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HomeMy WebLinkAboutC2010-350 - 8/31/2010 - ApprovedSMALL BUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE FOR THE FASTRAC GROWTH VENTURE PROGRAM This Small Businesses Incentive Agreement {"Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation"} and Del Mar College, a Texas junior college district ("Del Mar"). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes {Development Corporation Act ofi 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 Carpus 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 '118th 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 #or Granting Business Incentives; WHEREAS, Section 21 0# 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 far Granting. Business Incentives on September 18, 2007; WHEREAS, Del Mar is a Texas institution of higher education; 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 contract with Del Mar, to be used by Del Mar for the FastTrac~' Growth Venture" Program, which will result in creation of at feast 12 new foil-time permanent jobs in the City of Corpus Christi. 2010-35fl Res. 028755' Page 1 of 9 0$~~11].~GREEMEfVT -- ©el Mar FastTrac 08182p1Q Del Mar College ~~~~^ 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 from January 1, 2011, through December 31, 2011. 3. Grant. The Corporation will fund up to 24 $5,000 grants to be awarded to twelve successful participants in Def Mar's FastTrac® Growth Venturer"'. FastTrac4 Growth Venturer"" is an intensive ten week, interactive course that targets existing, successful small business owners with a desire to grow their business. a. in order to receive an initial $5,000 grant, prior to June 30, 2011, the successful participants must: (1) Complete the course. (2) Represent a "business expansion." (3) Retain_all of their existing jabs. b. In order to receive a second $5,000 grant, the successful participants must create and retain at least one new job for a minimum of six months, while retaining all of their existing jobs. 4. Job Creation Qualification. a. In order to count as a created jab 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 feast 2,080 hours annually. 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 for at least six months. d. Del Mar agrees to provide Corporation with a sworn certificate by authorized representative of each small business assisted under this Agreement certifying the number of full-time permanent employees employed by the small business. e. Del Mar shall ensure that the Corporation is allowed reasonable access to personnel records of the small businesses assisted under this Agreement. Page 2 of 9 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 08182090 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. 6. 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. Del Mar has timely filed and will timely file afi 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 wil[ be timely paid ,during the term of this Agreement. c. DEL MAR has reviewed a copy of the Subtitle C1, Title 12, Texas Local Government Code, which governs development corporations and is available on the State's website, 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. 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. e. The parties executing this Agreement on behalf of Del Mar are duly authorized to execute this Agreement on behalf of De! 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. De[ 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 ar 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 Page 3 of 9 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FasETrac 48182414 causes of force majeure, or by reason of circumstances beyond its control, then the obligations of the Corporation or Def 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 o#her party in writing, giving full particulars of the farce 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. 77. Indemnity. To the extent authorized bylaw, De! Mar covenants to fully indemnify, save, and hold harmless the Corporation, the Cify, (heir respective officers, employees, and agents ("Indemnifees") against all Liability, damage, loss, claims demands, and actions of any kind on account of personal injuries (including, withouf 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 fhe sole or contributory negligence of any or all of the Indemnifees. De! Mar must, of ifs own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend al! actions based on those claims and demands with counsel satisfactory fo Indemnifees, 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 Del Marto timely, fully, and completely comply with any one or mare of the requirements, obligations, du#ies, terms, conditions, ar warranties of this Agreement. 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 #o the Corporation in connection with this Agreement was incorrect or misleading in any material respect when made; c. 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 3D days. Page 4 of 9 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 08182Q10 d. Del Mar makes an assignment for the benefi# of creditors. e. Del Mar files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. 13. Notice of Default. Should the Corporation or City determine that Del Mar is in default according to the terms of #his Agreement, the Corporation or City shall notify Del Mar in writing of the event of default and provide 64 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. 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 ail remedies available under law. 15. 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 covenantor condition or any other covenantor 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 5 of 9 SMALI. BUSIt~fESS INCENTIVE AGRE~MEIVT ---Del Mar FastTrac 08182010 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 cast 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, being January 1, 2090, through December 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 collet#ed far any one year be less than the total amount of grants to be paid to all contracting parties with Corporation far 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 far 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 ail supporting documentation, as requested. Payments to be made shall also require a written request from Del Marto be accompanied by all necessary supparting documentation. 17. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: Dei Mar College: Del Mar College Small Business Development Center 101 Baldwin, CED-146 Corpus Christi, TX 78404-3897 Attn: Director, SBDC Corporation: City of Corpus Christi Business and Job Development Corporation Attn.: Executive Director 1201 Leopard Street Carpus Christi, Texas 78401 b. A copy of all notices and correspondence must be sent the City at the following address: City of Carpus Christi Attn.:City Manager Page6of9 SMALL BUSMESS WCENTIVE AGREEMENT-- Dei Mar FastTrac 081$2010 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 employees or agents of either party may not be, nor be construed to be, the employees or agents of the other party far 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 ampli#y 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 ward 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. Page 7 of 9 SMALL BUSINESS INCENTIVE= AGREEMENT -- [)el Mar FastTrac 98182010 24. Sale 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 [what survives] shall survive the termination of this agreement. Corpus Christi Business & Job Development Corporation By: E y Sa[az r Chairperson Date: ~ ~'~ ~ f ~ Attest: ~~~ 7 By: Armando Chapa Assistant Secretary Page 8 of 9 ~. ~~~~55 AIITMURl~'EP av coux~~~ ....~ ~ 3 ~ ~~..,..~ SECR~TAR1' q~~l SMALL BUSINESS INCENTIVE AGREEMENT -- Def Mar FastTrac 08182010 Del Mar College Y~ Mar Escamilla, Ph.D President Date: ~~ ~ ~ ~ THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on /( ~iLC ~- 7 , 2Q10, by Mark Escamilla, Ph.D, for Del Mar College, a political s bdivision oft a State of Texas, on behalf of the college district. Notary Pu c State of Texas ~""`"~~; MAttY SUE KASPAR ~ n~ i ~ ~~ Notary PuG1ic STATE !3F TEiV15 y`~~a~i6'~~''~ .* My Camrn, EMp. a8-03-20iZ Page 9 of 9 SMALL BUSINESS INCENTIVE AGREEMENT -- Del IV[ar FastTrac 08182010