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HomeMy WebLinkAboutC2024-154 - 8/27/2024 - NA BUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI B CORPORATION AND DEL MAR COLLEGE FOUNDATION FOR EXPANSION OF ENHANCED SKILLS TRAINING FOR HIGH DEMAND CAREERS PROGRAM This Business Incentive Agreement for Capital Investments and Education/Job Training ("Agreement") is entered into between the Corpus Christi B Corporation ('Corporation") and Del Mar College Foundation, Inc. ("Del Mar Foundation"), a 501(c)(3) foundation supporting Del Mar College, a political subdivision of the State of Texas. WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, Section 504.002 et seq, ("the Act"), empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 8, 2016, residents of the City of Corpus Christi, Texas ("City") passed Proposition 1, Adopted Type B Sales Tax to Replace Expiring Portion of Type A Sales Tax, which authorized the adoption of a sales and use tax to be administered by a Type B Corporation at the rate of one-eighth of one percent to be imposed for 20 years with use of the proceeds for (1) 50% to the promotion and development of new and expanded business enterprises to the full extent allowed by Texas law, (2) $500,000 annually for affordable housing, and (3) the balance of the proceeds for the construction, maintenance and repair of arterial and collector streets and roads; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 1 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2018, to be administered by the Corpus Christi B Corporation Board; WHEREAS, the Corpus Christi B Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs and job training for the citizens of Corpus Christi, Texas; WHEREAS, the Board of Directors of the Corporation ("Board"), on August 16, 2021, amended the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type B Guidelines"), which the City Council approved on August 31, 2021; WHEREAS, Section 501.073 of the Act requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, Del Mar Foundation intends to help Del Mar College's ENHANCED SKILLS TRAINING FOR HIGH DEMAND CAREERS PROGRAM address the region's growing Page 1 of 13 Del Mar Foundation Agreement SCANNED need for skilled technicians in industrial instrumentation, artificial intelligence, geospatial visualization, robotics, engineering, chemistry technicians, and related fields; WHEREAS, Del Mar College proposes to expand its abilities to deliver training in these areas by adding training in industrial instrumentation, artificial intelligence, geospatial visualization, robotics, engineering, chemistry technicians to further support our area's workforce needs; WHEREAS, local industries produce meaningful, wealth producing jobs which bring in dollars from outside Corpus Christi into the City; WHEREAS, the industrial instrumentation, artificial intelligence, geospatial visualization, robotics, engineering, chemistry technicians and related training expansion will further Del Mar College's mission of education and economic development; and In consideration of the covenants, promises, and conditions stated in this Agreement, the Corpus Christi B Corporation and Del Mar Foundation agree as follows: 1. Effective Date. The effective date of this Agreement ("Effective Date") is the latest date that either party executes this Agreement or the date that it is approved by City Council, whichever is later. 2. Term. The term of this Agreement is for two years beginning on the Effective Date. 3. Performance Requirements and Grants. a. Del Mar Foundation shall purchase state-of-the-art equipment essential for improving the educational experience and meeting workforce demands. The following are the essential equipment Del Mar Foundation will purchase: Industrial Instrumentation $728,000 Artificial Intelligence and Geospatial Visualization $128,000 Laboratory Engineering and Robotics $154,370 Chemistry Laboratory $532,500 Industrial Machining $355,000 Total $1,897,870 Page 2 of 13 Del Mar Foundation Agreement b. The Corporation will reimburse Del Mar Foundation for the costs incurred by Del Mar Foundation to acquire the equipment to expand the Del Mar College Enhanced Skills Training for High-Demand Careers Program. The amount reimbursed by the Corporation may not exceed $1,897,870.00. Section 501.101 of the Texas Development Corporation Act specifically allows funding for equipment that is for the creation or retention of primary jobs that are found by the board of directors to be required or suitable for the development, retention, or expansion of primary job training facilities for use by institutions of higher education such as Del Mar College. c. On the annual anniversary of the effective date of this agreement, Del Mar Foundation shall report to the Corporation the number of professors,educators on staff and students completing the Enhanced Skills Training for High-Demand Careers Program at Del Mar College during the previous year. The report will include the number of professors, educators on staff and the number of students enrolled in and completing the industrial instrumentation, artificial intelligence and geospatial visualization, engineering and robotics, chemistry laboratory technicians and industrial machining and welding programs. d. The Del Mar College Foundation will include appropriate naming recognition. The Foundation will recognize the Corpus Christi Type B Corporation as the benefactor on and/or near the equipment provided via this grant and in a location visible to facility visitors. e. Utilization of Local Contractors and Suppliers. Del Mar Foundation agrees to exercise reasonable efforts in utilizing local contractors and suppliers in the construction of the Project, except where not reasonably possible to do so without added expense, substantial inconvenience, or sacrifice in operating efficiency in the normal course of business, with a goal of 50% of the total dollar amount of all construction contracts and supply agreements being paid to local contractors and suppliers. For the purposes of this section, the term "local" as used to describe manufacturers, suppliers, contractors, and labor includes firms, businesses, and persons who reside in or maintain an office within a 50-mile radius of Nueces County. Del Mar Foundation agrees, during the construction of the Project and for four years after Completion, to maintain written records documenting the efforts of Del Mar Foundation to comply with the Local Requirement, and to provide an annual report to the City Manager of the City, or designee, from which the City Manager or designee shall determine if Del Mar Foundation is in compliance with this requirement. Failure to substantially comply with this requirement, in the sole determination of the City Manager or designee, shall be a default hereunder Page 3 of 13 Del Mar Foundation Agreement f. Utilization of Disadvantaged Business Enterprises Del Mar Foundation agrees to exercise reasonable efforts in utilizing contractors and suppliers that are determined to be disadvantaged business enterprises, including minority business enterprises women- owned business enterprises and historically-underutilized business enterprises. In order to qualify as a business enterprise under this provision, the firm must be certified by the City, the Regional Transportation Authority or another governmental entity in the jurisdiction of the home office of the business as complying with state or federal standards for qualification as such an enterprise. Del Mar Foundation agrees to a goal of 30% of the total dollar amount of all construction contracts and supply agreements being paid to disadvantaged business enterprises, with a priority made for disadvantaged business enterprises which are local. Del Mar Foundation agrees, during the construction of the Project and for four years after Completion, to maintain written records documenting the efforts of Del Mar Foundation to comply with the DBE Requirement, and to provide an annual report to the City Manager or designee, from which the City Manager or designee shall determine if Del Mar Foundation is in compliance with this requirement. Failure to substantially comply with this requirement, in the sole determination of the City Manager or designee, shall be a default hereunder. For the purposes of this section, the term "local" as used to describe contractors and suppliers that are determined to be disadvantaged business enterprises, including minority business enterprises, women-owned business enterprises and historically-underutilized business enterprises includes firms, businesses, and persons who reside in or maintain an office within a 50-mile radius of Nueces County. g. Warranties, Del Mar Foundation warrants and represents to Corporation the following'. a. Del Mar Foundation is a 501(c)(3) organization and 509(a)(1) public charity under the Internal Revenue Code, duly organized, validly existing, and in good standing under the laws of the State of Texas, has all corporate power and authority to carry on its business as presently conducted in Corpus Christi, Texas. b. Del Mar Foundation has the authority to enter into and perform, and wil: perform, the terms of this Agreement to the best of its ability. Page 4 of 13 Del Mar Foundatlon Agreement c. Del Mar Foundation has timely filed and will timely file all local, State, and Federal tax reports and returns required by laws to be filed and all taxes, assessments, fees, and other governmental charges, including applicable ad valorem taxes, have been timely paid, and will be timely paid, during the term of this Agreement. d. Del Mar Foundation has access to the Texas Development Corporation Act, Subtitle C1, Title 12, Texas Local Government Code, on the State of Texas' website, and acknowledges that the funds granted in this Agreement must be utilized solely for purposes authorized under State law and by the terms of this Agreement. e. The parties executing this Agreement on behalf of Del Mar Foundation are duly authorized to execute this Agreement on behalf of Del Mar Foundation. f. Del Mar Foundation does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, Del Mar Foundation is convicted of a violation under §U.S.C. Section 1324a(f), Del Mar Foundation shall repay the payments received under this Agreement to the City, with interest at the Wall Street Journal Prime Rate, not later than the 120th day after the date Del Mar Foundation has been notified of the violation. h. Compliance with Laws. During the Term of this Agreement, Del Mar Foundation shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. i. Non-Discrimination. Del Mar Foundation covenants and agrees that Del Mar Foundation will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Facility, on the grounds of race, religion, national origin. marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the State of Texas. Page 5 of 13 Del Mar Foundation Agreement j Force Majeure. If the Corporation or Del Mar Foundation are prevented, wholly or in part, from fulfilling its obligations under this Agreement by reason of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental restraint or regulation, other causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or Del Mar Foundation are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the causes of force majeure, the party affected shall promptly notify the other party in writing, giving full particulars of the force majeure as soon as possible after the occurrence of the cause or causes relied upon. k. Assignment. Del Mar Foundation may not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of the Corporation and City. Any attempted assignment without approval is void and constitutes a breach of this Agreement. I. Indemnity. To the extent authorized by law, Del Mar Foundation covenants to fully indemnify, save, and hold harmless the Corporation, the City, and their respective officers, employees, and agents ("lndemnitees'? against all liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, without limiting the foregoing, workers' compensation and death claims), or property loss or damage of any kind, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with Del Mar Foundation activities conducted under or incidental to this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the Indemnitees. Del Mar Foundation must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on those claims and demands with counsel satisfactory to lndemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. Page 6 of 13 Del Mar Agreement 2024 m. Events of Default by Del Ma! Foundation The following events constitute a default of this Agreement by Del Mar Foundation: a. The Corporation or City determines that any representation or warranty on behalf of Del Mar Foundation contained in this Agreement or in any f nancial statement, certificate, report. or opinion submitted to the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; b. Any judgment is assessed against Del Mar Foundation or any attachment or other levy against the property of Del Mar Foundation with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 120 days. c. Del Mar Foundation makes an assignment for the benefit of creditors. d. Del Mar Foundation files a petition in bankruptcy or is adjudicated insolvent or bankrupt. e. If taxes owed by Del Mar Foundation become delinquent, and Del Mar Foundation fails to timely and properly follow the legal procedures for protest or contest. f. Del Mar Foundation changes the general character of business as conducted as of the date this Agreement is approved by the Corporation. g. Del Mar Foundation fails to comply with one or more terms of this Agreement. n. Notice of Default. Should the Corporation or City determine that Del Mar Foundation is in default according to the terms of this Agreement, the Corporation or City shall notify Del Mar Foundation in writing of the event of default and provide 60 days from the date of the notice ("Cure Period') for Del Mar Foundation to cure the event of default o. Results of Uncured Default by Del Mar Foundation. After exhausting good faith attempts to address any default during the Cure Period and taking into account any extenuating circumstances that might have occurred through no fault of Del Mar Foundation, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period. Page 7 of 13 Del Mar Agreement 2024 a. Del Mar Foundation shall immediately repay all funds paid by Corporation to them under this Agreement b. Del Mar Foundation shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation if not immediately repaid upon demand from the Corporation. c. Upon payment by Del Mar Foundation of all sums due, the Corporation and Del Mar Foundation shall have no further obligations to one another under this Agreement. p. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of Del Mar Foundation's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time Del Mar Foundation is in default in any of its conditions or covenants of this Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Agreement on account of the default. q, Del Mar Foundation specifically agrees that Corporation shall only be liable to Del Mar Foundation for the actual amount of the money grants to be conveyed to Del Mar Foundation and shall not be liable to Del Mar Foundation for any actual or consequential damages, direct or indirect interest, attorney fees. or cost of court for any act of default by Corporation under the terms of this Agreement Payment by Corporation is strictly limited to those funds so allocated, budgeted. and collected solely during the grant term of this Agreement. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and agreed Page 8 of 13 Del Mar Agreement 2024 that, should the actual total sales tax revenue collected for any one year be less than the total amount of grants to be paid to all contracting parties with Corporation for that year, then in that event, a'I contracting parties shall receive only their pro rata share of the available sales tax revenue for that year, less Corporation's customary and usual costs and expenses, as compared to each contracting parties' grant amount for that year, and Corporation shall not be liable for any deficiency at that time or at any time in the future. In this event, Corporation will provide all supporting documentation, as requested. Payments to be made shall also require a written request from Del Mar Foundation to be accompanied by all necessary supporting documentation. r. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. s. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: Del Mar Foundation: Del Mar College Foundation Attn: Executive Director of Development 101 Baldwin Blvd. Corpus Christi, Texas 78404 Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the following address: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 Page 9 of 13 Del Mar Agreement 2024 c. Notice is effective upon deposit in the United States mail in the manner provided above. t. Incorporation of other documents The Type A Guidelines, as amended, are incorporated into this Agreement by reference as if fully set out here in their entirety. u. Amendments or Modifications No amendments or modifications to this Agreement may be made, nor any provision waived, unless in writing signed by a person duly authorized to sign Agreements on behalf of each party v. Relationship of Parties. In performing this Agreement, both the Corporation and Del Mar Foundation will act in an individual capacity, and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one another. The employees or agents of either party may not be, nor be construed to be, the employees or agents of the other party for any purpose. w. Captions. The captions in this Agreement are for convenience only and are not a part of this Agreement. The captions do not in any way limit or amplify the terms and provisions of this Agreement. x. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, then the remainder of this Agreement is not affected by the law, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. Page 10 of 13 Del Mar Agreement 2024 y. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. z. Sole Agreement and Survival. This Agreement constitutes the sole Agreement between Corporation and Del Mar Foundation. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. Survival of terms of Agreement and obligations of parties - the terms of this Agreement and the obligation of the parties shall survive the termination of this Agreement. APPROVED AS TO FORM: 16th day of August, 2024 j'VY4 Cbt3g4F-N1 Jacqueline Salinas-Bazan Assistant City Attorney For City Attorney Corpus Christi B Corporation AGREED BY PARTIES: By: /44 cam li(.0 0 Cal Leah Paga livarri President, Corpus Christi B Corporation Date: w t 27i Attest: By: akt-(' ,(6i(t( Rebecca Huerta Assistant Secretary Page 11 of 13 Del Mar Agreement 2024 Del Mar College Foundation, Inc. By: Executive Director of Develo• r • Date: 0-9/ 2-`0�`t THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on Augu.si- a , 2024, by kc +t hew Nab 1 , Executive Director of Development, Del Mar College Foundation, Inc. �""'!`', LAURA LEAL ESTRADA A �`p(;Y PV�i *'/ 4. _�- J) ' 4r �,a •r , Notary Public. State of Texas kJ) 0�" +c a� N; C liT Comm Expires 02-05-2025 Notary Public „ss Notary ID 1841485 State of Texas Page 12 of 13 Del Mar Agreement 2024 Page 13 of 13 Oel Mar Agreement 2024