HomeMy WebLinkAboutC2013-127 - 4/23/2013 - ApprovedBUSINESS INCENTIVE AGREEMENT BETWEEN
THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND
TEXAS A &M UNIVERSITY — CORPUS CHRISTI
This Business Incentive Agreement for ( "Agreement ") is entered into between the Corpus
Christi Business and Job Development Corporation ( "Corporation ") and Texas A &M University -
- Corpus Christi, a Texas institution of higher education ( "TAMU -CC ").
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 flax 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 to assist small and start -up companies carries the heading "Business
Developmentllncubation;"
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, the Federal Aviation Administration (FAA) has proposed to designate six regional
test sites for the purpose of developing technologies, policies and procedures that will safely
integrate unmanned aerial systems UAS into the national airspace that would be located in
Texas;
WHEREAS, it is critical for Texas to compete successfully for this designation in order to reap
its share of UAS national industrial development and economic growth estimated at 150,000
jobs and $8 billion annually by 2020;
WHEREAS, Texas is proposing a statewide test site that will be comprised of five test ranges,
with the principal range and command center located in Corpus Christi;
WHEREAS, TAMU -CC is the lead entity preparing to submit a bid for one of these test sites.
The cost of securing and preparing the bid to the University could be as high as $600,000. This
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cost is being matched by in -kind and in -cash contributions from the Texas Engineering
Experiment Station and the lead systems integrator on the project, Camber Inc.;
WHEREAS, given its role as lead test range and command center for Texas, Corpus Christi
could realize more than 300 well- paying jobs. These jobs will be created by private- sector
investment in UAS manufacturing and technology research and development.
WHEREAS, TAMU -CC will increase its capacities for UAS - related research funding from public
and private sources;
WHEREAS, TAMU -CC students at all levels will benefit from this upgrade as they prepare for
careers related to UAS industries, from high -tech maintenance bays to research labs and
advanced flight- testing.
WHEREAS, on March 18, 2013 the Board determined that it is in the best interests of the
citizens of Corpus Christi, Texas that business development funds be provided to TAMU -CC,
through this Agreement with TAMU -CC, to be used by TAMU -CC to fund an application to be an
FAA Test Center for UAS for the purpose of developing technologies, policies and procedures
that will safely integrate UAS into the national airspace;
In consideration of the covenants, promises, and conditions stated in this Agreement,
Corporation and TAMU -CC 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 one year beginning on the Effective Date.
3. Performance Requirements and Grants. Corporation shall provide a grant not to exceed
$600,000 to TAMU -CC. TAMU -CC must use the grant to fund activities in support of an
application to become one of six regional FAA Test Sites for the purpose of developing
technologies, policies and procedures that will safely integrate UAS into the national airspace.
As grant funds are expended, TAMU -CC must deliver invoices for payment. The Corporation
shall pay invoices within 30 days.
4. Warranties. TAMU -CC warrants and represents to Corporation the following:
a. TAMU -CC is an institution of higher education established under the laws of the State
of Texas, has all power and authority to carry on its activities as presently conducted in
Corpus Christi, Texas.
b. TAMU -CC has the authority to enter into and perform, and will perform, the terms of
this Agreement to the best of its ability.
c. TAMU -CC 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.
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d. TAMU -CC 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 person executing this Agreement on behalf of TAMU -CC is duly authorized to
execute this Agreement on behalf of TAMU -CC.
f. TAMU -CC does not and agrees that it will not knowingly employ an undocumented
worker. If, after receiving payments under this Agreement, TAMU -CC is convicted of a
violation under 8 U.S.C. Section 1324a(f), TAMU -CC shall repay the payments received
under this Agreement to the City, with interest at the Wall Street Journal Prime Rate, not
later than the 120 day after the date TAMU -CC has been notified of the violation.
5. Compliance with Laws. During the Term of this Agreement, TAMU -CC shall observe and
obey all applicable laws, ordinances, regulations, and rules of the Federal, State, county, and
city governments.
6. Non - Discrimination. TAMU -CC covenants and agrees that TAMU -CC 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.
7. Force Majeure. If the Corporation or TAMU -CC 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 TAMU -CC 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.
8. Assignment. TAMU -CC 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.
9. Indemnity. TAMU -CC covenants, to the extent authorized by law, 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 TAMU -CC 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 lndemnitees. TAMU -CC must, to the extent
authorized by law, 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.
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10. Events of Default by TAMU -CC. The following events constitute a default of this Agreement
by TAMU -CC:
a. Any representation or warranty by TAMU -CC contained in this Agreement or in any
financial statement, certificate, or report submitted to the Corporation by TAMU -CC
under this Agreement was incorrect or misleading in any material respect when made;
c. TAMU -CC makes an assignment for the benefit of creditors.
d. TAMU -CC files a petition in bankruptcy, or is adjudicated insolvent or bankrupt.
e. if taxes owed by TAMU -CC become delinquent, and TAMU -CC fails to timely and
properly follow the legal procedures for protest or contest.
f. TAMU -CC changes the general character of business as conducted as of the date this
Agreement is approved by the Corporation.
g. TAMU -CC fails to comply with one or more terms of this Agreement.
11. Notice of Default. Should the Corporation or City determine that TAMU -CC is in default
according to the terms of this Agreement, the Corporation or City shall notify TAMU -CC in
writing of the event of default and provide 60 days from the date of the notice ("Cure Period ") for
TAMU -CC to cure the event of default.
12. Results of Uncured Default by TAMU -CC. 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 TAMU -CC, 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. TAMU -CC shall immediately repay all funds paid by Corporation to them under this
Agreement.
b. TAMU -CC shall, to the extent authorized by law, 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 TAMU -CC of all sums due, the Corporation and TAMU -CC shall
have no further obligations to one another under this Agreement_
d. Neither the City, the Corporation, nor TAMU -CC may be held liable for any
consequential damages.
13. 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.
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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 TAMU -CC's default may not be considered an estoppel
against the Corporation.
d. It is expressly understood that if at any time TAMU -CC 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.
14. TAMU -CC specifically agrees that Corporation shall only be liable to TAMU -CC for the
actual amount of the money grants to be conveyed to TAMU -CC, and shall not be liable to
TAMU -CC 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 TAMU -CC to be accompanied by all necessary supporting documentation.
15. 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.
16. Notices.
a. Any required written notices shall be sent mailed, certified mail, postage prepaid,
addressed as follows:
TAMU -CC:
Texas A & M University — Corpus Christi
Attn: President/CEO
6300 Ocean Drive, Unit 5756
Corpus Christi, Texas 78412 -5756
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Corporation:
City of Corpus Christi
Business and Job Development Corporation
Attn.: Executive Director
1241 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.
17. Incorporation of other documents. The Type A Guidelines, as amended, are incorporated
into this Agreement.
18. 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.
19. Relationship of Parties. In performing this Agreement, both the Corporation and TAMU -CC
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.
20. 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.
21. 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
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illegal, invalid, or unenforceable clause or provision as may be possible and be legal,
valid, and enforceable, will be added to this Agreement automatically.
22. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas.
23. Sole Agreement. This Agreement constitutes the sole Agreement between Corporation and
TAMU -CC. Any prior Agreements, promises, negotiations, or representations, verbal or
otherwise, not expressly stated in this Agreement, are of no force and effect.
24. Survival of terms of Agreement and obligations of parties. The terms of this Agreement and
the obligation of the parties relating to Section 21.a and b shall survive the termination of this
Agreement.
Corpus Christi Bfisines's & Job Development Corporation
By: ./ —
Robert Tamez
President J
Date:
Attest:
By: —Ih22n�
Armando Chapa
Assistant Secretary
Texas A &M University – Corpus Christi
By: X�
ius C. Killebrew
President/CEO
Date: pr
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