HomeMy WebLinkAbout027547 RES - 12/18/2007Page 1 of 2
A RESOLUTION
APPROVING A PERFORMANCE BASED AGREEMENT
BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB
DEVELOPMENT CORPORATION ("4A BOARD") AND APAC
CUSTOMER SERVICES, INC. ("APAC") GRANTING $400,000 IN
BUSINESS INCENTIVES FOR THE CAPITAL INVESTMENT OF
$625,000 AND THE RETENTION OF A MINIMUM OF 485
PERMANENT JOBS (418 FULL-TIME AND 67 PART-TIME).
WHEREAS, there is a need for an agreement between the Corpus Christi
Business and Job Development Corporation and APAC to grant $400,000 in
business incentives to APAC for the capital investment of $625,000 and the
retention of a minimum of 485 permanent jobs (418 full-time and 67 part-time
jobs) in Corpus Christi.
NOW, THEREFORE, E, BE IT RESOLVED ED BY THE CITY COUNCIL OF THE CITY
OF CORPUS CHRISTI, TEXAS:
SECTION 1. That the performance based agreement between n the Corpus Christi
Business and Job Development Corporation and APAC Customer Services, Inc.
which is attached hereto, is approved, granting $400,000 in business incentives
for the capital investment of $625,000 and the retention of a minimum of 485
permanent jobs (418 full-time and 67 part-time).
ATTEST:
Armando Chappa
City Secretary
APPROVED as to form: December 13, 2007
CITY F CORPUS CHRISTI
enry G# rett
Mayor
Li : AguiiI
Assistant City orny
For th City Attorny
027547
I TEG- I \ isa\R s luti n 2007\Res-Agmt-4ABd-APACapprovaladoc
Page2of2
Corpus Christi, Texas
f ILCZAU(aelk-, 2007
The above resolution was passed by the following vote:
Henry Garrett
Melody Cooper
Larry Elizondo, Sr.
Mike Hammell
Bill Kelly
Priscilla G. Leal
John E. Marez
Nelda Martinez
Michael McCutchon
14fiy-
465-_
027547
HAL G IR i 1R oluti f 2007\Res- g t-4AB d-APACapproval.doe
CITY OF CORPUS CHRISTI
CERTIFICATION OF FUNDS
(City Charter Article IV, Sections 7 & 8)
1, the Director of Finance of the City of Corpus Christi, Texas (or his/her duly authorized
representative), hereby certify to the City Council and other appropriate officer that the
money required for the contract, agreement, obligation or expenditure described below is
in the Treasury to the credit of the Fund specified below, from which it is to be dray, and
has not been appropriated for any other purpose.
City Council Action Date: December 1 , 2007
Agenda Item:
A. Resolution approving a performance based agreement between the Corpus Christi
Business and Job Development Corporation (4A Board) and APAC Customer
Services, Inc. (APAC), granting $400,000 in business incentives for the capital
investment of $625,000 and the retention of a minimum ur of 485 permanent jobs(418
full-time and 67 part-time)
B. Resolution authorizing the City Manager or his designee to execute a project
agreement with the Corpus Christi Business and Job Development Corporation
regarding implementation and administration of the agreement to grant business
incentives to APAC Customer Services, Inc. (APAC), for a capital investment of
$625,000 and the retention of 485 permanent jobs (418 full-time and 67 part-time).
Amount Required: $4OOOOO
Fund Name
Fund No.
Org. No.
Account
No.
Project No.
Amount
8 Qs:,,csvciobDer<Iop,e,f
_
fl L)
/50/0
51300o 0
900,0oc)
Total
Certification Not Required
0 (,),,,,L
Director of Financial Services
Date: t v// VA/7
AGREEMENT TO GRANT BUSINESS INCENTIVES TO
APAC
FOR THE RETENTION OF JOBS
This Agreement to Grant Business Incentives for the Retention of Jobs ("Agreement") is
entered into by and between the Corpus Christi Business and Job Development Corporation
('Corporation"), a Texas nonprofit corporation organized under V.A.C.S. Art. 5190.6, Sec. 4A,
with mailing address of 1201 Leopard Street, Corpus Christi, Texas, 78401, and APAC
Customer Services, Inc., "APAC"), an Illinois corporation authorized to do business in Texas,
with a place of business at 802 North Carancahua, Corpus Christi, Texas 78401.
L BACKGROUND
1.1 Purpose of Agreement. Corporation is a taxsupported non-profit corporation, whose
primary income is from sales tax collected within the City of Corpus Christi and dedicated
exclusively to economic development. This sales tax supporting Corporation is authorized as
a local option under Texas Revised Civil Statutes, Art, 5190.6, Sec. 4A. Corporation exists
for the primary purpose of developing, stabilizing, diversifying, and expanding the Corpus
Christi economy through the retention, expansion, and recruitment of employment
opportunities in order to benefit the citizens of Corpus Christi and the surrounding areas.
1.2 Project. The project and performance requirement to be implemented by means of this
agreement are generally described as follows:
The relocation of APAC's call center from 4525 Ayers Street to 802 North Carancahua on or
before the 30th day of July 2007 retaining minimum staffing of four hundred eighty five (485)
permanent employment positions (at least 418 full-time jobs and at least 67 part-time jobs),
with an average annual salary of $20,800, and a gross annual payroll of at least $11,200,000,
with living wage of at least $8.25 per hour; and with health insurance provided for employees
who work at least 33 hours per week; and renovation of the facility ("Facility") at 802 North
Carancahua and purchase of new furniture, fixtures, and equipment at a total capital
investment of not less than $625,000. At least 70% of the goods produced or services
provided at the Facility will be sold to customers who are located at least 50 miles from the
intersection of staples Street and Leopard Street, Corpus Christi, Texas. The services
produced are in NAICS code 56142. The performance requirements shall be continuously
maintained during the entire term of this agreement.
NOW, THEREFORE, F E, in consideration of the premises and of the mutual covenants,
warranties, and agreements of the parties, it is agreed as follows:
11. ECONOMIC BENEFITS AND INCENTIVES AND PERFORMANCE REQUIREMENTS
2.1 BY THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION
.1 Mone Grant: Corporation will convey by grant to APAC a total of Four
Hundred Thousand Dollars ($400,000.00) in five equal annual payments of Eighty
Thousand Dollars ($80,000) each, as set forth in Schedule A, subject to the
performance requirements of APAC and the conditions precedent that APAC has
timely and fully complied with all applicable terms and conditions contained in this
agreement and specifically, but not limited to the renovation, remodeling, and
Page 1 of 17
occupation of the Facility at 802 North Carancahua, in Corpus Christi, Nueces County,
Texas, by July 30, 2007, for a total capital investment of at least Six Hundred Twenty-
five Thousand Dollars ($625,00000), payable as described in Schedule B; and APAC
will begin and maintain full-time operations at the Facility with the equipment, and the
retained and continued staffing of a minimum of four hundred eighty five (485)
permanent employment positions (at least 418 full-time jobs and at least 67 part-time
jobs), with average annual salary of $20,800 and a minimum gross annual payroll of
$1'1,200,000, with living wage of at least $8.25 per hour; and with health insurance
provided for employees who work at least 33 hours per week, at the APAC Facility as
of July 30, 2007. In no event shall Corporation be required to convey any grant money
prior to any designated performance event according to the following schedule, and in
no event shall Corporation's performance date be accelerated by any act of APAC.
Further in no event shall Corporation be required to make any partial grant payment
for any partial performance by APAC. All Corporation payments are subject to the
APAC's successful completion of all of performance requirements outlined in this
Agreement. Such grant funding shall be used to retain the 485 permanent jobs.
Failure by Corporation to timely and fully comply with any performance requirement
shall be an act of default by Corporation giving APAC, as its sole remedy, the right to
the contracted amount to be conveyed and further being limited to the terms and
conditions contained in Article VII, paragraph 7.1, hereof.
SCHEDULE A
APAC's CONDITIONS
PRECEDENT AND
PERFORMANCE RMANCE
EMENTS
REQUIREMENTS
APAC's TIME OF
PERFORMANCE
CO P F ATI N's
F MANCE
PERFORMANCE
I E UII EMENTS
Leasing, renovation,
remodeling, and occupation
of the Facility at 802 North
Carancahua, in Corpus
Christi, Nueces County,
Texas, on or before the 30th
day of July 2007, with a total
capital investment of at least
Hundred Twenty-five
Thousand Dollars
($625,000.00) payable as
described in Schedule B;
beginning and maintaining
full-time operations with the
equipment, and the retained
and continued staffing of a
minimum of four hundred
yment
eighty five (485) employment
positions(minimum 418 full-
time and minimum 67 part--
June 30} 2008
June 30 2009
,
June fig�0� 0
,
June 30, 2011
June 30 2012
L
'
' $400,000 payable as follows, I
and no later than:
September 30, 2008
$80,000
September 30 2009
,
$80,000sic
September 30, 2010
$80,000
September 30, 2011
$80,000
September 30, 2012
$80,000
H:LegDirigws/EcoDevAPAC/Draftincentive 4A 070525
Page 2 of 1
time) with average annual
salary of $20,800 and a
minimum gross annual
payroll of $11,200}000; with
minimum um luring wage of $8.25
per hour; with health
insurance provided to
employees who work at least
33 hours per week.
2.2 BY APAC
AC
.1 Investment—Facility: APAC agrees that it shall renovate, remodel and equip a
Facility located at 802 North Carancahua in Corpus Christi, I u c s County, Texas,
with equipment and furniture on or before June 30, 2008. The capital investment for
the renovation, remodeling, furnishing, and equipping of the Facility shall be at least
Six Hundred Twenty --five Thousand Dollars ($625,000), payable as described in
Schedule P.
APAC shall begin full operation at Facility on or before July 30, 2007.
Failure by APAC to timely and fully comply and to continue to comply with any
performance requirement of this agreement shall be an act of default.
SCHEDULE B
APAC's PERFORMANCE REQUIREMENTS
1. Relocation of APAC's call center from
4525 Ayers Street to 802 North
Carancahua and commencement of
operations.
2. Renovate, remodel and equip a
Facility located at 802 North
Carancahua in Corpus Christi, Nueces
County, Texas, with equipment and
furniture, capital investment of at least
Six Hundred Twenty-five Thousand
Dollars ($625000), completed as
follows:
A. Capital Expenditure of $516,026.
B. Capital Expenditure of $108,974.
APAC's TIME OF PERFORMANCE
. July 30, 2007.
2.A. November 30, 2007
2. B. June 30, 2008.
H:Leg Diflgyrus/EcoD vAPAC/Draft !men t i ve 4A 070525
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.2 Employment:
APAC agrees that it shall retain and maintain not less than four hundred eighty-five
employment positions (418 full-time and 67 part-time) for its Facility in Corpus Christi,
Nueces County, Texas, with the average annual salary for each position not less than
$20800, and a gross annual payroll of not Tess than $11,200,000, for the full term of
this agre rr nt, with minimum um living wage of $8.25 per hour.
The jobs shall be primarily engaged in serving a customer base outside a 50 -mile
radius of the city of Corpus Christi.
Failure by APAC to timely and fully comply and to continue to comply with any
performance requirement of this agreement shall be an act of default.
SCHEDULE C
APAC's PERFORMANCE RMANCE 1 E UIF EME TS
APAC's TIME OF PERFORMANCE
Four hundred eighty-five (485) employment
positions (418 full-time and 67 part-time) for
its Facility in Corpus Christi, Nueces County,
Texas, with the average annual salary for
eachp osition not less than $20,800, and a
gross annual living payroll of not less than
$11,200,000, with minimumg a a of
$8.25 per hour; and health insurance benefits
provided for employees who work at least 33
hours per week.
June 30, 2008
June 30, 2009
June 30, 2010
June 30, 2011
June 30 2012
111. REPORTING TIN AND MONITORING
3.1 Reports and Monitoring: APAD agrees to the following reporting and monitoring
provisions, and failure to fully and timely comply with any one requirement shall constitute an
act of default.
.1 APAC shall provide an annual report certifying the status of compliance through
the life of the agreement of retained jobs, new investments and any other relevant
information. Documentation for jobs may be in the form of quarterly IRS 941 returns,
APAC employer Quarterly Reports, or employee rosters that show the hours worked
and the positions filled, and such other reports as may reasonably be required.
.2 APAC, during normal working hours, at its Corpus Christi, Texas, Facility, shall
allow Corporation and its designee, Corpus Christi Regional Economic Development
Corporation, reasonable access to APAC's Facility to allow Corporation to verify
construction progress.
.3 APAC, during normal working hours, at its Corpus Christi, Texas, Facility, shall
allow Corporation and its designee, Corpus Christi Regional Economic Development
H:LegDir/gws/EcoDevAPAD/Draftln ntive 4A 070525
Page 4 of 17
Corporation, reasonable access to APAC's employment records and books, to verify
employment and all other relevant records related to each of the other economic
development considerations and incentives, as stated in this agreement, but the
confidentiality of such records and information shall be maintained by Corporation and
its designee, Corpus Christi Regional Economic Development Corporation, unless
such records and information shall be required by a court order, a lawfully issued
subpoena, or at the direction of the Office of the Texas Attorney General.
.4 y the 15th day of the deadline for filing the second quarter report with the
Texas Workforce Commission during each year of this Agreement, APAC agrees to
provide Corporation with a sworn certificate by its corporate officer in charge of
personnel records certifying the following:
(i) the number of full-time and part-time permanent employees at its Facilities as
of June 30 of each year of this Agreement; and
{ii) the number of full-time and part-time permanent jobs which were retained
and maintained as of June 30 of each year of this Agreement, with hourly wage.
The provided documentation shall be in the form of quarterly Texas Workforce
Commission payroll reports or other mutually acceptable employment and payroll
report.
.5 By June 30, 2008 , APAC agrees to provide the Corporation with a sworn
affidavit by its chief financial officer certifying the capital investment required by this
Agreement.
.6 APAC shall certify that it has offered a health insurance program for its
employees during the term of this Agreement.
IV. COVENANTS, WARRANTIES, ANTIES, O LI ATIONS AND DUTIES
4.1 APAC makes the following covenants and warranties to Corporation, and agrees to
timely and fully perform the following obligations and duties. Any false or substantially
misleading statement contained herein or failure to timely and fully perform as required in this
agreement shall be an act of default by APAC. Failure to comply with any one covenant or
warranty shall constitute an act of default by APAC.
1. APAC is a corporation duly organized, validly existing, and in good standing and
authorized to do business in the State of Texas 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.
.2 The execution of this agreement has been duly authorized by -PAC}s board of
directors, and the corporate officer signing this agreement is an officer of the
corporation, empowered to execute such agreement and bind the corporation, said
authorization, signing and binding effect is not in contravention of any law, rule or
regulation, or the provisions ofAPAC's articles of incorporation or by-laws, or of any
agreement or instrument to which APAC is a party or by which it may be bound, such
authority to be evidenced by a corporate resolution, attached hereto at the time of
H:LegDir/gws/EcoDevAPAC/Draftlncenti a 4A 070525
Page 5 of 17
execution. APAC has the authority to enter into and perform, and will perform, the
terms of this Agreement.
.3 APAC has timely filed and will timely file all local, State, and Federal tax reports
and returns required by law to be filed and all taxes, assessments, fees, and other
governmental charges, including applicable ad valorem and employment taxes, have
been timely paid, and will be timely paid, during the term of this Agreement.
.4 o litigation or governmental proceeding is pending or, to the knowledge of APAC
or APAC's officers, threatened against or affecting APAC that may result in any
material adverse change in APAC's business, properties, or operations. No consent,
approval or authorization of or registration or declaration within any governmental
authority is required in connection with the execution of this agreement or the
transactions contemplated hereby.
.5 o certificate, statement or information provided by APAC to Corporation, the
Corpus Christi Regional Economic Development Corporation, or the City of Corpus
Christi in connection with any transaction contemplated hereby, contains any untrue
statements or fails to state any fact necessary to keep the statements contained
therein from being misleading.
.6 To the best of its knowledge, APAC has acquired and maintained all necessary
rights, licenses, permits, and authority to carry on its business operations in Corpus
Christi, Texas, and will continue to use its best efforts to maintain all necessary rights,
licenses, permits and authority.
.7 The funds herein granted shall be utilized solely for the purpose of offsetting the
cost of retaining and maintaining a minimum of four hundred eighty five (485)
permanent employment positions (at least 418 full-time jobs and at least 67 part-time
jobs), with average annual salary of $20,000 and a minimum gross annual payroll of
$11,200,000, with living wage of at least $8.25 per hour; and with health insurance
provided for employees who work at least 33 hours per week at APAC's Corpus
Christi Facility.
.8 APAC shall continue its full-time business activities on its property in Corpus
Christi, Texas, including maintaining its employment and investment requirements at
all times throughout the term of this agreement.
.9 APAC shall complete the project required by this Agreement and shall provide and
staff the required employment positions, investment, and other economic development
considerations described in this Agreement.
.10 APAC shall timely and fully comply with all of the terms and conditions of this
Agreement.
.11 APAC may not sell stock, assets, or any ownership interest in APAC that would be
more than twenty (20) percent of APAC' s total authorized and issued stock, assets or
ownership interest, without prior written notice to the Corporation, the Corpus Christi
Regional Economic Development Corporation, and City of Corpus Christi.
H:LegDlr/gw /E o evAPA /Draftln entive 4A 070525
Page 6 of 17
.12 APAC shall notify Corporation in writing of substantial changes in management
within seven (7) days. Substantial changes mean changes in Chairman of the Board,
President, C.E.O. or area management.
.13 APAC has received a copy of the Texas Development Corporation Act of 1979,
Art. 5190. 6, Vernon's Texas Revised Civil Statutes, 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.
.14 In the event it is determined by Corporation or City of Corpus Christi that funds
provided under this Agreement were not used in accordance with State law, then
APAC agrees to repay such funds to the Corporation within 30 days of written notice
requesting reimbursement.
.15 If an audit determines that the funds were not used for authorized purposes ,
APAC agrees to reimburse Corporation for the sums of money spent for purposes not
authorized by law within 30 days written notice requesting reimbursement.
.16 There are no bankruptcy proceedings currently pending concerning APAC, nor
are any such proceedings contemplated by APAC, as of the date of execution of this
Agreement by APAC.
.17 APAC 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.
.18 APAC agrees to provide information, reports, or statements respecting its
business operations and financial condition as Corporation may reasonably request
from time to time.
.19 APAC will timely pay, before delinquency, all its utility billings.
4.2 All representations, warranties, covenants and agreements of the parties, as well as any
rights and benefits of the parties pertaining to the transaction contemplated hereby, shall
survive the original execution date of this agreement.
V. SUSPENSIONS/TERMINATIONS
5.1 Corporation, under the following circumstances, and at its sole discretion, may suspend
its obligations under this agreement or terminate this agreement and recapture from APAC
any of the money grants or consideration paid by Corporation to APAC, without liability to
APAC, upon any one of the following events, which are an act of default.
.1 The appointment of a receiver of APAC, or of all or any substantial part of its
property, and the failure of such receiver to be discharged within sixty (60) days
thereafter.
.2 The adjudication of APAC as bankrupt.
H:LegDir/gws/EcoDevAPA /Draftlncentive 4A 070525
Page 7f17
.3 The filing by APAC of a petition or an answer seeking bankruptcy, receivership,
reorganization, or admitting the material allegations of a petition filed against it in any
bankruptcy or reorganization proceeding.
VI. DEFAULT
6.1 Events of Default. Should APAC fail to timely, fully and completely comply with any one
or more of the requirements, obligations, duties, terms, conditions or warranties of this
agreement such failure shall be an act of default by APAC and, if not fully and completely
cured and corrected within sixty (60) days after written notice to do so, Corporation may
terminate this agreement and pursue all legal remedies as provided by law, provided
however that APAC's liability under this agreement shall be limited to the immediate return by
APAC to Corporation of all money grants and consideration previously paid to it by
Corporation, the maximum lawful rate of interest on all money paid to APAC until fully repaid,
reasonable attorney fees and cost of court to collect such money, and the termination of all
further obligations on behalf of Corporation under this agreement. Corporation shall not be
liable to APAC for any alleged consequential damages. Additionally, the following events
shall constitute a default of this Agreement:
.1 The Corporation or City determines that any representation or warranty on behalf of
APAC contained in this Agreement or in any financial statement, certificate, report, or
opinion submitted to the Corporation in connection with this Agreement was incorrect
or misleading in any material respect when made;
.2 Any judgment is assessed against APAC or any attachment or other levy against
the property of APAC with respect to a claim remains unpaid, undischarged, or not
dismissed for a period of 30 days.
.3 If taxes on the Facility become delinquent, and APAC fails to timely and properly
follow the legal procedures for protest or contest.
.4 APAC changes the general character of business as conducted of the date this
Agreement is approved by the Corporation.
.5 Foreclosure or sale of the Facility.
6.2 In the event of unforeseeable third party delays in the renovation of the Facility or
force majeure and upon a reasonable showing by APAC that it has immediately and in good
faith commenced and is diligently and continuously pursuing the correction, removal or
abatement of such delays by using its best efforts, Corporation may consent to and excuse
such delays, which consent and excuse shall not be unreasonably withheld. Failure by
APAC to use its best efforts as required in this paragraph shall be an act of default. Force
majeure means severe weather such as tornadoes or flooding, wars, riots, and the
unavailability of necessary and essential equipment and supplies from all sources.
6.3 Any delay for any amount of time by Corporation in providing notice of default to APAC
shall in no event be deemed or constitute a waiver of such default by Corporation of its rights
and remedies available under this agreement, or in law or equity.
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Page 8 of 17
6.4 Any waiver granted by Corporation to APAC of any covenant or condition, the breach
of any covenant or condition of this Agreement, or of an act of default shall not be deemed or
constitute a waiver of any other existing or future breach of a covenant or condition, or act of
default by APAC or of a subsequent breach of the same covenant or condition or act of
default of the same act or event by APAC.
6.5 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.
6.6 Any waiver or indulgence of APAC's default may not be considered an estoppel
against the Corporation.
6.7 Results of Uncured Default. 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 APAC, 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:
.1 APAC shall immediately repay all amounts paid by Corporation under this
Agreement, with interest at the interest rate paid by the City on its most recently issued
general obligation bonds from date of expiration of Cure Period until fully paid.
.2 APAC shall pay Corporation reasonable attorney fees and costs of court to collect
amounts due to Corporation.
.3 The Corporation shall have no further obligations to APAC under this Agreement.
.4. Neither the City nor the Corporation may be held liable for any consequential
damages.
.. The Corporation may pursue all remedies available under law.
6.8 APAC shall give Corporation written notice of any act of default by Corporation, and
Corporation shall have thirty (30) days after receipt of the notice to cure the default. Failure
by Corporation to timely and fully cure the act of default shall permit APAC to pursue its legal
remedies as provided in this agreement.
VII. CORPORATION'S 'S LIABILITY LIMITATIONS
7.1 Payments: : APAC specifically agrees that Corporation shalt only be liable to APAC for
the actual amount of the money grants to be conveyed to APAC and shall not be liable to
APAC for any other actual or consequential damages, direct or indirect, interest, attorney
fees, or costs of court for any act of default by Corporation under the terms of this agreement.
It is further specifically agreed that Corporation shall only be required to pay the grant
amounts solely out of its sales tax revenue currently collected, allocated and budgeted and to
be allocated, budgeted and collected for APAC during the term 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
H:Le Dirlgws/EcoDevAPAC/Draftlncentive 4A 070525
Page 9 of 1
agreed 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, all 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 to APAC for any such deficiency at that time or at any time in the future. In this
event, Corporation wilt provide all supporting documentation, as requested. Payments to be
made to APAC shall also require a written request from APAC to be accompanied by all
necessary supporting documentation. Corporation shall have forty-five days to make
payment after receipt of such payment request. The payment request should be directed to
the address provided for Corporation below.
VIII. DEFINITIONS
As used in this agreement, the following words or phrases shall have the following meanings:
8.1 City of Corpus Christi or City shall mean the governing municipal corporation, the area
that is within the city limits of the City of Corpus Christi, Texas.
8.2 Compliance shall mean timely, fully and completely performing or meeting each and
every requirement, obligation, duty, condition, or warranty as stated in this agreement.
Compliance shall mean complete compliance and shall not mean substantial compliance.
8.3 Act of Default shall mean failure to timely and fully comply with one or more
requirements, obligations, duties, terms, conditions or warranties, as stated in this
agreement. Corporation may, in its sole discretion, accept substantial compliance in lieu of
full compliance by waiving such act of default solely by an instrument in writing.
8.4 Full-time Operation shall mean the operation of the call center Facility for not less than
eight (8) hours per day, five days a week, for fifty-two (52) weeks every fiscal year.
8.5 Full-time Job or Full-time Equivalent Job (FTE) shall mean a job requiring a minimum
of One Thousand Eight Hundred Twenty (1820) hours of work over a twelve (12) month term
[thirty-five (35) hours work per week], including allowance for vacation and sick leave, with full
company benefits and employed exclusively and on-site in the city of Corpus Christi. Use of
a staffing agency is permitted provided all of the conditions here are met.
8.6 Insolvent shall mean failure to timely pay debts in the ordinary course of business or
cannot pay debts as they become due, or is insolvent within the meaning of the federal
bankruptcy law.
8.7 Force Majeure shall mean severe weather such as tornadoes or flooding, wars, riots
and the unavailability of necessary and essential equipment and supplies from all sources.
IX. GENERAL TEMS
9.1 Effective Date. The effective date of this Agreement ("Effective Date") is the latest
date that either party executes this Agreement.
9.2 Term. The term of this Agreement is five (5) years from the Effective Date.
H:L Dirl ws/E oDevAPAG/Draftln ntive 4A 070525
Page 10 of 17
9.3 Termination. This Agreement may be terminated by mutual agreement of the parties
or by either party, upon the failure of the other party to fulfill an obligation as set forth herein.
The termination of this Agreement shall extinguish all rights, duties, obligations, and liabilities
of the parties under this Agreement, except all rights, duties, liabilities, and obligations
accrued prior to such termination shall survive termination.
9.4 Compliance with Laws. This Agreement is subject to all legal requirements in the City
Charter and Code of Ordinances of the City of Corpus Christi and all other applicable county,
state, and federal laws. APAC shall observe and obey all applicable laws, ordinances,
regulations, and rules of the Federal, State, County and City governments, as may be
amended or enacted. This Agreement shall be governed by and construed in accordance
with the laws and court decisions of the State of Texas.
9.5 Assignment. This Agreement shall be binding upon the parties hereto and their
successors and assigns. However, APAC 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.
9.6 Indemnity. APAC covenants to fully indemnify, save, and hold harmless the
Corporation, the City, their respective officers, employees, and agents ("Indemnitees")
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 APAC 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. APAC 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 Indemnitees, and pay
all charges of attorneys and all other costs and expenses of any kind arising from the
liability, damage, loss, claims, demands, or actions.
9.7 Buy Local Provision. APAC agrees to use its best efforts to give preference and
priority to local manufacturers, suppliers, contractors, and labor, except where not reasonably
possible to do so without added expense, substantial inconvenience, or sacrifice in operating
efficiency. 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 -mile radius of Buenas County,
9.8 Notices.
a. Any required written notices shall be sent mailed, certified mail, postage prepaid,
addressed as follows:
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APAC
APAC Customer Services, Inc.
6 Parkway North
Deerfield IL 60015
Attn: General Counsel
With a copy to:
APAC:
APAC Customer Services, Inc.
6 Parkway North
Deerfield IL 60015
Attn: Facilities Manager
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 to the City at the following
address:
City of Corpus Christi
Attn.: City Manager
P.O. Box 9277
Corpus Christi, Texas 78469-9277
c. Notice is effective upon deposit in the United States mail in the manner provided
above.
9.9 Incorporation of other documents.
a. The Corpus Christi Business & Job Development Corporation Guidelines & Criteria
for Granting Business Incentives ("Corporation Guidelines"), adopted September 18,
2007, are incorporated into this Agreement.
b. APAC application submitted to the Corporation for business incentives
("Application")is incorporated into this Agreement.
c. If there is any conflict in the terms of these documents, the following order controls:
(1) This Agreement, ii Corporation Guidelines, (iii) Application.
9.10 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.
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9.11 Relationship of Parties. 1n performing this Agreement, both the Corporation and APAC
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.
9.12 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.
9.13 Severability.
.1 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.
.2 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.
9.14 Venue. Venue for any legal action related to this Agreement is in Nueces County,
Texas. APAC consents to, and waives any objections to, in personum jurisdiction in Nueces
County, Texas. This agreement and the relationship between Corporation and APAC shall
be governed and interpreted under the laws of the State of Texas without regard to any
conflict of laws or provisions.
9.1Sole Agreement. This Agreement constitutes the sole agreement between the
Corporation and APAC. Any prior agreements, promises, negotiations, or representations,
verbal or otherwise, not expressly stated in this Agreement, are of no force and effect.
Except as otherwise provided herein, this Agreement cannot be modified or amended without
a written agreement of the parties.
9.16 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and constitute one and the same instrument.
9.17 Representation. Corporation represents that no Corporation board member or
employee, City of Corpus Christi officer or employee, has been or will be compensated in any
manner with respect to directly or indirectly bringing the parties hereto together, agreement
negotiations, or the entering into of this Agreement. In no event will APAC pay a fee to or in
any manner compensate any Corporation board member or employee, City of Corpus Christi
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officer or employee, in connection with the acceptance of this Agreement. A breach of this
provision (10.17) shall result in automatic and immediate termination of this Agreement, and
shall be an act of default by APAC.
9.18 Other Contracts. It is understood by APAC that Corporation has heretofore entered,
and may hereafter enter, into contracts with other companies or persons upon terms and
conditions different from the terms and conditions of this Agreement, and APAC has no
standing to object whatsoever to any such contracts or require any modifications or changes
to its Agreement due to such other agreements.
9.19 Corporation, its officers and employees, and its agents or contractors retained to
perform economic development services for Corporation, shall treat as confidential the
financial statements of APAC and shall not release such information to the public, unless
required by law or court order. Corporation shall immediately notify APAC of requests or
court orders to release such information.
9.20 All representations, warranties, covenants and agreements of the parties, as well as
any rights and benefits of the parties pertaining to the transaction contemplated hereby, shall
survive the original execution date of this agreement.
9.21 Insurance. APAC shall maintain insurance on the Facility, at APAC's expense, during
the term of this Agreement, insurance of the type and with the amount of coverage shown on
the Attachment, which is incorporated in this Agreement by reference. APAC shall use an
insurance company or companies acceptable to the Risk Manager of the City of Corpus
Christi. Failure to maintain the insurance during the term of this Agreement, at the limits and
requirements shown on Attachment constitutes grounds for termination of this Agreement.
The Certificate of Insurance must be sent to the Risk Manager prior to occupancy of and
operations at the Facility. The Certificate of Insurance must provide that the City will have
thirty (30) days advance written notice of cancellation, intent to not renew, material change,
or termination of any coverage required in this Agreement. APAC shall provide, during the
term of this Lease, copies of all insurance policies to the Risk Manager upon written request
by the City Manager. The Risk Manager shall retain the right to annually review the amount
and types of insurance maintained by APAC to require increased coverage limits, if
necessary in the interest of public health, safety, or welfare, and to decrease coverage, if so
warranted. In the event of any necessary increase, APAC shall receive thirty (30) days
written notice prior to the effective date of the requirement to obtain increased coverage.
APAC shall, prior to any addition or alteration to, in, on, or about the Premises, obtain prior
clearance, in writing, from the Risk Manager that the proposed addition or alteration will not
necessitate a change or modification in the existing insurance coverage maintained by
Lessee.
EXECUTED on the date shown opposite the signature of each party.
Corpus Christi Business & Job Development Corporation
By:
Eloy Salazar, Chairperson
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Date:
Attest
By:
Armando Chapa, Assistant Secretary
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APIC CUSTOMER SERVICES, INC.
By:
George H. Hepburn, III, Senior Vice President and Chief Financial Officer
Date:
Attest:
By:
Title:
Federal Tax ID No.:
Corporate Seal:
The State of
County of
Before me,(Notary's name), on this day
personally appeared George H. Hepburn 111, SVP and CFO of ADAC Customer Services, Inc.,
known to me to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same in the capacity stated as the act of APAC
Customer Services, Inc., an Illinois corporation, for the purposes and consideration
expressed in the instrument.
Given under my hand and seal of office this the day of , 2007.
Notary Pu lic, State of
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