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HomeMy WebLinkAbout48-09 OrdinanceRECORD OF ORDINANCES 48-09 Ordin~an~ce No. Passed . 20 AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN INCENTIVES FOR PURPOSES OF ATTRACTING AN OFFICE OF THE OHIO FUEL CELL COALITION (OFCC) WITHIN THE CITY OF DUBLIN'S ENTREPRENEURIAL CENTER AND AUTHORIZING THE EXECUTIO\~ OF AN ECONOMIC DEVELOPMENT AGREEMENT WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office and retail development and provide for the creation of employment opportunities within the City; and WHEREAS, the City identified that certain anchor uses such as research, technology development and partnerships with Edison Technology Centers and/or technology offices should be established within the Central Ohio Innovation Corridor; and WHEREAS, the Ohio Fuel Cell Coalition is amember-driven organization working to make Ohio the center of the emerging global fuel cell industry; and WHEREAS, the Ohio Fuel Cell Coalition is the largest state fuel cell association in the nation with more than 100 members including industry, academic and non-profit sectors; and WHEREAS, the Ohio Fuel Cell Coalition desires to establish an office within the Dublin Entrepreneurial Center as its Central Ohio office; and WHEREAS, the presence of the Ohio Fuel Cell Coalition in the Dublin Entrepreneurial Center will provide unique access to its numerous services and technical knowledge of fuel cells and related alternative energy technologies; and WHEREAS, the presence of the Ohio Fuel Cell Coalition in the Dublin Entrepreneurial Center will help the City towards its goal to set the standard as a leading green community; and WHEREAS, this Council has determined to offer economic development incentives, the terms of which are set forth in a substantially final form of Economic Development Agreement presently on file in the office of the Clerk of Council, to induce OFCC to establish its operations and workforce within the City, to create jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, induced by and in reliance on the economic development incentives provided in this Agreement, the Company is desirous of using certain space within the Dublin Entrepreneurial Center, an environment promoting technology and entrepreneurial development and new job creation. NOW, THEREFORE, BE IT ORDAINED b the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, ~ of the elected members concurring, that: Section 1. The Economic Development Agreement by and between the City and the Ohio Fuel Cell Coalition, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to the Ohio Fuel Cell Coalition in consideration for the Ohio Fuel Cell Coalition's agreement to establish its operations and workforce within the City, is hereby approved and authorized with changes therein not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager and Director of Finance. The City Manager and Director of Finance, for and in the name of this City, are hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be RECORD OF ORDINANCES 48-09 Ordinance No. Page 2 Passed 20 evidenced conclusively by their execution thereof. This Council further authorizes the City Manager and the Director of Finance, for and in the name of the City, to execute any amendments to the Economic Development Agreement, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 2. This Council fu--ther hereby authorizes and directs the City Manager, the Clerk of Council, the Director of Law, the Director of Finance, or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as may be appropriate to implement this Ordinance. Section 3. This Council finds and determines that all formal actions of this Council concerning and relating to the passage of this Ordinance were taken in an open meeting of this Council and that all deliberations of this Council that resulted in those formal actions were in meetings open to the public in compliance with the law. Section 4. This Ordinance shall be in full force and effect on the earliest date permitted by law. Passed this ~4- day of , 2009. u~e.,,.J Mayor -Presiding Officer ATTEST: L~ Clerk of Council CITY OF DUBLIN_ Office of the City 1'Ianager 5200 Emerald Parkway • Dublin, OH 43017-1090 Phone: 614-410-4400 • Fax: 614-410-4490 To: Dublin City Council From: Terry Foegler, City Manager~"~/~ Date: August 13, 2009 ~ Memo Initiated By: Dana McDaniel, Deputy City Manager/Director of Economic Development Re: Ordinance 48-09 -Economic Development Agreement with Ohio Fuel Cell Coalition Background Staff has been in discussions with the Ohio Fuel Cell Coalition (OFCC). The Ohio Fuel Cell Coalition is also referred to as the Ohio Fuel Cell Corridor, for marketing purposes. (See www.fiiclcellcorridor.ctnn ). OFCC is amember-driven organization working to make Ohio the center of the emerging global fuel cell industry. The Ohio Fuel Cell Coalition is the largest state fuel cell association in the nation with more than 100 members including industry, academic and non-profit sectors. Fuel Cells are clean and efficient in their use of energy and have a low carbon footprint. Current fuel cell applications include stationary power to the nation's grid, back up power, lift trucks, laptops for military use and a variety of other portable and stationary applications. The Ohio fuel cell industry has leveraged $100 million of federal dollars in support of fuel cells. Ohio offers the fuel cell industry unmatched growth potential. Ohio is unique in its fuel cell efforts and capabilities: • R&D strengths -The Ohio State University, NASA, the Air Force Research Labs, Battelle, Case Western Reserve University and many others allow fuel cell interests immediate access to top- level research and development talent • Supply Chain -Ohio is home to one of the richest supply chains in the country able to accommodate every component needed for the fuel cell industry • Workforce -Ohio's long history of workforce capabilities provides the fuel cell industry access to a strong and skilled workforce • A strong partnership between the state of Ohio and the Ohio fuel cell industry - to date, nearly $70 million has been awarded to the industry since 2002 in areas including research and development, testing and demonstration, pre-commercialization and manufacturing activities • Ohio has attracted five fuel cell companies and projects to the state since 2005, including Rolls- Royce Fuel Cell Systems, U1traCell, Graftech International's headquarters, Plug Power and Contained Energy After several discussions, OFCC desires to locate an office in the Dublin Entrepreneurial Center. This location will provide OFCC access to a collaborative environment and meeting space. This location could serve as a central meeting location for its members and partners. Dublin's dynamic economy, comprised of businesses ranging from small entrepreneurial start-ups to large corporate headquarters, may provide opportunities for OFCC to seek collaborations, advice, partnerships, beta tests or even Ordinance 48-09 -Ohio Fuel Cell Coalition August 13, 2009 Page 2 of 3 investors for its members' cun~ent and future technologies. The City's network of technology companies, software companies, corporate headquarters, etc. and OFCC may mutually benefit from each others' ideas, innovations and skill sets. Additionally, Dublin's location is central to the State of Ohio and close to our State government. The presence of the OFCC in the Dublin Entrepreneurial Center will provide unique access to its numerous services and technical knowledge of fuel cells and related alternative energy technologies. Services offered by OFCC regarding fuel cells and related alternative energy technologies include: • Direct company assistance, including mentoring, financing, grant writing and partnerships • Workshops, including SBIR/Third Frontier grant-writing seminars • Commercialization strategies • Strategic planning assistance • Company attraction sh~ategies • State and Federal outreach • Knowledge of many areas of assistance to offer to companies If approved, Ordinance 48-09 would authorize an Economic Development Agreement (EDA) to be executed with OFCC. This EDA provides an incentive to OFCC in the form of one office within the Dublin Entrepreneurial Center, 7003 Post Road, for use by the OFCC Executive Director and other staff for a period of two years. The incentive will be in the form of a "Location Grant" in the amount of $10,000. OFCC will be responsible for providing its own furniture, fixtures and equipment for the office, as well as pay its own costs for Internet and phone service. The City will pay the Location Grant money to OFCC when proof of execution of a lease agreement with the owner of the 7003 Post Road facility is presented to the City. The grant will be paid in flee following manner: • Year 1: The City will pay to OFCC $5,000 within thirty (30) days after proof of an executed lease is provided to the City. • Year 2: The City will pay to OFCC $5,000 within thirty (30) days after the first anniversary date of the execution of the lease. • Should OFCC non-perform after issuance of a $5,000 Location Grant payment (first year or second year), the Company shall pay back to the City the pro-rated monthly amount for those months of the year which the OFCC will not be present in the City, but no more than $5,000 total for each year. Providing this incentive to OFCC to locate in the DEC supports the City's desire to pursue research and technology development and will help the City towards its goal to set the standard as a leading green community. Recommendation Staff recommends approval of Ordinance 48-09 at the second reading/public hearing on September 8. ECONOMIC DEVELOPMENT AGREEMENT THIS ECONOMIC DEVELOPN(E~T AGREEMEN-C (this "Agreement") is made and entered into this day of 2009, by and between the CITY of DUBLIN, OHIO (the "City"), a municipal corporation duly organized and validly existing under the Constitution and the laws of the State of Ohio (the "State') and its Charter, and the Ohio Fuel Cell Coalition (the "Company" and collectively with the City, the "Parties'), an Ohio corporation with its main office currently located at 737 Bolivar Road, Suite 1000, Cleveland, Ohio 4411>, under the circumstances summarized in the following recitals. RECITALS: WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated Strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office development and provide for the retention and creation of employment opportunities within the City; and WHEREAS, the City identified that certain anchor uses such as research, technology development and partnerships with Technology Centers and/or associated offices should be established within the Central Ohio Innovation Corridor; and WHEREAS, the Company is amember-driven organization working to make Ohio the center of the emerging global fuel cell industry; and WHEREAS, the Company is the Largest state fuel cell association in the nation with more than 100 members including industry, academic and non-profit sectors; and WHEREAS, the Company desires to establish an office within the Dublin Entrepreneurial Center for the purpose of providing oversight to the Company's operations and promoting the fuel cell industry and other related alternative energy technologies in Ohio; and WHEREAS, the City desires to enable the Company and its members and partners to access the services and environment necessary to advance fuel cell and other alternative energy technologies which may lead to technology development and successful entrepreneurial enterprise resulting in new business development and ultimately new job creation; and WHEREAS, induced by and in reliance on the economic development incentives provided in this Agreement, the Company is desirous of using certain space within the Dublin Entrepreneurial Center, an environment promoting technology and entrepreneurial development and new job creation; and WHEREAS, pursuant to Ordinance No. 48-09 passed on 2009 (the "Ordinance-'), the City has determined to offer the economic development incentives described herein to induce the Company to establish an office at 7003 Post Road, Dublin, Ohio within the City resulting in the creation of new technologies and/or busines(s) and ultimately new jobs to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, the City and the Company have determined to enter into this AgreemenC to provide these incentives in order to ultimately create new technologies, businesses and jobs. vow THEREFORE, the City and the Company covenant, agree and obligate themselves as follows: Section 1. Companv Agreement to Locate Office. (a) The Company agrees that it will establish an office within the Dublin Entrepreneurial Center in the City of Dublin (the "DEC"'). The Company desires to establish an office in the DEC for two years. (b) The Company will locate one employee who will oversee the Company's operations as outlined in the Staff Report to Council, dated Aug st 10, ?009. (c) The company wilt execute a lease with the owner of the building within which the DEC is located. The lease will be for at least one office for a period of at Least two years. The Company will present a copy of the signed lease to the City of Dublin in order to receive the grant funding as set forth in Section 2. (d) The Company agrees to permit the City to reference the presence of the Ohio Fuel Cell Coalition and/or Ohio Fuel Ceil Comdor (and any other name used for marketing purposes) in the Dublin Entrepreneurial Center. Section 2. Citv's Agreement to Provide Incentives. (a) General. In consideration for the Company s agreement to establish an office consisting of at teast one (1) employee in Dublin as described in Section 1, the City agrees to provide economic development incentives to the Company in accordance with this Section. (b) Location Grant. The City will provide a location grant of $ (0,000 for the location of at (east one employee and the establishment of an OFCC office in the Dublin Entrepreneurial Center over atwo-year period. (c) Incentive Payments to the Companv. The City will pay the Location Grant from solely non-tax revenues. The City will pay to the Company 55,000 within thirty (30) days after proof of an executed lease is provided to the City. The City will pay- to OFCC an additional $5,000 within thirty (30) days after the first anniversary date of the execution of the lease. (d) Company's non performance. The Company will be considered in 'non- performance" of this a~-eement if the Company determines to re-Locate the office and one employee, for which this Agreement was made, outside the City of Dublin for any amount of time during the two year period of the executed lease. Should the Company non-perform after issuance of a 55,000 Location Grant payment (first year or second year), the Company shall pay back to the City the pro-rated monthly -~- amount for those months of the year which the Company will not be present in the City, but no more than 55,000 total for each year. (e) Ntethod of Payment. The payments to be paid to the Company, as provided for in this Section 2, shall be made by the City to the Company by electronic funds transfer or by such other manner as is mutually agreed to by the City and the Company. (fl City s Obti~ation to Make Pavments Not Debt; Payments Limited to Non-Tax Revenues. Notwithstanding anything to the contrary herein, the obligations of the City pursuant to this Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of the general credit or taxes levied by the City, and the Company shall have no right to have excises or taxes Levied by the City, the State or any other political subdivision of the State for the performance of any obligations of the City herein. Consistent with Section 13 of Article VIII, Ohio Constitution, any payments or advances required to be made by the City pursuant to this Section 2 shall be payable solely from the City's non-tax revenues. Further, since Ohio law limits the City to appropriating monies for such expenditures only on an annual basis, the obligation of the City to make payments pursuant to this Section 2 shall be subject to annual appropriations by the City Council and certification by the Director of Finance of the City as to the availability of such non-tax revenues. For purpose of this Agreement, "non-tax revenues' shall mean, all monies of the City which are not monies raised by taxation, to the extent available for such purposes, including, but not limited to the following: (i) grants from the United States of America and the State; (ii) payments in lieu of taxes now or hereafter authorized to be used for the purposes by State statute; (iii) fines and forfeitures which are deposited in the City's General Fund: (iv) fees deposited in the City's General Fund from properly imposed licenses and permits; (v) investment earnings on the City's General Fund and which are credited to the City's General Fund; (vi) investment earnings of other funds of the City that are credited to the City's General Fund; (vii) proceeds from the sale of assets which are deposited in the City's General Fund; and (viii) rental income which is deposited in the City's General Fund; and (ix) gifts and donations. -3- Section 3. Miscellaneous. (a) Assienment. This Agreement may not be assigned without the prior written consent of all non-assigning Parties. (b) Binding Effect. The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. (c) Captions. The captions and headings in this Agreement are for convenience only and in no way define, Limit or describe the scope or intent of any provisions or sections of this Agreement. (d) Day for Performance. Wherever herein there is a day or time period established for performance and such day or the expiration of such time period is a Saturday, Sunday or legal holiday, then such time for performance shalt be automatically extended to the next business day. (e) Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties relating to the subject matter herein and therein and may not be amended, waived or discharged except in an instrument in writing executed by the Parties. (f) Events of Default and Remedies. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by any Party hereto, such defaulting Party shall, upon written notice from any non- defaulting Party, proceed immediately to cure or remedy such default or breach, and, in any event, within thirty (30) days after receipt of such notice. In the event such default or breach is of such nature that it cannot be cured or remedied within said thirty (30) day period, then in such event the defaulting Party shall upon written notice from any non- defaulting Party commence its actions to cure or remedy said breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy said breach. In case such action is not taken or not diligently pursued, or the default or breach shall not be cured or remedied within a reasonable time, the aggrieved non-defaulting Party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the defaulting Party. (g) Executed Counteparts. This Agreement may be executed in several counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. (h) Extent of Covenants: No Personal Liability. All covenants, obligations and agreements of the Parties contained in this Agreement shall be effective to the extent authorized and permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a covenant, obligation or agreement of any present or future member, officer, agent or employee of the City or the Company other than in his or her official capacity, and neither the members of the Legislative body of the City nor any official executing this Agreement shall be Liable personally under this Agreement or be subject -~- to any personal liability or accountability by reason of the execution thereof or by reason of the covenants, obligations or agreements of the City and the Company contained in this Agreement. (i) Govemin, Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio or applicable federal law. Ail claims, counterclaims, disputes and other matters in question between the City, its agents and employees, and the Company, its employees and agents, arising out of or relating to this Agreement or its breach wits be decided in a court of competent jurisdiction within Franklin County, Ohio. Q) Leeal Authority. The Parties respectively represent and covenant that each is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. The Parties further respectively represent and covenant that this Agreement has, by proper action, been duly authorized, executed and delivered by the Parties and all steps necessary to be taken by the Parties have been taken to constitute this Agreement, and the covenants and agreements of the Parties contemplated herein, as a valid and binding obligation of the Parties, enforceable in accordance with its terms. (k) Limit on Liability. Notwithstanding any clause or provision of this Agreement to the contrary, in no event shall City or the Company be Liable to each other for punitive, special, consequential, or indirect damages of any type and regardless of whether such damages are claimed under contract, tort (including negligence and strict Liability) or any other theory of law- (i) Notices. Except as otherwise specifically set forth in this Agreement, all notices, demands, requests, consents or approvals given, required or permitted to be given hereunder shall be in writing and shall be deemed sufficiently given if actually received or if hand-delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other Party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to such other address as the recipient shall have previously notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by certified mail, in which event such notice shall be deemed to have been received when the return receipt is signed or refused. For purposes of this Agreement, notices shall be addressed to: (i) the City at: City of Dublin, Ohio 5800 Shier Rings Road Dublin, Ohio 43016-7295 Attention: Economic Development Director (ii) the Company at: Ohio Fuel Cell Coalition 737 Bolivar Road, Suite 1000 Cleveland, Ohio 44115 Attention: Pat Valente -5- The Parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices; certificates, requests or other communications shall be sent (m) Recitals. The Parties acknowledge and agree that the facts and circumstances as described in the Recitals hereto are an inte~-a1 part of this Agreement and as such are incorporated herein by reference. (n) Severability. If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by taw. (o) Survival of Representations and Warranties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. IN WtTVess WHeREOF, the City and the Company have caused this Agreement to be executed in their respective names by their duly authorized representatives, ail as of the date tirst written above. CITY OF DGBLINp OHIO By: Printed: Terry Foealer Title: City Manager Dated: Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law Dated: -6- Ohio Fuel Cell Coalition Printed: Dated: -7- FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City under the foregoing Agreement, certifies hereby that the monies required to meet the obligations of the City under the foregoing Agreement have been appropriated Lawfully for that purpose, and are in the Treasury of the City or in the process of collection to the credit of an appropriate fund, free trom any previous encumbrances. This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio Revised Code. Dated: , ?009 Marsha I. Grigsby Deputy City Manager/Director of Finance City of Dublin, Ohio 3-