HomeMy WebLinkAboutC2014-173 - 6/17/2014 - Approved .
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BUSINESS INCENTIVE AGREEMENT BETWEEN
THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND
TAMU-CC FOR DEVELOPMENT OF FACILITIES FOR THE BACHELOR OF SCIENCE IN
ELECTRICAL, CIVIL, AND INDUSTRIAL ENGINEERING PROGRAMS
This Business Incentive Agreement for Capital Investments and Job Training ("Agreement") is
entered into between the Corpus Christi Business and Job Development Corporation
("Corporation") and Texas A&M University—Corpus Christi ("TAMU-CC"), a member of The
Texas A&M University System, an agency of the State of Texas.
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 1/8th cent sales tax authorized by passage of Proposition 2 was subsequently
enacted by the City Council and filed with the Texas Comptroller of Public Accounts, effective
April 1, 2003, to be administered by the Corporation's Board of Directors ("Board");
WHEREAS, the ordinance adopting the 118th cent sales tax specifically provided that the funds
could be used to make grants to organizations to provide training, retraining, and education to
ensure the knowledge and skills required for the jobs of the future are in place;
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, TAMU-CC is expanding its undergraduate degrees in electrical engineering;
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 TAMU-CC, through this contract
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TAMU-CC INDEXED
with TAMU-CC, to be used by TAMU-CC for expenses related to establishing the facilities for
the new engineering programs, including retrofitting and outfitting the laboratories currently used
in TAMU-CC's Electrical Engineering Technology programs.
In consideration of the covenants, promises, and conditions stated in this Agreement,
Corporation and TAMU-CC agree as follows:
WHEREAS, TAMU-CC proposes to invest approximately$534,750 over a five year period;
WHEREAS, on April 21, 2014 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 establish a new engineering
program and will result in job training that will give our citizens the knowledge and skills required
for the jobs of the future. New jobs will pay wages that are at least equal to the prevailing wage
for the applicable occupation in the local labor market.
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 three years beginning on the Effective Date.
3. Performance Requirements and Grants.
a. TAMU-CC shall purchase laboratory equipment for its electrical engineering program
and construct or retrofit existing labs for electrical engineering as needed (the "Project').
b. The Corporation will reimburse TAMU-CC for the costs incurred by TAMU-CC in the
Project. TAMU-CC shall submit to the Corporation documentation reasonably
satisfactory to the Corporation of costs incurred by TAMU-CC in the Project and the
Corporation shall provide reimbursement within 30 days or receipt of such
documentation. The amount reimbursed by the Corporation may not exceed
$1,000,000.
c. On the annual anniversary of the Effective Date, TAMU-CC shall report to the
Corporation the number of students enrolled in the Electrical Engineering program at
TAMU-CC during the previous year.
4. Utilization of Local Contractors and Suppliers. TAMU-CC agrees to exercise reasonable
efforts in utilizing local contractors and suppliers in the construction of the Project, except where
not reasonably possible to do so without added expense, substantial inconvenience, or sacrifice
in operating efficiency in the normal course of business. 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
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County. TAMU-CC agrees, during the construction of the Project and for four years after its
completion, to maintain written records documenting the efforts of TAMU-CC to comply with the
Local Requirement, and to provide an annual report to the City Manager or designee. Failure to
substantially comply with this requirement shall be a default hereunder.
5. Utilization of Historically Underutilized Businesses ("HUBs'). TAMU-CC agrees to make good
faith efforts in utilizing contractors and suppliers in the Project that are HUBs in accordance with
Texas Government Code, Chapter 2161, Subchapter F, and Comptroller of Public Accounts
HUB Rules, TAC Section 20.14, with a priority made for HUBs which are local. TAMU-CC
agrees to a goal of 22.82% of the total dollar amount of all construction contracts and supply
agreements for the Project being paid to HUBs. TAMU-CC agrees, during the construction of
the Project and for four years after its completion, to maintain written records documenting the
efforts of TAMU-CC to comply with the DBE Requirement, and to provide an annual report to
the City Manager or designee. Failure to substantially comply with this requirement shall be a
default hereunder. For the purposes of this section, the term "local" as used to describe
contractors and suppliers that are determined to be HUBs includes firms, businesses, and
persons who reside in or maintain an office within a 50 mile radius of Nueces County.
6. Health Insurance. To qualify for this incentive, TAMU-CC certifies that it has offered a health
insurance program for its employees during the term of the Agreement.
7. Warranties. TAMU-CC warrants and represents to Corporation the following:
a. TAMU-CC is an institution of higher education 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. 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.
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 parties executing this Agreement on behalf of TAMU-CC are 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
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violation under 8 U.S.C. Section 1324a(f), TAMU-CC shall repay the payments received
under this Agreement to the Corporation, with interest at the Wall Street Journal Prime
Rate, not later than the 120`h day after the date TAMU-CC has been convicted of the
violation and exhausted all available appeals.
8. Compliance with Laws. TAMU-CC shall observe and obey all applicable laws, ordinances,
regulations, and rules of the Federal, State, county, and city governments.
9. 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 TAMU-CC 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.
10. 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.
11. 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.
12. Indemnity. To the extent authorized by law, TAMU-CC 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 TAMU-CC activities conducted under or incidental
to this Agreement, except to the extent any injury, loss or damage is caused by the sole
or contributory negligence of any or all of the Indemnitees. TAMU-CC 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 arising from the
liability, damage, loss, claims, demands, or actions.
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13. Events of Default by TAMU-CC. The following events constitute a default of this Agreement
by TAMU-CC:
a. The Corporation or City determines that any representation or warranty on behalf of
TAMU-CC 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 related to this Agreement is assessed against TAMU-CC or any
attachment or other levy against the property of TAMU-CC with respect to a claim
remains unpaid, undischarged, or not dismissed for a period of 120 days.
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.
14. 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.
15. 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 TAMU-CC 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.
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d. Neither the City, the Corporation, nor TAMU-CC may be held liable for any
consequential damages.
16. 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 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.
17. 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.
18. 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.
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19. 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
6300 Ocean Drive, Unit 5731
Corpus Christi, Texas 78412-5731
Attn: Purchasing Director
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.
20. 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.
21. 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.
22. 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.
23. 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.
24. Severability.
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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.
25. Venue. Venue for any legal action related to this Agreement is in Nueces County, Texas.
26. 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.
27. Survival of terms of Agreement and obligations of parties. The terms of this Agreement and
the obligation of the parties relating to Sections 14 and 15 shall survive the termination of this
Agreement.
Remainder of page is intentionally left blank.
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Corpus Christi B - •• 11evelopment Corporation
By:
Robert Tamez
President
Date: 1 (� \J uiMu dra
Attest: G1
�Vl -,n
rrici� �. rc()
By: _ ■ SEgIfTAiry
'ebecca Huerta
Assistant Secretary
Texas A&M University—Corpus Christi
By:
r. Flavius Killebrew
President
THE STATE OF TEXAS
COUNTY OF NUECES
This instrument was acknowledged before me on MI c-f 2- , 2014 by Dr. Flavius
Killebrew, President of Texas A&M University-Corpus Christi, a member of the Texas A&M
University System, an agency of the State of Texas, on behalf of the university.
4 4/4411* MICHELE M NAME
4 ^I, My Commission Expires
October 12,2015
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