs Incentive Award Payment Methodology I. Document total employment at end of period (Ql, Q2, Q3, or Q4) 2. Subtract Base Jobs from total employment 3. Multiply difference by dollar award per new job created 4. Subtract sum total of payments previously made for new job creation (Section 4.3 payments) 5. Make payment accordingly Example New Jobs Payments (Illustration) 1. September 30, 2009 total Jobs = 378 a) 378 (Jobs) — 278 (Base Jobs) = 100 b) 100 X $2,134 (award/job) = $213,400 c) $213,400 - $0 (previous Section 4.3 payments) = $213,400 d) County pays Company $213,400 2. December 3 I, 2009 total Jobs = 428 a) 428 — 278 = 150 b) 150 X $2,134 = $320,100 c) $320,100 - $213,400 = $106,700 d) County pays Company $106,700 3. March 3 I, 2010 total Jobs =418 a) 418 — 278 = 140 b) 140 X $2,134 = $298,750 c) $298,750—($213,400+$106,700)=($21,340) d) No payment 4. June 30, 2010 total Jobs = 483 a) 483-278=205 b) 205 X $2,134 = $427,470 c) $427,470-$320,100=$107,370 d) County pays Company $107,370 5. Sum of payments under Section 4.3 shall not exceed $750,000 EXHIBIT E Repayment Amount Calculation STEP I Actual Jobs Created & Maintained (total # of employees) _ 610 STEP 2 Cumulative Section 4.3 Incentive Award Payments for Jobs creation X Percentage of Committed Jobs Adjusted Award Amount STEP 3 Cumulative Section 4.3 Incentive Award Payments for Jobs creation — Adjusted Award Amount Repayment Amount 1 p As 13 Percentage of Committed Jobs Example —Partial Repayment Necessary Maximum Section 4.3 payment of $750,000 is made upon creation of 350 Committed Jobs, for a total payroll count of 610. However, upon termination of the Agreement the total payroll count is 600, indicating new Jobs creation and maintenance of 322. • Actual jobs delivered = 322 (92% of Commitment) • Performance > 50% but < 100 %, so partial repayment of previously disbursed Section 4.3 Incentive Award payments is required. • $750,000 X 92% = $690,000 (Adjusted Award Amount) • $750,000 - $690,000 = $60,000 (Repayment Amount) FW: Public Information Request .{ O Page 1 of 2 FW: Public Information Request Peter Gaddy [petergaddy @comcast.net] Sent: Monday, January 23, 2012 6:45 PM To: Klatzkowleff Cc: Dwight E. Brock; Crystal Kinzel [CrystalKinzel @aol.com]; FialaDonna; CoyleFred; HillerGeorgia; ColettaJim; HenningTom Attachments: Algenol Performance Agreem —l.pdf (468 KB) ; Gartner Performance Agreem"l.pdf (907 KB) ; Paramount 6 -16 -09 Performa —l.pdf (700 KB) ; Source 6 -30 -09 Performance— 1. pdf (949 KB) ; 1st Amendment Approved - So —l.pdf (343 KB) ; VR Labs Approved Performan —l.pdf (111 KB) Please see attached. From: Noe, Susan [mailto:SNoe @leegov.com] Sent: Tuesday, August 09, 2011 16:54 To: petergaddy @comcast.net Cc: Moore, James; Berg, Jennifer; Hagen, Gregory Subject: RE: Public Information Request Dear Mr. Gaddy, On Jim Moore's behalf since he is out of town, I am attaching the five Performance Agreements for the FIRST incentive program. If you have any questions or need additional information, please feel free to contact me. Susan Noe Manager, Business Assistance Fort Myers Regional Partnership Lee County's Office of Economic Development 12800 University Drive, Suite 300 Fort Myers, FL 33907 (239) 338 -3161 Direct: (239) 461 -6812 Fax: (239) 338 -3227 Email: snoeaa leegov.com FortMyersRegionalPartnership.com From: Peter Gaddy [mailto:petergaddy @comcast.net] Sent: Tuesday, August 09, 2011 1:32 PM To: Moore, James Subject: Public Information Request Dear Mr. Moore: https: / /mai1.colliergov. net /owa / ?ae= Item& t = IPM .Note &id= RgAAAACBw7hY,JwxlS... 1/24/2012 FW: Public Information Request 10 A Page 2 of 2 1 saw your very informative letter to the editor in the Naples Daily News. Good letter. Could you please send me electronic copies of the Performance Agreements that have been approved by the Board of County Commissioners for the Lee First program? Thank you, Peter Gaddy President Coalition for Open Economic Development, Inc. THIS MESSAGE MAY BE CONSIDERED CONFIDENTIAL- If the recipient requests confidentiality under the provisions of Section 288.075 Florida Statutes, this message will be considered confidential and exempt from disclosure under Florida Public Records Law. Otherwise, the following will apply: Florida has a very broad public records law. Most written communications to or from County Employees and officials regarding County business are public records available to the public and media upon request. Your email communication may be subject to public disclosure. Under Florida law, e-mail addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. THIS MESSAGE MAY BE CONSIDERED CONFIDENTIAL- If the recipient requests confidentiality under the provisions of Section 288.075 Florida Statutes, this message will be considered confidential and exempt from disclosure under Florida Public Records Law. Otherwise, the following will apply: Florida has a very broad public records law. Most written communications to or from County Employees and officials regarding County business are public records available to the public and media upon request. Your email communication may be subject to public disclosure. Under Florida law, e-mail addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. Please note: Florida has a very broad public records law. Most written communications to or from County Employees and officials regarding County business are public records available to the public and media upon request. Your email communication may be subject to public disclosure. Under Florida law, email addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. THIS MESSAGE MAY BE CONSIDERED CONFIDENTIAL- If the recipient requests confidentiality under the provisions of Section 288.075 Florida Statutes, this message will be considered confidential and exempt from disclosure under Florida Public Records Law. Otherwise, the following will apply: Florida has a very broad public records law. Most written communications to or from County Employees and officials regarding County business are public records available to the public and media upon request. Your email communication may be subject to public disclosure. Under Florida law, e-mail addresses are public records. If you do not want your email address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. https- Hmai1.colliergov. net /owa / ?ae= Item& t = IPM .Note &id= RgAAAACBw7hYJwxIS... 1/24/2012 10 Lee County Board Of County Commissioners Blue Sheet No. 20100073 Agenda Item Summa 1. ACTION REQUESTED /PURPOSE: Final approval of a Performance Agreement with Algenol Biofuels, Inc. setting forth performance criteria that must be satisfied to obtain grant from the County FIRST Incentive Program. The project consists of a corporate headquarters, research laboratory and process development expansion. The amount of the grant (still under negotiation) will be outlined in the Performance Agreement that will be made available before the BOCC meeting date of February 2, 2010. 2. FUNDING SOURCE: No funding required at this time 3. WHAT ACTION ACCOMPLISHES: Furthers the goals of diversifying Lee County's economy through the creation of high -wage, high skill target industry based employment. 4. MANAGEMENT RECOMMENDATION: N /A. 5. Departmental Category: AIA 6. Meeting Date: 2/2/2010 7. Agenda: 8. Requirement/Purpose: (specify) 9. Request Initiated ❑ Statute Commissioner: All Administrative ❑ Ordinance Department: ECONOMIC DEVELOPMENT 12. Commission Action: ❑ Admin Code Division: No Divisions El B : James Moore 10. Background: Algenol Biofuels, Inc. is an existing corporate headquarters company considering consolidation of operations of a laboratory, R & D and process development. If Lee County is selected for the project, the company proposes to create 120 full -time jobs in the County over the next 4 years, in addition to new indirect job creation of 495 jobs over 5 years. These positions will pay an average wage over 150% of the Lee County average, plus benefits. The estimated Qualified Capital for the project is more than $18 million. The economic impact of the project is projected to be $123 million over 5 years. The Lee County FIRST Incentive Program was approved by the BoCC's and $25 million of budget reserves was set aside for economic development projects during the FY 09/10 budget hearings. If approved, Algenol Biofuels, Inc. will sign a performance grant agreement that sets forth the award amount, performance criteria the project must satisfy to obtain incentive payments, the disbursement schedule for performance based payments, and any sanctions imposed for failure to attain specified benchmarks. 11. Required Review: c cif ti &_P„y �' d/ 6 _ 94," _91-- c7r— ECONOMIC DEVELOPMENT County Attorney Budget Analyst Risk Budget Services County Manager 12. Commission Action: 10A 'k, LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT / THIS INCENTIVE AWARD AGREEMENT is made and entered into this day of 20fO by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County") and Algenol Biofuels, Inc. ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, Company seeks to expand and consolidate its existing operations in Lee County, Florida; and WHEREAS, Company has applied to County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has established terms and conditions herein whereby Company by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commissioners finds and declares that this Agreement serves a public purpose which includes promotion of economic development, job growth, and the future expansion of the County's tax base. In consideration for the mutual promises and agreements contained herein, and other valuable and good consideration, County and Company agree as follows: L RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 2.1 "Job" shall mean permanent, full -time equivalent employment. Each person or combination of persons who work at least thirty-five (35) hours a week at the Project site in a benefit enhanced non - temporary capacity, under the control and supervision of Company, shall be counted as one full -time equivalent Job. 2.2 "Average Project Wage" shall mean the annualized average of all wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2.3 "Qualified Capital Investment" shall mean investments made by or on behalf of Company for purchasing manufacturing and research and development equipment for Project facility, constructing improvements to real property as would be included in the basis of such property for federal tax purposes, and acquiring or leasing furniture, fixtures and equipment. For purposes of this Agreement, employee relocation costs will also be considered Qualified Capital Investment. 2.4 "Effective Date" is March 1, 2010. The Agreement shall not be effective against any Party until said date. 2.5 "Base Jobs" is twelve (12) Jobs for purposes of this Agreement. Ala 2 -2 -10 10 2.6 "New Jobs" is total jobs in Lee County less Base Jobs. 2.7 "Project Site(s)" is 28100 Bonita Grande Dr., Bonita Springs, FL 34135 and an additional site(s) to be determined in Lee County, FL. 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A ", attached and incorporated herein by reference. 3.2 Company represents and warrants that on February 1, 2010, Company has a total of 12 Jobs located or based at the Project site(s). Company commits to maintaining one - hundred percent (100 %) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any information derived from any such review shall be confidential and shall not be released by County or its representative to any third Party. 3.3 Company shall have one - hundred -twenty (120) total Jobs by March 1, 2015, as part of Project that pay an Average Project Wage of at least $85,000 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. Company commits-to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $18,483,545 by March 1, 2015, pursuant to the schedule set forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by the Chief Financial Officer of Company, and be received by the County no later than August 15`h of each year. 4. COUNTY OBLIGATIONS 4.1 County has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $10,000,000.00 for Company (the "Incentive Award "). During the term of the County's payment obligations, as described below in Section 4.4, this restricted reserve account shall only be available to Company and shall not be available to County or any other party for any other purpose. The Incentive Award shall be released to Company as specified below. 4.2 Payments shall be made quarterly in the form of reimbursement and not exceed $6,000,000 by February 28, 2011, for expenditures described in Exhibit C, provided Company has met its performance milestones, pursuant to the schedule set forth in Exhibit B. 4.2.1 Supporting documentation, including copies of invoices and proof of payment, shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection these conditions must be satisfied no later than February 28, 2011. 4.3 Payments shall be made quarterly in the form of reimbursement and not exceed $4,000,000, plus remaining unfunded balance from 4.2 by February 28, 2012, for expenditures described in Exhibit C, provided Company has met its performance milestones, pursuant to the schedule set forth in Exhibit B. 4.3.1 Supporting documentation, including copies of invoices and proof of payment, shal I be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. -2- 10A 4.3.2 To receive payment under this Subsection these conditions must be satisfied no later than February 28,2012. 4.4 Funding obligations of the County shall end February 28, 2012. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event Company fails to create and retain the total number of Jobs specified in Sections 3.2 through 3.3 at the wages specified in Section 3.3, and comply with Qualified Capital Investment in the Project set forth in Section 3.4, Company shall repay all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1.1 Should Company's total Jobs be less than one - hundred -eight (108) as of February 28, 2014. Company is in default of this Agreement which will result in the loss.of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty-five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.2 Should Company's total Jobs be less than onc- hundred -eight (108) as of February 28, 2016. Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty-five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.3 Should Company's total Jobs be equal to or greater than one - hundred -eight (108) but less than one - hundred -twenty (120) as of February 28, 2014, Company shal I repay a portion of the sum total of any Incentive Award payments previously made by County to Company. Company shall repay County $200,000 for each committed Job (new Jobs + Base Jobs) it fails to create or maintain. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand. Any amounts due to County shal I bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.4 Should Company's total Jobs be equal to or greater than one - hundred -eight (108) but less than one - hundred -twenty (120) as of February 28, 2016, Company shall repay a portion of the sum total of any Incentive Award payments $200,000 for each committed Job (new Jobs + Base Jobs) it fails to create or maintain. Any Repayment Amount calculated hereunder shall be paid to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.5 Should the Average Project Wage of all Jobs in existence as of February 28, 2014 be less than $76,500 (90% of commitment), Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty- five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. -3- 10A 41 5.1.6 Should the Average Project Wage of all Jobs in existence as of February 28, 2016 be less than $76,500 (90% of commitment), Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty - five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.7 In the event company fails to make or cause to be made a Qualified Capital Investment in the Project of at least $16,635,190 (90% of commitment) by February 28, 2014, Company shall repay fifty percent (50 %) of the sum total of any Incentive Award payments previously made by County to Company. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand for same. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 6.2 Company is in default if any representation or warranty made by Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not been corrected or brought into compliance within thirty (30) days after written notice thereof to Company by the County. 6.3 Company is in default if it fails to provide to the County the written verification, satisfactory to the County, of its performance of obligations herein. 7. REMEDIES 7.1 Company's remedy for default by County shall be a claim for the sums to which County has become obligated hereby. Such claims shall not include consequential or special damages, and shall not exceed the total Incentive Award amount specified in Section 4.1. 7.2 County's remedies for default by Company may include, but shall not be limited to, a claim or suit upon this Agreement, or both. 8. TERM AND TERMINATION 8.1 Unless terminated earlier in accordance with its terms, this Agreement shall terminate on the earlier of 8.1.1 Two (2) years from March 1, 2014; 8.1.2 The execution by all Parties of a written agreement terminating this Agreement; 8.1.3 At the option of a Party in the event the other Party is in default; or 8.1.4 At the option of County if Company suffers an event of bankruptcy or insolvency. 8.2 Section 3.5 and Section 5 shall expressly survive termination or expiration of this Agreement to the extent necessary to fully comply with the terms of Section 5. 8.3 Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration. -4- 10A " ##� 9. ATTORNEY FEES AND EXPENSES Should County prosecute any action in connection with this Agreement for collection of payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of Company herein contained, County shall be entitled to the award of its court costs and reasonable attorney's fees. 10. NOTICES AND ADMINISTRATORS 10. l All notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by County and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number: (239) 338 -3227 11. BINDING EFFECTS AND ASSIGNMENT Paul Woods Chief Executive Officer Algenol Biofuels, Inc. 28100 Bonita Grande Dr., Suite 200 Bonita Springs, FL 34135 Telephone number: (239) 498 -2000 Fax number: (239) 948 -4996 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 Company may not assign this Agreement without the prior written consent of the County, which shall not be unreasonably withheld. 12. GOVERNING LAW 12.1 This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida. Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12.2 Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. -5- l0A 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between Company and County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement. However, unless otherwise agreed, the Party publicizing its efforts shall provide a courtesy copy of any written material to the other Party for review and comment prior to publication. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNFICATION 18.1 Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind Company. 18.2 Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit Company from locating its facility in Lee County, Florida. 18.3 OTHER THAN COMPANY'S CLAIMS FOR DEFAULT BY COUNTY, COMPANY SHALL INDEMNIFY AND HOLD COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. IMe 10A DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the presence of: � r Witness fitness ATTEST: CHARLIE GREEN CLERK OF COURTS BY: Deputy Clerk !:r yC5 SA E �. ALGENOL BIOFUELS, INC. BY: Aut orized Signature Date 6� 0 Title BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA BY: ILIfiNkil Chairwan. APPR lim 7 U l0A EXHIBIT A Project Description Algenol Biofuels Inc. intends to become a fully integrated biofuels company producing ethanol in bio- refineries using DIRECT TO ETHANOL TM technology for the global transportation fuel and plastics markets. Algenol Biofuels plans to bring a world -class integrated biofuel research and engineering facility to Lee County. In addition to biofuels research, the facility will be the core research and development facility for all industrial and air carbon dioxide capture and utilization work, as well as green - chemical research. Algenol has identified two existing buildings totaling 40,000 sq. ft., west of Interstate 75 near Alico Road that is suitable for the first phase of laboratory construction, with an adjacent 40 acres of land suitable for building the pilot -scale production labs. The project will employ at least 120 professional staff with an average wage in excess of $85,000. Business Unit Activities SIC or NA1CS Code Annualized Wage $ Biotechnology Research & Development 541710 $85,000 Organic Chemical Manufacturing 325199 $85,000 Corporate Headquarters 551114 $85,000 10A 'i EXHIBIT B Job Creation and Wage Schedule Phase Cumulative number of New Jobs created in Lee County, FL Date by which jobs will be created 1 30 2/28/2011 11 60 2/28/2012 111 108 2/28/2014 0 10A EXHIBIT C Qualified Capital Investment Schedule Note: The company's commitment to fund and be refunded by Lee County is predicated on the aggregate spending of the column totals, not individual categories. 10 2010 2011 2012 2013 -2014 TOTAL Land $0 $0 $0 $0 $0 Construction / Renovations $4,374,680 $4,346,500 $0 $0 $ 8,721,180 —Manufacturing Equipment $0 $4,078,000 $ 600,000 $ 600,000 $ 5,278,000 R &D Equipment $1,281,000 $ 500,000 $ 426,759 $ 700,000 $ 2,907,759 Other Equipment (computer equipment, office furniture, etc. ) $ 144,750 $ 98,430 $ 40,530 $ 28,950 $ 312,660 Employee Relocation $ 978,446 $ 195,500 $ 52,500 $ 37,500 $ 1,263,946 Total Capital Investment $6,778,876 $9,218,430 $1,119,789 $1,366,450 $18,483,545 Note: The company's commitment to fund and be refunded by Lee County is predicated on the aggregate spending of the column totals, not individual categories. 10 10 Lee County Board Of County Commissioners Blue Sheet No. 20110361 Agenda Item Summary -1. ACTION REQUESTED /PURPOSE: Approval of Gartner, Inc. FIRST Incentive Program award of $1,000,000 and Performance Agreement. The project consists of a regional multinational business enterprise Also, approve transfer from General Fund reserves for $1,000,000 to have budget available for payments. 2. FUNDING SOURCE: General Fund — Economic Development Opportunities 3. WHAT ACTION ACCOMPLISHES: Furthers the goal of diversifying Lee County's economy through the creation of high - paying, target industry based employment. 4. MANAGEMENT RECOMMENDATION: Approve 5. Departmental Category: CIA 6. Meeting Date: 5/24/2011 7. Agenda: 8. Requirement/Purpose: (specify) 9. Request Initiated ❑ Statute Commissioner: All Consent ❑ Ordinance Department: ECONOMIC DEVELOPMENT ❑ Admin Code Division: No Divisions ❑ Other By: James Moore 10. Background: Gartner's expansion is part of a company global expansion strategy. The company will be creating 400 full -time jobs in the County over six years. These positions will pay an average wage equaling 150% of the Lee County average, plus benefits. The Performance Agreement sets forth the award amount, performance criteria the project must satisfy to obtain incentive payments, the disbursement schedule for performance based payments, and any sanctions imposed for failure to attain specified benchmarks. The Lee County FIRST Incentive Program was implemented as a result of the BoCC's decision to set aside $25 million of budget reserves for economic development projects. It is possible that the full $1,000,000 may be paid during the current fiscal year; however, if not, the balance will be budgeted in the proper expense account in the next fiscal year for remaining payments. 11. Required Review: James Nocre Gregg 9C en ReginafdXantor David3{arris Xaren Hawes ECONOMIC DEVELOPMENT County Attorney Budget Analyst Budget Services County Manager 12. Commission Action: l0A LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS INCENTIVE AWARD AGREEMENT is made and entered into this _ day of , 2011, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners (the "County") and Gartner, Inc. (the "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public finds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to find the Lee County FIRST program; and WHEREAS, the Company has applied to the County to participate in the Lee County FIRST Program which will utilize those reserved finds; and WHEREAS, the County has established terms and conditions herein whereby the Company, by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commissioners finds and declares that this Agreement serves a public purpose which includes promotion of economic development, job growth, and the future expansion of the County's tax base. In consideration for the mutual promises and agreements contained herein, and other valuable and good consideration, the County and the Company agree as follows; 1. RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 11 "Base Employment" shall mean three hundred forty-six (346) Jobs. 2.2 "Project" shall mean the expansion of the existing operation in Lee County more particularly described in Section 3 below and in "Exhibit A ", attached and incorporated herein by reference. 2.3 "Project Site" shall mean the Company's existing and to be constructed facilities in Lee County. 2.4 "Job" shall mean permanent (i) fill -time jobs; (ii) Full -time Equivalent Jobs (based on at least a 35 hour work week); and (iii) Qualified Contract Employees, as defined herein at the Project Site. In tabulating hours worked, any paid leave an employee takes during the pay period, such as vacation or sick leave, may be included. Full -time Equivalent Jobs may include both Direct jabs and Support jobs for this Project (as hereinafter defined). 10A ' -2- 2.5 "Qualified Contract Employees" include (a) employees of contractors, joint venture partners or licensees operating under agreement with the Company that are performing functions or services for the Company and/or its Affiliates at the Project Site and (b) personnel engaged directly by the Company as independent contractors to which the Company issues all IRS Form 1099. In addition, Qualified Contract Employees shall be subject to the following additional limitations. Such employees shall: 2.5.1 perform ongoing services or fimctions for the Company at the Project Site that might otherwise be performed by traditional employees, but which the Company has elected to procure through employment of Contract Employees due to the specialized nature of the expertise required or other business purpose; 2.5.2 perform their work for the Company substantially at the Project Site (other than customary business travel); 2.53 not perform services or fimctions limited to term of less than six months; and 2.5.4 not constitute more than Twenty -Five Percent (25 %) of the total new Full -time Equivalent Jobs (as defined herein) claimed by the Company in its claim application. As a condition of including Qualified Contract Employees in the calculation of "Full -time Equivalent Jobs ", the Company shall provide the County with the following information: 2.5.5.1 With respect to employees of contractors, joint venture partners or licensees operating under agreement with the Company, the Company shall provide annually a written certification by the entity supplying the services of such employees to the Company detailing the number of such jobs (oil a fill -time equivalent basis, as set forth herein), and their average wage, substantially consistent with the methods of calculation set forth in this Agreement. 2.5.5.2 with respect to individuals employed directly by the Company as independent contractors, the Company shall provide the County with information derived from the data the Company maintains and reports in connection with its issuance of IRS Form 1099, and calculate the number of jobs and average wage in a manner substantially consistent with methods of calculation set forth in this Agreement. 2.6 "Direct jobs" -- For purposes of this Agreement, "Direct jobs" may include operational or production and related workers assigned directly to the Project. 2.7 "Support jobs" -- For purposes of this Agreement, "Support jobs" may include non - production, support or overhead workers, including legal, administrative and clerical staff, working at the approved business unit, The concept for support jobs is generally only relevant for businesses working on defense or other government contracts or sub- contracts. 2.8 "Fall -time Equivalent Job " -- "Full -time Equivalent Jobs" may be counted as new Fill[- time Equivalent Jobs only if they result in a net increase in Full -time Equivalent Jobs at the business over the average Full -time Equivalent Jobs for the base period, unless otherwise specified in this Agreement. In no case may jobs or job fimctions be counted as new Full -time Equivalent Jobs if they are moved from a related business in Lee County (including a business related by virtue of a merger, purchase, or any form of acquisition) to the business, from another Lee County location of the business to the Project Site, or from any other Lee County business unit. In addition, no temporary l0A -3- construction jobs involved with the construction of facilities for the Project may be included in Full -titre Equivalent Jobs. 2.8.1. Full -time equivalcnt Direct Project jobs -- Full -time equivalent Direct jobs for the Project may be counted as (a) all direct employees working full time (at least 35 hours a week) on the Project, such as production or related work, assigned to and working exclusively on the Project or (b) the total of the hours of direct production or related work assigned to the Project divided by 35. 2.8.2 Full -time equivalent Support Project jobs -- Full -time equivalent Support jobs may be counted for the Project if they are (a) exclusively assigned to and working at least 35 hours a week on the Project or (b) they may be estimated by multiplying the total number of all frill -time Support jobs at the business by the ratio of the number of full - thne Direct jobs to the total of all full -time Direct jobs at the business. In order to calculate total new Full -time Equivalent Jobs, the following methods (or any other method approved by the County) may be used: Total Full -time Equivalent Jobs: the number of Full -time equivalent Support Project jobs may be added to the number of full-time equivalent Direct Project jobs to obtain the total Full -time Equivalent Jobs at a particular point in time. Average Full -time Equivalent Jobs: add the Full -time Equivalent Jobs (Direct and Support) for all pay periods in the measuring period and divide by the number of pay periods in that measuring period to detennine the average Full -time Equivalent Jobs for the period. 2.9 "Average Project Wage" shall mean the average of all annualized wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2,10 "Qualified Capital investment" shall mean investments made by or on behalf of the Company and shall include improvements to real property as would be included in the basis of such property for federal tax purchases, and the acquiring or leasing furniture, fixtures and equipment. 2,11 "Effective Date" is . The Agreement shall not be effective against any Party until said date. 3. COMPANY OBLIGATIONS 3.1 The Company commits to undertake the following Project, which is more particularly described in "Exhibit A ", attached and incorporated herein by reference. 3.2 The Company represents and warrants that as of September 9, 2008, the Company had at least 346 Jobs located or based at the Project Site. The Company commits to maintaining one - hundred percent (100 %) of the Base Employment jobs within Lee County, Florida until this Agreement is terminated, A complete list of employee positions certified by the Company is available for review by a County representative at the Company's offices and any information derived from any such review shall be confidential and shall not be released by the County or its representative to any third Party. _4_ 3.3 The Company shall create at least 400 new Jobs as part of Project that pay an Average Project Wage of at least $54,104 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. The Company commits to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 The Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $20,500,000 pursuant to the schedule set forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, the Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by the Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by an officer of the Company, be received no later than March 15 of each year this Agreement is effective (commencing March 15, 2012) and shall be with respect to the prior calendar year. 3.6 The Company shall have the right to make a one -time election to extend the Job creation and Qualified Capital Investment dates set forth in Exhibit "B" and Exhibit "C" by one (1) year. This election must be communicated to the County and approved by the County in writing, which approval shall not be unreasonably withheld. Excising this option shall result in the extension of the term of this Agreement by (1) year. 4. COUNTY OBLIGATIONS 4.1 The County has budgeted, appropriated, and is holding in a restricted reserve account in the general find of the County the sum of $1,000,000 (the " hncentive Award "). The Incentive Award shall be released to the Company as specified below. 4.2 Payment of $1,000,000 shall be made in the form of reimbursement for expenditures described in Exhibit C, provided the Company has hired at least 80 new Jobs as of the date of such disbursement request and upon verification by the County that the Company has completed not less than $2,000,000 in construction/renovation as shown in Exhibit C of such expenditures. 4.2.1 Supporting documentation, including copies of invoices and proof of payment, shall be submitted to the County for verification of the aforementioned expenditures. Verification must be complete to the County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection, the reimbursement must be requested no later than December 31, 2012, unless extended pursuant to Section 3.6 of this Agreement. S. INCEN'T'IVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event the Company fails to meet the Company Obligations set forth in Section 3 by December 31, 2015, the Company shall repay all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1. I A compliance determination will be made on the date specified in Section 5.1 and shall be calculated in accordance with the formula in "Exhibit D" ( "Average Actual Performance "), attached and incorporated herein by reference. Should the Company's Average Actual Performance be less than eighty percent (80 %), 10A - 5 - the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized and paid. If any Incentive Award payments have been made, the Company will be required to repay the Incentive Award amounts to the County within forty -five (45) days of demand. Any amounts due to the County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of demand notice until paid. 5.1.2 Should the Company's Average Actual Performance be equal to or greater than eighty percent (80 %) but less than one - hundred percent (100 %), the Company's Incentive Award will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to the County within forty-five (45) days of demand. Any amounts due to the County shall bear interest at the rate periodically announced by the Wail Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6.DETAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 6.2 The Company is in default if any representation or warranty made by the Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not been corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the County. 6.3 The Company is in default if it fails to provide to the County the written verification, satisfactory to the County, of its performance of obligations herein. 7. REMEDIES 7.1 The Company's remedy for default by the County shall be a claim for the sums to which the County lies become obligated hereby. Such claims shall not include consequential or special damages, and shall not exceed the total Incentive Award amount specified in Section 4.1. 7.2 The County's remedy for default by the Company shall be a claim for the sums to which the Company has become obligated hereby. Such claims shall not include consequential or special damages. 8, TERM AND TERMINATION 8.1 Unless terminated earlier in accordance with its terms, this Agreement shall terminate on the earlier of: 8.1.1 Six (6) years from the Effective Date; 8.1.2 The execution by all Parties of a written agreement tenninating this Agreement; 8.1.3 At the option of a Party in the event the other Party is in default; or 8.1.4 At the option of the County if the Company suffers an event of bankruptcy or insolvency 10 8.2 Section 3.5 and Section 5 shall expressly survive termination or expiration of this Agreement to the extent necessary to fully comply with the terms of Section 5. 8.3 Tennination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration. 9. ATTORNEY FEES AND EXPENSES Should County prosecute any action in connection with this Agreement for collection of payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of Company herein contained, County shall be entitled to the award of its court costs and reasonable attorney's fees. 10, NOTICES AND ADMINISTRATORS 10.1 All notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by the County or the Company and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2 The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number: (239) 338 -3227 11, BINDING EFFECTS AND ASSIGNMENT Lewis G. Schwartz, SVP and General Counsel Gartner, Inc. 56 Top Gallant Road Stamford, CT 06902 Telephone: (203) 316 6311 Fax: (203) 316 -6245 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by the Company without the prior written consent of the County. 12. GOVERNING LAW 12.1 This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida. The Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12.2 The Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to the County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 10 Ism 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the tennination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between the Company and the County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement, with the prior written consent of the other Party. 18. COMPANY'S WARRANTIES/RE PRE SENTATiONS AND INDEMNFICATION 18.1 The Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind the Company. 18.2 The Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit the Company from locating its facility in Lee County, Florida. 18.3 OTHER THAN THE COMPANY'S CLAIMS FOR DEFAULT BY THE COUNTY, THE COMPANY SHALL INDEMNIFY AND HOLD THE COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terns and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10A DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the presence of: Witness Witness ATTEST: CHARLIE GREEN CLERK OF COURTS GARTNER, INC. Title BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA BY: BY: Deputy Clerk Chairman APPROVED AS TO FORM: : Office of the County Attorney ioa EXHIBIT "A" Project Description 6 Following a competitive multi -state site selection process for the location of a 400 person expansion project, which included the Company's headquarters' facility in Stamford Connecticut, Gartner made the decision to locate the expansion in Lee County. Gartner has entered into a lease for a new 120,000 square foot build -to -suit in the County, which will house the new employment and accommodate the relocation and consolidation of its existing Lee County employment of 346. 10A EXHIBIT "B" Job Creation Schedule 10 Phase Number of net new Jobs created in Lee County, FL Date by which jobs will be created 1 80 12/31/11 II 80 12/31/12 III 80 12/31/13 IV 80 12/31/14 V 80 12/31/15 Total 400 400 new Jobs will pay an average annual wage of $54,104, plus benefits, 10 EXHIBIT "C" Qualified Capital Investment Schedule • A portion of this spending may be incurred in 2012 as well. 2010 2011 2012 Land $ $2,300,000 $ Construction / Renovations $ $14,900,000* $ Manufacturing Equipment $ $ $ R &D Equipment $ $ $ Other Equipment (computer equipment, office furniture, etc. ) $ $ $3,300,000 Total Capital Investment $17,200,000 $3,300,000 • A portion of this spending may be incurred in 2012 as well. 10A ' 12 EXHIBIT "D" Average Actual Performance The Average Actual Performance shall be determined as follows: STEP 1 Actual Jobs Created = Percentage of Committed Jobs Created Committed Number of Jobs Actual Average Wage — Percentage of Committed Average Wage Paid Project Average Wage Actual Capital Investment = Percentage of Committed New Investment Committed Capital Investment STEP 2 Percentage of Committed Jobs Created • Percentage of Committed Average Wage Paid • Percentage of Committed Capital Investment = Percentage of Commitments Met STEP 3 Percentage of Commitment Met = Average Actual Performance 3 EXHIBIT "E" Repayment Amount Calculation STEP 1 10 A 13 Cumulative Incentive Award Payments X Average Actual Performance Adjusted Award Amount STEP 2 Cumulative Incentive Award Payments — Adjusted Award Amount Repayment Amount Example A -- Complete Repayment Required A $500,000 Incentive Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 100 Jobs and create 100 new Jobs paying an Average Project Wage of $50,000, and make a capital investment of $1,000,000 to expand its facility. On the final compliance determination date, Company A actually has 160 Jobs paying an average wage of $45,000 and renovated its floor space only for $550,000. • Actual jobs delivered = 130 (65% of Commitment) • Actual average wage = $40,000 (80% of Commitment) • Actual capital investment = $550,000 (55% of Commitment) • 65 % +80 % +55% = 200 % /3 = 67% [Average Actual Perforniancel • Average Actual Performance < 80 %, so fall repayment of previously disbursed Incentive Award payments is required. Example B — Partial Repayment Necessary A $1,500,000 Incentive Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 200 Jobs and create 200 new Jobs paying an Average Project Wage of $50,000, and build a facility costing $5,000,000. On the final compliance determination date, Company A actually has 320 Jobs paying an average wage of $45,000 and spent $5,300,000 on its facility. • Actual jobs delivered = 320 (80% of Commitment) • Actual average wage = $45,000 (90% of Commitment) • Actual capital investment = $5,300,000 (100% of Commitment) • 80 % +90% +100% = 270 %13 = 90% [Average Actual Performance] • Average Actual Performance > 80% but < 100 %, so partial repayment of previously disbursed Incentive Award payments is required. • $1,500,000 X 90% _ $ I,350,000 (Adjusted Award Amount) • $1,500,000 - $1,350,000 = $150,000 (Repayment Amount) l0A ' REQUEST FOR TRANSFER OF FUNDS FUND NAME: General DATE: 05/03111 BATCH NO. FISCAL YEAR: 10 -11 FUND #: 00100 DOC TYPE: YB LEDGER TYPE BA TO: Non - Departmental Miscellaneous Expenses (DIVISION NAME) (PROGRAM NAME) ACCOUNT NUMBER OBJECT NAME DEBIT GC5190300100.508210.750 Aid to Private Organizations $1,000,000 FROM: Non - Departmental (DIVISION NAME) ACCOUNT NUMBER GC5890100100.509922 TOTAL TO: $1,000,000 Reserves (PROGRAM NAME) OBJECT NAME CREDIT Reserve for Economic Devel. Opportunities $1,000,000 TOTAL FROM: $1,000,000 EXPLANATION: To provide funds to Gartner, Inc., per incentive performance agreement per BS#20110361. BOARD OF COUNTY COMMISSIONERS LEE COUNTY, FLORIDA Chair BA NO: AUTH CODE: TRANS DATE: FROM: Non - Departmental (DIVISION NAME) ACCOUNT NUMBER GC5890100100.509922 EXPLANATION: TOTAL TO: $1,000,000 Reserves (PROGRAM NAME) OBJECT NAME CREDIT Reserve for Economic Devel. Opportunities 51,000,000 To provide funds to Gartner, Inc., per incentive performance agreement per BS #20110361. BA NO: AUTH CODE: TOTAL FROM: $1,000,000 BOARD OF COUNTY COMMISSIONERS LEE COUNTY, FLORIDA TRANS DATE: Cla 5 -24 -11 10A i REQUEST FOR TRANSFER OF FUNDS FUND NAME: General DATE: 05/03/11 BATCH NO. FISCAL YEAR: 10 -11 FUND #: 00100 DOC TYPE: YB LEDGER TYPE BA TO: Non - Departmental Miscellaneous Expenses (DIVISION NAME) (PROGRAM NAME) ACCOUNT NUMBER OBJECT NAME DEBIT GC5190300100.508210.750 Aid to Private Organizations $1,000,000 FROM: Non - Departmental (DIVISION NAME) ACCOUNT NUMBER GC5890100100.509922 EXPLANATION: TOTAL TO: $1,000,000 Reserves (PROGRAM NAME) OBJECT NAME CREDIT Reserve for Economic Devel. Opportunities 51,000,000 To provide funds to Gartner, Inc., per incentive performance agreement per BS #20110361. BA NO: AUTH CODE: TOTAL FROM: $1,000,000 BOARD OF COUNTY COMMISSIONERS LEE COUNTY, FLORIDA TRANS DATE: Cla 5 -24 -11 10 LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS INCENTIVE AWARD AGREEMENT is made and entered into this 24 day of May 2011, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners (the "County") and Gartner, Inc. (the "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS; Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, the Company has applied to the County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has.established terms and conditions herein whereby the Company, by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commissioners finds and declares that this Agreement serves a public purpose which includes promotion of economic development, job growth, and the future expansion of the County's tax base. In consideration for the mutual promises and agreements contained herein, and other valuable and good consideration, the County and the Company agree as follows: 1. RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 2.1 "Base Employment" shall mean three hundred forty -six (346) Jobs. 2.2 "Project" shall mean the expansion of the existing operation in Lee County more particularly described in Section 3 below and in "Exhibit A ", attached and incorporated herein by reference. 2.3 "Project Site" shall mean the Company's existing and to be constructed facilities in Lee County. 2.4 "Job" shall mean permanent (i) full -time jobs; (ii) Full -time Equivalent Jobs (based on at least a 35 hour work week); and (iii) Qualified Contract Employees, as defined herein at the Project Site. In tabulating hours worked, any paid leave an employee takes during the pay period, such as vacation or sick leave, may be included. Full -time Equivalent Jobs may include both Direct jobs and Support jobs for this Project (as hereinafter defined). Cla 5 -24 -11 10 -2- 2.5 "Qualified Contract Employees" include (a) employees of contractors, joint venture partners or licensees operating under agreement with the Company that are performing functions or services for the Company and/or its Affiliates at the Project Site and (b) personnel engaged directly by the Company as independent contractors to which the Company issues an IRS Form 1099. In addition, Qualified Contract Employees shall be subject to the following additional limitations. Such employees shall: 2.5.1 perform ongoing services or functions for the Company at the Project Site that might otherwise be performed by traditional employees, but which the Company has elected to procure through employment of Contract Employees due to the specialized nature of the expertise required or other business purpose; 2.5.2 perform their work for the Company substantially at the Project Site (other than customary business travel); 2.5.3 'not perform services or functions limited to term of less than six months; and 2.5.4 not constitute more than Twenty-Five Percent (25 %) of the total new Full -time Equivalent. lobs (as defined herein) claimed by the Company in its claim application. As a condition of including Qualified Contract Employees in the calculation of "Full-time Equivalent Jobs ", the Company shall provide the County with the following information: 2.5.5.1 With respect to employees of contractors, joint venture partners or licensees operating under agreement with the Company, the Company shall provide annually a written certification by the entity supplying the services of such employees to the Company detailing the number of such jobs (on a full -time equivalent basis, as set forth herein), and their average wage, substantially consistent with the methods of calculation set forth in this Agreement. 2.5.5.2 With respect to individuals employed directly by the Company as independent contractors, the Company shall provide the County with information derived from the data the Company maintains and reports in connection with its issuance of IRS Form 1099, and calculate the number of jobs and average wage in a manner substantially consistent with methods of calculation set forth in this Agreement. 2.6 "Direct jobs" -- For purposes of this Agreement, "Direct jobs" may include operational or production and related workers assigned directly to the Project. 2.7 "Support jobs" -- For purposes of this Agreement, "Support jobs" may include non - production, support or overhead workers, including legal, administrative and clerical staff, working at the approved business unit. The concept for support jobs is generally only relevant for businesses working on defense or other government contracts or sub- contracts. 2.8 "Full -time Equivalent Job " -- "Full -time Equivalent Jobs" may be counted as new Full - time Equivalent Jobs only if they result in a net increase in Full -time Equivalent Jobs at the business over the average Full -time Equivalent Jobs for the base period, unless otherwise specified in this Agreement. In no case may jobs or job functions be counted as new Full -time Equivalent Jobs if they are moved from a related business in Lee County (including a business related by virtue of a merger, purchase, or any forth of acquisition) to the business, from another Lee County location of the business to the Project Site, or from any other Lee County business unit. In addition, no temporary 10 -3- construction jobs involved with the construction of facilities for the Project may be included in Full -time Equivalent Jobs. 2.8.1. Full -time equivalent Direct Project jobs -- Full -time equivalent Direct jobs for the Project may be counted as (a) all direct employees working full time (at least 35 hours a week) on the Project, such as production or related work, assigned to and working exclusively on the Project or (b) the total of the hours of direct production or related work assigned to the Project divided by 35. 2.8.2. Full -time equivalent Support Project jobs -- Full -time equivalent Support jobs may be counted for the Project if they are (a) exclusively assigned to and working at least 35 hours a week on the Project or (b) they may be estimated by multiplying the total number of all full -time Support jobs at the business by the ratio of the number of full - time Direct jobs to the total of all full -time Direct jobs at the business. In order to calculate total new Full -time Equivalent Jobs, the following methods (or any other method approved by the County) may be used: Total Full -time Equivalent Jobs: the number of Full -time equivalent Support Project jobs may be added to the number of full -time equivalent Direct Project jobs to obtain the total Full -time Equivalent Jobs at a particular point in time. Average Full -time Equivalent Jobs: add the Full -time Equivalent Jobs (Direct and Support) for all pay periods in the measuring period and divide by the number of pay periods in that measuring period to determine the average Full -time Equivalent Jobs for the period. 2.9 "Average Project Wage" shall mean the average of all annualized wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2.10 "Qualified Capital Investment" shall mean investments made by or on behalf of the Company and shall include improvements to real property as would be included in the basis of such property for federal tax purchases, and the acquiring or leasing furniture, fixtures and equipment. 2.11 "Effective. Date" is 5/24/11 The Agreement shall not be effective against any Party until said date. 3. COMPANY OBLIGATIONS 3.1 The Company commits to undertake the following Project, which is more particularly described in "Exhibit A ", attached and incorporated herein by reference. 3.2 The Company represents and warrants that as of September 9, 2008, the Company had at least 346 Jobs located or based at the Project Site. The Company commits to maintaining one - hundred percent (100 %) of the Base Employment jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by the Company is available for review by a County representative at the Company's offices and any information derived from any such review shall be confidential and shall not be released by the County or its representative to any third Party. 10A ' 3.3 The Company shall create at least 400 new Jobs as part of Project that pay an Average Project Wage of at least $54,104 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. The Company commits to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 The Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $20,500,000 pursuant to the schedule set forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, the Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by the Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by an officer of the Company, be received no later than March 15 of each year this Agreement is effective (commencing March 15, 2012) and shall be with respect to the prior calendar year. 3.6 The Company shall have the right to make a one -time election to extend the Job creation and Qualified Capital Investment dates set forth in Exhibit "B" and Exhibit "C" by one (1) year. This election must be communicated to the County and approved by the County in writing, which approval shall not be unreasonably withheld. Excising this option shall result in the extension of the term of this Agreement by (1) year. 4. COUNTY OBLIGATIONS 4.1 The County has budgeted, appropriated, and is holding in a restricted reserve account in the general fund of the County the sum of $1,000,000 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. 4.2 Payment of $1,000,000 shall be made in the form of reimbursement for expenditures described in Exhibit C, provided the Company has hired at least 80 new Jobs as of the date of such disbursement request and upon verification by the County that the Company has completed not less than $2,000,000 in construction /renovation as shown in Exhibit C of such expenditures. 4.2.1 Supporting documentation, including copies of invoices and proof of payment, shall be submitted to the County for verification of the aforementioned expenditures. Verification must be complete to the County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection, the reimbursement must be requested no later than December 31, 2012, unless extended pursuant to Section 3.6 of this Agreement. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event the Company fails to meet the Company Obligations set forth in Section 3 by December 31, 2015, the Company shall repay all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1.1 A compliance determination will be made on the date specified in Section 5.1 and shall be calculated in accordance with the formula in "Exhibit D" ( "Average Actual Performance "), attached and incorporated herein by reference. Should the Company's Average Actual Performance be less than eighty percent (80 %), 10 1-1 the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized and paid. If any Incentive Award payments have been made, the Company will be required to repay the Incentive Award amounts to the County within forty-five (45) days of demand. Any amounts due to the County shall bear interest at the rate periodically announced by the Wall Street.Joumal as the prime or base commercial lending rate from the date of demand notice until paid. 5.1.2 Should the Company's Average Actual Performance be equal to or greater than eighty percent (80 %) but less than one - hundred percent (100 %), the Company's Incentive Award will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to the County within forty-five (45) days of demand. Any amounts due to the County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 6.2 The Company is.in default if any representation or warranty made by the Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not been corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the County. 6.3 The Company is in default if it fails to provide to the County the written verification, satisfactory to the County, of its performance of obligations herein. 7. REMEDIES 7.1 The Company's remedy for default by the County shall be a claim for the sums to which the County has become obligated hereby. Such claims shall not include consequential or special damages, and shall not exceed the total Incentive Award amount specified in Section 4.1. 7.2 The County's remedy for default by the Company shall be a claim for the sums to which the Company has become obligated hereby. Such claims shall not include consequential or special damages. 8. TERM AND TERMINATION 8.1 Unless terminated earlier in accordance with its terns, this Agreement shall terminate on the earlier of: 8.1.1 Six (6) years from the Effective Date; 8.1.2 The execution by all Parties of a written agreement terminating this Agreement; 8.1.3 At the option of a Party in the event the other Party is in default; or 8.1.4 At the option of the County if the Company suffers an event of bankruptcy or insolvency 10A Iffem 8.2 Section 3.5 and Section 5 shall expressly survive termination or expiration of this Agreement to the extent necessary to fully comply with the terms of Section 5. 8.3 Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration. 9. ATTORNEY FEES AND EXPENSES Should County prosecute any action in connection with this Agreement for collection of payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of Company herein contained, County shall be entitled to the award of its court costs and reasonable attorney's fees. 10. NOTICES AND ADMINISTRATORS 10.1 All notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by the County or the Company and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shal I be sent, unless prior written notice of change of address is given. 10.2 The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number: (239) 338 -3227 11. BINDING EFFECTS AND ASSIGNMENT Lewis G. Schwartz, SVP and General Counsel Gartner, Inc. 56 Top Gallant Road Stamford, CT 06902 Telephone: (203) 316 6311 Fax: (203) 316-6245 1 1.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by the Company without the prior written consent of the County. 12. GOVERNING LAW 12.1 This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida, The Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12.2 The Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to the County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 10F 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shal I be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between the Company and the County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement, with the prior written consent of the other Party. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNFICATION 18.1 The Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind the Company. 18.2 The Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit the Company from locating its facility in Lee County, Florida. 18.3 OTHER THAN THE COMPANY'S CLAIMS FOR DEFAULT BY THE COUNTY, THE COMPANY SHALL INDEMNIFY AND HOLD THE COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10 ' I DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the presence of: Witness 4 ,)S�C-04� Witness ATTEST: CHARLIE GREEN CLERK OF COURTS BY: 7/SLt�C11 -PSYIi oputy Clerk ;�' f r` GARTNER, INC. 8 S op �-, S.1 r- e -Q 'ice Title BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA i BY: Chairman APPROVED ASJO FO i County Worney EXHIBIT "A" Project Description M Following a competitive multi -state site selection process for the location of a 400 person expansion project, which included the Company's headquarters' facility in Stamford Connecticut, Gartner made the decision to locate the expansion in Lee County. Gartner has entered into a lease for a new 120,000 square foot build -to -suit in the County, which will house the new employment and accommodate the relocation and consolidation of its existing Lee County employment of 346. EXHIBIT "B" Job Creation Schedule H Phase Number of net.new Jobs created in Lee County; FL Date by which jobs will be created 1 80 12/31/11 11 80 12/31/12 111 80 12/31/13 IV 80 12/31/14 V 80 12/31/15 Total 400 400 new Jobs will pay an average annual wage of $54,104, plus benefits. EXHIBIT `°C" Qualified Capital Investment Schedule o A portion of this spending may be incurred in 2012 as well. 2010 2011 2012 Land $ $2,300,000 $ Construction./ Renovations $ $14,900,000` $ Manufacturing Equipment- $ $ $ R &D Equipment $ $ $ Other Equipment (computer equipment, office furniture, etc: ) $ $3,300,000 Total Capital Investment $17,200,000 $3,300,000 o A portion of this spending may be incurred in 2012 as well. 10A 12 EXHIBIT "D" Average Actual Performance The Average Actual Performance shall be determined as follows: STEP I Actual .Jobs .Created = Percentage of Committed Jobs Created Committed Number of Jobs Actual Average Wage = Percentage of Committed Average Wage Paid Project Average Wage Actual Capital Investment = Percentage of Committed New Investment Committed Capital Investment STEP 2 Percentage of Committed Jobs Created • Percentage of Committed Average Wage Paid • Percentage of Committed Capital investment = Percentage of Commitments Met STEP 3 Percentage of Commitment Met = Average Actual Performance 3 EXHIBIT `°E" Repayment. Amount Calculation STEP 1 10 13 Cumulative Incentive Award Payments X Average Actual Performance Adjusted Award Amount STEP 2 Cumulative Incentive Award Payments — Adjusted Award Amount Repayment Amount Example A — Complete Repayment'Required A $500,000 Incentive.Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 100 Jobs and create 100 new Jobs paying an Average Project Wage of $50,000, and make a capital investment of $1,000,000 to expand its facility. On the final compliance determination date, Company A actually has 160 Jobs paying an average wage of $45,000 and renovated its Door space only for $550,000. • Actual jobs delivered = 130 (65% of Commitment) - Actual average wage = $40,000 (80% of Commitment) • Actual capital investment = $550,000 (55% of Commitment) • 65 % +80 % +55% = 200 % /3 = 67% [Average Actual Performance] • Average Actual Performance < 80 %, so full repayment of previously disbursed Incentive Award payments is required. Example B — Partial Repayment Necessary A $1,500,000 Incentive Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 200 Jobs and create 200 new Jobs paying an Average Project Wage of $50,000, and build a facility costing $5,000,000. On the final compliance determination date, Company A actually has 320 Jobs paying an average wage of $45;000 and spent $5,300,000 on its facility. • Actual jobs delivered = 320 (80% of Commitment) • Actual average wage = $45,000 (90% of Commitment) • Actual capital investment = $5,300;000 (100% of Commitment) • 80 % +90% +106% = 270 % /3 = 90% [Average Actual Performance] • Average Actual Performance > 80% but < 100 %, so partial repayment of previously disbursed Incentive Award payments is required, • $1,500,000 X 90 %= $1,350,000 (Adjusted Award Amount) • $1,500,000 - $1,350,000 = $150,000 (Repayment Amount) Lee County Board Of County Commissioners Blue Sheet No. 20090610 A enda Item Summary 1. ACTION REQUESTED/PURPOSE: Approve Lee County FIRST Performance Agreement in the amount of $300,000 for Project #LC- 09- 05 -01, a corporate headquarters location and national service facility for a Supply Chain Management, Transportation & Logistics company. 12. FUNDING SOURCE: General Fund 3. WHAT ACTION ACCOMPLISHES: Furthers the goal of diversifying Lee County's economy through the creation of high - paying, target industry based employment. 4. MANAGEMENT RECOMMENDATION: Approve 5. Departmental Category: W02 6. Meeting Date: 6/16/2009 7. Agenda: 8. Requirement/Purpose: (specify) 9. Request Initiated ❑ Statute Commissioner: All Walk on ❑ Ordinance Department: ECONOMIC DEVELOPMENT ❑ Admin Code Division: No Divisions ❑ Other B James Moore 10. Background: On May 19, 2009 the BoCC approved Project #LC- 09 -05 -01 for participation in the Lee County FIRST incentive program. LC- 09 -05 -01 is a full set-vice logistics company handling freight brokerage and complete supply chain management services. This location will house corporate officers, administrative personnel, transportation intermediaries and transportation management consultants. LC- 09 -05 -01 has indicated a desire to proceed in Lee County pending approval and execution of the Performance Agreement. The company will create 100 full -time jobs in the County paying an average wage equaling 134% of the Lee County average, plus benefits. The Performance Agreement sets forth the award amount, performance criteria the project must satisfy to obtain incentive payments, the disbursement schedule for performance based payments, and repayment sanctions imposed for failure to attain specified benchmarks. Funds are available in GC5890100100.509922.742. 11. Required Review: crl c[ y c ECONOMIC DEVELOPMENT Budget Analyst Budget Services County Attorney County Manager 12. Commission Action: 10 A -1- LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS INCENTIVE AWARD AGREEMENT is made and entered into this day of June , 2009, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County") and LC- 09- 05 -01, ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, Company has applied to County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has established terms and conditions herein whereby Company by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commissioners finds and declares that this Agreement serves a public purpose which includes promotion of economic development, job growth, and the future expansion of the County's tax base. In consideration for the mutual promises and agreements contained herein, and other valuable and good consideration, County and the Company agree as follows: 1. RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 2.1 "Project" shall mean the corporate headquarters and service facility venture more particularly described in Section 3 below and in "Exhibit A", attached and incorporated herein by reference. 2.2 "Job" shall mean permanent, full -time equivalent employment. Each person or combination of persons who work at least thirty-five (35) hours a week at the Project site in a benefit enhanced non - temporary capacity, under the control and supervision of Company, shall be counted as one full -time equivalent Job. 2.3 "Average Project Wage" shall mean the annualized average of all wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2.4 "Qualified Capital Investment" shall mean investments made by or on behalf of Company for purchasing Project facility, constructing improvements to real property as would be included 10 in the basis of such property for federal tax purchases, and acquiring or leasing furniture, fixtures and equipment. 2.5 "Effective Date" shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement shall not be effective against any Party until said date. 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A ". 3.2 Company represents and warrants that as of June 1, 2009, Company has a total of 20 Jobs located or based at the Project site(s). Company commits to maintaining one- hundred percent (100 %) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any information derived from any such review shall be confidential and shall not be released by County or its representative to any third Party. 3.3 Company shall create at least 100 new Jobs as part of Project that pay an Average Project Wage of at least $48,500.00 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. Company commits to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $680,000.00 pursuant to the schedule set forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by the Chief Financial Officer of Company, and be received no later than August 15 of each year this Agreement is effective. 4. COUNTY OBLIGATIONS 4.1 County has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $300,000.00 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. Regardless of Company's meeting the conditions in Sections 4.2 through 4.4, however, County shall not be obligated to release more than one of the payments listed in any thirty (30) day period. 4.2 The first payment of $100,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. Payment shall be made upon submission and verification of supporting documentation, subject to the timing restriction in Section 4.1. 4.2.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection all conditions must be satisfied no later than December 31, 2009. 10 -3- 4.3 The second payment of $100,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. Payment shall be made upon submission and verification of supporting documentation, subject to the timing restriction in Section 4.1. 4.3.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.3.2 To receive payment under this Subsection all conditions must be satisfied no later than December 31, 2010. 4.4 The third payment of $100,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. Payment shall be made upon submission and verification of supporting documentation, subject to the timing restriction in Section 4.1. 4.4.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.4.2 To receive payment under this Subsection all conditions must be satisfied no later than December 31, 2011. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event company fails to meet the Company Obligations set forth in Section 3 by June 30, 2012, the company shall repay all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1.1 A compliance determination will be made on the date specified in Section 5.1 and shall be calculated in accordance with the formula in "Exhibit D" ( "Average Actual Performance "), attached and incorporated herein by reference. Should the Company's Average Actual Performance be less than eighty percent (80 %), the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.2 Should Company's Average Actual Performance be equal to or greater than eighty percent (80 %) but less than one - hundred percent (100 %), Company's Incentive Award will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 10 � I 6.2 Company is in default if any representation or warranty made by the Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not been corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the County. 6.3 Company is in default if it fails to provide to the County the written verification, satisfactory to the County, of its performance of obligations herein. 7. REMEDIES 7.1 Company's remedy for default by County shall be a claim for the sums to which County has become obligated hereby. Such claims shall not include consequential or special damages, and shall not exceed the total Incentive Award amount specified in Section 4.1. 7.2 County's remedy for default by Company shall be a claim for the sums to which Company has become obligated hereby. Such claims shall not include consequential or special damages. 8. TERM AND TERMINATION Unless terminated earlier in accordance with its terms, this Agreement shall terminate on the earlier of- 8.1 Four (4) years from the Effective Date; 8.2 The execution by all Parties of a written agreement terminating this Agreement; 8.3 At the option of a Party in the event the other Party is in default; or 8.4 At the option of County if Company suffers an event of bankruptcy or insolvency. 9. ATTORNEY FEES AND EXPENSES In the event of litigation relating to the subject matter of this Agreement, the non - prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom. 10. NOTICES AND ADMINISTRATORS 10.1 All notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by County or Company and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore Contact Executive Director Title Lee County Economic Development LC- 09 -05 -01 12800 University Drive, Suite 300 Address 1 Fort Myers, Florida 33907 Address 2 Telephone number: (239) 338 -3161 Telephone Fax number: (239) 338 -3227 Fax 11. BINDING EFFECTS AND ASSIGNMENT -5- 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by Company without the prior written consent of the County 12. GOVERNING LAW 12.1 This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida. Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12.2 Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between Company and County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement. However, unless otherwise agreed, the Party publicizing its efforts shall provide a courtesy copy of any written material to the other Party for review and comment prior to publication. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNFICATION 18.1 Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind Company. 18.2 Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit Company from locating its facility in Lee County, Florida. 10 18.3 OTHER THAN COMPANY'S CLAIMS FOR DEFAULT BY COUNTY, COMPANY SHALL INDEMNIFY AND HOLD COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10 A DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the LC- 09 -05 -01 presence of: BY: Witness Authorized Signature Date Witness ATTEST: CHARLIE GREEN CLERK OF COURTS :• Deputy Clerk President Title BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA M. Chairman APPROVED AS TO FORM: IM Office of the County Attorney 10A � EXHIBIT "A" Project Description Confidential 10 A r' EXHIBIT "B" Job Creation Schedule Phase Number of net new full -time equivalent Jobs created in Lee County, FL Date by which jobs will be created I 20 06/30/2010 I I 40 06/30/2011 III 40 06/30/2012 Total 100 100 new Jobs will pay an average annual wage of $48,500 pius benefits. 10P EXHIBIT "C" Qualified Capital Investment Schedule 10 2009 2010 2011 Land $0 $0 $0 Construction / Renovations $200,000 $40,000 $40,000 Manufacturing Equipment $0 $0 $0 R &D Equipment $0 $0 $0 Other Equipment (computer equipment, office furniture, etc. ) $100,000 $200,000 $200,000 Total Capital Investment $300,000 $190,000 $190,000 l0A 11 EXHIBIT "D" Average Actual Performance The Average Actual Performance shall be determined as follows: STEP I Actual Jobs Created = Percentage of Committed Jobs Created Committed Number of Jobs Actual Average Wa eg = Percentage of Committed Average Wage Paid Project Average Wage Actual Capital Investment = Percentage of Committed New Investment Committed Capital Investment STEP 2 Percentage of Committed Jobs Created • Percentage of Committed Average Wage Paid • Percentage of Committed Capital Investment = Percentage of Commitments Met STEP 3 Percentage of Commitment Met = Average Actual Performance 3 EXHIBIT "E" Repayment Amount Calculation STEP l 12 Cumulative Incentive Award Payments X Averaize Actual Performance Adjusted Award Amount STEP 2 Cumulative Incentive Award Payments — Adjusted Award Amount Repayment Amount Example A — Complete Repayment Required A $500,000 Incentive Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 100 Jobs and create 100 new Jobs paying an Average Project Wage of $50,000, and make a capital investment of $1,000,000 to expand its facility. On the final compliance determination date, Company A actually has 160 Jobs paying an average wage of $45,000 and renovated its floor space only for $550,000. • Actual jobs delivered = 130 (65% of Commitment) • Actual average wage = $40,000 (80% of Commitment) • Actual capital investment = $550,000 (55% of Commitment) • 65 % +80 % +55 = 200/3 = 67% [Average Actual Performance] • Average Actual Performance < 80 %, so full repayment of previously disbursed Incentive Award payments is required. Example B — Partial Repayment Necessary A $1,500,000 Incentive Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 200 Jobs and create 200 new Jobs paying an Average Project Wage of $50,000, and build a facility costing $5,000,000. On the final compliance determination date, Company A actually has 320 Jobs paying an average wage of $45,000 and spent $5,300,000 on its facility. • Actual jobs delivered = 320 (80% of Commitment) • Actual average wage = $45,000 (90% of Commitment) • Actual capital investment = $5,300,000 (100% of Commitment) • 80 % +90% +100% = 270/3 = 90% [Average Actual Performance] • Average Actual Performance > 80% but < 100 %, so partial repayment of previously disbursed Incentive Award payments is required. • $1,500,000 X 90% _ $1,350,000 (Adjusted Award Amount) • $1,500,000 - $1,350,000 = $150,000 (Repayment Amount) 10A LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS INCENTIVE AWARD AGREEMENT is made and entered into this 1641day of June 200Q , 2009, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County") and Paramount Transportation Logistics Services, LLC, ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, Company has applied to County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has established terms and conditions herein whereby Company by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commissioners finds and declares that this Agreement serves a public purpose which includes promotion of economic development, job growth, and the future expansion of the County's tax base. In consideration for the mutual promises and agreements contained herein, and other valuable and good consideration, County and the Company agree as follows: 1. RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 2.1 "Project" shall mean the corporate headquarters and service facility venture more particularly described in Section 3 below and in "Exhibit A ", attached and incorporated herein by reference. 2.2 "Job" shall mean permanent, full -time equivalent employment. Each person or combination of persons who work at least thirty-five (35) hours a week at the Project site in a benefit enhanced non - temporary capacity, under the control and supervision of Company, shall be counted as one full -time equivalent Job. 2.3 "Average Project Wage" shall mean the annualized average of all wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing - accounts, vacation and sick pay, but exclude employee benefit packages. 2.4 "Qualified Capital Investment" shall mean investments made by or on behalf of Company for purchasing Project facility, constructing improvements to real property as would be included © (Q-i6 -09 p, w0 a 10A in the basis of such property for federal tax purchases, and acquiring or leasing furniture, fixtures and equipment. 2.5 "Effective Date" shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement shall not be effective against any Party until said date. 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A ". 3.2 Company represents and warrants that as of June 1, 2009, Company has a total of 20 Jobs located or based at the Project site(s). Company commits to maintaining one - hundred percent (100 %) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any information derived from any such review shall be confidential and shall not be released by County or its representative to any third Party. 3.3 Company shall create at least 100 new Jobs as part of Project that pay an Average Project Wage of at least $48,500.00 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. Company commits to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $680,000.00 pursuant to the schedule set forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by the Chief Financial Officer of Company, and be received no later than August 15 of each year this Agreement is effective. 4. COUNTY OBLIGATIONS 4.1 County has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $300,000.00 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. Regardless of Company's meeting the conditions in Sections 4.2 through 4.4, however, County shall not be obligated to release more than one of the payments listed in any thirty (30) day period. 4.2 The first payment of $100,000.00 shall be made in the form, of reimbursement for expenditures described in Exhibit C. Payment shall be made upon submission and verification of supporting documentation, subject to the timing restriction in Section 4.1. 4.2.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection all conditions must be satisfied no later than December 31, 2009. -3- 4.3 The second payment of $100,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. Payment shall be made upon submission and verification of supporting documentation, subject to the timing restriction in Section 4.1. 4.3.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.3.2 To receive payment under this Subsection all conditions must be satisfied no later than December 31, 2010. 4.4 The third payment of $100,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. Payment shall be made upon submission and verification of supporting documentation, subject to the timing restriction in Section 4.1. 4.4.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.4.2 To receive payment under this Subsection all conditions must be satisfied no later than December 31, 2011. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event company fails to meet the Company Obligations set forth in Section 3 by June 30, 2012, the company shall repay all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1.1 A compliance determination will be made on the date specified in Section 5.1 and shall be calculated in accordance with the formula in "Exhibit D" ( "Average Actual Performance "), attached and incorporated herein by reference. Should the Company's Average Actual Performance be less than eighty percent (80 0/0), the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.2 Should Company's Average Actual Performance be equal to or greater than eighty percent (80 %) but less than one - hundred percent (100 %), Company's Incentive Award will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materialIy breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 10 ' -4- 6.2 Company is in default if any representation or warranty made by the Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not been corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the County. 6.3 Company is in default if it fails to provide to the County the written verification, satisfactory to the County, of its performance of obligations herein. 7. REMEDIES 7.1 Company's remedy for default by County shall be a claim for the sums to which County has become obligated hereby. Such claims shall not include consequential or special damages, and shall not exceed the total Incentive Award amount specified in Section 4.1. 7.2 County's remedy for default by Company shall be a claim for the sums to which Company has become obligated hereby. Such claims shall not include consequential or special damages. 8. TERM AND TERMINATION Unless terminated earlier in accordance with its terms, this Agreement shall terminate on the earlier of: 8.1 Four (4) years from the Effective Date; 8.2 The execution by all Parties of a written agreement terminating this Agreement; 8.3 At the option of a Party in the event the other Party is in default; or 8.4 At the option of County if Company suffers an event of bankruptcy or insolvency. 9. ATTORNEY FEES AND EXPENSES In the event of litigation relating to the subject matter of this Agreement, the non - prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom. 10. NOTICES AND ADMINISTRATORS 10.1 All notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by County or Company and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number. (239) 338 -3227 Legal Department, ATTN: Don DeLuca Paramount Transportation Logistics Services, LLC 600 Gillam Road Wilmington, OH 45177 Telephone: (937) 382 -1494 Fax: (937) 383 -2336 10A l 1. BINDING EFFECTS AND ASSIGNMENT -5- 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by Company without the prior written consent of the County. 12. GOVERNING LAW 12.1This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida. Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12.2 Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between Company and County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement. However, unless otherwise agreed, the Party publicizing its efforts shall provide a courtesy copy of any written material to the other Party for review and comment prior to publication. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNFICATION 18.1 Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind Company. 18.2 Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit Company from locating its facility in Lee County, Florida. 10 A 18.3 OTHER THAN COMPANY'S CLAIMS FOR DEFAULT BY COUNTY, COMPANY SHALL INDEMNIFY AND HOLD COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10 -7- DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the presence of: ATTEST: CHARLIE GREEN CLERK OF COURTS BY: "rn'.l.Gt W4.0YLJ Deputy Clerk �= Q:�.. 'A _d Paramount Transportation Logistics Services, LLC D nald R. DeLuc Date President Title BOARD OF,�N OF LEE C , M COMMISSIONERS P :l11mrMIT v Co Atnl i 5s i o ner 10 EXHIBIT "A" Project Description _g_ Paramount Transportation Logistics Services (PTLS) is a full service supply chain management, transportation and logistics company. The Project contemplated by this Agreement is the location of Paramount's national headquarters and primary service center in Lee County, Florida. The company currently has operations in six states including Florida. The expansion in Fort Myers will house corporate officers, administrative personnel, Supply Chain Management and Logistics management intermediaries and consultants. The company manages the movement of goods and flow of information between organizations and their suppliers and customers to achieve strategic advantage. Supply chain management services cover the consultative processes of materials management, inventory planning and control management, logistics and transportation management, customs services, physical distribution management, purchasing, and information management. The logistics management component plans, implements, and controls the efficient, effective forward and reverse flow and storage of goods, services and related information between the point of origin and the point of consumption in order to meet customers' requirements. The location of the corporate headquarters and service center will result in the creation of 100 new jobs to Lee County, paying an average wage of $48,500.00 per year (134% of the Lee County average wage) plus benefits. Paramount plans to occupy approximately 12,000 square feet of office space and will make an estimated Qualified Capital Investment of $680,000.00 during the term of this Agreement. 10 A EXHIBIT "B" Job Creation Schedule Phase Number of net new full -time equivalent Jobs created in Lee County, FL Date by which jobs will be created 1 20 06/30/2010 11 40 06/30/2011 111 40 06/30/2012 Total 100 100 new Jobs will pay an average annual wage of $48,500 plus benefits. 10A -10- EXHIBIT "C" Qualified Capital Investment Schedule 2009 2010 2011 Land $0 $0 $0 Construction / Renovations $200,000 $40,000 $40,000 Manufacturing Equipment $0 $0 $0 R &D Equipment $0 $0 $0 Other Equipment (computer equipment, office furniture, etc. ) $100,000 $150,000 $150,000 Total Capital Investment $300,000 $190,000 $190,000 10A EXHIBIT "D" Average Actual Performance The Average Actual Performance shall be determined as follows: STEP 1 Actual Jobs Created = Percentage of Committed Jobs Created Committed Number of Jobs Actual Average Wage = Percentage of Committed Average Wage Paid Project Average Wage Actual Capital Investment = Percentage of Committed New Investment Committed Capital Investment STEP 2 Percentage of Committed Jobs Created • Percentage of Committed Average Wage Paid • Percentage of Committed Capital Investment = Percentage of Commitments Met STEP 3 Percentage of Commitment Met = Average Actual Performance 3 Era EXHIBIT "E" Repayment Amount Calculation STEP I Cumulative Incentive Award Payments X Average Actual Performance Adjusted Award Amount STEP 2 Cumulative Incentive Award Payments - Adjusted Award Amount Repayment Amount Example A — Complete Repayment Required A $500,000 Incentive Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 100 Jobs and create 100 new Jobs paying an Average Project Wage of $50,000, and make a capital investment of $1,000,000 to expand its facility. On the final compliance determination date, Company A actually has 160 Jobs paying an average wage of $45,000 and renovated its floor space only for $550,000. • Actual jobs delivered = 130 (65% of Commitment) • Actual average wage = $40,000 (80% of Commitment) • Actual capital investment = $550,000 (55% of Commitment) • 65 % +80 % +55 = 200/3 = 67% [Average Actual Performance] • Average Actual Performance < 80 %, so full repayment of previously disbursed Incentive Award payments is required. Example B — Partial Repayment Necessary A $1,500,000 Incentive Award to assist with development of Projects was part of Company A's consideration to expand in Lee County. As part of the deal, Company A committed to maintain 200 Jobs and create 200 new Jobs paying an Average Project Wage of $50,000, and build a facility costing $5,000,000. On the final compliance determination date, Company A actually has 320 Jobs paying an average wage of $45,000 and spent $5,300,000 on its facility. • Actual jobs delivered = 320 (80% of Commitment) • Actual average wage = $45,000 (90% of Commitment) • Actual capital investment = $5,300,000 (100% of Commitment) • 80 % +90% +100% = 270/3 = 90% [Average Actual Performance] • Average Actual Performance > 80% but < 100 %, so partial repayment of previously disbursed Incentive Award payments is required. • $1,500,000 X 90 %= $1,350,000 (Adjusted Award Amount) • $1,500,000 - $1,350,000 = $150,000 (Repayment Amount) 10 Lee County Board Of County Commissioners Blue Sheet No. 20090611 A enda Item Summary 1. ACTION REQUESTED /PURPOSE: Approve Performance Agreement for project #LC- 09 -05 -02 an existing Lee County corporate headquarters for the Lee County FIRST Incentive Program in the amount of $1,000,000. Item was deferred on June 23, 2009. 2. FUNDING SOURCE: General Fund 3. WHAT ACTION ACCOMPLISHES: Furthers the goals of diversifying Lee County's economy through the creation of high -wage, high skill target industry based employment. 4. MANAGEMENT RECOMMENDATION: Approve 5. Departmental Category: C01 6. Meeting Date: 6/30/2009 7. Agenda: 8. Requirement/Purpose: (specify) 9. Request Initiated ❑ Statute Commissioner: All Carry Over ❑ Ordinance Department: ECONOMIC DEVELOPMENT ❑ Admin Code Division: No Divisions Ij 12. Commission Action: ❑ Other By: James Moore 10. Background: On May 26, 2009, the Board of County Commissioners conditionally approved project #LC- 09 -05 -02 as a qualified application for the FIRST Incentive Program for $1.7 M. However, after negotiations with the company, the award amount is $1,000,000.00. Project #LC- 09 -05 -02 has selected Lee County as the site for the expansion project creating 350 new full -time jobs in the next twenty -four months effective date of July 1, 2009. These positions will pay an average wage equaling 179% of the Lee County average, plus benefits. In addition, 278 full -time existing jobs will be retained. The attached Performance Agreement sets forth the award amount, performance criteria the project must satisfy to obtain incentive payments, the disbursement schedule for performance based payments and any sanctions imposed for failure to attain specified benchmarks. Funds are available in GC5890100100.509922.743. 11. Required Review: , INI- ECONOMIC DEVELOPMENT Budget Analyst Budget Services County Attorney County Manager Ij 12. Commission Action: 10 " � - 1 - LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS INCENTIVE AWARD AGREEMENT is made and entered into this day of June 2009, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County") and LC- 09- 05 -02, ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million 'of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, Company has applied to County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has established terms and with these terms and conditions, can receive the benel WHEREAS, the Board of County Com purpose which includes promotion of ec County's tax base. In consideration for the mutual prom consideration, County and the Compat 1. RECITALS The above recitals, are true Agreement. 2. DEFINITIONS as rein whereby Company by complying this Agreement; and and declares that this Agreement serves a public nent, job growth, and the future expansion of the contained herein, and other valuable and good correct and are hereby incorporated and made part of this 2.1 "Job"- shall mean permanent, full -time equivalent employment. Each person or combination of persons` who work at least thirty-five (35) hours a week at the Project site in a benefit enhanced non - temporary capacity, under the control and supervision of Company, shall be counted as one full -time equivalent Job. 2.2 "Average Project Wage" shall mean the annualized average of all wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2.3 "Qualified Capital Investment" shall mean investments made by or on behalf of Company for purchasing Project facility, constructing improvements to real property as would be included in the basis of such property for federal tax purchases, and acquiring or leasing furniture, fixtures and equipment. -2- 2.4 "Effective Date" is July 1, 2009. The Agreement shall not be effective against any Party until said date. 2.5 "Base Jobs" is two - hundred -sixty (260) Jobs for purposes of this Agreement. 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A ", attached and incorporated herein by reference. 3.2 Company represents and warrants that on July 1, 2009, Company has a total of 260 Jobs located or based at the Project site(s). Company commits to maintaining one- hundred percent (100 %) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any information derived from any suc h reviev shall be confidential and shall not be released by County or its representative to any third Party. 3.3 Company shall create at least 350 new Jobs as part of Project that pay an Average Project Wage of at least $65,000.00 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. Company commits to maintain these new Jobs at the Average Project Wage until this Agreement as terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $1,300,000.00 pursuant to the schedule' set -girth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by the Chief Financial Officer of Company, and be received by the County no later than A: st 15" of each year. 4. COUNTY OBLIGATIONS 4.1 County,has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $1,000,000.00 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. 4.2 A payment of $250,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. 4.2.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection these conditions must be satisfied no later than June 30, 2010. 4.3 Payments of $2,143.00 per new Job created will be paid to Company on a calendar year quarterly basis, provided that the sum of all such quarterly payments made pursuant to this Subsection shall not exceed $750,000.00 over the term of this Agreement. 4.3.1 Incentive Award payments for new Jobs shall be calculated by: -3- 4.3.1.1 Subtracting Base Jobs from the total payroll Jobs at the end of the quarter in question, then multiplying the difference by $2,143.00. Next subtract the sum total of previous payments made under this Subsection. If the total is a positive number, the County will pay that amount to Company. If the total is negative, no payment will be made for that quarter. A summary explanation and examples of payment of jobs related Incentive Award payments under this Subsection is attached as "Exhibit D," attached and incorporated herein by reference. 4.3.2 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.3.3 To receive payment under this Subsection, new Jobs are expected, to be created by June 31, 2011 and verification should be provided no later than August 1, 2011. However, Company may make a one -time election to extend the job creation schedule by one year. This election must be approved by County in writing, and County shall not unreasonably withhold such approval. Exercising this option shall result in a one -year extension of the term of the performance requirements and sanctions. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event company fails to create and retain the total number of Jobs specified in Sections 3.2 through 3.3, so that on termination of this Agreement Company's payroll Jobs total is less than six - hundred -ten (610), the company shall repay all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1.1 Should the Company's total Jobs be less than four - hundred -fifty-three (435), the Company is in ` default of this Agreement which will result in the loss of eligibility' for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty- five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.2 Should Company's total Jobs be equal to or greater than four - hundred -fifty -three (43.x) but less than six - hundred -ten (610), Company shall repay a portion of the sum total of any Jobs related Incentive Award payments previously made by County to Company pursuant to Section 4.3. Company's Section 4.3 Incentive Award payments will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid.. 5.2 Should the Average Project Wage of all Jobs in existence as of July 1, 2010 be less than $58,500.00, the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 10 5.3 In the event company fails to make or cause to be made a Qualified Capital Investment in the Project of at least $1,000,000.00 by the date this Agreement terminates, Company shall repay five percent (5 %) of the sum total of any Incentive Award payments previously made by County to Company. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand for same. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 6.2 Company is in default if any representation or warranty made by the Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in ''a material respect as of the date of issuance or making thereof and has not been= corrected or brought into compliance within thirty (30) days after written notice th&teof to the Company by the County. 6.3 Company is in default if it fails to provide to the to the County, of its performance of obligations. hf 7. REMEDIES 7.1 Company's remedy for default become obligated hereby. Suc and shall not exceed the totak._Ir the'written verification, satisfactory a Maim for the sums to which County has nclude consequential or special damages, mt specified in Section 4.1. 7.2 County's remedies for default by'Company may include, but shall not be limited to, a claim or suit upon this Agreement or moth. 8. TERM AND TERMINATION, 8.1 Unless terminated earlier in'accordance with its terms, this Agreement shall terminate on the 8.1.1 Five; (5) years from the Effective Date; 8.1.2 The execution by all Parties of a written agreement terminating this Agreement; 8.1.3 At the option of a Party in the event the other Party is in default; or 8.1.4 At the option of County if Company suffers an event of bankruptcy or insolvency. 8.2 Section 3.5 and Section 5 shall expressly survive termination or expiration of this Agreement to the extent necessary to fully comply with the terms of Section 5. 8.3 Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration. 10 9. ATTORNEY FEES AND EXPENSES Should County prosecute any action in connection with this Agreement for collection of payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of Company herein contained, County shall be entitled to the award of its court costs and reasonable attorney's fees. 10. NOTICES AND ADMINISTRATORS 10.1 All notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by County and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may b used if the notice is also transmitted by one of the preceding forms of delivery. The, addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore COMPANY Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number: (239) 338 -3227 11. BINDING EFFECTS AND ASSIGNMENT 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by Company without the prior written consent of the County, 12. GOVERNING LAW 12.1 This Agreement shall be governed by, interpreted and construed in accordance with the laws ofthe State of Florida. Venue shall be in Lee County, Florida. Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12;2 Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 10A " ` 1 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the> Parties hereto or by any third party to create a relationship of principal and agent, partners -hip, joint venture or of any association whatsoever between Company and County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement, However, unless otherwise agreed, the Party publicizing its efforts shall provide a courtesy copy of any written material to the other Party for review and comment prior to publication. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNFICATION 18.1 Company represents that it is - possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind Company, 18.2 Company further warrants'that it has not entered into any agreement nor has any obligations which would prohibit Company from`locating its facility in Lee County, Florida. 18.3 OTHER THAN COMPANY'S CLAIMS FOR DEFAULT BY COUNTY, COMPANY SHALL; INDEMNIFY` AND HOLD COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY, NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal' of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10 DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the COMPANY presence of: BY: Witness Authorized Signature Date Witness Title ATTEST: CHARLIE GREEN BOARD OF COUNTY COMMISSIONERS CLERK OF COURTS OF LEE COUNTY, FLORIDA BY: Office of the County Attorney EXHIBIT A Project Description 3 l0 A" EXHIBIT B Job Creation and Wage Schedule Phase Number of net new full -time equivalent Jobs created in Lee County, FL Date by which jobs will be created 1 50 12/31/2009 11 300 06/30/2011 Total 350 350 new Jobs will pay an average annual wage of $65,000 plus benefits. 10A 10 EXHIBIT C Qualified Capital Investment Schedule 2009 2010 N/A Land $0 $0 Construction / Renovations $200,000 $200,000 Manufacturing Equipment $0 $0 R &D Equipment $0 $0 Other Equipment (computer equipment, office furniture, etc. ) $400,000 $500,000 Total Capital Investment $600,000 $700,000 10 I I EXHIBIT D New Jobs Incentive Award Payment Methodology 1. Document total employment at end of period (Q1, Q2, Q3, or Q4) 2. Subtract Base Jobs from total employment 3. Multiply difference by dollar award per new job created 4. Subtract sum total of payments previously made for new job creation (Section 4.3 payments) 5. Make payment accordingly Example New Jobs Payments (Illustration) 1. September 30, 2009 total Jobs = 378 a) 378 (Jobs) — 278 (Base Jobs) = 100 b) 100 X $2,134 (award /job) = $213,400 c) $213,400 - $0 (previous Section 4.3 payments) ,,= $213,400 d) County pays Company $213,400 2. December 31, 2009 total Jobs = 428 a) 428 — 278 = 150 b) 150 X $2,134 = $320,100. c) $320,100 - $213,400 $106,700 d) County pays Company; $106,700 3. March 31, 2010 total Jobs —.418 a) 418 278 s =140 b) 140 X $2,134 $298,750 c) $298,750-7($2,13,400+$106,700)=($21,340) 4. June;30, 2010 total Jobs = 483 a) 483 — 278 = 205 b) 205 X $2,134 = $427,470 c) $427,470 - $320,100 = $107,370 d) _County pays Company $107,370 5. Sum of payments under Section 4.3 shall not exceed $750,000 10 12 EXHIBIT E Repayment Amount Calculation STEP I Actual Jobs Created & Maintained (total # of employees) = Percentage of Committed Jobs 610 STEP 2 Cumulative Section 4.3 Incentive Award Payments for Jobs creation X Percentage of Committed Jobs Adjusted Award Amount 4 STEP 3 Cumulative Section 4.3 Incentive Award Payments for Jobs creatio — Adjusted Award Amount Repayment Amount Example — Partial Repayment Necessary Maximum Section 4.3 payment of $750,000 is made tPon creation of 350 Committed Jobs, for a total payroll count of 610. However, upon termination of the Agreement the total payroll count is 600, indicating new Jobs creation and maintenance of 322. • Actual jobs delivered = 322 (92% of Commitment) • Performance > 50% but < 100 %, so partial repayment of previously disbursed Section 4.3 Incentive Award payments is required. • $750,000 X 92% = $690,000 (Adjusted Award Amount) • $750,000 - $690,000 - Sa60,000 (Repayment Amount) ... l0A LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS INCENTIVE AWARD AGREEMENT is made and entered into this 30th day of June, 2009, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County") and Source Interlink Companies, Inc., ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. WHEREAS, the Florida Legislature has enacted Section 125.045, Florida Statutes, which confers economic development powers to counties and authorizes the expenditure of public funds for economic development activities as a valid public purpose; and WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, Company has applied to County to participate in the Lee County FIRST Program which will utilize those reserved funds; and WHEREAS, the County has established terms and conditions herein whereby Company by complying with these terms and conditions, can receive the benefits outlined in this Agreement; and WHEREAS, the Board of County Commissioners finds and declares that this Agreement serves a public purpose which includes promotion of economic development, job growth, and the future expansion of the County's tax base. In consideration for the mutual promises and agreements contained herein, and other valuable and good consideration, County and the Company agree as follows: I. RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. DEFINITIONS 2.1 "Job" shall mean permanent, full -time equivalent employment. Each person or combination of persons who work at least thirty -five (35) hours a week at the Project site in a benefit enhanced non - temporary capacity, under the control and supervision of Company, shall be counted as one full -time equivalent Job. 2.2 "Average Project Wage" shall mean the annualized average of all wages and salaries paid to employees who hold Jobs at the Project. Such payments include wages, salaries, commissions, bonuses, drawing accounts, vacation and sick pay, but exclude employee benefit packages. 2.3 "Qualified Capital Investment" shall mean investments made by or on behalf of Company for purchasing Project facility, constructing improvements to real property as would be included in the basis of such property for federal tax purchases, and acquiring or leasing furniture, fixtures and equipment. (f d ! 6 - 30 -o7K 10A 2.4 "Effective Date" is July I, 2009. The Agreement shall not be effective against any Party until said date. 2.5 "Base Jobs" is two - hundred -sixty (260) Jobs for purposes of this Agreement. 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A ", attached and incorporated herein by reference. 3.2 Company represents and warrants that on July I, 2009, Company has a total of two- hundred- sixty (260) Jobs located or based at the Project site(s). Company commits to maintaining one - hundred percent (100 %) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any information derived from any such review shall be confidential and shall not be released by County or its representative to any third Party. 3.3 Company shall create at least 350 new Jobs as part of Project that pay an Average Project Wage of at least $65,000.00 per year pursuant to the schedule set forth in "Exhibit B," attached and incorporated herein by reference. Company commits to maintain these new Jobs at the Average Project Wage until this Agreement is terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $1,300,000.00 pursuant to the schedule set forth in "Exhibit C," attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by the Chief Financial Officer of Company, and be received by the County no later than August 15`h of each year. 4. COUNTY OBLIGATIONS 4.1 County has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $1,000,000.00 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. 4.2 A payment of $250,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C. 4.2.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.2.2 To receive payment under this Subsection these conditions must be satisfied no later than June 30, 2010. 4.3 Payments of $2,143.00 per new Job created will be paid to Company on a calendar year quarterly basis, provided that the sum of all such quarterly payments made pursuant to this Subsection shall not exceed $750,000.00 over the term of this Agreement. 10A -3- 4.3.1 Incentive Award payments for new Jobs shall be calculated by: 4.3.1.1 Subtracting Base Jobs from the total payroll Jobs at the end of the quarter in question, then multiplying the difference by $2,143.00. Next subtract the sum total of previous payments made under this Subsection. If the total is a positive number, the County will pay that amount to Company. If the total is negative, no payment will be made for that quarter. A summary explanation and examples of payment of jobs related Incentive Award payments under this Subsection is attached as "Exhibit D," attached and incorporated herein by reference. 4.3.2 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.3.3 To receive payment under this Subsection, new Jobs are expected to be created by June 31, 2011 and verification should be provided no later than August 1, 2011. However, Company may make a one -time election to extend the job creation schedule by one year. This election must be approved by County in writing, and County shall not unreasonably withhold such approval. Exercising this option shall result in a one -year extension of the term of the performance requirements and sanctions. 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event company fails to create and retain the total number of Jobs specified in Sections 3.2 through 3.3, so that on termination of this Agreement Company's payroll Jobs total is less than six - hundred -ten (610), the company shall repay all or a portion of the Incentive Award ( "Repayment Amount ") less the amount designated for qualified capital investment. The Repayment Amount shall be determined as follows: 5.1.1 Should the Company's total Jobs be less than four - hundred - thirty -five (435), the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. if any Incentive Award payments have been made, Company will be required to repay the Incentive Award amounts to County within forty - five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.2 Should Company's total Jobs be equal to or greater than four - hundred - thirty -five (435) but less than six - hundred -ten (610), Company shall repay a portion of the sum total of any Jobs related Incentive Award payments previously made by County to Company pursuant to Section 4.3. Company's Section 4.3 Incentive Award payments will be adjusted proportionately using the formula as set forth in "Exhibit E," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid.. 5.2 Should the Average Project Wage of all Jobs in existence as of July 1, 2011 be less than $58,500.00, the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to -4- repay the Incentive Award amounts to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.3 In the event company fails to make or cause to be made a Qualified Capital Investment in the Project of at least $1,000,000.00 by the date this Agreement terminates, Company shall repay five percent (5 %) of the sum total of any Incentive Award payments previously made by County to Company. Any Repayment Amount calculated hereunder shall be paid to County within forty-five (45) days of demand for same. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 6. DEFAULT 6.1 Either Party is in default if it materially breaches any covenant contained in this Agreement and such breach has not been corrected or cured within thirty (30) days after written notice thereof. 6.2 Company is in default if any representation or warranty made by the Company herein or in any report, statement, invoice, certificate or other documentation furnished to the County in connection with the performance of the Agreement proves to be untrue in a material respect as of the date of issuance or making thereof and has not been corrected or brought into compliance within thirty (30) days after written notice thereof to the Company by the County. 6.3 Company is in default if it fails to provide to the County the written verification, satisfactory to the County, of its performance of obligations herein. 7. REMEDIES 7.1 Company's remedy for default by County shall be a claim for the sums to which County has become obligated hereby. Such claims shall not include consequential or special damages, and shall not exceed the total Incentive Award amount specified in Section 4.1. 7.2 County's remedies for default by Company may include, but shall not be limited to, a claim or suit upon this Agreement, or both. 8. TERM AND TERMINATION 8.1 Unless terminated earlier in accordance with its terms, this Agreement shall terminate on the earlier of. 8.1.1 Five (5) years from the Effective Date; 8.1.2 The execution by all Parties of a written agreement terminating this Agreement; 8.1.3 At the option of a Party in the event the other Party is in default; or 8.1.4 At the option of County if Company suffers an event of bankruptcy or insolvency. 8.2 Section 3.5 and Section 5 shall expressly survive termination or expiration of this Agreement to the extent necessary to fully comply with the terms of Section 5. 8.3 Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration. 10 -5- 9. ATTORNEY FEES AND EXPENSES Should County prosecute any action in connection with this Agreement for collection of payments due under this Agreement or the enforcement of performance or observance of any obligation or agreement on the part of Company herein contained, County shall be entitled to the award of its court costs and reasonable attorney's fees. 10. NOTICES AND ADMINISTRATORS 10.IAll notices required or permitted under this Agreement and any written consents or approvals required hereunder shall be in writing and are in effect upon receipt by County and shall be transmitted either by personal hand delivery; United States Post Office, return receipt requested; or, overnight express mail delivery. E -mail and facsimile transmission may be used if the notice is also transmitted by one of the preceding forms of delivery. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given. 10.2The Parties' designated representatives and their respective addresses for purposes of this Agreement are as follows: James W. Moore Executive Director Lee County Economic Development 12800 University Drive, Suite 300 Fort Myers, Florida 33907 Telephone number: (239) 338 -3161 Fax number: (239) 338 -3227 11. BINDING EFFECTS AND ASSIGNMENT Cynthia L. Beauchamp, Esq. General Counsel Source Interlink Companies, Inc. 27500 Riverview Center Blvd., Suite 400 Bonita Springs, Florida 34134 Telephone number: (239) 949 -7624 Fax number: (239) 949 -7689 11.1 This Agreement shall be binding upon the successors and permitted assigns of the Parties hereto. 11.2 This Agreement may not be assigned by Company without the prior written consent of the County. 12. GOVERNING LAW 12.1 This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. Venue shall be in Lee County, Florida. Company hereby consents and waives any objection or defenses to jurisdiction within Florida, and further consents that process shall be served to its Florida agent. 12.2 Company agrees that any public expenditure found to be unlawful by a court of competent jurisdiction shall be reimbursed to County. 13. MODIFICATION This Agreement may not be changed or modified except by written instrument signed by all of the Parties hereto. 10 14. SURVIVAL All covenants, agreements, representations, warranties and endowments made herein shall survive the termination of this Agreement until any claim or claims made under this Agreement by either Party have been resolved. 15. FURTHER ASSURANCES Each Party, without further consideration, shall take such action, execute and deliver such documents as the other may reasonably request to effectuate the purpose of this Agreement. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement, nor any act of the Parties, shall be deemed or construed by the Parties hereto or by any third party to create a relationship of principal and agent, partnership, joint venture or of any association whatsoever between Company and County. 17. PROMOTION OF ECONOMIC INCENTIVES Either Party may issue news releases, public announcements, advertisements, or other forms of publicity concerning its efforts in connection with this Agreement. However, unless otherwise agreed, the Party publicizing its efforts shall provide a courtesy copy of any written material to the other Party for review and comment prior to publication. 18. COMPANY'S WARRANTIES /REPRESENTATIONS AND INDEMNFICATION 18.1 Company represents that it is possessed with all requisite lawful authority to enter into this Agreement, and the individual executing this Agreement is possessed with the authority to so sign and bind Company. 18.2 Company further warrants that it has not entered into any agreement nor has any obligations which would prohibit Company from locating its facility in Lee County, Florida. 18.3 OTHER THAN COMPANY'S CLAIMS FOR DEFAULT BY COUNTY, COMPANY SHALL INDEMNIFY AND HOLD COUNTY HARMLESS FOR ANY CLAIMS OR ACTIONS OF ANY NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING THE CONSTRUCTION AND OPERATION OF ITS FACILITIES. 19. SEVERABILITY If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the Parties. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding of the Parties and supersedes all prior agreements and negotiations respecting such matter. 10 A y.. 10� 8 DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Sealed and Delivered in the presence of: ATTEST: CHARLIE GREEN CLERK OF COURTS Deputy Clerk rte: .u0�`i SOURCE INTERLINK COMPANIES, INC. BY: 7 Iloq Authorized Signature ate MVP Title BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA BY: 1 QWC--Q Chairman APPR i 10A 0 EXHIBIT A Project Description The Project contemplated by this Agreement entails consolidating Source Interlink Companies, Inc., operations and transferring the functions and staffing from Coral Springs, FL, Middlebury, VT and New York City, New York into the Bonita Springs corporate location. This will result in the addition of 350 new positions being added at the Bonita Springs, Florida facility by June 30, 2011. The Company will renovate its current headquarters location at 27500 Riverview Center Blvd., Bonita Springs, FL 34134 in order to accommodate the following business unit activities and some of the associated personnel: Business Unit Activities SIC or NAICS Code Annualized Wage ($) Bonita Springs - Current 541114 $ 70,878 Coral Springs — Sales, Purchasing, Marketing, Legal, IT, HR, Finance, Customer Service, Creative Services, Audit, Accounting 424920 $ 62,980 Middlebury, v'r— Customer Service, Telemarketing 511120 $ 21,925 New York, NY — Circulation 511120 $ 71,575 10A IN EXHIBIT B Job Creation and Wage Schedule Phase Number of net new full -time equivalent Jobs created in Lee County, FL Date by which jobs will be created I 50 12/31/2009 I I 300 06/30/2011 Total 350 350 new Jobs will pay an average annual wage of $65,000 plus benefits. 10A 11 EXHIBIT C Qualified Capital Investment Schedule 2009 2010 N/A Land $0 $0 Construction / Renovations $200,000 $200,000 Manufacturin Equipment $0 $0 R&D Equipment $0 $0 Other Equipment (computer equipment, office furniture, etc. ) $400,000 $500,000 Total Capital Investment $600,000 $700,000 10A 12 EXHIBIT D New Jobs Incentive Award Payment Methodology I. Document total employment at end of period (Q1, Q2, Q3, or Q4) 2. Subtract Base Jobs from total employment 3. Multiply difference by dollar award per new job created 4. Subtract sum total of payments previously made for new job creation (Section 4.3 payments) 5. Make payment accordingly Example New Jobs Payments (Illustration) 1. September 30, 2009 total Jobs = 378 a) 378 (Jobs) — 278 (Base Jobs) = 100 b) 100 X $2, l34 (award /job) = $213,400 c) $213,400 - $0 (previous Section 4.3 payments) _ $213,400 d) County pays Company $213,400 2. December 31, 2009 total Jobs= 428 a) 428 — 278 = 150 b) 150X$2,134=$320,100 c) $320,100-$213,400=$106,700 d) County pays Company $106,700 3. March 3 I, 2010 total Jobs =418 a) 418 — 278 = 140 b) 140 X $2,134 = $298,750 c) $298,750—($213,400+$106,700)=($21,340) d) No payment 4. June 30, 2010 total Jobs = 483 a) 483-278=205 b) 205 X $2,134 = $427,470 c) $427,470-$320,100=$107,370 d) County pays Company $107,370 5. Sum of payments under Section 4.3 shall not exceed $750,000 10A 13 EXHIBIT E Repayment Amount Calculation STEP I Actual Jobs Created & Maintained (total # of employees) = Percentage of Committed Jobs 610 STEP 2 Cumulative Section 4.3 Incentive Award Payments for Jobs creation X Percentage of Committed Jobs Adjusted Award Amount STEP 3 Cumulative Section 4.3 Incentive Award Payments for Jobs creation — Adjusted Award Amount Repayment Amount Example —Partial Repayment Necessary Maximum Section 4.3 payment of $750,000 is made upon creation of 350 Committed Jobs, for a total payroll count of 610. However, upon termination of the Agreement the total payroll count is 600, indicating new Jobs creation and maintenance of 322. • Actual jobs delivered = 322 (92% of Commitment) • Performance > 50% but < 100 %, so partial repayment of previously disbursed Section 4.3 Incentive Award payments is required. • $750,000 X 92% = $690,000 (Adjusted Award Amount) • $750,000 - $690,000 = $60,000 (Repayment Amount) 9 10A FIRST AMENDMENT TO LEE COUNTY FIRST INCENTIVE AWARD AGREEMENT THIS FIRST AMENDMENT TO INCENTIVE AWARD AGREEMENT is made and entered into this 5 day of October, 2010, by and between Lee County, a political subdivision of the State of Florida, by and through its Board of County Commissioners ( "County ") and Source Interlink Companies, Inc., ( "Company ") pursuant to Sections 125.045 and 288.1088, Florida Statutes. - WHEREAS, Section 125.045(3), Florida Statutes, specifically authorizes a county to make Incentive payments in the form of grants to private enterprise for expanding existing businesses located within the county, or to attract new businesses to the county; and WHEREAS, in 2008 the Board of County Commissioners set aside $25 Million of budget reserves for economic development projects in Lee County, and this set aside has been used to fund the Lee County FIRST program; and WHEREAS, on June 30, 2009, the parties entered a Lee County First Incentive Award Agreement (the "Incentive Agreement ") to consolidate Company's operations in Lee County and create 350 new positions by June 30, 2011; and WHEREAS, the Incentive. Agreement includes schedules for job creation by the Company and incentive payments by the County listed as a series of Project milestones over the term of the Agreement; and WHEREAS, Section 4.3.3 of the Incentive Agreement allows Company to make a one -time election to extend the job creation schedule by one (I) year; and WHEREAS, due to delays resulting from a recent corporate reorganization, Company seeks County's approval to exercise its one -time election; and WHEREAS, County has determined that the extension request is reasonable and the parties desire to amend the Incentive Agreement job creation and payment schedules accordingly. In consideration of the mutual promises and agreements contained herein, and other valuable and good consideration, County and the Company agree to amend the correspondingly numbered sections of the Incentive Agreement as follows with additions to the text underlined, and deletions shown struck - through: RECITALS The above recitals are true and correct and are hereby incorporated and made part of this Agreement. 2. SECTION 3 OF THE INCENTIVE AGREEMENT IS AMENDED TO READ: 3. COMPANY OBLIGATIONS 3.1 Company commits to undertake the following Project, which is more particularly described in "Exhibit A_i ", attached and incorporated herein by reference. Clb I- 10 -5 -10 10 3.2 Company represents and warrants that on July 1, 2009, Company has a total of two- hundred- sixty (260) Jobs located or based at the Project site(s). Company commits to maintaining one - hundred percent (100°/x) of these jobs within Lee County, Florida until this Agreement is terminated. A complete list of employee positions certified by Company is available for review by a County representative at Company's offices and any Information derived from any such review shall be confidential and shall not be released by County or its representative to any third Party. 3.3 Company shall create at least 350 new Jobs as part of Project that pay an Average Project Wage of at least $65,000.00 per year pursuant to the schedule set forth in "Exhibit B -1," attached and incorporated herein by reference. Company commits to maintain these new Jobs. at the Average Project Wage until this Agreement is terminated. 3.4 Company shall make or cause to be made a Qualified Capital Investment in the Project of at least $1,300,000.00 pursuant to the schedule set forth in "Exhibit C ! " attached and incorporated herein by reference. 3.5 In addition to any documentation required by Section 4, Company shall submit in sufficient and reasonable detail an annual written progress report verifying the number of workers employed by Company as part of Project, the average wage of said employees, and the status of the committed Qualified Capital Investment. This annual report shall include supporting documentation, be certified by the Chief Financial Officer of Company, and be received by the County no later than August 15'' of each year. SECTION 4 OF THE INCENTIVE AGREEMENT IS AMENDED TO READ: 4. COUNTY OBLIGATIONS 4.1 County has budgeted and agrees to appropriate and hold in a restricted reserve account in the general fund of the County the sum of $1,000,000.00 (the "Incentive Award "). The Incentive Award shall be released to the Company as specified below. 4.2 A payment of $250,000.00 shall be made in the form of reimbursement for expenditures described in Exhibit C - I. 4,2.1 Supporting documentation shall be submitted to County for verification of the aforementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment: 4.2.2 To receive payment under this Subsection these conditions most be satisfied no later than June 30, 2011. . 4.3 Payments of $2,143.00 per new Job created will be paid to Company on a calendar year quarterly basis, provided that the sum of all such quarterly payments made pursuant to this Subsection shall not exceed $750,000.00 over the tern of this Agreement. 4.3.1 Incentive Award payments for new Jobs shall be calculated by: 4.3.1.1 Subtracting Base Jobs from the total payroll Jobs at the end of the quarter in question, then multiplying the difference by $2,143.00. Next subtract the sum total of previous payments made under this Subsection. If the -2- 10A total is a positive number, the County will pay that amount to Company. If the total is negative, no payment will be made for that quarter. A summary explanation and examples of payment of jobs related Incentive Aw ,lrd payments under this Subsection is attached as "Exhibit D," attached and incorporated herein by reference. 4.3.2 Supporting documentation shall be submitted to County for verification of the af6rementioned conditions. Verification must be complete to County's satisfaction prior to the disbursement of the payment. 4.3.3 To receive payment under this Subsection, new Jobs are expected to be created by June 31, 2012 and verification should be provided no later than August I, 2012: eb oreatien schedule by ene year. This eleetion oust -be-a ppreved by County in wflting, tint), Mall a this OptiGH Shall FeSUR iH a ene yeaF extension of !he term of the peF&r-mff"e 4. SECTION 5 OF THE INCENTIVE AGREEMENT IS AMENDED TO READ: 5. INCENTIVE AWARD REPAYMENT REQUIREMENTS 5.1 In the event company fails to create and retain the total number of Jobs specified in Sections 12 through 3.3, so that on termination of this Agreement Company's payroll Jobs total is less than six- hundred -ten (610), the company shall repay all or a portion of the Incentive Award ( "Repayment Amount "). The Repayment Amount shall be determined as follows: 5.1.1 Should the Company's total Jobs be less than four- hundred - thirty -five (435), the Company is in default of this Agreement which will result in the loss -of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. If any Incentive Award payments have been made, Company will be required to repay the incentive Award amounts to County within forty - five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.1.2 Should Company's total Jobs be equal to or greater than four - hundred - thirty -five (435) but less than six - hundred -ten (610), Company shall repay a portion of the sum total of any Jobs related Incentive Award payments previously made by County to Company pursuant to Section 4.3. Company's Section 4.3 Incentive Award payments will be adjusted proportionately using the formula as set forth in "Exhibit E--1," attached and incorporated herein by reference. Any Repayment Amount calculated hereunder shall be paid to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.2 Should the Average Project Wage of all Jobs in existence as of July 1, 2012 be less than $58,500.00, the Company is in default of this Agreement which will result in the loss of eligibility for receipt of Incentive Award payments previously authorized under this Agreement. if any Incentive Award payments have been made, Company will be required to -3- 10 repay the Incentive Award amounts to County within forty -five (45) days of demand. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5.3 In the event company fails to snake or cause to be made a Qualified Capital Investment in the Project of at least $1,000,000.00 by the date this Agreement terminates, Company shall repay five percent (5 0/D) of the sum total of any Incentive Award payments previously made by County to Company, Any Repayment Amount calculated hereunder shall be paid to County within forty -five (45) days of demand for same. Any amounts due to County shall bear interest at the rate periodically announced by the Wall Street Journal as the prime or base commercial lending rate from the date of termination until paid. 5. The remaining terms of the Incentive Agreement are in full effect. DUPLICATE ORIGINALS: This Agreement is executed in duplicate originals. In Witness whereof, County and the Grantee have caused this agreement to be executed and delivered by their duly authorized representatives. Signed, Senled and Delivered in the SOURCE INTERLINK COMPANIES, INC. presence of: BY: d. Wltne Authori d Signature Date _ VIE ATTEST: CHARLIE GREEN CLERK OF COURTS �� +{ C &! 1p.quty Clerk AJ :cam ��` IZ Title BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, FLORIDA BY: D Chair APPROVED Aa TO FORM: M County - SA GMSMAgreementAlst Amendment Source inw] ink Companies FIRST PerformaXeAgreement .doc -4- 10 A EXHIBIT A -1 Project Description The Project contemplated by this Agreement entails consolidating Source Interlink Companies, Inc., operations and transferring• the functions and staffing from Coral Springs, FL, Middlebury, VT and New York City, New York into the Bonita Springs corporate location. This will result in the addition of 350 new positions being added at the Bonita Springs, Florida facility by June 30, 2012. The Company will renovate its current headquarters location at 27500 Riverview Center Blvd., Bonita Springs, Florida 34134 in order to accommodate the following business unit activities and some of the associated personnel: Business Unit Activities SIC or NAICS Code Annualized Wage $ Bonita Springs • Current 541114 $ 70,878 Coral Springs -- Sales, Purchasing, Marketing, Legal, IT, HR, Finance; Customer Service, Creative Services, Audit, Accounting 424920 $ 62,980 Middlebury, VT— CUstomar Service, Telemarketing 511120 $ 21,925 New York, NY — Circulation 511120 $ 71,575 -5- l0A EXHIBIT 13-1 Job Creation and Wage Schedule Phase Number of net new full-time equivalent Jobs created in Lee County, FL Date by which jobs will be created I 50 12/31/2010 li 300 06/30/2012 Total 350 350 new Jobs will pay an average annual wage of $65,000 plus benefits. 10 A 04 EXHIBIT C•1 Qualified Capital Investment Schedule -7- 2010/11 2011/12 N/A Land $0 $0 Construction/ Renovations $200000 $200,000 Manufacturing Equipment $0 $0 R &D Equipment $0 $0 Other Equipment (computer equipment, office furniture, etc, ) $400,000 $500,000 Total Ca ital Investment $600,000 $700,000 -7- EXHIBIT E -1 Repayment Amount Calculation STEP 1 l0A Actual Jobs Created & Maintained (total # of employ = Percentage of Committed Jobs 610 STEP 2 Cumulative Section 4.3 Incentive Award Payments for Jobs creation X Percentage of Committed Jobs Adjusted Award Amount STEP 3 Cumulative Section 4.3 Incentive Award Payments for Jobs creation — Adiusted Award Amount Repayment Amount Example — Partial Repayment Necessary Maximum Section 4.3 payment of$1,000000, is made upon creation of 350 Committed Jobs, for a total payroll count of 610. However, upon termination of the Agreement the total payroll count is 610, indicating new Jobs creation and maintenance of 305. • Actual jobs delivered = 305 (50% of Commitment) Performance > 50% but < 100 %, so partial repayment of previously disbursed Section 4.3 Incentive Award payments is required. • $1,000000 X 50% = $500,000 (Adjusted Award Amount) • $1000.000 - E0000 = $500.000 (Repayment Amount) -8- ITEM #: ! ri 6 BCC DATE: )4- Collier County Master Mobility Plan gy. J\j iL IL � . a :� Summary of Proposed Changes to Final Report C' R S -I L i� L (January 23, 2012) The following is a summary of proposed changes to the Collier County Master Mobility Plan Final Report that is being presented to the Collier County Board of County Commissioners on January 24, 2012. It is anticipated that these changes, along with any other changes discussed and approved during this BCC meeting, will then be incorporated into a Revised Final Report. Section 4: Conceptual Plans and Potential Benefits • Page 4 -9 ( beginning of 2nd paragraph), the reference to Scenario #1 in this sentence is incorrect. Text will be changed to read: "Table 4 -4 summarizes the results of the travel demand model run for the conceptual land use scenario." • Table 4 -5 (page 4 -13) currently shown for Scenario #1 is a duplicate of Table 4 -6 shown under Scenario #2. Table 4 -5 will be corrected to show the results for Scenario #1. In addition, the wording of the second row under the first (Land Use Scenario) column will be changed from "Conceptual Land Use Scenario" to "Baseline." This wording change will also be made to Table 4 -6 since, in both instances, only the road network was modified in each connectivity scenario and the land use remained the baseline scenario. The corrected Table 4 -5 is provided below. Table 4 -5 (corrected) Comparison of Results from Baseline Model and Connectivity Test #1 Baseline 2035 Needs Plan Network 32,235,217 1,912,503 8,018,565 736,045 Baseline Connectivity Test #1 30,686,307 2,407,578 7,913,288 663,779 (Sub -Area Road Connectivity) Difference (1,548,910) 495,075 (105,277) (72,266) Percent Change -4.8% 25.9% -1.3% -9.8% Section 5: Master Mobility Plan Recommendations • Recommendation 7, Example B: The capitalization of the phrase "Complete Streets" will be removed (now written as "complete streets ") so as to not imply the acceptance of an existing complete program or set of guidelines; specific complete streets guidelines will need to be further discussed in subsequent phases of the MMP. • Recommendations 14, Examples C, D, F, and G: Italicized font of the letters for these examples will be removed. Section 6: U.S. DOE Grant Requirements • Within Table 6 -1, Grant Activity Metrics, the Collier County Planning Commission Meetings held on December 1st and December 15th will be included in the list of meetings where comments on the MMP Draft Report could be made by members of the public. These two meetings will be listed within "Incorporate Recommendations /Changes from Public Workshops into Draft Vision Plan Map" metric. A MW L;d L 2 COWS MFUMNAL PREFIGHTM & MAMEDWS 4001 SANTA BARBARA BLVD #317 — NAPLES, FL 34104 To: Commissioner Jim Coletta From: President Christian Tobin Date: January 23, 2012 RE: Fire District Consolidation Presentation Dear Commissioner: ITEM #: �rj BCC DATE/ 2 j I am writing you with the hope of being able to spend some time presenting the need for Fire District Consolidation at a Board of County Commissioner meeting. I believe it is important for all Collier County residents, visitors, and business owners to realize that a better, effective, and more cost efficient fire service is possible and needed. Everyone deserves to pay the same millage rates, inspections fees and impact fees in the County and not be divided by "invisible" fire district taxing lines. Everyone deserves the same great service where they live and where they may travel. My short presentation would include the benefits of Consolidating Fire Districts: • Eliminate redundancy in Administration (e.g. Fire Chiefs, Fire Marshalls, Human resource and personnel administration, fleet maintenance and reserve apparatus). • Increased service delivery to the community with existing resources. • Uniform codes and standards for property owners and businesses. • Standardized training, policies, and procedures • Elimination of multiple unions (e.g. standard wage and benefits packages controls costs) • Possible reduction-in property and business owner insurance rates through Insurance Service Office (ISO) rating schedule. Respectfully, President Christian Tobin