20' sec APPROVED-E-LL FINANCIAL INCENTIVE AGREEMENT THIS AGREEMENT is entered into this of 1, by and between Sarasota County Florida, a political subdivision of the State of Florida (the "County") whose mailing address is 1660 Ringling Boulevard, Sarasota, Florida 34236 and Tube Dude, LLC ("Tube Dude"), a Florida corporation, whose mailing address is 1001 Central Avenue, Sarasota, Florida 34236. WITNESSETH WHEREAS, Section 125.045, Florida Statutes, authorizes the governing body of a county to expend public funds to attract and retain business enterprises, including making grants to private enterprises for the expansion of businesses existing in the community or the attraction of new businesses to the community, and finds that the use of public funds toward the achievement of such economic development goals constitutes a public purpose; and WHEREAS, the Board of County Commissioners (the "Board") recognizes that it is a function of local government to promote economic development within its jurisdiction by providing financial incentives to encourage new businesses to relocate within its jurisdiction and existing businesses to expand or to provide other unique economic development opportunities that will benefit the entire community; and 3 WHEREAS, the Board has directed that certain revenues be set use .72} economic development incentives to assist businesses in relocating to Sarasota-;i;County or_7'7 expanding a business located in Sarasota County as well as to encourage other diverse economic!>> 2 opportunities; and ""055 WHEREAS, Tube Dude manufactures custom--made fun and practical crafted_1netal' art and has two additional businesses that complement Tube Dude; and WHEREAS, Tube Dude represents that it is that it presently employs 5 full-time employees at its existing Sarasota County Facility (the "Facility") with an average wage of Fifty Seven Thousand Four Hundred Dollars and WHEREAS, Tube Dude represents that it intends to expand its business by purchasing additional equipment to meet growing customer demand and creating 44 new full time jobs to employ 44 fi1ll--time individuals within the period of July 27, 2011 through July 26, 2016 (the ob Creation Period") with an average wage of Fifty--Two Thousand Dollars and WHEREAS, Staff estimates that expanding the business will result in an economic output of Fifteen Million One Hundred Sixty-Three Thousand Nine Hundred Forty Five Dollars over the next five years; and WHEREAS, on July 27, 2011 in recognition of the economic stimulus Tube Dude would provide to the community with the expansion of its business and the creation of 44 new full--time jobs, the Board authorized an economic development incentive grant to Tube Dude in an amount }1 not to exceed One Hundred Thousand Dollars to assist Tube Dude in expansion- related expenses (the "Economic Development Grant"); and WHEREAS, Tube Dude acknowledges that the Economic Development Grant is a critical consideration with respect to the expansion of the business. NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, hereby acknowledged by the parties, Tube Dude and County agree as follows: 1. lncog);)ration. The recitals set forth above are incorporated herein in their entirety. 2. Grant. Subject to the terms and conditions of this Agreement, to assist Tube Dude with the purchase of equipment related to expansion of the business and to facilitate the creation of 44 new full-time jobs in the County (the "Job Creation Requirement"), the County shall remit to Tube Dude from any lawfully available funds not otherwise restricted, the Economic Development Grant in the manner set forth in this Section 2. a. Within thirty (30) days of the County's receipt of copies of executed contracts between Tube Dude and its provider(s) for the purchase of capital equipment to be used for the expansion of its business with a purchase price of at least Fifty Thousand Dollars and evidence of pending job orders and sales projections through December 31, 2011, the County shall remit Fifty-Six Thousand Dollars of the Economic Development Grant to Tube Dude (the "Initial Payment"). b. Subject to budget appropriation, within thirty (30) days of the County's receipt of proof of new jobs created payroll register) at the Facility, the County shall remit to Tube Dude One Thousand Dollars for each new job created during the Job Creation Period. c. In no event shall the Economic Development Grant to Tube Dude exceed $100,000.00 (One Hundred Thousand Dollars). All payments not made prior to October 1, 20ll are subject to annual budget appropriation. d. Commencing not later than ten (10) days after the end of the next calendar quarter following the date of the last signatory hereto and continuing quarterly throughout the Term, an authorized, knowledgeable representative of Tube Dude shall, within ten (10) days of the end of each calendar quarter, deliver to the County a properly executed affidavit in a form satisfactory to the County showing the Capital Investment that Tube Dude has made to date in the equipment at the 1 }2 Facility and the number of new jobs created. In the event Tube Dude fails to provide the affidavit in a timely manner, the County shall notify Tube Dude that it is in breach of this Agreement. Tube Dude shall then have thirty (30) days from the date of the notice to remit the documentation or forfeit the total amount of the Economic Development Grant to the County. The County's duly authorized and designated officials charged with carrying out this Agreement and having a need to know, or their designees, shall have the right to examine Tube Dude's business records to verify Tube Dude's compliance with the Job Creation Requirement and Capital Investment requirement set forth herein. Tube Dude shall maintain such records at the Facility. Economic Development Grant Requirements. The Company's right to retain the Economic Development Grant is conditioned upon the following: a. Company shall purchase equipment as part of the expansion of its business and maintain this equipment and operations at the Facility throughout the Term of this Agreement; Company shall create 44 new jobs employing 44 additional full-time employees at the Facility during the Job Creation Period and, at a minimum, retain those jobs throughout the Job Creation Period; Company shall compensate employees hired for a newly created job at an average annual wage of not less than Fifty-Two Thousand Dollars adjusted annually according to the percent average annual change in the U.S. Department of Labor Consumer Price Index for All Urban Consumers Company shall undertake best efforts to fill not less than 50% (fifty percent) of all newly created jobs with employees who are residents of Sarasota County so long as Tube Dude reasonably determines that there are sufficient number of properly qualified applicants residing in Sarasota County; Company shall undertake best efforts to contract with local businesses for the purchase of equipment. For purposes of this section, "local business" shall have the same meaning set forth in Section of the Sarasota County Code. Grant Reimbursement. 21. Within sixty (60) days following the end of the Job Creation Period, Tube Dude shall reimburse the County One Thousand Dollars for }3 each of the 44 new jobs not retained during the Job Creation Period. This subsection 4.a applies only if Tube Dude continues operations in Sarasota County beyond the Job Creation Period. If Tube Dude ceases operations in Sarasota County prior to the end of the Job Creation Period, the reimbursement provisions of subsection 4.b shall apply. b. In the event ceases its operations in Sarasota County prior to the end of the Job Creation Period, Tube Dude shall notify the County in writing within ten (10) days of ceasing operations and shall, within sixty (60) days of providing notice, reimburse the County the prorated amount of the Initial Payment as indicated below. Reimbursement shall be capped at the amount of the Economic Development Grant. Operations ceased Reimbursement July 27, 2011 -- July 26, 2012 -- 80% July 27, 2012 -- July 26, 2013 -- 60% July 27, 2013 -- July 26, 2014 -- 40% July 27, 2014 -- July 26, 2015 -- 20% July 27, 2015 4- July 26, 2016 5% No Pledge of Faith and Credit. No provision of this Agreement shall be construed or interpreted as creating a pledge of the faith and credit of the County within the meaning of any constitutional debt limitation. The parties acknowledge that the scope, term and duration of this Agreement are reasonable. No provision of this Agreement shall be construed or interpreted as delegating governmental powers, or as a donation or a lending of the credit of the County, within the meaning of the Florida Constitution. No provision of this Agreement shall be construed to pledge or to create a lien on any class or source of the County's moneys, nor shall any provision of this Agreement restrict to any extent prohibited by law any action or right of action on the part of any future County Commission. To the extent of any conflict between this Section and any other provision of this Agreement, this Section shall take priority. Assignment Estoppel. Except as hereinafter provided, neither this Agreement nor any rights, privileges, or claims created by this Agreement may be assigned by Tube Dude without the prior written approval of the County, which approval will not be unreasonably withheld, conditioned or delayed; provided that Tube Dude may assign this Agreement to any affiliate that assumes in writing all of Tube Dude's obligations under this Agreement and provides written notice of the assignment to the County within thirty (30) days after such assignment. Any attempted assignment in breach of this Agreement shall be void. Disclaimers. Tube Dude acknowledges that the County has not designed the Facility, that the County has not supplied any plans or specifications with respect thereto or the equipment used at the Facility and that the County is not a }4 manufacturer of, nor dealer in, any of the component parts of the Facility or equipment used at the Facility, has not made any recommendation, given any advice nor taken any other action with respect to (1) the choice of any contractor, supplier, vendor or designer of, or any other contractor with respect to, the Facility, any component part thereof, any property or rights relating thereto, or any equipment used at the Facility, or (2) any action taken or to be taken with respect to the Facility or any component part thereof, any property or rights relating thereto or any equipment used at the Facility, and has not made any warranty or other representation, express or implied, that the Facility, any component part thereof, any property or rights relating thereto, or any equipment used at the Facility will not result in or cause injury or damage to persons or property, (ii) has been or will be properly designed, or will accomplish the results which Tube Dude intends therefor, or is safe in any manner or respect. THE COUNTY MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER WITH RESPECT TO THE FACILITY, ANY COMPONENT PART THEREOF, OR ANY EQUIPMENT USED AT TIE FACILITY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE MERCHANTABILITY OR THE FITNESS OR SUITABILITY THEREOF FOR ANY PURPOSE, AND FURTHER INCLUDING THE DESIGN OR CONDITION THE SAFETY, WORKMANSHIP, QUALITY OR CAPACITY COMPLIANCE THEREOF WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING ANY LATENT THE ABILITY TO PERFORM ANY OR ANY OTHER CHARACTERISTIC OF THE IT BEING AGREED THAT, EXCEPT AS EXPRESSLY PROVIDED IN THE PURCHASE AGREEMENT, TUBE DUDE IS TO BEAR ALL RISKS RELATING TO THE FACILITY, TI-IE THEREOF AND THE TRANSACTIONS CONTEIVIPLATED THEREBY AND TUBE DUDE HEREBY WAIV ES THE BENEFITS OF ANY AND ALL WARRANTIES AND REPRESENTATIONS OF THE COUNTY AS THEY MAY RELATE TO THE FOREGOING. IN NO EVENT SHALL THE COUNTY BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT OF ANY KIND, INCLUDING LOST REVENUES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. The provisions of this Section shall survive the Agreernent's termination for any reason or its expiration. Controlling Law. This Agreement is entered into pursuant to the laws of the State of Florida, and shall be construed and enforced thereunder. In the event of litigation for any alleged breach of this Agreement, exclusive jurisdiction and venue for such litigation shall be in the Circuit Court of the Twelfth Judicial )5 10. District, in and for Sarasota County, Florida, or the United States District Court for the Middle District of Florida, Tampa Division. In the event of any litigation concerning this Agreement, the parties waive all rights to a jury trial. Notice. Any notices required under this Agreement shall be in writing and be addressed to the parties as shown below. Notices shall be delivered by certified or registered first class mail or by commercial courier service, and shall be deemed to have been given or made as of the date received COUNTY County Administrator 1660 Ringling Blvd, FL Sarasota, FL 34236 Phone: (941) 861-5111 Fax: (941) 861-5987 TUBE DUDE Tube Dude, Inc. Attn: Scott Gerber 1001 Central Avenue Sarasota, Florida 34236 Phone: (941) 735-6009 Force Maj cure. Notwithstanding anything contained in the Act or this Agreement to the contrary, and subject to the terms of this Section, Tube Dude's failure to perform its obligations under this Agreement, other than with respect to the payment of money or the giving of any notice required hereunder, shall not be a default, and no disqualification shall occur as a result thereof, if any such failure or delay is due in whole in part to acts of God; acts of public enemy; war; riot; sabotage; blockage; embargo; failure or inability to secure materials, supplies or labor through ordinary sources by reason of shortages or priority; labor strikes, lockouts or other labor or industrial disturbance (whether or not on the part of agents or employees of either party hereto engaged in renovation or construction at the Facility); civil disturbance; terrorist act; fire, flood, windstorm, hurricane, earthquake or other casualty; any law, order, regulation or other action of any governing authority; any action, inaction, order, ruling, moratorium, regulation, statute, condition or other decision of any governmental agency having jurisdiction over any portion of the Facility, over the renovation or construction anticipated to occur thereon or over any uses thereof, or by delays in inspections or in issuing approvals by private parties or permits by governmental agencies; discovery of hazardous or toxic materials; failure of the Internet; failure of power, telecommunication, data connectivity or other services to be delivered to the Facility by any third party including any local utility provider; delays caused by any dispute resolution process; or any cause whatsoever beyond the reasonable control (excluding financial inability) of the party whose performance is required hereunder, or any of its contractors or other representatives, whether or not similar to any of the causes hereinabove stated. :1 }6 ll. Defaults; Remedies; Dispute Resolution and Cooperation. a. The following shall constitute events of default hereunder: Tube Dude's failure to pay any amount due to the County hereunder; (ii) Tube Dude's assignment or attempted assignment of this Agreement in violation of the terms hereof; and Tube Dude's breach or violation of any of its covenants, representations, conditions or agreements contained herein; and (iv) Inaccurate or untrue warranty or representation of Tube Dude. If an event of default specified in Section ll(a)(i) shall occur and continue for a period of thirty (30) or more days after written notice thereof to Tube Dude, the County's sole and exclusive remedy shall be to recover the amount unpaid plus interest at the legal rate and any attorney fees and court costs related to recovery of the amount due to the County. If any event of default specified in Section 11(a)(ii) or shall occur and continue for a period of thirty (30) or more days after written notice thereof to Tube Dude, the County's sole and exclusive remedy shall be to terminate this Agreement, whereupon the County shall be entitled to recover from Tube Dude the Economic Development Grant in full. If an event of default specified in Section 11(a)(iv) shall occur, the County's sole and exclusive remedy shall be to recover the Economic Development Grant plus interest at the legal rate and any attorney fees and court costs related to recovery of the Grant. In the event of any other default hereunder not described in Section 1l(a), the County shall have such rights and remedies as may be available in law or equity. Both Tube Dude and the County acknowledge that any and all monies appropriated and expended by the County for economic development incentives, as provided in this Agreement, are for a bona fide public purpose and are expended in good faith reliance on the representations on behalf of Tube Dude. If one or more lawsuits are brought against the County or any elected official, officer, agent or employee of the County challenging the legality of this Agreement, then the County shall exercise its reasonable efforts to defend against any and all such lawsuits. Tube Dude will support and assist the County in such efforts in any litigation; if both the County and Tube Dude are sued, the parties shall consider whether a joint defense agreement is feasible. Each party will cooperate with the other party in the common defense (should any defense ever be necessary) of this Agreement and/or the incentives granted hereunder. }7 12. 13. 14. 15. 16. Conflicting Law; Severabilitv. If a Conflicting Law is enacted after the Effective Date, then the County and Tube Dude shall meet and confer in good faith for a period of no less than thirty (30) and no more than ninety (90) days to seek to effectuate an amendment to this Agreement providing the County and Tube Dude with the rights and remedies intended to be provided herein. Nothing herein shall preclude either the County or Tube Dude from challenging the validity of any Conflicting Law. Each provision in this Agreement is severable. If any such provision is determined to be invalid or illegal, the validity and enforceability of the remainder of this Agreement shall be unaffected. If the Economic Development Grant, or any portion thereof, is deemed by a court of competent jurisdiction to be ultra vires or not authorized by the laws or Constitution of the State of Florida, then the County shall use reasonable efforts to provide equivalent incentives to Tube Dude as allowed by law. Term' Survival. The term of this Agreement shall commence on the date of last signatory hereto (the "Effective Date") and, unless sooner terminated, shall continue in force through July 26, 2016. If neither Tube Dude nor any assignee is operating the Facility as herein stated, then, following thirty (30) days notice to Tube Dude and a reasonable opportunity to cure during that period, if the failure is not cured, this Agreement shall terminate. Sections shall survive the expiration or termination of this Agreement for any reason, along with any other provision of this Agreement which shall, by its terms, survive termination or expiration. Non-Business Days. If the date for making any payment or the last day for performance of any act or the exercising of any right shall not be a business day, such payment shall be made or act performed or right exercised on or before the next business day. Amendments. This Agreement shall not be changed except by written instrument signed by all the parties. Entire Understanding. This Agreement embodies the entire understanding between Tube Dude and the County with respect to financial incentives referenced herein, and any prior or contemporaneous representations, either oral or written, are hereby superseded. No amendments or changes to this Agreement shall be effective unless made in writing and signed by authorized representatives of the parties }8 l7. Binding Effect and Effectiveness; Representations and Warranties. a. Subject to the specific provisions of this Agreement, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and assigns, notwithstanding changes in corporate or other governance. b. Tube Dude represents and warrants to the County that as of the date hereof and throughout the term of this Agreement: (ii) (iv) (V) Tube Dude is a for-profit corporation, duly organized under the laws of the State of Florida, maintains a place of business within the State of Florida, and is validly existing and is doing business in the State of Florida as Tube Dude, Inc. Tube Dude has the power and authority to own its properties and assets and to carry on its business as now being conducted and has the power and authority to execute and perform this Agreement; This Agreement is the lawful, valid and binding agreement of Tube Dude in its corporate name enforceable against Tube Dude in accordance with its terms; does not violate any order of any court or other agency of government binding on Tube Dude, the charter documents of Tube Dude or any provision of any indenture, agreement or other instrument to which Tube Dude is a party; and does not conflict with, result in a breach of, or constitute an event of default, or an event which, with notice or lapse of time, or both, would constitute an event of default, under any material indenture, agreement or other instrument to which Tube Dude in its corporate name is a party; Tube Dude has not received written notice of any action having been filed against Tube Dude that challenges the validity of this Agreement or Tube Dude's right and power to enter into and perform this Agreement; and The County represents and warrants to Tube Dude that the County is a political subdivision of the State of Florida with power and authority to enter into and perform this Agreement; the County has taken all action necessary to authorize the execution, delivery and performance of this Agreement; and to the County's knowledge, no action or proceeding is pending or threatened, challenging this Agreement or the County's right and power to enter and perform this Agreement. As used in this Agreement, the phrase "the County's knowledge" shall mean the actual knowledge, at the time of execution of this Agreement by the County, of the County Attorney and the County Administrator. }9 l8. Counterparts; Exhibits. This Agreement may be executed in any number of separate counterparts. Bach executed counterpart shall constitute an original, and all of them taken together shall constitute a single instrument. All the Exhibits attached to this Agreement are incorporated herein by reference. 19. Recording. The parties hereto agree that an executed copy of this Agreement shall be recorded by the County in the Public Records of Sarasota County, Florida within ten (l0) days of full execution of this Agreement. 20. Effective Date. This Agreement shall be effective on the date of the last signatory hereto. IN WITNESS WHEREOF, the County and Tube Dude, Inc. have executed the Agreement as of the date first above written. TUBE DUDE, LLC . By: /LL?/rt LL) Titlefl' 1/ (Print Name) Pram:/u Date: ATTEST: BOARD OF COUNTY COMMISSIONERS ., <