HomeMy WebLinkAboutC2008-434 - 11/11/2008 - ApprovedSMALL BUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI
BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE
FOR THE FASTRAC GROWTH VENTURE PROGRAM
This Small Businesses Incentive Agreement ("Agreement") is entered into between the
Corpus Christi Business and Job Development Corporation ("Corporation") and Del Mar
College, a Texas junior college district ("Del Mar").
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 ofone-eighth of one percent to be imposed
for 15 years;
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, the Board of Directors of the Corporation ("Board"), on September 10,
2007, amended the Corporation's Guidelines and Criteria for Granting Business
Incentives;
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, nPl Mar is a Texas institution of higher education:
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 Del Mar, through
this contract with Del Mar, to be used by Del Mar for the FastTrac®Growth Venture'"
Program, which will result in creation of at least 12 new full-time permanent jobs in the
City of Corpus Christi.
2008-434
11/11/08 Page 1 of 9
Res. 027933
Del Mar College iREEMENT -Del Mar FaslTrac 10312008
In consideration of the covenants, promises, and conditions stated in this Agreement,
Corporation and Del Mar 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 from December 1, 2008, through December 31,
2009.
3. Grant. The Corporation will fund up to 24 $5,000 grants to be awarded to twelve
successful participants in Del Mar's FastTrac®Growth Venturer"". FastTrac®Growth
Venturer"' is an intensive ten week, interactive course that targets existing, successful
small business owners with a desire to grow their business.
a. In order to receive an initial $5,000 grant, prior to June 30, 2009, the
successful participants must:
(1) Complete the course.
(2) Represent a "business expansion."
(3) Create at least one new job for their business, while retaining all of
their existing jobs.
b. In order to receive a second $5,000 grant, the successful participants must
retain the new job that was created for a minimum of six months, while retaining
all of their existing jobs.
4. Job Creation Qualification.
a. In order to count as a created job under this Agreement, the job must pay
wages as required by Section 38(b) of the Development Corporation Act of 1979,
as amended, which is the median wage of the occupation in the Corpus Christi
MSA as determined by Texas Workforce Commission's Texas Industry Profiles
report.
b. A full-time permanent job is one that provides at least 2,080 hours annually.
c. Del Mar agrees to confirm and document to the Corporation that each job
created as a result of funding provided by this Agreement is maintained for at
d. Del Mar agrees to provide Corporation with a sworn certificate by authorized
representative of each small business assisted under this Agreement certifying
the number of full-time permanent employees employed by the small business.
e. Del Mar shall ensure that the Corporation is allowed reasonable access to
personnel records of the small businesses assisted under this Agreement.
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SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312008
5. Buy Local Provision.
a. Del Mar 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.
6. Warranties. Del Mar warrants and represents to Corporation the following:
a. Del Mar has the authority to enter into and perform, and will perform, the
terms of this Agreement.
b. Del Mar has timely filed and will timely file all local, State, and Federal tax
reports and returns required bylaws to be filed and all Texas, 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.
c. Del Mar 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,
Del Mar 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 Del Mar are duly
authorized to execute this Agreement on behalf of Del Mar.
7. Compliance with Laws. Del Mar shall observe and obey all applicable laws,
ordinances, regulations, and rules of the Federal, State, county, and city governments.
8. Non-Discrimination. Del Mar covenants and agrees that Del Mar will not discriminate
nnr narmit discrimination against anv person or group of persons, with regard to
employment and the provision of services at, on, or in the Facility, on the grounds
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.
9. Force Majeure. If the Corporation or Del Mar 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
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SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312008
obligations of the Corporation or Del Mar 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.
10. Assignment. Del Mar 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.
11. Indemnity. To the extent authorized bylaw, Del Mar 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 Del Mar 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 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.
12. Events of Default. The following events constitute a default of this Agreement
a. Failure of Del Marto 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
irted-in~his Rgreemen~ar-in~riq finafleial-statemen~`,
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 Del Mar or any attachment or other levy
against the property of Del Mar with respect to a claim remains unpaid,
undischarged, or not dismissed for a period of 30 days.
d. Del Mar makes an assignment for the benefit of creditors.
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SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312008
e. Del Mar files a petition in bankruptcy, or is adjudicated insolvent or bankrupt.
13. Notice of Default. Should the Corporation or City determine that Del Mar is in
default according to the terms of this Agreement, the Corporation or City shall notify Del
Mar in writing of the event of default and provide 60 days from the date of the notice
("Cure Period") for Del Marto cure the event of default.
14. 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 Del Mar, 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.
a. Del Mar shall immediately repay all funds paid by Corporation under this
Agreement.
b. Del Mar 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 Del Mar 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.
15. 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 covenantor 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' default may not be considered an
estoppel against the Corporation.
d. It is expressly understood that if at any time Del Mar 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.
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SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312008
16. Del Mar specifically agrees that Corporation shall only be liable to Del Mar for the
actual amount of the money grants to be conveyed to Del Mar, and shall not be liable to
Del Mar 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
December 1, 2008, through December 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 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 Del Marto be accompanied by all necessary supporting
documentation.
17. Notices.
a. Any required written notices shall be sent mailed, certified mail, postage
prepaid, addressed as follows:
Del Mar College:
Del Mar College
Small Business Development Center
101 Baldwin, CED-146
Corpus Christi, TX 78404-3897
Attn: Director, SBDC
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
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SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312008
c. Notice is effective upon deposit in the United States mail in the manner
provided above.
18. Incorporation of other documents. The Corpus Christi Business and Job
Development Corporation Guidelines and Criteria for Granting Business Incentives
("Corporation Guidelines"), as amended, are incorporated into this Agreement.
19. 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.
20. Relationship of Parties. In performing this Agreement, both the Corporation and
Del Mar 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.
21. 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.
22. 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
e-and-be legal~ralid~nd-enferseable; w+41-be-added
to this Agreement automatically.
23. Venue. Venue for any legal action related to this Agreement is in Nueces County,
Texas.
24. Sole Agreement. This Agreement constitutes the sole agreement between
Corporation and Del Mar. Any prior agreements, promises, negotiations, or
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SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312006
representations, verbal or otherwise, not expressly stated in this Agreement, are of no
force and effect.
25. 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: _ ~ J~ ~~~
Attest:
By:
Armando Chapa
Assistant Secretary
G(~. ~02- I IIJ-~AUTt1UkIZED
8T COUNCIL.....U.~.~~.~~__gnn-//-
.~...,-.------•.......,7~.
SECitETARV
Page 8 of 9
SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312008
Del Mar College
By:
M c Escamilla, Ph.D
Pr sident
Date: ~~10-D~
THE STATE OF TEXAS
COUNTY OF NUECES
This instrument was acknowledged before
Mark Escamilla, Ph.D, for Del Mar College,
on behalf of the college district.
ne on IUDU~nI~r ~~~ , 2008, by
a political subdivision of the State of Texas,
N tary Public
ate of Texas
~''°`^-~ JESSICA ANNALANIZ
Nolary Public
~ 1~__ STATE Of TEXAS
`\'±~a',r'+!`~ My Comm. Fxp. 07-16.2012
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SMALL BUSINESS INCENTIVE AGREEMENT --Del Mar FastTrac 10312008