HomeMy WebLinkAboutC2016-389 - 9/20/2016 - Approved BUSINESS INCENTIVE AGREEMENT BETWEEN
THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION AND
TEXAS A&M UNIVERSITY—CORPUS CHRISTI
re: DEVELOPMENT OF FACILITIES FOR THE BACHELOR OF SCIENCE IN 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 Cl, 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 1/8th 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 August 17, 2015, amended
the Corporation's Guidelines and Criteria for Granting Business Incentives ("Type A Guidelines"),
which the City Council approved on September 15, 2015;
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 civil and industrial
engineering;
2016-389
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Ord. 030961 t Jobs Training TAMU-CC 07-18-16
TAMU-CC INDEXED
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
Agreement 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 to
be used in TAMU-CC's Civil and Industrial Engineering programs.
WHEREAS, TAMU-CC intends to invest approximately $4,000,000 over a five-year period,
including the funding received from the Corporation;
WHEREAS, on July 18, 2016, 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 new engineering programs 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 five years beginning on the Effective Date.
3. Performance Requirements and Conditions.
a. TAMU-CC shall purchase laboratory equipment for its civil and industrial engineering
programs and construct or retrofit existing labs for civil and industrial engineering as
needed (the "Project").
b. The Corporation will reimburse TAMU-CC for the costs incurred by TAMU-CC related
to the Project. TAMU-CC shall submit to the Corporation documentation reasonably
satisfactory to the Corporation of costs incurred by TAMU-CC related to the Project and
the Corporation shall provide reimbursement within 30 days of receipt of such
documentation. The amount reimbursed by the Corporation may not exceed
$2,000,000.
c. On the annual anniversary of the Effective Date, TAMU-CC shall report to the
Corporation the number of students enrolled in the Civil and Industrial Engineering
programs at TAMU-CC during the previous year.
d. TAMU-CC will display signage that states that TAMU-CC is a recipient of Type A
funding. This signage will be created at TAMU-CC's own expense, and will be displayed
in a location that is visible to a visitor to the facility.
e. If the programs are not funded by the TAMU-CC or the Texas Legislature by September
1, 2018, this Agreement shall automatically terminate.
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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
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 law to be filed and all taxes, 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 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
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 120th 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 illegally
discriminate nor permit illegal 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
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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.
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.
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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.
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.
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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.
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
Attn: Director of Contracts and Property
6300 Ocean Drive, Unit 5731
Corpus Christi, Texas 78412-5731
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 to 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.
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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.
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.
28. Public Information.
a. Corporation and TAMU-CC each acknowledge that the other is obligated to comply with
the Public Information Act, Chapter 552, Texas Government Code, in responding to any
request for public information pertaining to this Agreement, as well as any other disclosure
of information required by applicable Texas law.
b. Upon written request from the other party, Corporation or TAMU-CC will provide specified
public information exchanged or created under this Agreement that is not otherwise
excepted from disclosure under chapter 552, Texas Government Code, to the other party
in a non-proprietary format acceptable to the other party. As used in this provision, "public
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information" has the meaning assigned by Section 552.002, Texas Government Code, but
only includes information to which the other party has a right of access.
Corpus Christi Business & Job De -lopment Corporation
By:
�r
*r. R. B• an Gul ey
-President
Date:
v d
6 .""••••• *...W.A.. .CEAU tHUtaiti
Attest:
IT CUUN:.i, 41 I(,
R43,By: . ,c-ai,----Hix.e.-e-- -- ............................... .....
Rebecca Huerta - cFCRETARV
Assistant Secretary
Approved as to Legal Form �j
By: 0JU Qi Q iPAA -�f�Ztc-c)
Aimee Alcorn-Reed
Assistant City Attorney
Attorney for Corporation
Date: .?SJ 2,(-414
Texas A&M University—Corpus Christi
�TBy: .,-- __._-s___...---
` Dr. Flavius Killebrew
President
THE STATE OF TEXAS
COUNTY OF NUECES
This instrument was acknowledged before me ona 1 , 2016 by Dr. Flavius
Killebrew, President of Texas A&M University-Corpus hristi, a member of the Texas A&M
University System, an agency of the State of Texas, on behalf of the university.
i44% PEGGY GAFFNEY �/ �r' r
MY COMMISSION EXPIRES / /� /
!p.;�•• June 22,2019
A)Olaf 1 f u.,d I i L
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