HomeMy WebLinkAboutC2011-233 - 7/26/2011 - ApprovedBUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI
BUSINESS AND JOB DEVELOPMENT CORPORATION AND COMMERCIAL
METALS COMPANY FOR CREATION OF JOBS
This Business Incentive Agreement for ( "Agreement ") is entered into between the
Corpus Christi Business and Job Development Corporation ( "Corporation ") and
Commercial Metals Company ( "CMC "), a Delaware corporation.
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 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, 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 November 9, 2010;
WHEREAS, CMC buys secondary metals, sorts by type and grade, processes the
metals and sells them to manufacturers in Texas and around the world;
WHEREAS, CMC proposes to invest approximately $20 million over a 5 year period at a
new location on Bronco Road;
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 CMC, through
this Agreement with CMC, to be used by CMC to open another location in Corpus
Christi, and which will result in creation of up to 12 new full -time permanent jobs and will
retain 39 existing jobs at either its new Bronco Road location, existing Agnes Street
2011 -233
Res. 029164 Page 1 of 9
07/26/11 EEMENT Final (2 ).docx .
Commercial Metals Co. INMXED
location, or at a combination of both locations in the City of Corpus Christi, with an
estimated annual average salary of $35,000.
In consideration of the covenants, promises, and conditions stated in this Agreement,
Corporation and CIVIC 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 5 years beginning on the Effective Date.
3. Performance Requirements and Grants. The Performance Requirements and
Grants are listed in Exhibit A, which is attached to and incorporated into this Agreement.
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.
c. CIVIC 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 CIVIC.
d. CIVIC agrees to provide Corporation with a sworn certificate by authorized
representative of each business assisted under this Agreement certifying the
number of full -time permanent employees employed by the business.
e. CIVIC shall ensure that the Corporation is allowed reasonable access to
personnel records of the businesses assisted under this Agreement.
5. Buy Local Provision.
a. CIVIC 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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6. Warranties. CIVIC warrants and represents to Corporation the following:
a. CIVIC is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, has all corporate power and authority to
carry on its business as presently conducted in Corpus Christi, Texas.
b. CIVIC has the authority to enter into and perform, and will perform, the terms
of this Agreement to the best of its ability.
c. CIVIC has timely filed and will timely file all local, State, and Federal tax reports
and returns required by laws to be filed and all applicable taxes, 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. CIVIC 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 CIVIC are duly authorized to
execute this Agreement on behalf of CIVIC.
7. Compliance with Laws. CIVIC shall observe and obey all applicable laws,
ordinances, regulations, and rules of the Federal, State, county, and city governments.
8. Non - Discrimination. CIVIC covenants and agrees that CIVIC will not discriminate nor
knowingly 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 CIVIC 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 CIVIC 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. CIVIC 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,
which shall not be unreasonably withheld. Any attempted assignment without approval
is void, and constitutes a breach of this Agreement.
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99. Indemnity. CMC 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
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 CMC
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. CMC 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 arising under this Agreement.
12. Events of Default. The following events constitute a default of this Agreement:
a. Failure of CMC 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 CMC 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 CMC or any attachment or other levy
against the property of CMC with respect to a claim remains unpaid,
undischarged, or not dismissed for a period of 120 days.
d. CMC makes an assignment for the benefit of creditors.
e. CMC files a petition in bankruptcy, or is adjudicated insolvent or bankrupt.
f. If taxes owed by CIVIC become delinquent, and CMC fails to timely and
properly follow the legal procedures for protest or contest.
g. CMC changes the general character of business as conducted as of the date
this Agreement is approved by the Corporation.
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13. Notice of Default. Should the Corporation or City determine that CIVIC is in default
according to the terms of this Agreement, the Corporation or City shall notify CIVIC in
writing of the event of default and provide 60 days from the date of the notice ( "Cure
Period ") for CIVIC to 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 CIVIC, 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. CIVIC shall immediately repay all funds paid by Corporation under this
Agreement.
b. CIVIC 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 CIVIC 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 CMC's default may not be considered an
estoppel against the Corporation.
d. It is expressly understood that if at any time CIVIC 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. CIVIC specifically agrees that Corporation shall only be liable to CIVIC for the actual
amount of the money grants to be conveyed to CIVIC, and shall not be liable to CIVIC for
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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
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 CIVIC 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:
CIVIC:
Commercial Metals Company
Attn.: General Counsel's Office
6565 N MacArthur Blvd
Suite 800
Irving, TX 75039
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.
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18. Incorporation of other documents. The Corpus Christi Business and .lob
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
CMC 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
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 CMC regarding the subject matter herein. Any prior agreements,
promises, negotiations, or representations, verbal or otherwise, not expressly stated in
this Agreement, are of no force and effect.
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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.
Corpus Christi Business & Job Development Corporation
By: /,V
EI alaza
Chairperson
Date:
Attest:
By:
7
Armando Chapa
Assistant Secretary
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RY COUNCl�....�.' o
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SECRETARY fj-
CMC BUSINESS INCENTIVE AGREEMENT Final (2).docx
Commercial Metals Company
By:
Ann ]. uder
Senior Vice President of Law, Government Affairs and Global Compliance,
General Counsel and Corporate Secretary
Date: „ y Qo
THE STATE OF TEXAS
COUNTY OF -1414E -a
This instrument was acknowledged before me on 7n , 2011, by
Ann J. Bruder, Senior Vice President of Law, Govern me airs and Global
Compliance, General Counsel and Corporate Secretary, for Commercial Metals
Company, a Delaware corporation, on behalf of the corporation.
Notary Public
State of Texas
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.* f f =
DANNA CAR
Notary Pubic, State of Texas
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MY Carer wim Expires
JUNE 18 2013
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EXHIBIT A
PERFORMANCE MEASURES AND CORPORATION GRANTS
1. CIVIC shall open another metal recycling plant in Corpus Christi.
2. CIVIC shall invest $20 million in the new construction, equipment, furniture, and
fixtures.
3. CIVIC shall retain 39 current jobs at either its new Bronco Road location, existing
Agnes Street location, or at a combination of both locations.
4. CIVIC shall create 12 new jobs.
5. CIVIC shall create at least 12 new, full -time jobs and retain at least 39 full-time jobs
within the City, with an average annual salary of at least $35,000, during the term of this
Agreement.
6. 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 $2,340 for each job if the average annual salary is $31,500.
b. The grant will be $2,600 for each job if the average annual salary is $35,000
or more, but less than $38,500.
c. If the average annual salary is more than $31,500, but less than $35,000, the
grant will be computed by dividing the average annual salary by 35,000 and
multiplying the result by $2,600. For example, if the average annual salary is
$33,000 the grant would be $2,444 (33,000 = 35,000 X $2,600 = $2,444).
d. The grant will be $2,860 for each job if the average annual salary is $38,500
or more.
e. No grants will be awarded if the average annual salary of the new and
retained jobs is less than $31,500.
f. Grants, not to exceed a cumulative total of $132,600, are available on a per
job created basis.
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CMC BUSINESS INCENTIVE AGREEMENT Final (2).docx
8. If CMC does not create the minimum number of new jobs or maintain the number of
jobs for any given year, as defined in the following chart below, the Corporation will not
award any grant to CMC for that calendar year.
Year Number of Minimum Number Minimum
Targeted of New Jobs Number of
New Jobs Retained Jobs
1 12 12 39
2 0 0 51
3 0 0 51
4 0 0 51
5 0 0 51
9. CMC will invest at least $20 million in new construction, equipment, and furniture,
and fixtures. CMC 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.
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CMC BUSINESS INCENTIVE AGREEMENT Final (2),docx