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HomeMy WebLinkAboutC2012-289 - 8/21/2012 - ApprovedSMALL BUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE FOR THE FASTTRAC 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 of 1979), now codified as Subtitle C1, Title 12, Texas Local Government Code, Section 504.002 et seq, ( "the Act "), 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 ( "Type A Guidelines "), 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 of The Act requires the City Council to approve all programs and expenditures of the Corporation; 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 FastTrae Growth Venture TM Program, which will result in creation of at least 12 new full -time permanent jobs in the City of Corpus Christi. 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 August 1, 2012, through December 31, 2013. 2012 -289 8121/12 Page 1 of 8 RCS. 029591 GREEMENT -- Del Mar FastTrac 0712 12 Del Mar College INDEXED 3. Grant. The Corporation will fund up to 24 $5,000 grants to be awarded to twelve successful participants in Del Mar's FastTrac® Growth Venture TM. FastTrace Growth Venture TM 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, 2013, the successful participants must. (1) Complete the course. (2) Retain all of their existing jobs. (3) Create at least one new job b. In order to receive a second $5,000 grant, the successful participants must retain at least one new job for a minimum of six months, while retaining all of their existing jobs. 4. Job Creation/Training Qualification. a. In order to count as a created job under this Agreement, the job must pay wages at least as high as the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. b. In order to qualify for funds to provide job training under this Agreement, Del Mar agrees to create new jobs that pay wages at least as high as the wages required by Section 501.162 of the Act, which is the median wage of the occupation in the Corpus Christi MSA as determined by Texas Workforce Commission's Texas Industry Profiles report. c. A "job" is defined in the Type A Guidelines as a full -time employee, contractor, consultant, or leased employee who has a home address in the Corpus Christi MSA. d. Del Mar 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. e. Del Mar 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. f. Del Mar shall ensure that the Corporation is allowed reasonable access to personnel records of the businesses assisted under this Agreement. 5. Warranties. Del Mar warrants and represents to Corporation the following: a. Del Mar 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. Del Mar has the authority to enter into and perform, and will perform, the terms of this Agreement to the best of its ability. Page 2 of 8 SMALL. BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 07 12 12 c. Del Mar 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. Del Mar has received a copy of the Act, 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 Del Mar are duly authorized to execute this Agreement on behalf of Del Mar. f. Del Mar does not and agrees that it will not knowingly employ an undocumented worker. If, after receiving payments under this Agreement, Del Mar is convicted of a violation under §U.S.C. Section 1324a(f), Del Mar shall repay the payments at the rate and according to the terms as specified by City Ordinance, as amended, not later than the 12D day after the date Del Mar has been notified of the violation. 6. Compliance with Laws. Del Mar shall observe and obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and city governments. 7. 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. 8. 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. 9. 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. 10. Indemnity. Del Mar 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 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 an 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 an charges Page 3 of 8 SMALL BUSINESS INCENTIVE AGREEMENT — Del Mar FastTrac 07 12 12 of attorneys and all other cost and expenses of any kind arising from the liability, damage, loss, claims, demands, or actions. 11. Events of Default by Del Mar. The following events constitute a default of this Agreement by Del Mar: 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. 12. 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 Mar to cure the event of default. 13. Results of Uncured Default by Del Mar. 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 to them under this Agreement. b. Del Mar 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 Del Mar of all sums due, the Corporation and Del Mar shall have no further obligations to one another under this Agreement. d. Neither the City, the Corporation, nor Del Mar may be held liable for any consequential damages. Page 4of8 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 0712 12 14. 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. 15. 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 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 Mar to be accompanied by all necessary supporting documentation. 16. The parties mutually agree and understand that funding under this Agreement is subject to annual appropriations by the City Council; that each fiscal year's funding must be included in the budget for that year; and the funding is not effective until approved by the City Council. 17. Notices. a. Any required written notices shall be sent mailed, certified mail, postage prepaid, addressed as follows: Page 5 of 8 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 07 12 12 Del 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 .lob 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. 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 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. 5everability. 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 Page 6 of 8 SMALL BUSINESS INCENTIVE AGREEMENT - Del Mar FastTrac 0712 12 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. Corpus Christi Busin s & ob Development Corporation By: e—1 TKO rff Ti President Date: Attest: By: Armando Chapa Assistant Secretary Del Mar College 0 X y Dr. Vark Escamilla, Ph.D President Date: '? - / 6 - l L Page 7 of 8 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 07 12 12 THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on 9/1, IL , 2012, by Dr. Mark Escamilla, Ph.D, for Del Mar College, a political subdivision of the State of Texas, on behalf of the college district. DELIA C,. PEREZ 14oiary PuN Notary Public ?' STATE OF TEXAS State of Texas My Gomm Exp 12- 10-20 .OF" Page 8 of 8 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 07 12 12 EXHIBIT A PERFORMANCE MEASURES AND CORPORATION GRANTS 1. Del Mar will offer the FastTrac® Growth VentureTM course to small businesses located in Corpus Christi. 2. Del Mar will submit invoices for all participants that qualify for the first part of the grant. 3. Del Mar will track the graduates and obtain documentation of retention of all jobs and any created jobs. 4. Del Mar will submit invoices for all participants that qualify for the second part of the grant. A -1 SMALL BUSINESS INCENTIVE AGREEMENT -- Del Mar FastTrac 07 12 12