HomeMy WebLinkAboutC2014-174 - 6/10/2014 - Approved BUSINESS INCENTIVE AGREEMENT BETWEEN THE CORPUS CHRISTI
BUSINESS AND JOB DEVELOPMENT CORPORATION AND DEL MAR COLLEGE
FOUNDATION FOR EXPANSION OF THE PROCESS AND INSTRUMENTATION
TECHNOLOGY TRAINING PROGRAM
This Business Incentive Agreement ("Agreement") for capital investments and job
training is entered into between the Corpus Christi Business and Job Development
Corporation ("Corporation") and Del Mar College Foundation, Inc. ("Del Mar
Foundation"), a 501(c)(3) foundation supporting Del Mar College, a political subdivision
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 504.001 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 ordinance adopting the ballot language that authorized the use of the
1/8th cent sales tax proceeds specifically provided that the funds could be used for 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 October 18, 2010,
amended the Corporation's Guidelines and Criteria for Granting Business Incentives
("Type A Guidelines");
WHEREAS, Section 501.073, Texas Local Government Code, formerly Section 21 of
the Texas Development Corporation Act of 1979, Art. 5190.6, Vemon's Texas Revised
Civil Statutes, requires the City Council to approve all programs and expenditures of the
corporation;
WHEREAS, the City Council approved the amended Type A Guidelines on November
9, 2010;
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Ord. 030194 d Mar Industrial Program
Del Mar College Foundation Inc. INDEXED
WHEREAS, the Board of Directors of the Corporation ("Board"), approved this grant on
December 16, 2013;
WHEREAS, Del Mar Foundation intends to help Del Mar College (DMC) expand DMC's
Process and Instrumentation Technology Program by purchasing a Process Technology
Base Unit and Glycol Distillation Unit with ancillary equipment/software and a Process
Control Learning System;
WHEREAS, this equipment will help Del Mar College increase the number of students
in the Process and Instrumentation Technology Program from 111 per year up to 500
students per year and build participation with area industry and independent school
districts;
WHEREAS, local industries produce meaningful, wealth producing jobs which bring in
dollars from outside Corpus Christi into the City;
WHEREAS, the Process and Instrumentation Technology Training expansion will
further Del Mar College's mission of education and economic development; and
In consideration of the covenants, promises, and conditions stated in this Agreement,
Corporation and Del Mar Foundation 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 five years beginning on the effective date.
3. Performance Requirements and Grants.
a. Del Mar College Foundation shall purchase Process Technology Base Unit
and Glycol Distillation Unit with ancillary equipment/software and a Process
Control Learning System for DMC's Process and Instrumentation training
Program.
b. The Corporation will reimburse Del Mar Foundation for the costs incurred by
Del Mar Foundation to acquire the equipment to expand the Del Mar College
Process and Instrumentation Training Program. The amount reimbursed by the
Corporation may not exceed $1,390,071.
c. On the annual anniversary of the effective date of this agreement, Del Mar
Foundation shall report to the Corporation the number of students completing
Process Technology and Instrumentation training programs at Del Mar College
during the previous year.
4. Buy Local Provision.
a. Del Mar Foundation agrees to use its best efforts to give preference and
priority to local manufacturers, suppliers, contractors, and labor, except where
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Business Incentive Agreement-Del Mar Industrial Program
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.
5. Utilization of Disadvantaged Business Enterprises ("DBE"). Del Mar Foundation
agrees to exercise reasonable efforts in utilizing contractors and suppliers that are
determined to be disadvantaged business enterprises, including minority business
enterprises women-owned business enterprises and historically-underutilized business
enterprises. In order to qualify as a business enterprise under this provision, the firm
must be certified by the City, the Regional Transportation Authority or another
governmental entity in the jurisdiction of the home office of the business as complying
with state or federal standards for qualification as such an enterprise. Del Mar
Foundation agrees to a goal of 30% of the total dollar amount of all construction
contracts and supply agreements being paid to disadvantaged business enterprises,
with a priority made for disadvantaged business enterprises which are local. Del Mar
Foundation agrees, during the construction of the Project and for four years after
Completion, to maintain written records documenting the efforts of Del Mar Foundation
to comply with the DBE Requirement, and to provide an annual report to the City
Manager or designee, from which the City Manager or designee shall determine if Del
Mar Foundation is in compliance with this requirement. Failure to substantially comply
with this requirement, in the sole determination of the City Manager or designee, 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 disadvantaged business
enterprises, including minority business enterprises women-owned business enterprises
and historically-underutilized business enterprises includes firms, businesses, and
persons who reside in or maintain an office within a 50 mile radius of Nueces County.
6. Warranties. Del Mar Foundation warrants and represents to Corporation the
following:
a. Del Mar Foundation is a 501(c)(3) organization and 509(a)(1) public charity
under the Internal Revenue Code, 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 Foundation has the authority to enter into and perform, and will
perform, the terms of this Agreement to the best of its ability.
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Business Incentive Agreement-Del Mar Industrial Program
c. Del Mar Foundation 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 Foundation has access to the Texas Development Corporation Act,
Subtitle C1, Title 12, Texas Local Government Code, on the State of Texas'
website, 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 Foundation are
duly authorized to execute this Agreement on behalf of Del Mar Foundation.
f. Del Mar Foundation does not and agrees that it will not knowingly employ an
undocumented worker. If, after receiving payments under this Agreement, Del
Mar Foundation is convicted of a violation under §U.S.C. Section 1324a(f), Del
Mar Foundation shall repay the payments received under this Agreement to the
City, with interest at the Wall Street Journal Prime Rate, not later than the 120th
day after the date Del Mar Foundation has been notified of the violation.
7. Compliance with Laws. Del Mar Foundation shall observe and obey all applicable
laws, ordinances, regulations, and rules of the Federal, State, county, and city
governments.
8. Non-Discrimination. Del Mar Foundation covenants and agrees that Del Mar
Foundation will not discriminate or 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 Del Mar Foundation 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 Foundation 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. Del Mar Foundation may not assign all or any part of its rights,
privileges, or duties under this Agreement without the prior written approval of the
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Corporation and City. Any attempted assignment without approval is void, and
constitutes a breach of this Agreement.
11. Indemnity. To the extent authorized by law, Del Mar Foundation 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 Del Mar Foundation 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. Del Mar Foundation
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. The following events constitute a default of this Agreement:
a. Failure of Del Mar Foundation to timely, fully, and completely comply with any
one or more of the requirements, obligations, duties, terms, conditions, or
warranties of this Agreement.
b. The Corporation or City determines that any representation or warranty on
behalf of Del Mar Foundation 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 Del Mar Foundation or any attachment or
other levy against the property of Del Mar Foundation with respect to a claim
remains unpaid, undischarged, or not dismissed for a period of 120 days.
d. Del Mar Foundation makes an assignment for the benefit of creditors.
e. Del Mar Foundation files a petition in bankruptcy, or is adjudicated insolvent
or bankrupt.
f. If taxes owed by Del Mar Foundation become delinquent, and Del Mar
Foundation fails to timely and properly follow the legal procedures for protest or
contest.
g. Del Mar Foundation 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 Del Mar
Foundation is in default according to the terms of this Agreement, the Corporation or
City shall notify Del Mar Foundation in writing of the event of default and provide 60
days from the date of the notice ("Cure Period") for Del Mar Foundation 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 Del Mar Foundation, 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 Foundation shall immediately repay all funds paid by Corporation
under this Agreement.
b. Del Mar Foundation shall pay Corporation's reasonable attorney fees and
costs of court to collect amounts due to Corporation.
c. The Corporation shall have no further obligations to Del Mar Foundation 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 Del Mar Foundation's default may not be
considered an estoppel against the Corporation.
d. It is expressly understood that if at any time Del Mar Foundation 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.
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Business Incentive Agreement-Del Mar Industrial Program
16. Del Mar Foundation specifically agrees that Corporation shall only be liable to Del
Mar Foundation for the actual amount of the money grants to be conveyed to Del Mar
Foundation, and shall not be liable to Del Mar Foundation 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 Foundation to be accompanied by all necessary
supporting documentation.
17. 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.
18. Notices.
a. Any required written notices shall be sent mailed, certified mail, postage
prepaid, addressed as follows:
Del Mar:
Del Mar College Foundation
Attn: Executive Director of Development
101 Baldwin
Corpus Christi, Texas 78404
Corporation:
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:
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Business Incentive Agreement-Del Mar Industrial Program
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.
19. 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.
20. 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.
21. Relationship of Parties. In performing this Agreement, both the Corporation and
Del Mar Foundation 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.
22. 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.
23. 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.
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Business Incentive Agreement-Del Mar Industrial Program
•
24. Venue. Venue for any legal action related to this Agreement is in Nueces County,
Texas.
25. Sole Agreement. This Agreement constitutes the sole agreement between
Corporation and Del Mar Foundation. Any prior agreements, promises, negotiations, or
representations, verbal or otherwise, not expressly stated in this Agreement, are of no
force and effect.
26. 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.
(Remainder of page intentionally left blank)
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Business Incentive Agreement-Del Mar Industrial Program
Corpus Christi Busine = : Job Development Corporation
Or
By:
Robert Tamez
President
Date: 7 — 0 p
ez o i>/
Attest: uktiv
By: r •
Rebecca Huerta _.... 3.P
City Secretary 0 L
Del Mar College Foundation, Inc. >3Efv
By:
Mary 1/McQueen, CFRE
Executive Director of Development
Date: // A.20/V
THE STATE OF TEXAS
COUNTY OF NUECES
This instrument was acknowledged before me on AM� i'12- , 2014, by
Mary C. McQueen, CFRE, Executive Director of Development, Del Mar College
Foundation, Inc., a 501(c)(3) organization supporting Del Mar College, a political
subdivision of the State of Texas, on behalf of the Foundation.
4 ) 4 -
Notary Falic
State o Texas ��" ""
li OL� te JOEL A. Sary PublicIZ
'1i.%
iT Sate of Texas
Comm. Exp.08-02-14
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Business Incentive Agreement-Del Mar Industrial Program