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HomeMy WebLinkAboutC2010-487 - 11/9/2010 - ApprovedBUSINESS INCENTfVE AGREEME~'1T BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CaRPORATION AND TDL PLASTICS, INC. FOR THE CREATION AND RETENTION OF JOBS This Business Incentive Agreement for the Creation and Retention of Jobs ("Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and TDL Plastics, L.L.C. ("TDL"), a Texas for profit limited liability company. WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes {Development Corporation Act of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, 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 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 Apri! 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, which the City Council incorporated into the City of Corpus Christi Economic Development Incentive Policies 2009-2011 on November 17, 2009; WHEREAS, the City Council approved the Corporation's amended Guidelines and Criteria for Granting Business Incentives on September 18, 2007; WHEREAS, TDL will remain in Corpus Christi and re-locate and expand their plastics business, increasing their total jobs from 10 to 16; WHEREAS, TDL proposes to invest at least $270 thousand over a two year period in the purchase and construction of a new 5,000 square feet facility; 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 TDL, through this contract with TDL, to be used by TDL to re-locate their plastics business which will 2414-487 Res. 028836 Page 1 of 9 1.1109114 ~o~9zo~o TDL Plastics ~~~~ result in the retention of 10 jobs and the creation of up to 6 new full-time permanent jobs in the City of Corpus Christi, with an estimated annual average salary of $70,000. In consideration of the covenants, promises, and conditions stated in this Agreement, Corporation and TDL 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 December 1, 2010. 3. Performance Requirements and Grants are listed in Exhibit A. 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 Locai 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 a full time employee, an individual hired as a contractor, consultant, or leased employee. The contractor or consultant must have a home address in the Corpus Christi Metropolitan Statistical Area. c. TDL agrees to confirm and document to the Corporation that the minimum number of jobs created as a result of funding provided by this Agreement is maintained throughout the term by the Business. d. TDL agrees to provide Corporation with a sworn certificate by authorized represen#a#ive of each business assisted under this Agreement certifying the number offull-time permanent employees employed by the business. e. TDL shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 5. Buy Local Provision. a. TDL 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. Page 2 of 9 TDL Business Incentive Agreement 10192010 6. Warranties. TDL warrants and represents to Corporation the following: a. TDL is a corporation duly organized, validly existing, 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. TDL has the authority to enter into and pertarm, and will perform, the terms of this Agreement to the bes# of its ability. c. TDL 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. TDL 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. e. The parties executing this Agreement on behalf of TDL are duly authorized to execute this Agreement on behalf of TDL. 7. Compliance with Laws. TDL shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 8. Non-Discrimination. TDL covenants and agrees that TDL 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 TDL are prevented, wholly or in park, 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 TDL 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. TDL may not assign all or any park 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. Page 3 of 9 TDL Business Incentive Agreement 10192010 79. lndemnity. TDL covenants to fully indemnify, save, and hold harmless the Corporation, the City, their respective officers, employees, and agents ("lndemnitees") against all liability, damage, loss, claims demands, and actions of any kind on account of personal injurr`es (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 TDL activifies 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 lndemnitees. TDL must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions based on fhose claims and demands with counsel satisfactory to lndemnitees, and pay all charges of attorneys and al! other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 12. Events of Default. The following events cons#itute a default of this Agreement: a. Failure of TDL to timely, fully, and completely comply with any one or more of the requirements, obligations, duties, terms, conditions, or warranties of this Agreement, other than the requirement to create a minimum number of new jobs or maintain a minimum number of jobs in any specific year. However, the minimum number of new jobs must be created and maintained by the end of the contract term. b. The Corporation or City determines that any representation or warranty on behalf of TDL 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 TDL or any attachment or other levy against the property of TDL with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 120 days. d. TDL makes an assignment for the benefit of creditors. e. TDL files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. f. If taxes owed by TDL become delinquent, and TDL fails to timely and properly follow the legal procedures for protest or contest. g. TDL changes the general character of business as conducted as of the date this Agreement is approved by the Corporation. Page 4 of 9 TDL Business Incentive Agreement 10192010 13. Notice of Default. Should the Corporation or City determine that TDL is in default according to the terms of this Agreement, the Corporation or City shall notify TDL in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for TDL to cure the even# 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 TDL, 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. TDL shall immediately repay all funds paid by Corporation under this Agreement. b. TDL 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 TDL 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 TDL's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time TDL 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. TDL specifically agrees that Corporation shall only be liable to TDL for the actual amount of the money grants to be conveyed to TDL ,and shall not be liable to TDL for Page 5 of 9 TDL Business Incentive Agreement 10192410 any actual or consequential damages, director 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 ra#a 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 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 TDL to 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: TDL: TDL Plastics, LLC 10201 South Padre Island Drive Corpus Christi, TX 78418 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. Page 6 of 9 TDL Business Incentive Agreement 10192014 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 TDL will act in an individual capacity, and no# 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 far any reason, any section, paragraph, subdivision, clause, provision, phrase or ward 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 TDL. Any prior agreements, promises, negotiations, or representations, verbal or otherwise, not expressly stated in this Agreement, are of no force and effect. Page7of9 TpL Business Incentive Agreement 10192010 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 agreemen#. Corpus Christi Business & Job Development Corporation By: y alaz r Chairperson Date: ~ - /~~/~~ Attest: By: Armando Chapa Assistant Secretary Page 8 of 9 " ~~ Att~'H~Rl~F~ ~v CnuH(:~~... ~ I €~ ~ D S~~ARY ~ TDL Business Incentive Agreement 1019201D TDL PLASTICS, LLC. By: Jason y Bates Member Date: ~~ THE STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on r , 2010, by Jason Cody Bates, Member, for TDL Plastics, L.L.C., a Texas for profit limited liability company, on behalf of the company. Notary Public State of Texas ioti'~*'.r";`~p'y~ ....w.r,..~,...., ill. GII,CHRIST Notary Pudlic. State of texas sj°i ~.a 4 My COmll'HSSIOiI E%pli@5 z.„os;~ ,~ Februptyat, ~at7 Page 9 of 9 TDL Business Incentive Agreement 10192410 EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS 1. TDL shall re-locate and expand their plastics business in Corpus Christi. They will retain 10 jobs and create 6 new jobs in five years. The grant will be used for building construction and equipment for the new facility. 2. TDL shall invest $270 thousand in building improvements, furniture, fixtures and equipment. 3. TDL shall re#ain at least 10 current full-time jobs within the City, with an average annual salary of at least $70,400, during the term of this agreement. 4. TDL shall create and maintain at least 6 new, full-time jobs within the City, with an average annual salary of at least $70,000, during the term of this agreement. 5. The Corporation will award a grant for each new job created and retained, including any additional new jobs over the minimum number of required by subsection c of this section. a. The grant will be $3,125 for each job if the average annual salary is $70,000. b. No grant will be awarded if the number of retained jobs is less than 80% of the target number. c. No grant will be awarded if the number of new jobs is less than 80% of the target number. d. If the number of new jobs is less than the target number but greater than 80% of the target number, an proportioned amount of the grant will be awarded. Based on $3,125 times the proportion of the target number. d. Grants, not to exceed a cumulative total of $50,000, are available on a per job created basis. 6. If TDL does not create at least 80% of the targeted number of new jobs or maintain at least 80% of the targeted number of retained jobs for any given year, as defined in the following chart below, the Corporation will not award any grant to TDL for that calendar year. A-1 TdL Business Incentive Agreement 10192010 Year Number of Targeted New Jobs 0 2 2 3 4 2 5 7. TDL shall annually report their actual investments within the City of Corpus Christi, and provide documentation to support the report to the Corpus Christi Regional Economic Development Corporation. A-2 TEL Business Incentive Agreement 90192010