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HomeMy WebLinkAboutC2009-009 - 1/13/2009 - ApprovedGRANT AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND THE CITY OF CORPUS CHRISTI FOR THE ACQUISITION OF A TURF SYSTEM FOR THE AMERICAN BANK CENTER ARENA This Grant Agreement for ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and the City of Corpus Christi ("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 7, 2000, residents of the City of Corpus Christi ("City") passed Proposition 5, Multipurpose Arena, which authorized the adoption of a sales and use tax for the promotion and development of construction of a multipurpose arena and for maintenance and operating costs of the multipurpose arena for the life of the arena at the rate ofone-eighth of one percent to be imposed for 25 years; WHEREAS, the 1/8th cent sales tax authorized by passage of Proposition 5 was subsequently enacted by the City Council and filed with the State Comptroller of Texas, effective April 1, 2001, to be administered by the Corpus Christi Business and Job Development Corporation Board; 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 owns and operates the American Bank Center Arena, which is the multipurpose arena constructed with the proceeds of sales and use tax authorized by Proposition 5; and WHEREAS, the Board has determined that it is in the best interests of the citizens of Corpus Christi, Texas that additional funds be provided to the City for the purchase of a used turf system that will be leased to tenants using the arena; In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and the City 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. Grant. The Corporation grants the City up to $105,000 to purchase the Dieter Turf Field System from the Corpus AF2 Football, LLC, d/b/a Corpus Christi Sharks. 2009-009 Res. 028025 Page 1 of 6 01/13/09 18 CCBJDC 3. Warranties. The City warrants and represents to Corporation the following: a. The City 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, the City 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 the City are duly authorized to execute this Agreement on behalf of City. 4. Compliance with Laws. The City shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments 5. Non-Discrimination. The City covenants and agrees that the City 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. 6. Assignment. The City 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. 7. Indemnity. To the extent authorized bylaw, the City covenants to fully indemnify, save, and hold harmless the Corporation, its 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 the Corporation's 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. The City must, at its own expense, investigate all those claims and demands, attend to their sett/emenf 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 Page 2 of 6 Arena Turf Agreement -- 12292008 expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 8. Events of Default. The following events constitute a default of this Agreement: a. Failure of the City 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 determines that any representation or warranty on behalf of the City 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; 9. Notice of Default. Should the Corporation or City determine that the City is in default according to the terms of this Agreement, the Corporation or City shall notify the City in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for the City to cure the event of default. 10. 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 the City, as determined by the Board of Directors of the Corporation, the following actions must betaken for any default that remains uncured after the Cure Period. a. The City shall immediately repay all funds paid by Corporation under this Agreement. b. The City 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 the City 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 11. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenantor 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 Page 3 of 6 Arena Turf Agreement - 12292008 other occasion of the covenant or condition or any other covenant or condition of this Agreement. c. Any waiver or indulgence of the City' default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time the City 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. 12. The City specifically agrees that Corporation shall only be liable to the City for the actual amount of the money grants to be conveyed to the City ,and shall not be liable to the City 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 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 the City to be accompanied by all necessary supporting documentation. 13. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: City: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 Page 4 of 6 Arena Turf Agreement -- 12292008 Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. Notice is effective upon deposit in the United States mail in the manner provided above. 14. 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. 15. Relationship of Parties. In performing this Agreement, both the Corporation and the City 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. 16. 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. 17. 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. 18. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. Page 5 of 6 Arena Turf Agreement - 12292008 19. Sole Agreement. This Agreement constitutes the sole agreement between Corporation and the City. Any prior agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. The City of Corpus Christi Corpus Christi Business & Job Development Corporation r ~~~~ ' gel R. Escobar ity Manager Date: //~o/Gl Attest ' Armando Chapa City Secretary Approved as to Legal Form: J« • ~3 R. Jay eiqq ng First ssis'fant Q ty Attorney for City Attorney S aza C airperson Date: ~-~ 9- U 9 ~ ~ ~~ ~~5 AUTHORIZED 3Y ~0NRI6 „, b ( q 2009. Page 6 of 6 Arena Turf Agreement -- 12292008