HomeMy WebLinkAboutC2012-104 - 3/27/2012 - Approved0 QA`
BUSINESS INCENTIVE AGREEMENT BETWEEN
THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND
ONETA COMPANY FOR CAPITAL INVESTMENTS AND THE CREATION AND
RETENTION OF JOBS
This Business Incentive Agreement for Capital Investments and the Creation and
Retention of Jobs ( "Agreement ") is entered into between the Corpus Christi Business
and Job Development Corporation ( "Corporation ") and Oneta Company ( "Oneta "), a
Texas for profit 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, 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 November 9, 2010;
WHEREAS, Oneta is the last independent Pepsi bottler in South Texas; their
companies include Sunrise Vending, Everest Water, and Fast Fleet;
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Oneta Company INDEXED
WHEREAS, Oneta proposes to invest approximately $4.7 million over a five year
period;
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 Oneta, through
this Agreement with Oneta, to be used by Oneta to expand their existing manufacturing
facilities over a five year period, including the construction of three buildings increasing
the area by 29,000 square foot, including furniture, fixtures, and equipment, which will
result in creation of up to 31 new full -time permanent jobs in the City of Corpus Christi
and the retention of 64 existing full -time jobs, with an estimated annual average salary
of $30,935.
In consideration of the covenants, promises, and conditions stated in this Agreement,
Corporation and Oneta agree as follows:
1. Effective Date. The effective date of this Agreement ( "Effective Date ") is the January
1, 2011.
2. Term. The term of this Agreement is for five 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 at least as high as the wages 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. Oneta 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. Oneta 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. Oneta shall ensure that the Corporation is allowed reasonable access to
personnel records of the businesses assisted under this Agreement.
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
5. Buy Local Provision.
a. Oneta 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 in the normal course of business.
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. Oneta warrants and represents to Corporation the following:
a. Oneta 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
carry on its business as presently conducted in Corpus Christi, Texas.
b. Oneta has the authority to enter into and perform, and will perform, the terms
of this Agreement to the best of its ability.
c. Oneta 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. Oneta 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 Oneta are duly authorized
to execute this Agreement on behalf of Oneta.
7. Compliance with Laws. Oneta shall observe and obey all applicable laws,
ordinances, regulations, and rules of the Federal, State, county, and city governments.
8. Non - Discrimination. Oneta covenants and agrees that Oneta 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 Oneta 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 Oneta are temporarily suspended during continuation
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
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. Oneta 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. Onete 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 Oneta
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. Oneta 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 by Oneta. The following events constitute a default of this
Agreement by Oneta:
a. The Corporation or City determines that any representation or warranty on
behalf of Oneta 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 Oneta or any attachment or other levy
against the property of Oneta with respect to a claim remains unpaid,
undischarged, or not dismissed for a period of 120 days.
c. Oneta makes an assignment for the benefit of creditors.
d. Oneta files a petition in bankruptcy, or is adjudicated insolvent or bankrupt.
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
e. If taxes owed by Oneta become delinquent, and Oneta fails to timely and
properly follow the legal procedures for protest or contest.
f. Oneta 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 Oneta is in default
according to the terms of this Agreement, the Corporation or City shall notify Oneta in
writing of the event of default and provide 60 days from the date of the notice ( "Cure
Period ") for Oneta to cure the event of default.
14. Results of Uncured Default by Oneta. 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 Oneta, 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. Oneta shall immediately repay all funds paid by Corporation to them under
this Agreement.
b. Oneta shall pay Corporation reasonable attorney fees and costs of court to
collect amounts due to Corporation if not immediately repaid upon demand from
the Corporation.
c. Upon payment by Oneta of all sums due, the Corporation and Oneta shall
have no further obligations to one another under this Agreement.
d. Neither the City, the Corporation, nor Oneta may be held liable for any
consequential damages.
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 Oneta's default may not be considered an
estoppel against the Corporation.
d. It is expressly understood that if at any time Oneta 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
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
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. Oneta specifically agrees that Corporation shall only be liable to Oneta for the
actual amount of the money grants to be conveyed to Oneta, and shall not be liable to
Oneta 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
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 Oneta 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:
Oneta:
Oneta
Attn: General Manager CC CEO
1401 S Padre island Drive
Corpus Christi, Texas 78416
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
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
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
Oneta 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 Oneta. Any prior Agreements, promises, negotiations, or
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
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.
Corpus Christi Business & Job Development Corporation
By: R4"
Elo al zar
President
Date: , !1 Ilk 1 =
Attest:
By: - 32aA�-
Armando Chapa
Assistant Secretary
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R es 629 . Au I INUKI W
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SFr,RFTARY
BUSINESS INCENTIVE AGREEMENT Oneta 02 022012
Oneta Company
By:
Karl Koch
CEO
Date: d r�
THE STATE OF TEXAS
COUNTY OF NUECES
This instrum t was acknowledged before me on 4 !� 2012 b
9 � Y
Karl Koc O, for 0 to Texas for profit corporation, on behalf of the corporation.
Nbtary Public
State of Texas
I s OMAR 0 VERA
My Commission Expires
December 10, 20 13
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
EXHIBIT A
PERFORMANCE MEASURES AND CORPORATION GRANTS
1. Oneta shall invest at least $4.7 million for expansion of its current operations, over a
five year period. Oneta shall further, over the term of this Agreement, retain 64 full -time
jobs and create up to 31 new full -time jobs, with an average annual salary of $30,935 as
described in the schedule below.
Year
Number of
New Jobs
Number of
Retained Jobs
Annual
Payroll
Capital
Investment
1
0
64
1,979,840
822,450
2
13
64
2,381,995
3,335,000
3
7
77
2,598,540
180,850
4
7
84
2,815,085
180,850
5
4
91
2,938,825
180,850
a. The capital investment is a cumulative amount. If the company invests more
in one year than required the excess amount is counted against future year
amounts.
b. Grants, not to exceed $60,000 per year and a cumulative total of $300,000
over five years, are available on a per job created basis.
c. Should the Company fall below the Performance Standards in any one year,
the Company shall receive a reduced percentage of the Cash Incentive in effect
that year. Such reduction will be in that percentage equal to the percentage the
Company's performance falls below the Performance Standards. However, if the
Company falls below 70% there is no payment for that year.
By way of example only: assume a partial Cash Incentive payment is required in
the fifth year of this Agreement and the Performance Standards have not been
reached. For the purposes of calculating this reduced Cash Incentive, it is agreed
that $24,000 or 40% of the Cash Incentive is being given premised on the payroll
requirements of this Agreement and $36,000 or 60% is attributable to the capital
investment requirements.
The reduced Cash Incentive shall be calculated as follows:
Annual payroll commitment
5th year: $2,938,825
Annual Investment commitment
5th year: $180,850
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012
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5th year incentive calculation
Reduced Cash Incentive calculation
80% x 40% x $60,000 = $19,200
Total Cash incentive
Economic Incentive Calculation:
100% x 60% x $60,000 = $36,000
$19,200 + $36,000 = $55,200
In the 5th year, the Company would receive a reduced Cash Incentive of $55,200 from
the Corporation for not meeting the performance goals for annual payroll requirements.
2. The Corporation will award a grant to Oneta based on the formula above, payable
not later than June 15 of each year if Oneta makes the required capital investment in
buildings, furniture, fixtures and equipment, retains the minimum number of employees
in the preceding year described in paragraph 1 above (collectively, the "annual
performance benchmarks ").
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BUSINESS INCENTIVE AGREEMENT Oneta 02 02 2012