HomeMy WebLinkAboutC2009-484 - 12/8/2009 - ApprovedBUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI
BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE
FOR DEVELOPMENT OF THE NORTHWEST LEARNING CENTER
This Business Incentive Agreement for ("Agreement") is entered into between the
Corpus Christi Business and Job Development Corporation ("Corporation") and Del Mar
College ("Del Mar"),apolitical subdivision of the State of Texas.
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 1/8t" 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 ballot language that authorized the 1/8t" cent sales tax could be used
for Education/Skills Development project and to assist in the creation of meaningful,
wealth producing jobs (jobs that bring in dollars from outside the community) in Corpus
Christi;
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 501.073, Texas Local Government Code, formerly 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, the ballot measure that authorized the sales tax for the promotion and
expansion of business enterprises authorized the use of the funds to make grants to
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Res. 028437 Page 1 of 9
12/08/09 City of CC -November 2009
Del Mar College
organizations to provide training and education to insure the knowledge and skills
required for the jobs of the future are in place;
WHEREAS, the ballot measure that authorized the sales tax for the promotion and
expansion of business enterprises also authorized the use of the funds to assist small
and start-up companies that have the ability to produce jobs for the future;
WHEREAS, Del Mar intends to establish the Northwest Learning Center, which will
serve as the hub of Del Mar's Alternative Energy Program and to offer technical and
general academic courses that focus on programs to enhance its ability to produce
graduates in Health Science and Public Safety occupations, and other technical and
business professions..
WHEREAS, the Northwest Learning Center will further Del Mar's mission of education
and economic development;
WHEREAS, Del Mar's Alternative Energy Technician Program will train our local work
force for opportunities in the manufacture, installation, and servicing of Alternative
Energy Systems, including wind and photovoltaic energy systems, dynamic new
occupations for our City;
WHEREAS, the expansion of Del Mar's Health Science and Public Safety programs will
help meet the needs of the City's hospitals, specialized medical clinics and public safety
agencies for additional qualified staff;
WHEREAS, the City's hospitals and specialized medical clinics serve as the region's
medical center;
WHEREAS, approximately 50% the patients receiving treatment and service in the
City's hospital and specialized medical clinics come from outside Nueces County;
WHEREAS, the local health service industry produces meaningful, wealth producing
jobs that bring in dollars from outside Corpus Christi into the City; and
WHEREAS, Del Mar proposes to invest approximately $5,000,000 over a 10 year
period to establish and support the Northwest Learning Center, and the Corpus Christi
Medical Center an in-kind contribution of $1,353,000 by providing the use of two of its
buildings to Del Mar fora 10 year period for the operation of the Center;
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. The term of this Agreement is for five years beginning on the effective date.
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Business Incentive Agreement withCity of CC -November 2009
3. Performance Requirements and Grants.
a. Del Mar shall establish and operate the Northwest Learning Center (a satellite
center of the College), which will house its Renewable Energy Program and
provide general academic courses for it Health Sciences and Public Safety
programs.
b. Del Mar will invest financial resources to support the administrative and
instructional functions at the Northwest Learning Center. Del Mar shall annually
report their actual investments within the City of Corpus Christi, and provide
documentation to support the report to the Corpus Christi Business and Job
Development Corporation.
c. The Corporation will reimburse Del Mar for the costs of rehabilitating the
existing improvements and constructing the Northwest Learning Center at 13725
Northwest Boulevard, including the purchase of fixtures, furnishings, and
instructional equipment. The amount reimbursed by the Corporation may not
exceed $979,000.
d. On the annual anniversary of the effective date of this agreement, Del Mar
shall report to the Corporation the number of students placed with renewable
energy firms and health service and public safety providers located within the
City of Corpus Christi that have been assisted by the Northwest Learning Center
and the average starting annual salaries paid by each employer within Corpus
Christi during the previous year.
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 501.162, Texas Local Government Code, formerly
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.
5. Buy Local Provision.
a. Del Mar 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.
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Business Incentive Agreement withCity of CC -November 2009
6. Warranties. Del Mar warrants and represents to Corporation the following:
a. Del Mar, an educational institution, is a political subdivision of the State, and
in good standing under the laws of the State of Texas, has all corporate power
and authority to carryon its business as presently conducted in Corpus Christi,
Texas.
b. Del Mar has the authority to enter into and perform, and will perform, the
terms of this Agreement to the best of its ability.
c. Del Mar has received a copy of the Texas Development Corporation Act,
Subtitle C1, Title 12, Texas Local Government Code, 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.
d. The parties executing this Agreement on behalf of Del Mar are duly
authorized to execute this Agreement on behalf of Del Mar.
7. Compliance with Laws. Del Mar shall observe and obey all applicable laws,
ordinances, regulations, and rules of the Federal, State, county, and city governments.
8. 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.
9. 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.
10. 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.
11. Indemnity. To the extent permitted by the Constitution and the
laws of the State of Texas, Del Mar covenants to fully indemnify, save,
and hold harmless the Corporation, the City, their respective officers,
employees, and agents ("Indemnities") against all liability, damage,
loss, claims demands, and actions of any kind on account of personal
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Business Incentive Agreement withCity of CC -November 2009
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 alt of the lndemnitees. 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 lndemnitees, 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. 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;
b. Any judgment is assessed against Del Mar or any attachment or other levy
against the property of Del Mar with respect to a claim remains unpaid,
undischarged, or not dismissed for a period of 120 days.
c. Del Mar makes an assignment for the benefit of creditors.
d. Del Mar files a petition in bankruptcy, or is adjudicated insolvent or bankrupt.
e. If taxes owed by Del Mar become delinquent, and Del Mar fails to timely and
properly follow the legal procedures for protest or contest.
f. Del Mar changes the general character of business as conducted as of the
date this Agreement is approved by the Corporation.
13. 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.
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 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.
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Business Incentive Agreement withCity of CC -November 2009
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.
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 Del Mar's 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
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. 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. Payment by Corporation is strictly limited to those funds so allocated,
budgeted, and collected solely during the grant term of this agreement. 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
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Business Incentive Agreement withCity of CC -November 2009
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 Del Marto be accompanied by all necessary supporting
documentation.
17. Notices.
a. Any required written notices shall be sent mailed, certified mail, postage
prepaid, addressed as follows:
Del Mar:
Del Mar College
Attn: Dr. Lee Sloan
Interim Vice President of Administration and Finance
101 Baldwin
Corpus Christi, Texas 78404
Corporation:
City of Corpus Christi
Business and Job Development Corporation
Attn.: Economic Development 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.
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
Del Mar will act in an individual capacity, and not as agents, representatives,
employees, employers, partners, joint-venturers, or associates of one another. The
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Business Incentive Agnsement withCity of CC -November 2009
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
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 Del Mar. 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 Section 14.a and b shall survive
the termination of this agreement.
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Business Incentive Agreement withCity of CC -November 2009
Corpus Christi Business & Job Development Corporation
By:
y Salazar
hairperson
Date: / ~- -'~ ~~-~''
Attest:
By:
Armando Chapa
Assistant Secretary
Del Mar College
~; `J"-~r
By:
ark Escamilla, Ph.D.
President
Date: (t ' ~ ' ~ ~
THE STATE OF TEXAS
1„:..~.... T3~ AUTHORIZEa
~Y CUUl~CIL .-~'~.:.~U~
.......~-C-,
SECRETARY ,k~
COUNTY OF NUECES
This instrument was acknowledged before me on , 2009, by
Mark Escamilla, Ph.D., President, Del Mar College, a political subdivision of the State of
Texas, on behalf of the college.
.Par ~u µ
!iV ;er-
tary Public "°`~:""• *~<~" : ~~:~@~~
State of Texas
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Business Incentive Agreement withCity of CC -November 2009