HomeMy WebLinkAboutEconomic Incentive Agreement-OXYSONIX Corp ECONOMIC INCENTIVE AGREEMENT
THIS ECONOMIC INCENTIVE AGREEMENT ("Agreement") is made and entered
into this Ord day of July , 2012, by and between the CITY OF CAPE
CANAVERAL, FLORIDA, a Florida municipal corporation ("City"), and OXYSONIX
CORPORATION,a foreign corporation("Oxysonix").
RECITALS:
WHEREAS, Oxysonix was established in 2012 for the express purpose of researching
and developing clean fuel technology; and
WHEREAS, Oxysonix desires to locate its operations to a 5,500 square foot facility at
280 West Central Boulevard in Cape Canaveral; and
WHEREAS, Oxysonix's relocation to Cape Canaveral is anticipated to create 13 new
jobs by the end of 2013;and
WHEREAS, Oxysonix projects that it will make a $1,850,000.00 capital investment in
equipment and capital improvements within the first three (3) years of its relocation to Cape
Canaveral; and
4 WHEREAS, the City desires to provide Oxysonix certain economic incentives in
furtherance of the municipal purpose of expanding economic activity within its jurisdictional
borders consistent with section 166.021(9), Florida Statutes; and
WHEREAS, the parties recognize this Agreement is necessary to ensure that the
economic incentives provided by the City to Oxysonix ultimately serve their intended municipal
purpose; and
WHEREAS, the City has established terms and conditions herein whereby Oxysonix, by
complying with these terms and conditions, can receive the benefits outlined in this Agreement,
while the City can fulfill its desire to support local employers, to create jobs and to significantly
enhance the prospects of local economic development;and
WHEREAS, the parties agree that the economic incentives provided by the City
hereunder are for the benefit of the public health, safety,welfare,and convenience of the citizens
of the City of Cape Canaveral; and
WHEREAS, the City Council finds and declares that this Agreement serves a public
purpose, which includes promotion of economic development, job growth, and the future
expansion of the City's tax base.
NOW THEREFORE, in consideration of the mutual promises and covenants herein,
and other good and valuable consideration, which the parties agree has been exchanged and
received,the parties agree as follows:
Economic Incentive Agreement
City of Cape Canaveral/Oxysonix Corporation
Page 1 of 7
1. Recitals. The foregoing recitals are deemed to be true and accurate and are fully
iincorporated herein by this reference.
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2. Commitments by Oxysonix.
(a) Relocation to Cape Canaveral; Capital Investment. Oxysonix hereby
represents and warrants that it intends to relocate its operations to Cape Canaveral and desires to
locate at 280 West Central Boulevard within the jurisdictional boundaries of the City of Cape
Canaveral. In furtherance of said relocation,Oxysonix agrees to make a fixed capital investment
of not less than $1,800,000.00 in equipment and capital improvements within three (3) years of
the effective date of this Agreement.
1 (b) Business Operations in Cape Canaveral. Oxysonix agrees to maintain its
1 business operations within the jurisdictional boundaries of the City of Cape Canaveral for the
term of this Agreement.
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(c) Employees. Oxysonix agrees that it shall create at least 13 new jobs
within the first three (3) years of the term of this Agreement, and that the average annual salary
of its employees shall be at least$53,230.00 for the term of this Agreement.
(d) New Business. Oxysonix represents and warrants that, for purposes of
receiving the economic incentives provided to Oxysonix by this Agreement, Oxysonix currently
meets the definition of"new business," as that term is defined by section 196.012(15), Florida
Statutes. Oxysonix agrees to maintain its qualifications as a "new business" during the entire
term of this Agreement.
3. Ad Valorem Tax Exemption., The parties acknowledge that in accordance with
Ordinance No. 06-2009, the electorate of the City of Cape Canaveral has granted the City
Council the authority to grant property tax exemptions for new businesses and expansions of
existing businesses. The parties further acknowledge that Oxysonix's anticipated investment to
real property and tangible personal property pursuant to the terms of this Agreement, and the
City Council's determination that Oxysonix's continued operations in the City of Cape
Canaveral are critical for the future economic development of the City, render Oxysonix eligible
for an ad valorem tax exemption. Oxysonix has filed an application for ad valorem tax
I exemption with the City, and the City has processed the application in good faith and in
accordance with the requirements established by the City and under Florida law. Conditioned
upon Oxysonix's continuing obligation to comply with the terms and conditions set forth in this
Agreement, the City Council approved Ordinance No. 12-2012 on July 17, 2012, granting
Oxysonix an ad valorem tax exemption for a term of ten (10) years, commencing with the first
year the new improvements and personal property are added to the assessment roll, and lasting
Inine(9)years thereafter, for one hundred percent(100%)of the City's ad valorem taxes.
4. Annual Reports. Oxysonix shall submit to the City an annual report on a form
proscribed by the City, along with any necessary supporting documentation, providing evidence
of continued compliance with the terms of this Agreement, and shall specifically provide
evidence of continued compliance with the definition of"new business" as set forth in section
Economic Incentive Agreement
1 City of Cape Canaveral/Oxysonix Corporation
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196.012(15), Florida Statutes, for each of the ten (10) years Oxysonix receives the ad valorem
tax exemption. The annual report shall be provided to the City no later than January 31 of each
year Oxysonix shall also submit any other information or reports as the City Manager or City
Council may deem reasonably necessary for purposes of determining whether Oxysonix is
complying with the terms and conditions of this Agreement.
5. Compliance with Laws. Oxysonix shall be responsible for complying with all
applicable laws, ordinances, rules, regulations, and lawful orders of any public authority
regarding the location and continued operation of its business within the City of Cape Canaveral.
6. Work is a Private Undertaking. With regard to Oxysonix's business operation
and compliance with applicable laws, rules, and regulations, it is specifically understood and
agreed to by and between the parties hereto that the contractual relationship between the City and
Oxysonix is such that the Oxysonix is an independent contractor and not an agent of the City,
and that this is not a business partnership or joint venture agreement. Oxysonix and its
contractors, partners, agents, and employees are independent contractors and not employees of
the City, and Oxysonix shall be in complete control over its business operations. Nothing in this
Agreement shall be interpreted to establish any relationship other than that of an independent
contractor,between the City and Oxysonix, its contractors,partners, employees, or agents,under
this Agreement.
7. Compliance Monitoring. Oxysonix agrees that City control and monitoring of
the economic incentives granted hereunder is necessary to insure that Oxysonix's
implementation of its obligations to the City set forth in this Agreement are in furtherance of the
municipal purposes declared by the City herein.
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8. Term; Termination; Remedies.
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(a) Term. This Agreement shall become effective upon full execution by both
parties hereto and shall terminate one (1) year after Oxysonix has received the full benefit of the
ad valorem tax exemption granted pursuant to Section 3 herein, unless the Agreement is
terminated pursuant to this Section.
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(b) Termination by City. The City shall have the right to terminate this
Agreement upon any material breach of any term or condition of this Agreement by Oxysonix; if
Oxysonix is declared bankrupt or insolvent; if Oxysonix adopts a plan or resolution of
liquidation of Oxysonix or substantially sells all of its assets; if Oxysonix engages in fraud or
misleading compliance reporting against the City; or if a receiver or trustee is appointed on
behalf of Oxysonix for purposes of taking control of substantially all of Oxysonix's assets within
the City of Cape Canaveral, or the said assets are judicially seized for any reason, and possession
i of said assets are not released to Oxysonix within ninety(90)days.
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(c) Termination by Oxysonix. Oxysonix may terminate this Agreement in the
1 event of a material breach of any provision of this Agreement by the City, which shall include,
but not be limited to,failing to fulfill any of its legal obligations under Section 3,herein.
Economic Incentive Agreement i
1 City of Cape Canaveral/Oxysonix Corporation
Page 3 of 7
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(d) Notice; Opportunity to Cure. Prior to exercising its right to terminate this
Agreement, the terminating party shall provide written notice to the non-terminating party setting
forth the reason for termination and providing the non-terminating party 15 days from receipt of
the notice to cure the alleged breach. If the alleged breach is not cured within said time period,
this Agreement shall be deemed terminated, except with respect to any provision that affords a
remedy in the event of a breach and any provision that expressly survives termination.
(e) Remedies. In the event of Oxysonix's breach of this Agreement, the City
shall have the right to revoke the economic development incentives and to re-impose, in full, the
ad valorem taxes waived pursuant to Section 3 herein, plus interest accrued at the maximum rate
allowed by law. The City shall notify Oxysonix in writing regarding the revocation of the
economic development incentives and such notice shall set forth the total sum due and owing to
the City. Oxysonix shall reimburse the City within 30 days from Oxysonix's receipt of the
City's notice unless Oxysonix cures the breach within 15 days of receiving the notice. Should
Oxysonix fail to reimburse the City within 30 days, the City shall be entitled to recover the taxes
1 due and owing to the City. Further, the City shall be entitled to recover reasonable attorneys'
fees and costs incurred in collecting said taxes through all appellate proceedings. Moreover, the
City shall have the right to recover the taxes through any and all available legal means,
including, but not limited to, reassessing taxes and assessments on the tax rolls of Brevard
County,Florida, and bringing an action in a state or federal court.
9. Severability. Should any section or any part of any section of this Agreement be
rendered void, invalid, or unenforceable by any court of law, for any reason, such a
determination shall not render void, invalid, or unenforceable any other section or any part of
any section in this Agreement.
10. Choice of Law: Venue. This Agreement has been made and entered into in the
State of Florida, County of Brevard, and the laws of such state shall govern the validity and
interpretation of this Agreement and the performance due hereunder. The parties agree that
venue shall be exclusively in Brevard County, Florida, for all state court actions or disputes
which arise out of or based upon this Agreement, and Orlando, Florida for all federal court
actions or disputes which arise out of or are based upon this Agreement.
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11. Integration; Modification. The drafting, execution, and delivery of this
1 Agreement by the parties have not been induced by any representations, statements, warranties,
or agreements other than those expressed herein. This Agreement embodies the entire
understanding of the parties, and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter hereof unless expressly
referred to herein. Modifications of this Agreement shall only be made in writing signed by both
parties.
12. Attorney's Fees. Unless otherwise provided herein, each party agrees to bear
their own attorneys' fees and costs in furtherance of this Agreement.
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13. Headings. All headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions.
t Economic Incentive Agreement
City of Cape Canaveral/Oxysonix Corporation
Page 4 of 7
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14. Waiver. No failure to insist on the prompt performance by Oxysonix of its
obligations under this Agreement shall be construed as a waiver by the City of its rights to
demand performance. Further, any waiver by the City of any breach or violation of Oxysonix's
i obligations under this Agreement shall not be construed as a continuing waiver or consent to any
subsequent breach or violation or impede the City's ability to enforce the terms of this
Agreement.
15. Notices. All notices required or permitted under this Agreement and any written
consents or approvals required hereunder shall be in writing(including telecopy communication)
and shall be (as elected by the person giving such notice) hand-delivered by messenger or
overnight courier service, telecopied or mailed by registered or certified mail (postage pre-paid),
return receipt requested, and addressed to each party at their respective addresses as set forth
below or to such other addresses any party may designate by notice complying with the terms of
this Section:
To CITY: w/copy to:
David Greene, Anthony A. Garganese, City Attorney
Cape Canaveral City Manager Brown, Garganese, Weiss&D'Agresta, P.A.
P.O. Box 326 P.O. Box 2873
Cape Canaveral,FL 32920 Orlando, FL 32802-2873
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To OXYSONIX:
Gary Musselman
Oxysonix Corporation
11 Riverside Drive, Suite 206
Cocoa, FL 32922
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Such notice, request or other communication shall be considered given and deemed
delivered: (a) on the date delivered if by personal delivery or courier service; (b) on the date of
transmission with confirmed answer back if by telecopier if transmitted prior to 5:00 p.m. on a
business day, and on the next business day if transmitted after 5:00 p.m. or on a non-business
day, provided that a copy of the notice is provided within two business days thereafter by one of
the other methods permitted by this Section; or(c) on the date upon which the return receipt is
signed or delivery is refused or the notice is designated by the postal authorities as not
deliverable, as the case may be, if mailed.
16. Indemnification and Hold Harmless. Oxysonix shall indemnify, hold harmless,
and defend the City, from and against any and all claims, damages, losses, and expenses
including, but not limited to, attorneys' fees, arising out of or resulting from the performance or
provision of the terms and conditions of this Agreement, including damage to persons or
property, provided that same is caused in whole or part by the error, omission, negligent act,
failure to act, malfeasance, misfeasance, conduct, or misconduct of Oxysonix, its agents,
servants, officers,officials,employees, or subcontractors.
Economic Incentive Agreement
i City of Cape Canaveral/Oxysonix Corporation i
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The obligations arising under this Section 16 shall survive the expiration or
termination of this Agreement, as to claims or causes of action, and liabilities, expenses, losses,
costs, reasonable attorneys fees, damages, fines and penalties of every kind and character or
incurred or suffered by the City as a result thereof, based upon events arising prior to the date of
termination of this Agreement.
17. Assignment. This Agreement shall not be assigned by Oxysonix without the
prior written consent of the City.
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18. No City Obligation for Future Funds. No provision in this Agreement shall be
construed as requiring the City to provide additional economic incentives of any kind,other than
as specifically provided herein.
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19. Conflict of Interest. Oxysonix represents and warrants, and this Agreement is
being made by the City in reliance thereon,that Oxysonix and its officers, employees, and agents
are neither officers nor employees of the City. Further,that no consideration of any kind is being
paid, transferred, or conveyed directly to any City officer or employee, or indirectly to any City
officer or employee through some other third party including a relative or legal entity, for the
City's commitment to enter into this Agreement.
20. Representations of Oxysonix. Oxysonix represents to the City that(i) Oxysonix
I is an entity organized in the State of Florida and duly authorized to conduct business in Florida;
(ii) Oxysonix has the authority to enter into this Agreement and to perform the requirements of
this Agreement; (iii) to Oxysonix's best knowledge, Oxysonix's performance under this
Agreement shall not violate any applicable judgment, order, law, or regulation; (iv) to
Oxysonix's best knowledge, Oxysonix's performance under this Agreement shall not result in
the creation of any claim against the City for money or performance, any lien, charge,
encumbrance or security interest upon any asset of the City; (v) Oxysonix shall have sufficient
capital to perform its obligations under this Agreement; and (vi) Oxysonix does not require any
third party consent to execute, deliver, and perform its obligations under this Agreement unless
otherwise stated in this Agreement.
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21. Oxysonix's Continuing Disclosure Requirement. Oxysonix must promptly
notify the City of any developments that materially and adversely impact this Agreement and
Oxysonix's obligations stated herein including,but not limited to, compliance with all applicable
laws, rules, and regulations pertaining to clean air permits, initiation of any lawsuits or
bankruptcy proceedings, sale or conveyance of real property, labor disputes, and changes in
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business operations.
22. No Delegation of Police Power. Oxysonix shall not pledge the credit of the City
nor make the City a guarantor of payment or surety for any contract, debt, or obligation,
1 judgment, lien, or any form of indebtedness. The parties agree that this Agreement does not nor
shall it be construed as a delegation of any of the City's authority or police powers to Oxysonix.
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d IN WITNESS WHEREOF, this Agreement is entered into as of the day and year the
last party signs this Agreement as stated below.
Economic Incentive Agreement
City of Cape Canaveral/Oxysonix Corporation
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The City of Cape Canaveral,
a Florida municipal corporation.
ATTST: Q00c.� (IQQa_
1 ,,�_a Rocky Randels,Mayor
Angela Apperson, ity Clerk Date: 2-3 -5 "›,..O 1 Z
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Oxysonix Corporation,
a foreign co ,o .tion.
1 '4'/' i i..a a i f i
Print Name:_Max L. Bennett
Title: President/CEO
Date: 07-16-2012
STATE OF Lb\I)CAd0 )
COUNTY OF ' . L tPOLS N )
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I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared
tCO( L. n n Q\- , of Oxysonix Corporation a foreign
corporation, who is r 1 personally known to me or [ has produced
eblOractt) Tjs'�t.C.5 ) CenSe_, as identification.
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Notary Pub 9' -`§tate of Co\tco40
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My Commission Expires: M "2 - '01
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1 DONYIETTA WERLINE
NOTARY PUBLIC
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STATE OF COLORADO
p My Commission Expires 03/08/2016
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Economic Incentive Agreement
City of Cape Canaveral/Oxysonix Corporation
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