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HomeMy WebLinkAboutC2009-181 - 5/12/2009 - ApprovedBUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE 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 Del Mar College, a Texas institution of higher education ("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 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, Del Mar 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 Del Mar will match the small business contribution. 2009-181 Res. 028161 Page 1 of 11 05/12/09 -- Del Mar Interns - 05052009 Del Mar College 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 Del Mar, through this Agreement with Del Mar, to be used by Del Marto 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 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. 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 Del Mar an incentive of up to One Hundred Seventy Three Thousand Two Hundred Twenty Three Dollars ($173,223.00), which must be used to fund one half of the salary of up to 93 interns, who will be paid twice the minimum wage, while participating in Del Mar's Small Business Employer Intern Program, and the full salary of six interns, who will assist with the program administration. Page 2 of 11 BUSINESS INCENTIVE AGREEMENT -- Del Mar Interns - 05052009 b. The Corporation's grant conditioned upon Del Mar'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 Del Marto the small business employers during the prior month. 4. Del Mar's Duties and Responsibilities. a. Del Mar shall provide administrative oversight and direct supervision for the placement of interns in the Del Mar's Small Business Employer Intem Program. b. Del Mar shall create and maintain not less than two part-time intern (2) employment positions to assist in the small business employer intern program in Corpus Christi, Nueces County, Texas, during the term of this Agreement. The interns must be paid twice the minimum wage, which is scheduled to be $7.25 per hour on July 26, 2009. c. Del Mar 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 Del Mar'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. Del Mar shall ensure that the small business employer of each intern pays the student intern the minimum wage, and Del Mar shall match the small business employer's payments to the interns. e. Del Mar shall try to place the interns for 19 hours per week and 12 weeks per semester or summer session. f. Del Mar 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. b. A full-time permanent job is one that provides at least 2,080 hours annually. Page 3 of 11 BUSINESS INCENTIVE AGREEMENT -Del Mar Interns -- 05052009 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 throughout the term of this Agreement. d. Del Mar 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 assisted through the Intern Program. e. Del Mar shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 6. Reports and Monitoring. a. Del Mar 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 forjobs may be in the form of quarterly IRS 941 returns, Del Mar 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. Del Mar, during normal working hours shall allow the Corporation and its designee, City of Corpus Christi Economic Development Department, reasonable access to Del Mar'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. 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. The individual executing this Agreement on behalf of Del Mar is duly authorized to execute this Agreement on behalf of Del Mar. c. No litigation or governmental proceeding is pending or, to the knowledge of Del Mar or Del Mar's officers, threatened against or affecting Del Mar that may result in any material adverse change in Del Mar'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. d. No certificate, statement, or information provided by Del Marto 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 Page 4 of 11 BUSINESS INCENTIVE AGREEMENT -Del Mar Interns- 05052009 keep the statements contained in the certificate, statement, or information from being misleading. e. To the best of its knowledge, Del Mar 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 Del Mar's Small Business Employer Intern Program. g. Del Mar 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. Del Mar shall timely and fully comply with all of the terms and conditions of this Agreement. i. Del Mar 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 Del Mar 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 , 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. I. There are no bankruptcy proceedings currently pending concerning Del Mar, nor are any such proceedings contemplated by Del Mar, as of the date of execution of this Agreement by Del Mar. m. Del Mar 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. 9. Compliance with Laws. Del Mar shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. Page 5 of 11 BUSINESS INCENTIVE AGREEMENT -- Del Mar Interns - 05052009 10. Non-Discrimination. Del Mar covenants and agrees that Del Mar 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 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 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. 12. 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. 13. 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. 14. 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. Page 6 of 11 BUSINESS INCENTIVE AGREEMENT -Del Mar Interns - 05052009 b. The Corporation or City determines that any representation or warranty on behalf of Del Mar 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 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. 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 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. 17. 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 covenant or condition, or the breach of any covenantor 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 Page 7 of 11 BUSINESS INCENTIVE AGREEMENT --Del Mar Interns - 05052009 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. 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. 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 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 shal- 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 Del Marto 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: Del Mar: Del Mar College Vice President Business and Finance 101 Baldwin Boulevard Corpus Christi, Texas 78404 Page 8 of 11 BUSINESS INCENTIVE AGREEMENT -- Del Mar Interns - 05052009 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 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. 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 -Del Mar Interns - 05052009 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. 25. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas. 26. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and Del Mar. Any prior Agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 27. Survival of Terms of Agreement and Obligations of Parties. The terms of this Agreement and the following obligations of the parties survive the termination of this Agreement: a. Payment by the Corporation of the portion of the grant for salaries of interns during the 2010 summer session under Section 5.c. b. Del Mar's record keeping and reporting requirements under Sections 4, 5, and 6. c. Del Mar's duty to repay funds not used for an authorized purpose under Section 7. Corpus Christi Business & Job Development Corporation By: . ®~~ I~ I E y ala a Chairperson sr Council....k'S Date: ~ ~` ~ ~~ Attest: Page 10 of 11 BUSINESS INCENTIVE AGREEMENT --Del Mar Interns -- 05052009 Armando Chapa Assistant Secretary Del Mar College-Corpus Christi By: ~~J'~ ~7~i rk Escamilia President Date: S "~~'"~ THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on _ , , 2009, by Mark Escamilla, Ph.D, for Del Mar College, a political suh ivision of the State of Texas, on behalf of the college district. G otary Public State of Texas ""~ JESSICA ANN ALANIZ v: tom'. ?, ( Nolary PubfiC ~,,~j~r STa,EOF,Fw,s .".'.a~~;~*,.%` My Comm. FMp. 07168012 Page 11 of 11 BUSINESS INCENTIVE AGREEMENT -Del Mar Intema - 05052009 SCHEDULE A DEL MAR'S TIME OF DEL MAR's CORPORATION'S PERFORMANCE CONDITIONS MAXIMUM PRECEDENT AND PAYMENT PERFORMANCE TOWARD REQUIREMENTS GRANT DURING PERIOD Fall Semester 2009 Placement of not more $39,672.00 than 20 interns with September 1 through small businesses in December 31, 2009 Corpus Christi, plus employment of 2 intern to assist in program administration. Spring Semester 2010 Placement of not more $67,773.00 than 37 interns with January 1 through May small businesses in 31, 2010 Corpus Christi, plus employment of 2 intern to assist in program administration. Summer Session 2010 Placement of not more $65,778.00 than 36 interns with June 1 through July small businesses in 31, 2010 Corpus Christi, plus employment of 2 intern to assist in program administration. 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