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HomeMy WebLinkAbout027934 RES - 11/11/2008Page 1 of 3 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND TEXAS A & M UNIVERSITY -- CORPUS CHRISTI FOR DEVELOPMENT OF FACILITIES FOR TAMU-CC'S BACHELOR OF SCIENCE IN MECHANICAL ENGINEERING PROGRAM, WHICH GRANTS $1,000,000 FOR RETROFITTING AND OUTFITTING LABORATORIES, AND AUTHORIZING THE CITY MANAGER, OR DESIGNEE, TO EXECUTE A PROJECT SUPPORT AGREEMENT WITH THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION REGARDING IMPLEMENTATION AND ADMINISTRATION OF THE TEXAS A & M UNIVERSITY -- CORPUS CHRISTI AGREEMENT WHEREAS, the Corpus Christi Business and Job Development Corporation ("4A Board") has budgeted funds to promote job training that will result in new jobs in Corpus Christi, Texas. WHEREAS, in 2008, the 4A Board requested proposals and determined that the proposal from Texas A & M University -- Corpus Christi ("TAMU-CC"), best provided an opportunity for job training that meets the needs of the local community; WHEREAS, the4A Board's agreement with TAMU-CC provides a $1,000,000 grant for development of facilities for TAMU-CC's Bachelor of Science in Mechanical Engineering program. WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the agreement between the 4A Board and TAMU-CC; and WHEREAS, there is a need for a project support agreement between the City of Corpus Christi ("City") and the 4A Board for the implementation and administration of the agreement with TAMU-CC for development of facilities for TAMU-CC's Bachelor of Science in Mechanical Engineering program. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the agreement between the 4A Board and TAMU-CC, which is attached to this resolution as Exhibit A, is approved. SECTION 2. That the City Manager, or designee, is authorized to execute a project support agreement between the City and 4A Board for the implementation and administration of the agreement with TAMU-CC for development of facilities for TAMU-CC's Bachelor of Science in Mechanical Engineering program, which is attached to this resolution as Exhibit B. 02 934 RESOLUTION -- Agreement -- TAMU-CC BSME 10312008.doc ATTEST: Armando Chapa Page 2 of 3 CITY OF CORPUS CHRISTI ry Garr City Secretary Mayor APPROVED as to form: fro ✓ 3 , 2008 R. J Ining Fi t A sistant ity Attorney For the City Attorney RESOLUTION -- Agreement -- TAMU-CC BSME 10312008.doc Page 3 of 3 Corpus Qhristi, Texas I ( of evvavK (�e� 2008 The above resolution was passed by the following vote: Henry Garrett Melody Cooper Larry Elizondo, Sr. Mike Hummel) Bill Kelly Priscilla G. Leal John E. Marez Nelda Martinez Michael McCutchon 027934 RESOLUTION -- Agreement -- TAMU-CC BSME 10312008.doc AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND TAMU-CC FOR DEVELOPMENT OF FACILITIES FOR THE BACHELOR OF SCIENCE IN MECHANICAL ENGINEERING PROGRAM This Agreement for ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Texas A & M University — Corpus Christi ("TAMU-CC"), a state institution of higher education. WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979) 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 5, 2002, residents of the City of Corpus Christi ("City") passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the ballot measure authorized the use of the funds to make grants to organizations to provide training and education to insure the knowledge and skills required for the jobs of the future are in place; WHEREAS, the Development Corporation Act of 1979 authorizes the use of funds for primary job training facilities for use by institutions of higher education; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corpus Christi Business and Job Development Corporation Board; WHEREAS, the Corpus Christi Business and Job Development Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, Section 21 of the Texas Development Corporation Act of 1979, Art. 5190.6, Vernon's Texas Revised Civil Statutes, requires the City Council to approve all programs and expenditures of the corporation; WHEREAS, TAMU-CC has been authorized to offer an undergraduate degree in mechanical engineering ("BSME") by the Texas Higher Education Coordinating Board; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas that business development funds be provided to TAMU-CC, through this contract with TAMU-CC, to be used by TAMU-CC for expenses related to establishing the facilities for the BSME program, including retrofitting and outfitting the TAMU-CC BSME AGREEMENT 10272008.doc Page 1 of 8 Exhibit A laboratories currently used in TAMU-CC's mechanical engineering technology and electrical engineering technology programs. In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and TAMU-CC agree as follows: 1. Effective Date. The effective date of this Agreement ("Effective Date") is the latest date that either party executes this Agreement. 2. Term. The term of this Agreement is for one year from August 1, 2008, through July 31, 2009. This agreement may be extended at the option of the Corporation for up to two additional one year terms, contingent upon annual appropriation of funds and approval of the City Council. 3. The Corporation grants TAMU—CC $1,000,000.00 for development of facilities for the BSME program, including retrofitting and outfitting the laboratories currently used in TAMU-CC's mechanical engineering technology and electrical engineering technology programs. a. The specific items that are funded by this grant are described in Exhibit A, which is attached to and incorporated into this agreement. b. The Corporation will reimburse TAMU—CC for authorized expenditures related to the retrofitting and outfitting of the engineering laboratories. 4. Buy Local Provision. a. TAMU-CC 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. b. 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. 5. Warranties. TAMU-CC warrants and represents to Corporation the following: a. TAMU-CC is a state institution of higher education, 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. TAMU-CC has the authority to enter into and perform, and will perform, the terms of this Agreement. Page 2 of 8 TAMU-CC BSME AGREEMENT 10272008.doc c. TAMU-CC 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. d. If an audit determines that the funds were not used for authorized purposes, TAMU-CC agrees to reimburse Corporation for the sums of money spent for purposes not authorized by law within 30 days written notice requesting reimbursement. e. The parties executing this Agreement on behalf of TAMU-CC are duly authorized to execute this Agreement on behalf of TAMU-CC. 6. Compliance with Laws. TAMU-CC shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 7. Non -Discrimination. TAMU-CC covenants and agrees that TAMU-CC 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. 8. Force Majeure. If the Corporation or TAMU-CC 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 TAMU-CC 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. 9. Assignment. TAMU-CC 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. 10. Indemnity. To the extent authorized by law, TAMU-CC 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 TAMU-CC activities conducted under or incidental to Page 3 of 8 TAMU-CC BSME AGREEMENT 10272006.doc this Agreement, including any injury, loss or damage caused by the sole or contributory negligence of any or all of the Indemnitees. TAMU-CC 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 cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 11. Events of Default. The following events constitute a default of this Agreement: a. Failure of TAMU-CC to timely, fully, and completely comply with any one or more of the requirements, obligations, duties, terms, conditions, or warranties of this Agreement. b. The Corporation or City determines that any representation or warranty on behalf of TAMU-CC 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; c. Any judgment is assessed against TAMU-CC or any attachment or other levy against the property of TAMU-CC with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 30 days. d. TAMU-CC makes an assignment for the benefit of creditors. e. TAMU-CC files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. f. If taxes owed by TAMU-CC become delinquent, and TAMU-CC fails to timely and properly follow the legal procedures for protest or contest. g. TAMU-CC changes the general character of business as conducted of the date this Agreement is approved by the Corporation. 12. Notice of Default. Should the Corporation or City determine that TAMU-CC is in default according to the terms of this Agreement, the Corporation or City shall notify TAMU-CC in writing of the event of default and provide 60 days from the date of the - notice ("Cure Period") for TAMU-CC to cure the event of default. 13. 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 TAMU-CC, 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 4 of 8 TAMU-CC BSME AGREEMENT 10272008.doc a. TAMU-CC shall immediately repay all funds paid by Corporation under this Agreement. b. TAMU-CC shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation. c. The Corporation shall have no further obligations to TAMU-CC under this Agreement. d. Neither the City nor the Corporation may be held liable for any consequential damages. e. The Corporation may pursue all remedies available under law. 14. 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 TAMU-CC' default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time TAMU-CC 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. 15. TAMU-CC specifically agrees that Corporation shall only be liable to TAMU-CC for the actual amount of the money grants to be conveyed to TAMU-CC , and shall not be liable to TAMU-CC 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, being August 1, 2008, through July 31, 2009. Corporation shall use its best efforts to anticipate economic conditions and to budget accordingly. However, it is further understood and 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 Page 5of8 TAMU-CC BSME AGREEMENT 10272008.doc year, and Corporation shall not be liable to 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 TAMU-CC to be accompanied by all necessary supporting documentation. 16. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: TAMU-CC: TAMU-CC 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 c. Notice is effective upon deposit in the United States mail in the manner provided above. 17. 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. 18. Relationship of Parties. In performing this Agreement, both the Corporation and TAMU-CC 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. 19. 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. Page 6 of 8 TAMU-CC BSME AGREEMENT 10272008.doc 20. 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. 21. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 22. Sole Agreement. This Agreement constitutes the sole agreement between Corporation and TAMU-CC. Any prior agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 23. Survival of terms of agreement and obligations of parties. The terms of this agreement and the obligation of the parties relating to [what survives] shall survive the termination of this agreement. Corpus Christi Business & Job Development Corporation By: Date: Attest: By: Eloy Salazar Chairperson Armando Chapa Assistant Secretary Page 7 of 8 TAMU-CC BSME AGREEMENT 10272008.doc TAMU-CC By: Date: THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on 2008, by , for TAMU-CC, a Texas non-profit corporation, on behalf of the corporation. Notary Public State of Texas Page 8 of 8 TAMU-CC BSME AGREEMENT 10272008.doc PROJECT SERVICE AGREEMENT FOR DEVELOPMENT OF FACILITIES FOR TEXAS A & M UNIVERSITY — CORPUS CHRISTI'S BACHELOR OF SCIENCE IN MECHANICAL ENGINEERING PROGRAM This Project Service Agreement ("Project Service Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and the City of Corpus Christi, Texas ("City"). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979) 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 5, 2002, residents of the City passed Proposition 2, New and Expanded Business Enterprises, which authorized the adoption of a sales and use tax for the promotion and development of new and expanded business enterprises at the rate of one-eighth of one percent to be imposed for 15 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 2 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2003, to be administered by the Corporation's Board of Directors; WHEREAS, the Corporation exists for the purposes of encouraging and assisting entities in the creation of jobs for the citizens of Corpus Christi, Texas; WHEREAS, the ballot measure authorized the use of the funds to make grants to organizations to provide training and education to insure the knowledge and skills required for the jobs of the future are in place; WHEREAS, the Development Corporation Act of 1979 authorizes the use of funds for primary job training facilities for use by institutions of higher education; WHEREAS, Section 21 of the Texas Development Corporation Act of 1979, Art. 5190.6, Vernon's Texas Revised Civil Statutes, requires the City Council to approve all programs and expenditures of the Corporation; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007; WHEREAS, Texas A & M University -- Corpus Christi has submitted a proposal to the Corporation for $1,000,000.00 for development of facilities for their Bachelor of Science in Mechanical Engineering program; WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas, to fund the retrofitting and outfitting of laboratories of facilities for the Texas A & M University -- Corpus Christi's Bachelor of Science in Mechanical Engineering program; and Page 1 of 3 Project Support Agreement 4A -City -- TAMU-CC BSME 10312008.doc CYI-II1:21T R WHEREAS, the Corporation and Texas A & M University -- Corpus Christi have executed an agreement for development of facilities for their Bachelor of Science in Mechanical Engineering program. In consideration of the covenants, promises, and conditions stated in this Project Service Agreement, the Corporation and the City agree as follows: 1. Project Service Agreement to Implement Business Incentives Agreement. This Project Service Agreement between the City and the Corporation is executed to implement the Agreement for the Development of Facilities for the Bachelor of Science in Mechanical Engineering Program between the Corporation and Texas A & M University -- Corpus Christi ("Agreement"). 2. Term. The term of this Project Service Agreement runs concurrently with the term of the Agreement. 3. Services to be Provided by City. a. The City Manager, or the City Manager's designee, shall administer funding on behalf of the Corporation. b. The City Manager, or the City Manager's designee, shall perform contract administration responsibilities outlined in the Agreement for the Corporation. 4. Appropriation of Funds. Any future payments by the City are subject to appropriation of funds by City's Council. 5. Effective Date. The effective date of this Project Service Agreement is the latest date that either party executes this Agreement. 6. Amendments or Modifications. No amendments or modifications to this Project Service 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. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Service Agreement or the application of this Project Service 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 Project Service 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 Project Service Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Project Service Agreement be given full force and effect for its purpose. Page 2 of 3 Project Support Agreement 4A -City -- TAMU-CC BSME 10312008.doc 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 Project Service Agreement, then the remainder of this Project Service 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 Project Service Agreement automatically. 8. Captions. The captions in this Project Service Agreement are for convenience only and are not a part of this Project Service Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Service Agreement. The City of Corpus Christi Corpus Christi Business & Job Development Corporation 'Angel R. Escobar Eloy Salazar Interim City Manager Chairperson Date: Date: Attest Armando Chapa City Secretary Approved as to Legal Form: , 2008. R. Jay Reining First Assistant City Attorney for City Attorney Page 3 of 3 Project Support Agreement 4A -City -- TAMU-CC BSME 10312008.doc