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
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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
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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.
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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
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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
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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
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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
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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
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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
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BUSINESS INCENTIVE AGREEMENT -Bayshore Technology Holdings - 72172008