Loading...
HomeMy WebLinkAboutC2009-185 - 5/12/2009 - ApprovedBUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION ANDS & G MARINA, L.L.C., FOR CONSTRUCTION AND OPERATION OF A DRY RACK BOAT STORAGE PROJECT This Business Incentive Agreement for ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and S & G Marina, L.L.C., a Texas domestic limited liability company, doing business as Bluff Bay Marina ("Marina"). 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, now codified as Section 501.073, Texas Local Government Code, 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, Marina is a Texas domestic limited liability company whose principal mission is to construction and operation of a dry rack boat storage project, which will include a dry rack storage building of at least 86,000 square feet, with over 600 boat slips; a ship store; maintenance shop; fuel docks; and caretaker residence; 2009-185 Res. 028169 page 1 of 10 05/12/09 S & G Marina TIVE AGREEMENT -- 04302009 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 Marina, through this contract with Marina, to be used by Marina to construction and operation of a dry rack boat storage project, and which will result in creation of 18 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 Marina 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 five years from July 1, 2009, through June 30, 2014. 3. Performance Requirements and Grants. a. Marina shall construct and operate a dry rack boat storage facility that includes a dry rack storage building with at least 86,000 square feet and over 600 boat slips; a ship store; maintenance shop; fuel docks; and caretaker residence. b. Marina shall expend at least $13,500,000.00 on the construction and outfitting or the dry boat storage facility during 2009. c. Marina shall maintain its administration, marketing, sales, and vessel servicing headquarters in Corpus Christi. d. Marina shall create and maintain the following new, full-time jobs, at or above the listed annual salary, within the City: Year Number of New Total Full- Average Annual Full-Time Jobs Time Jobs Salary 2009 5 5 $39,152.00 2010 13 18 40,555.00 2011 0 18 42,222.00 2012 0 18 43,888.00 2013 0 18 45,666.00 e. At least 70% or more of the Marina's sales must be from outside the 50 mile radius of the dry boat storage facility. Page 2 of 10 BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT -- 04302009 f. The Corporation will award a grant of $60,000.00 per year for up to five years, if Marina constructs and operates the dry rack boat storage facility and creates and maintains the jobs at or above the average salary specified in subsection d of this section during each designated calendar year. The total grants under this agreement may not exceed a cumulative total of $300,000. 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. Marina 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. Marina 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. Marina shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 5. Buy Local Provision. a. Marina 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. 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. Marina warrants and represents to Corporation the following: a. Marina is a Texas domestic limited liability company 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. Marina has the authority to enter into and perform, and will perform, the terms of this Agreement. Page 3 of 10 BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT -- 04302009 c. Marina 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. Marina has received copies of the Texas Development Corporation Act of 1979, Art. 5190.6, Vernon's Texas Revised Civil Statutes; Chapters 501, 502, 504, and 505, Texas Local Government Code, relating to Type A and B 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. e. If an audit determines that the funds were not used for authorized purposes, Marina 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 Marina are duly authorized to execute this Agreement on behalf of Marina. 7. Compliance with Laws. Marina shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 8. Non-Discrimination. Marina covenants and agrees that Marina 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 Marina 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 Marina 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. 10. Assignment. Marina 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. Marina covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents ("Indemnitees") against all liability, damage, Page 4 of 10 BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT-- 04302009 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 Marina 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. Marina 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 Marina 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 Marina 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 Marina or any attachment or other levy against the property of Marina with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 30 days. d. Marina makes an assignment for the benefit of creditors. e. Marina files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. f. If taxes owed by Marina become delinquent, and Marina fails to timely and properly follow the legal procedures for protest or contest. g. Marina changes the general character of business as conducted of the date this Agreement is approved by the Corporation. 13. Notice of Default. Should the Corporation or City determine that Marina is in default according to the terms of this Agreement, the Corporation or City shall notify Marina in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for Marina to cure the event of default. Page 5 of 10 BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT -- 04302009 14. 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 Marina, 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. Marina shall immediately repay all funds paid by Corporation under this Agreement. b. Marina 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 Marina 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. 15. 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 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 Marina' default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time Marina 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. 16. Limitation on Corporations Liability. a. Marina specifically agrees that Corporation shall only be liable to Marina for the actual amount of the money grants to be conveyed to Marina, and shall not be liable to Marina 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. Page 6 of 10 BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT-- 04302009 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 Marina 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 Page 8 of 10 BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT -- 04302009 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 Marina. Any prior agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. 25. Survival of terms of agreement and obligations of parties. The terms of this agreement and the obligation of the parties relating to [what survives] shall survive the termination of this agreement. Corpus Christi Business & Job Development Corporation By: EI Salaz Chairperson Date: ~~~'~© 9 Attest: By: Armando Chapa Assistant Secretary Page 9 of 10 ~~ D ~InHORlztu Jl' COUNCIL..~~.~.~ BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT-- 04302009 S & G Marina, L.L.C. By: Date THE STATE OF fiEjfA3' ~~su-S COUNTY OF httiE@ES ~~ 5 wtclC 9 This instrument was acknowledged before me on ~ , 200,8, by David A. Grainger as Manager, S & G Marina, L.L.C., a exas domestic limited liability company, on behalf of the company. otary Publi tate of Texas ~ov2sµs CINDY ROTH Notary Pu61ic -State of Kansas My Appt. Explree /! D Page 10 of 10 BLUFF BAY MARINA BUSINESS INCENTIVE AGREEMENT -- 04302009 S~ /09