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HomeMy WebLinkAboutC2008-548 - 12/9/2008 - ApprovedBUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND BAYSHORE TECHNOLOGY HOLDINGS, LLC, FOR THE DEVELOPMENT AND MARKETING OF THERMAL AND NON-THERMAL PLASMA MEDICAL AND STERILIZATION DEVICES This Business Incentive Agreement for ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Bayshore Technology Holdings, LLC, a Texas limited liability corporation ("Bayshore"). 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 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, Bayshore is a Texas limited liability corporation whose principal mission is the development and marketing of thermal and non-thermal plasma medical devices and gas to liquid and coal to gas technologies; 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 Bayshore, 2008-548 ~ Bayshore, to be used by Bayshore for the development and Res. 027972 12/09/08 Page 1 of 10 CCBJDC(4A Board) JT -Bayshore Technology Holdings -12172008 marketing of thermal and non-thermal plasma medical and sterilization devices and gas to liquid and coal to gas technologies, which will result in creation of 295 new full-time permanent jobs in the city of Corpus Christi. In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and Bayshore 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 January 1, 2009, through December 31, 2009. This agreement may be extended at the option of the Corporation for up to four additional one year terms, wntingent upon annual appropriation of funds and approval of the City Council. 3. Performance Requirements and Grants. a. Bayshore, through its subsidiaries, Plasma Technologies, Inc., shall research, develop, and commercialize thermal and non-thermal plasma medical and sterilization devices. b. Bayshore, through its subsidiary, CGL, Inc., shall research, develop, and commercialize gas to liquid and coal to gas technologies. Gas to liquid technology is partial oxidation or direct non-catalytic oxidation of methane and its homologies to methanol, formaldehyde, and other oxygenates (DMTM). Coal to gas technology is plasma assisted conversion of powdered coal into liquid fuel or hydrogen rich gas (syngas). c. Bayshore will maintain its administration, marketing, sales, and engineering headquarters in Corpus Christi. d. Bayshore, through its subsidiaries, Plasma Technologies, Inc., and CGL, Inc., shall create the following new, full-time jobs within the City, with an average annual salary of $61,000.00: Year Number of New Jobs 2009 26 2010 22 2011 36 2012 51 2013 13 Page 2 of 10 BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 12172008 e. The Corporation will award a grant of $5,800.00 for each new job created and retained. Grants not to exceed a cumulative total of $1,711,000 are available, if Bayshore creates at least 295 new jobs during the term of this agreement, including the creation of the minimum number of new jobs specified in subsection d of this section. The additional new jobs may be created in any calendar year. Year 2009 2010 2011 2012 2013 Minimum Number of New Jobs 26 22 36 51 13 Grants Available for Creation of Minimum Number of New Jobs $150, 800.00 $127,600.00 $208, 800.00 $295, 800.00 $75,400.00 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. Bayshore agrees to confirm and document to the Corporation that each job created as a result of funding provided by this Agreement is maintained throughout the term of the loan to the Business. d. Bayshore agrees to provide Corporation with a sworn certificate by authorized representative of each shall business assisted under this Agreement certifying the number of full-time permanent employees employed by the business. e. Bayshore shall ensure that the Corporation is allowed reasonable access to personnel records of the Business assisted under this Agreement. 5. Buy Local Provision. a. Bayshore 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. Page 3 of 10 BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 12172008 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. Bayshore warrants and represents to Corporation the following: a. Bayshore is a corporation 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. Bayshore has the authority to enter into and perform, and will perform, the terms of this Agreement. c. Bayshore has timely filed and will timely file all local, State, and Federal tax reports and returns required by laws 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. d. Bayshore 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. e. If an audit determines that the funds were not used for authorized purposes, Bayshore agrees to reimburse Corporation for the sums of money spent for purposes not authorized by law within 30 days written notice requesting reimbursement. f. The parties executing this Agreement on behalf of Bayshore are duly authorized to execute this Agreement on behalf of Bayshore. 7. Compliance with Laws. Bayshore shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 8. Non-Discrimination. Bayshore covenants and agrees that Bayshore 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. 9. Force Majeure. If the Corporation or Bayshore 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 Bayshore are temporarily suspended during continuation of the force majeure. If either party's obligation is affected by any of the Page 4 of 10 BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 12172008 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. Bayshore 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. Bayshore 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 Bayshore 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. Bayshore 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 Bayshore 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 Bayshore 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 Bayshore or any attachment or other levy against the property of Bayshore with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 30 days. d. Bayshore makes an assignment for the benefit of creditors. e. Bayshore files a petition in bankruptcy, or is adjudicated insolvent or bankrupt Page 5 of 10 BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings -12172008 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. 16. Bayshore specifically agrees that Corporation shall only be liable to Bayshore for the actual amount of the money grants to be conveyed to Bayshore ,and shall not be liable to Bayshore 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 January 1, 2009, 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 Bayshore to 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: Bayshore: Bayshore Technology Holdings, LLC Attn: Bert Quintanilla, Manager 800 N. Shoreline, Suite 800 S Corpus Christi, Texas 78401 Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 Page 7 of 10 BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 12172008 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. 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 Bayshore 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 Page 8 of 10 BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 12172008 provision as may be possible and be legal, valid, and enforceable, will 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 Bayshore. Any prior agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. Corpus Christi Business & Job Development Corporation By: Date: ~ I ~ ~ I ~~ --~ Attest: By: Armando Chapa Assistant Secretary Page 9 of 10 S ~~ ~ ~7~ AUTHORIZES SY COURCIL ~~,Q_-l.l,.~.~ SFCRFfARY ~J BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 12172008 Bayshore Technology Holdings, LLC By: Bert Quintanilla Manage Date: ~ '-' `~ ,,e ~+~~:,,, CELIA WILLIFORD ?~~ Notary Public, State of Texes sy., ~ My Commission Expires '>,;gi';;~'T Febmary 04, 2812 THE STATE OF TEXAS COUNTY OF NUECES ~ This instrument was acknowledged before me on ~~ .S , 2008, by Bert Quintanilla, Manager, Bayshore Technolog oldings, LC, a Texas limited liability corporation, on behalf of the corporation. Notary Public State of Texas Page 10 of 10 BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 72172008