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HomeMy WebLinkAboutC2009-179 - 5/12/2009 - ApprovedBUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND TEXAS A & M UNIVERSITY -CORPUS CHRISTI FOR AN INTERN PROGRAM TO SUPPORT SMALL BUSINESSES This Business Incentive Agreement for ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and Texas A & M University -- Corpus Christi, a Texas institution of higher education ("TAMU-CC"). 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, TAMU-CC has requested business development funds from the Board to assist small businesses by providing access to students, who will serve as interns in professional level positions; WHEREAS, the small businesses will pay the student interns minimum wage (currently $6.55 per hour, adjusting to $7.25 per hour on July 24, 2009) and TAMU-CC will match the small business contribution. 2009-179 Res. 028159 Page 1 of 11 05/12/09 NT - TAMUCC Interns - 05012009 TAMU-CC WHEREAS, the interns will be selected based on the needs of the small businesses with the goal of providing the businesses with resources that make the businesses more effective and provide growth opportunities; WHEREAS, the primary goal of the program is to provide support to small businesses in Corpus Christi that will encourage growth, retention, economic development, and job creation; WHEREAS, the goal of the project is the creation of 1 new full time job for every 10 internship positions funded (a 10% new job "return on investment"); WHEREAS, a secondary benefit of the small business intern program is providing students real-world experience, while they are making a living wage without working extended hours and developing potential full-time employment opportunities following graduation; 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 Agreement with TAMU-CC, to be used by TAMU-CC to assist small businesses by providing access to students, who will serve as interns in professional level positions. 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. a. The term of this Agreement is for one year from August 1, 2009, through July 31, 2010. b. This Agreement may be extended at the option of the Corporation for up to four additional one year terms, contingent upon annual appropriation of funds and approval of the City Council. c. If this Agreement is extended for subsequent period, this Agreement may be amended by adoption of a revised Schedule A, which is attached to and incorporated into this Agreement. 3. Grant. a. The Corporation will grant TAMU-CC an incentive of up to One Hundred Ninety Three Thousand One Hundred Forty Dollars ($193,140.00), which must be used to fund one half of the salary of up to 105 interns and the entire salary on three interns. The interns will be paid twice the minimum wage, while participating in TAMU-CC's Small Business Employer Intern Program. Page 2 of 11 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns - 05012009 b. The Corporation's grant conditioned upon TAMU-CC's successful completion of the terms of this Agreement, including, but not limited to, the performance requirements and conditions precedent in Schedule A. c. The Corporation's grant shall be paid in monthly installments based upon evidence of the amount paid by TAMU-CC to the small business employers during the prior month. 4. TAMU-CC's Duties and Responsibilities. a. TAMU-CC shall provide administrative oversight and direct supervision for the placement of interns in the TAMU-CC's Small Business Employer Intern Program. b. TAMU-CC shall create and maintain not less than one part-time intern (1) employment position to assist in the Small Business Employer Intern Program in Corpus Christi, Nueces County, Texas, during the term of this Agreement. The intern must be paid twice the minimum wage, which is scheduled to be $7.25 per hour on July 26, 2009. c. TAMU-CC shall place, with small businesses in Corpus Christi, the number of interns specified in Schedule A, during each semester or summer session. Since the primary goal of the TAMU-CC's Small Business Employer Intern Program is to provide support to small businesses in Corpus Christi that will encourage growth, retention, economic development, and job creation, placements must be based on the needs of the small business with the goal of providing the business with resources that make the business more effective and provide growth opportunities for the businesses. d. TAMU-CC shall ensure that the small business employer of each intern pays the student intern the minimum wage, and TAMU-CC shall match the small business employer's payments to the interns. e. TAMU-CC shall try to place the interns for 20 hours per week and 12 weeks per semester or summer session. f. TAMU-CC shall work with the small businesses that receive interns under the program to encourage the creation of permanent full time jobs for the interns or similarly qualified individuals. 5. 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. Page 3 of 11 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns - 05012009 b. A full-time permanent job is one that provides at least 2,080 hours annually c. TAMU-CC 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 this Agreement. d. TAMU-CC agrees to provide Corporation with a sworn certificate by authorized representative of each shall business assisted under this Agreement certifying the number offull-time permanent employees employed by the business assisted through the Intern Program. e. TAMU-CC shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 6. Reports and Monitoring. a. TAMU-CC shall provide a report at the end of each semester or summer session certifying the status of compliance through the life of the Agreement. Documentation for jobs may be in the form of quarterly IRS 941 returns, TAMU- CC employer Quarterly Reports, or employee rosters that show the hours worked and the positions filled, and such other reports as may reasonably be required. b. TAMU-CC, during normal working hours shall allow the Corporation and its designee, City of Corpus Christi Economic Development Department, reasonable access to TAMU-CC's employment records and books, to verify employment and all other relevant records related to each of the other economic development considerations and incentives, as stated in this Agreement, but the confidentiality of the records and information must be maintained by Corporation and its designee, unless such records and information shall be required by a court order, a lawfully issued subpoena, or at the direction of the Office of the Texas Attorney General. 7. Warranties. TAMU-CC warrants and represents to Corporation the following: a. TAMU-CC has the authority to enter into and perform, and will perform, the terms of this Agreement. b. The individual executing this Agreement on behalf of TAMU-CC is duly authorized to execute this Agreement on behalf of TAMU-CC. c. No litigation or governmental proceeding is pending or, to the knowledge of TAMU-CC or TAMU-CC's officers, threatened against or affecting TAMU-CC that may result in any material adverse change in TAMU-CC's business, properties, or operations. No consent, approval, or authorization of or registration or declaration within any governmental authority is required in connection with the execution of this Agreement or the transactions contemplated by this Agreement. Page 4 of 11 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns - 05012009 d. No certificate, statement, or information provided by TAMU-CC to Corporation or the City of Corpus Christi in connection with any transaction contemplated by this Agreement, contains any untrue statements or fails to state any fact necessary to keep the statements contained in the certificate, statement, or information from being misleading. e. To the best of its knowledge, TAMU-CC has acquired and maintained all necessary rights, licenses, permits, and authority to carry out this Agreement, and will continue to use its best efforts to maintain all necessary rights, licenses, permits, and authority. f. The funds granted through this Agreement must be utilized solely for the purpose of offsetting the cost of creating and maintaining the interns for TAMU- CC's Small Business Employer Intern Program. g. TAMU-CC shall complete the project required by this Agreement, and shall provide and staff the required employment positions, investment, and other economic development considerations described in this Agreement. h. TAMU-CC shall timely and fully comply with all of the terms and conditions of this Agreement. i. TAMU-CC has received a copy of the Subtitle C1, Title 12, Texas Local Government Code, which governs development corporations, 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. j. In the event it is determined by Corporation or City of Corpus Christi that funds provided under this Agreement were not used as authorized by State law, then TAMU-CC shall repay the funds to the Corporation within 30 days of written notice requesting reimbursement. k. 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. I. There are no bankruptcy proceedings currently pending concerning TAMU-CC, nor are any such proceedings contemplated by TAMU-CC, as of the date of execution of this Agreement by TAMU-CC. m. TAMU-CC shall provide information, reports, or statements respecting its business operations and financial condition as Corporation may reasonably request from time to time. 8. All representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties pertaining to the transaction contemplated by this Agreement, shall survive the original execution date of this Agreement. Page 5 of 11 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns - 05012009 9. Compliance with Laws. TAMU-CC shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 10. 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. 11. 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. 12. 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. 13. Indemnity. To the extent authorized bylaw, 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 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 seftlement 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. 14. Events of Default. The following events constitute a default of this Agreement Page 6 of 11 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns - 05012009 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; 15. 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. 16. 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. 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. 17. 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 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. Page 7 of 11 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns -- 05012009 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. 18. Limitation on Corporation's Liability. 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. a. 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, 2009, through July 31, 2010. b. Corporation will use its best efforts to anticipate economic conditions and to budget accordingly. c. 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 forthat 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. d. Payments to be made shall also require a written request from TAMU-CC to be accompanied by all necessary supporting documentation. 19. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: TAMU-CC: Texas A & M University -- Corpus Christi c/o Jim Needham Dean of Community Outreach 6300 Ocean Drive, NRC 2200 Corpus Christi, Texas 78412 Page 8 of 11 BUSINESS INCENTIVE AGREEMENT -- TAMUCC Interns -- 05012009 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. 20. 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. 21. 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. 22. Relationship of Parties. In performing this Agreement, both the Corporation and TAMU-CC will actin 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. 23. 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. 24. 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, Page 9 of 11 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns - 05012009 SCHEDULE A TAMU-CC's TIME OF TAMU-CC's CORPORATION's PERFORMANCE CONDITIONS MAXIMUM PRECEDENT AND PAYMENT PERFORMANCE TOWARD REQUIREMENTS GRANT DURING PERIOD Fall Semester 2009 Placement of not more $64,380.00 than 35 interns with September 1 through small businesses in December 31, 2009 Corpus Christi, plus employment of 1 intern to assist in program administration. Spring Semester 2010 Placement of not more $64,380.00 than 35 interns with January 1 through May small businesses in 31, 2010 Corpus Christi, plus employment of 1 intern to assist in program administration. Summer Session 2010 Placement of not more $64,380.00 than 35 interns with June 1 through July small businesses in 31, 2010 Corpus Christi, plus employment of 1 intern to assist in program administration. A -- 1 BUSINESS INCENTIVE AGREEMENT - TAMUCC Interns - 05012009