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HomeMy WebLinkAboutC2009-183 - 5/12/2009 - ApprovedAGREEMENT TO GRANT BUSINESS INCENTIVES TO SCORE CHAPTER 221 FOR SMALL BUSINESS ASSISTANCE This Agreement to Grant Business Incentives for Small Business Assistance ("Agreement") is entered into by and between the Corpus Christi Business and Job Development Corporation ("Corporation"), a Texas non-profit corporation, organized under V.A.C.S., Art. 5190.6, Sec. 4A, with mailing address of 1201 Leopard Street, Corpus Christi, Texas, 78401, and SCORE Chapter 221, ("SCORE "), a nonprofd association, with principal place of business at 3649 Leopard Street, Suite 411, Corpus Christi, Texas 78408. I. BACKGROUND 1.1. Purpose of Agreement. Corporation is atax-supported non-profit corporation, whose primary income is from sales tax collected within the City of Corpus Christi and dedicated exclusively to economic development. This sales tax supporting Corporation was authorized as a local option under Texas Revised Civil Statutes, Art. 5190.6, Sec. 4A. Corporation exists for the primary purpose of developing, stabilizing, diversifying, and expanding the Corpus Christi economy through the retention, expansion, and recruitment of employment opportunities in order to benefit the citizens of Corpus Christi and the surrounding areas. 1.2. Project. The project and performance requirement to be implemented by means of this agreement are generally described as follows: 1. SCORE will providie assistance to small businesses and persons and entities desiring to begin and operate a small business in Corpus Christi by mentoring clients; conducting workshops; and advising clients as to business plans, pro formas, forms of business entity, financial implications, and all other aspects of small business operations. 2. SCORE will retain an executive assistant/coordinator to assist the SCORE volunteers in administering the assistance program. SCORE will engage in a limited advertising campaign to publicize the assistance program. 3. The performance requirements shall be continuously maintained during the entire term of this agreement. NOW, THEREFORE, in consideration of the premises and of the mutual covenants, warranties, and agreements of the parties, it is agreed as follows: II. ECONOMIC BENEFITS AND INCENTIVES AND PERFORMANCE REQUIREMENTS 2.1. BY THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION 2009-183 page 1 of 15 Res. 028162 05/12/09 ,emAgree~neot oa3o2o09 SCORE Chapter 221 1. Money Grant: 1. Corporation will reimburse SCORE by grant for all direct expenses related to the project. The total reimbursements may not exceed Fifty Thousand Dollars ($50,000.00), subject to the performance requirements of SCORE and the conditions precedent set forth in Schedule A. 2. Failure by Corporation to timely reimburse SCORE is an act of default by Corporation giving SCORE. As its sole remedy is the right to be reimbursement of the contracted amount, which is further limited to the terms and conditions contained in Article VII, paragraph 7.1, of this agreement. SCHEDULE A SCORE's CONDITIONS SCORE's TIME OF CORPORATION's PRECEDENT AND PERFORMANCE PERFORMANCE PERFORMANCE REQUIREMENTS REQUIREMENTS 1. Employment of a August1, 2009 through July Reimbursement of SCORE contract executive 31, 2010 expenses up to a total of $ assistant/ coordinator, with 50,000.00, payable within an average annual salary of 45 days of invoicing for $25,000, to assist the expenses under this SCORE volunteers to agreement. provide assistance to small businesses and persons and entities desiring to begin and operate a small business in Corpus Christi. 2. SCORE volunteers to provide assistance to small businesses and persons and entities desiring to begin and operate a small business in Corpus Christi by: a. Mentoring clients. b. Conducting workshops. c. Advising clients as to business plans, pro formas, form of business enti , Page 2 of 15 SCORE 4A Small Business Development Agreement 04302009 financial implications, and all other aspects of small business operations. d. Conducting a limited advertising campaign to publicize the assistance program to small businesses. 2.2. BY SCORE 1. Investment-Facility: SCORE is not required to make a capital investment, however SCORE shall perform the performance requirements as set forth in Schedule B. SCHEDULE B SCORE's PERFORMANCE SCORE's TIME OF PERFORMANCE REQUIREMENTS Providing 1620 hours of general and Beginning August 1, 2009 and continuing technical services to small businesses until July 31, 2010. through volunteer counselors. 2. Employment: SCORE shall comply with the employment requirements set forth in Schedule C. SCHEDULE C SCORE's PERFORMANCE SCORE's TIME OF PERFORMANCE REQUIREMENTS Maintain not less than one contract July 31, 2010 executive assistant/coordinatoryosition with an average annual salary of $25,000. 3. Failure by SCORE to timely and fully comply and to continue to comply with any performance requirements of this paragraph is an act of default. 111. REPORTING AND MONITORING Page 3 of 15 SCORE 4A Smell Business DevebpmeM Agnsement 04302009 3.1. Reports and Monitoring: SCORE agrees to the following reporting and monitoring provisions, and failure to fully and timely comply with any one requirement is an act of default. 1. SCORE shall provide an annual report certirying the status of compliance through the life of the agreement. In addition to the annual report, SCORE shall submit a quarterly report to document the jobs created. The quarterly report may be in the form of quarterly IRS 941 returns, SCORE employer Quarterly Reports, or employee rosters that show the hours worked and the positions filled, and other reports as may reasonably be required. 2. SCORE shall provide quarterly reports on its performance requirements. The reports must document: 1. Number of face to face consultations between SCORE volunteers and small business owners or prospective owners. 2. Number of workshops with description of workshop and number of attendees. 3. Number of small business owners or prospective owners who were provided counseling by email or on-line services. 3. SCORE, during normal working hours, at its Corpus Christi, Texas, facility, shall allow Corporation and its designee, the City's Economic Development Department ("Department"), reasonable access to SCORE's employment records and books, to verity 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 records and information shall be maintained by Corporation and Department, unless the 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. IV. COVENANTS, WARRANTIES, OBLIGATIONS AND DUTIES 4.1. SCORE makes the following covenants and warranties to Corporation, and agrees to timely and fully perform the following obligations and duties. Any false or substantially misleading statement contained in this agreement or SCORE's request for funding, or any failure to timely and fully perform the performance requirements in this agreement is an act of default by SCORE. Failure to comply with any one covenantor warranty is an act of default by SCORE. 1. SCORE is duly organized, validly existing, and in good standing and authorized to do business in the State of Texas, under the laws of the State of Texas, has all power and authority to carry on its business as presently conducted in Corpus Christi, Texas. Page 4 of 15 SCORE 4A Small Business l~vebgnent Agreement 64302009 2. The execution of this agreement has been duly authorized by SCORE's board of directors; the officer signing this agreement is an officer of the organization, empowered to execute the agreement and bind the organization; the authorization, signing, and binding effect is not in contravention of any law, rule, regulation, or the provisions of SCORE's by-laws, or of any agreement or instrument to which SCORE is a party or by which it may be bound; the authority to be evidenced by an organizational resolution, attached to this agreement at the time of execution. 3. SCORE has the authority to enter into and perform, and will perform, the terms of this Agreement. 4. SCORE has timely filed and will timely file all local, State, and Federal tax reports and returns required by law to be filed and all taxes, assessments, fees, and other governmental charges, including applicable ad valorem and employment taxes, have been timely paid, and will be timely paid, during the term of this Agreement. 5. No litigation or governmental proceeding is pending or, to the knowledge of SCORE or SCORE's officers, threatened against or affecting SCORE that may result in any material adverse change in SCORE'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 hereby. 5. No certificate, statement, or information provided by SCORE 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 statement from being misleading. 6. To the best of its knowledge, SCORE has acquired and maintained all necessary rights, licenses, permits, and authority to carry on its business operations in Corpus Christi, Texas, and will continue to use its best efforts to maintain all necessary rights, licenses, permits, and authority. 7. The funds granted in this agreement must be utilized solely for the purpose: 1. Offsetting the cost of creating and maintaining the one (1) employment position at SCORE's Corpus Christi facility. 2. Assisting small businesses and persons and entities desiring to begin and operate a small business in Corpus Christi by: 1. Mentoring clients. 2. Conducting workshops. Page 5 of 15 SCARE 4A Small Business Devebpment Agreement 04302009 17. SCORE agrees to provide information, reports, or statements respecting its business operations and financial condition as Corporation may reasonably request from time to time. 4.2. All representations, warranties, covenants and agreements of the parties, as well as any rights and benefits of the parties pertaining to the transaction contemplated hereby, shall survive the original execution date of this agreement. V. SUSPENSIONSfTERMINATIONS 5.1. Corporation, under the following circumstances, and at its sole discretion, may suspend its obligations under this agreement or terminate this agreement and recapture from SCORE any of the money grants or consideration paid by Corporation to SCORE, without liability to SCORE, upon any one of the following events, which are an act of default. 1. The appointment of a receiver of SCORE, or of all or any substantial part of its property, and the failure of the receiver to be discharged within sixty (60) days thereafter. 2. The adjudication of SCORE as bankrupt. 3. The filing by SCORE of a petition or an answer seeking bankruptcy, receivership, reorganization, or admitting the material allegations of a petition filed against it in any bankruptcy or reorganization proceeding. VI. DEFAULT 6.1. Events of Default. Should SCORE fail to timely, fully, and completely comply with any one or more of the requirements, obligations, duties, terms, conditions or warranties of this agreement the failure shall be an act of default by SCORE and, if not fully and completely cured and corrected within sixty (60) days after written notice to do so, Corporation may terminate this agreement and pursue all legal remedies as provided by law, provided however that SCORE's liability under this agreement shall be limited to the recapture from SCORE any of the money grants or consideration paid by Corporation to SCORE under this agreement. Corporation shall not be liable to SCORE for any alleged consequential damages. Additionally, the following events shall constitute a defauR of this Agreement: 1. The Corporation or City determines that any representation or warranty on behalf of SCORE 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; 2. Any judgment is assessed against SCORE or any attachment or other levy against the property of SCORE with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 30 days. Page 7 of 15 SCORE 4A Small Business DevebpmentAgreement 04302009 3. If taxes on the Facility become delinquent, and SCORE fails to timely and properly follow the legal procedures for protest or contest. 4. SCORE changes the general character of business as conducted of the date this Agreement is approved by the Corporation. 6.2. In the event of unforeseeable third party delays in the performance of this Agreement or force majeure and upon a reasonable showing by SCORE that it has immediately and in good faith commenced and is diligently and continuously pursuing the correction, removal, or abatement of delays by using its best efforts, Corporation may consent to and excuse delays, which consent and excuse shall not be unreasonably withheld. Failure by SCORE to use its best efforts as required in this paragraph shall be an act of default. Force majeure means severe weather, such as tornadoes or flooding, named storms or hurricanes, wars, riots, and the unavailability of necessary and essential equipment and supplies from all sources. 6.3. Any delay for any amount of time by Corporation in providing notice of default to SCORE shall in no event be deemed or constitute a waiver of the default by Corporation of its rights and remedies available under this agreement, or in law or equity. 6.4. Any waiver granted by Corporation to SCORE of any covenant or condition, the breach of any covenant or condition of this Agreement, or of an act of default shall not be deemed or constitute a waiver of any other existing or future breach of a covenant or condition, or act of default by SCORE or of a subsequent breach of the same covenant or condition or act of default of the same act or event by SCORE. 6.5. 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. 6.6. Any waiver or indulgence of SCORE's default may not be considered an estoppel against the Corporation. 6.7. 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 SCORE, 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: 1. SCORE shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation. 2. The Corporation shall have no further obligations to SCORE under this Agreement. 3. Neither the City nor the Corporation may be held liable for any consequential damages. Page 8 of 15 SCORE 4A Small Business DevebpmeM Agreement 04302009 4. The Corporation may pursue all remedies available under law. 6.8. SCORE shall give Corporation written notice of any act of default by Corporation, and Corporation shall have thirty (30) days after receipt of the notice to cure the default. Failure by Corporation to timely and fully cure the act of default shall permit SCORE to pursue its legal remedies as provided in this agreement. VII. CORPORATION'S LIABILITY LIMITATIONS 7.1. Payments: SCORE specifically agrees that Corporation shall only be liable to SCORE for the actual amount of the money grants to be conveyed to SCORE, and shall not be liable to SCORE for any other actual or consequential damages, direct or indirect, interest, attorney fees, or costs of court for any act of default by Corporation under the terms of this agreement. It is further specifically agreed that Corporation shall only be required to pay the grant amounts solely out of its sales tax revenue currently collected, allocated, and budgeted and to be allocated, budgeted and collected for SCORE during the term 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, 2009, through July 31, 2010. 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 SCORE 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 to SCORE shall also require a written request from SCORE to be accompanied by all necessary supporting documentation. Corporation shall have forty-five (45) days to make payment after receipt of the payment request. The payment request should be directed to the address provided for Corporation below. VIII. DEFINITIONS As used in this agreement, the following words or phrases shall have the following meanings: 8.1. City of Corpus Christi or City means the governing municipal corporation and the area that is within the city limits of the City of Corpus Christi, Texas. 8.2. Compliance means timely, fully, and completely performing or meeting each and every requirement, obligation, duty, condition, or warranty as stated in this agreement. Compliance means complete compliance and does not mean substantial compliance. 8.3. Act of Default means failure to timely and fully comply with one or more requirements, obligations, duties, terms, conditions, or warranties, as stated in this Page 9 of 15 SCORE 4A Small Business DevebpmeM Agreement 04302009 agreement. Corporation may, in its sole discretion, accept substantial compliance in lieu of full compliance by waiving the act of default solely by an instrument in writing. 8.4. Insolvent means failure to timely pay debts in the ordinary course of business or cannot pay debts as they become due, or is insolvent within the meaning of the federal bankruptcy law. 8.5. Force Majeure means severe weather, such as tornadoes, flooding, named storms, hurricanes, wars, riots, and the unavailability of necessary and essential equipment and supplies from all sources. IX. GENERAL TERMS 9.1. Effective Date. The effective date of this Agreement ("Effective Date") is the latest date that either party executes this Agreement. 9.2. Term. The term of this Agreement is expires on July 31, 2010. This agreement may be renewed for an additional one year period upon mutual consent of both parties, and the availability of Corporation funds that have been authorized for this purpose. 9.3. Termination. This Agreement may be terminated by mutual agreement of the parties or by either party, upon the failure of the other party to fulfill an obligation, as set forth in this agreement. The termination of this Agreement extinguishes all rights, duties, obligations, and liabilities of the parties under this Agreement, except all rights, duties, liabilities, and obligations accrued prior to the termination shall survive termination. 9.4. Compliance with Laws. This Agreement is subject to all legal requirements in the City Charter and Code of Ordinances of the City of Corpus Christi and all other applicable county, state, and federal laws. SCORE shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, County, and City governments, as may be amended or enacted. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 9.5. Assignment. This Agreement is binding upon the parties to this agreement and their successors and assigns. However, SCORE 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. 9.6. Indemnity. SCORE 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 Page 10 of 15 SCORE 4A Small Business DevebpmeM Agreement 04302009 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 SCORE 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 /ndemnitees. SCORE 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 costs and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 9.7. Buy Local Provision. SCORE 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. 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. 9.8. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: SCORE Chapter 221 SCORE Go. Ben F. McDonald 3649 Leopard St., Suite 411 Corpus Christi, Texas 78408 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 to the City at the following address: City of Corpus Christi Attn.: City Manager Page 11 of 15 scoRE as smen s~siness oevelopmeM Agreement oa3o2oo9 SCORE Chapter 221 By: o Jack White Chair Date: ~ -~ ~~~ The State of Texas§ County of Nueces§ Before me on this day, Jack White, Chair, SCORE Chapter 221, personally appeared, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed this agreement stated as the act of SCORE, for the purposes and consideration expressed in the instrument. Given under my hand and seal of office this the ~ day of , 2009. of Page 15 of 15 SCORE 4A Small Business Development Agreement 04302009