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Home My WebLink AboutPR 19374: CLOSING THE ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT, MPW INDUSTRIAL WATER SERVICES, INC., EDC } Interoffice MEMORANDUM To: Mayor, City Council, City Manager From: Floyd Batiste, CEO c=k6 BA hst--L. Date: May 11, 2016 Subject: P. R. No. 19374; Council Meeting of May 18, 2016 ATTACHED IS PROPOSED RESOLUTION 19374 APPROVING CLOSING THE ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN MPW INDUSTRIAL WATER SERVICES, INC. AND THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION P.R. No. 19374 4/25/2016 KVM RESOLUTION NO. A RESOLUTION APPROVING CLOSING THE ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN MPW INDUSTRIAL WATER SERVICES, INC. AND THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION WHEREAS, Resolution 10-445 granted an Economic Incentive Contract & Loan Agreement (the "Agreement") to MPW Industrial Water Services, Inc. ("MPW"), an Ohio corporation to construct a state of the art industrial water treatment facility within the Port Arthur Business Park on Spur 93 (the "Business Park"); and WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation (the "PAEDC") granted ten (10) acres of land within the Business Park with an estimated fair market value of$425,000 to MPW; and WHEREAS, MPW promised to distribute $967,000 in payroll over the five-year term of the Agreement as measured by IRS forms W-2 and W-3; and WHEREAS, MPW has produced payroll of$1,765,143.99 during the five-year term and exceeded the required payroll of $967,000 as set forth in the Agreement attached hereto and incorporated herein as Exhibit "A"; and WHEREAS, MPW has provided evidence as required by PAEDC to prove its commitments were satisfied, and the Agreement shall terminate; and WHEREAS, on May 2, 2016, the PAEDC Board of Directors deemed the Agreement complete thereby closing the Agreement with MPW. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the PAEDC is herein authorized to close the Agreement with MPW Industrial Water Services, Inc. Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2016, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor Councilmembers • NOES: . Debris "Bobbie" Prince, Mayor ATTEST: Sherri Bellard, City Secretary APPROVED: -67) Floyd Batiste, PAE C CEO #1280895 Page 2 APPROVED AS T 1 1 RM: Guy N. Goodson, PAEDC Attorney APPROVED AS TO FORM: Valecia R. Tizeno, City Attorney #1280895 Page 3 EXHIBIT "A" .ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION MPW INDUSTRIAL WATER SERVICES, INC. Executive Summary MPW Industrial Water Services, Inc. ("Incentive Recipient") in an Ohio corporation and operates through gh various business entities which include operations in the treatment of industrial water supplies. Incentive Recipient has proposed a 35,000-45,000 square foot state of the art industrial water treatment facility(the`Project") to be located on property within the City of Port Arthur Section 4A Economic Development Corporation (the `PAEDC") Business Park on Spur 93 in Port Arthur, Texas (the "Business Park"). The PAEDC along with the City of Port Arthur, Texas (the "City") shall assist Incentive Recipient in this business endeavor by providing certain agreements or incentives which, as to the PAEDC, shall include a conditional grant/loan in exchange for certain agreements by Incentive Recipient for the creation of full-time permanent jobs. Incentive Recipient will be provided a credit against payroll paid to the full-time employees of Incentive Recipient at the Project with additional incentives to be provided to Incentive Recipient for hiring Port Arthur residents who shall work not less than six6 during any year during the term of the Agreement. ( } months The Economic Incentive Contract & Loan Agreement (the "Agreement") shalI be for a period of five (5) years from the date Incentive Recipient initiates its business operations within the Business Park. Incentive Recipient has further agreed to execute the First Source Referral Agreement and to utilize the services of the PAEDC to find qualified applicants for employment at the Project. The PAEDC has agreed that as consideration for the promised performance of Incentive Recipient, PAEDC shall convey to Incentive Recipient ten(10) acres of land within the Business Park. PAEDC and Incentive Recipient have agreed that the incentive credit shall be for an amount not to exceed 425,000, and Incentive Recipient shall have a period of five (5) years, as stated above, from the date it initiates business operations on the property to meet its promised performance pursuant to the Agreement. Incentive Recipient shall have the option to cancel all duties and obligations under the Agreement and have the property Iocated within the Business Park transferred to it under Special Warranty Deed by paying to the PAEDC the difference between $425,000 and any credits generated prior to the date of such payment (the "Buyout Option"). The Buyout Option shall apply even in the event of termination of the Agreement by PAEDC. Incentive Recipient has agreed to a Performance Milestone Schedule and the providing of status reports as outlined in the Agreement. ECONOMIC INCENTIVE &LOAN AGREEMENT BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION AND MPW INDUSTRIAL WATER SERVICES,INC. ("INCENTIVE RECIPIENT") INTRODUCTION AGREEMENT TERM 1 PARTIES 1 PROMISED PERFORMANCE 1 2 (A) PERFORMANCE BY PAEDC 2 (B) PERFORMANCE BY INCENTIVE RECIPIENT 2 (C) CREDITS—SUBSTITUTE PERFORMANCE 3 (D) FIRST SOURCE REFERRAL AGREEMENT 4 PERFORMANCE MILESTONE SCHEDULE 4 CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY OF PAEDC 6 LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT 6 RECORDS/INSPECTION/PAEDC AUDIT 7 HOLD HARMLESS SUBCONTRACTS 8 8 CONFLICT OF INTEREST/DISCLOSURE OBLIGATION 9 NONDISCRIMINATION/EMPLOYMENT/REPORTING 9 9 LEGAL AUTHORITY NOTICE OF LEGAL OR REGULATORY CLAIMS 10 10 CHANGES AND AMENDMENTS DEFAULT/TERMINATION 10 COMPLIANCE AUDITS 11 SUPPLEMENTAL COVENANT 11 ENVIRONMENTAL REQUIREMENTS 12 • 12 ORAL AND WRITTEN AGREEMENTS/PRIOR AGREEMENTS 13 VENUE ADDRESS OF NOTICE AND COMMUNICATIONS 13 13 CAPTIONS COMPLIANCE WITH FEDERAL,STATE AND LOCAL LAWS 14 CONDITIONS PRECEDENT 14 ATTORNEY APPROVALS 14 AGREEMENT EXECUTION 15 Exhibit"A" Conditional Commercial Promissory Note 15 Exhibit"B" Special Warranty Deed Exhibit"C" Deed of Trust Exhibit"D" Certification Regarding Lobbying Exhibit"E" Compliance Statement Exhibit"F" First Source Referral Agreement Exhibit"G" Incentive Recipient Application to PAEDC u ECONOMIC INCENTIVE CONTRACT&LOAN AGREEMENT BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION AND MPW INDUSTRIAL WATER SERVICES,INC. ("INCENTIVE RECIPIENT") INTRODUCTION The Incentive Recipient is an Ohio corporation doing business in Port Arthur, Texas. The Incentive Recipient intends to construct a new industrial water treatment facility (the "Project") on property located within the City of Port Arthur Section 4A Economic Development Corporation (the "PAEDC") Business Park on Spur 93 in Port Arthur, Texas (the "Business Park"). The Project will include an estimated 35,000-45,000 square foot state-of-the-art industrial water treatment facility. Current market demands are such that Incentive Recipient plans to initiate the above- referenced business operation. The PAEDC will assist Incentive Recipient in this business endeavor by providing the hereinafter described conditional grant and/or loan or other incentives in exchange for the promise by Incentive Recipient of creation of fulltime permanent jobs. AGREEMENT TERM EFFECTIVE DATE 1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered into with an effective date of ‘iwcc�o. z , 201 ) (the "Effective Date"), by and between the PAEDC and Incentive Recipient. TERMINATION DATE 2. This Agreement expires the earlier of January 31, 2017, or 30 days after Incentive Recipient either performs fully or breaches the Agreement, subject to earlier termination or extension, voluntary or involuntary, as provided herein (the "Termination Date"). The period from the Effective Date of this Agreement through and including the Termination Date of this Agreement as provided in the previous sentence hereof, is sometimes referred to in this Agreement as the "Term"of this Agreement. PARTIES 3. City of Port Arthur Section 4A Economic Development Corporation ("PAEDC"), located at 4173-39th Street, Port Arthur, Texas, 77642, is a corporation. It is duly authorized to do business in the State of Texas under Chapter 504, Local Government Code (the "Development Corporation Act of 1979" as amended) and duly authorized by Resolution of the City Council of the City of Port Arthur (the "City") to enter into this Agreement. As so authorized and as provided by the PAEDC bylaws, the President and Secretary of the PAEDC Board have the authority to execute this Agreement. 4. MPW Industrial Water Services, Inc. ("Incentive Recipient") is an Ohio corporation. The Incentive Recipient is not currently registered with the Texas Secretary of State, but is in the process of filing the proper paperwork to be so registered. Incentive Recipient's corporate headquarters is located at 9711 Lancaster Road SE, Hebron, OH 43025. PROMISED PERFORMANCE 5. The parties agree to perform as follows. (a) PERFORMANCE BY PAEDC i. PAEDC shall conditionally grant Incentive Recipient an incentive of $425,000, subject to the conditions and limitations herein, which Incentive Recipient is not required to pay back unless Incentive Recipient breaches this Agreement. If Incentive Recipient breaches this Incentive Agreement, then the conditional grant will become a loan as provided in Exhibit"A". ii. The conditional grant to Incentive Recipient shall be for the conveyance of ten (10) acres of land in the Business Park as more fully described in the Special Warranty Deed attached hereto as Exhibit"B"to this Agreement(the "Property"). iii. PAEDC shall hold in escrow the Special Warranty Deed described in Exhibit"B" to this Agreement (the "Special Warranty Deed"), such Deed shall be recorded upon the satisfaction of the obligations of the Incentive Recipient under this Agreement. PAEDC WTI L ONLY PROVIDE AN INCENTIVE AS TO THE PROPERTY IF INCENTIVE RECIPIENT HAS DULY EXECUTED A DEED OF TRUST AND/OR OTHER APPROPRIATE COLLATERAL SECURITY INTEREST AS TO THE PROPERTY. PAEDC SHALL NOT PROVIDE ADDITIONAL INCENTIVES EVEN THOUGH THERE ARE DEMONSTRATED INCREASES IN THE VALUE OF THE PROPERTY DUE TO IMPROVEMENTS PLACED THEREON BY INCENTIVE RECIPIENT. HOWEVER, INCENTIVE RECIPIENT SHALL RECEIVE PROCEEDS, LESS THE AMOUNTS DUE UNDER THE NOTE (INCLUDING COST OF COLLECTION), GENERATED FROM THE SALE OF ANY COLLATERAL OR PROPERTY HELD FOR PERFORMANCE OF THE OBLIGATIONS UNDER THE CONDITIONAL GRANT. THE DUTIES AND OBLIGATIONS OF THIS AGREEMENT ARE PAEDC'S ONLY OBLIGATIONS TO INCENTIVE RECIPIENT. (b) PERFORMANCE BY INCENTIVE RECIPIENT (1) Incentive Recipient shall employ hereinafter designated employees and shall receive credits against total payroll set forth in paragraph 5(b)(2) and (3) of this Agreement as measured by Internal Revenue Service (IRS) forms W-2 and W-3. Incentive Recipient acknowledges that employees shall be employed at the Property or otherwise within the corporate limits of the City in order to receive credits toward the payroll performance obligations of Incentive Recipient. If Incentive Recipient shall employ Port Arthur residents at other locations other than the Property or outside the corporate limits of the City, such employees' payroll may not be included within the payroll performance credits of Incentive Recipient without the prior written consent of PAEDC and the City. (2) Incentive Recipient shall receive a $1 credit for each $5.86 of payroll paid to employees of Incentive Recipient which payroll shall be for both Port Arthur and #782990 Page 2 non-Port Arthur residents employed at the Property or within the corporate limits of the City. Incentive Recipient shall receive this credit for a period not to exceed five (5) years after it initiates business operation on the Property. This incentive credit for payroll for both Port Arthur and non-Port Arthur residents shall not exceed a total credit of$340,000 during the terms of this Agreement. (3) In addition to the credit provided in paragraph (2) above, Incentive Recipient will also receive $1 credit for each $5.86 of payroll for each Port Arthur resident working not less than six (6) months during any year during the term of this Agreement; the additional credit to Incentive Recipient shall not exceed$85,000. Incentive Recipient shall receive the credits described in sections (b)(2) and (3) above for a period not to exceed five (5) years after it initiates business operation on the Property. The Incentive Recipient shall not accrue payroll credits within said five (5) year period after this Agreement has terminated due to its terms. This incentive credit for payroll for both Port Arthur and non-Port Arthur residents shall not exceed a total credit of$425,000 during the terms of this Agreement. (4) Incentive Recipient shall have a period of five (5) years from the date it initiates business operations on the Property to meet the conditions of this Agreement. (5) Incentive Recipient will be required to meet the conditions and agreements set forth in the First Source Referral Agreement attached hereto as Exhibit "F" and made a part hereof for all purposes. (6) If the conditional grant provided by PAEDC to Incentive Recipient is to be secured by an interest in real property, Incentive Recipient shall execute the Deed of Trust contained in Exhibit"C". (7) On demand by PAEDC and in response to Incentive Recipient's failure to achieve a performance milestone, Incentive Recipient shall provide PAEDC with reasonable assurances, proposed by Incentive Recipient and reasonably acceptable to PAEDC, that it has both the intention and the capabilities to perform fully its contractual obligations. (c) CREDITS-SUBSTITUTE PERFORMANCE Incentive Recipient may earn credits according to the following terms, to either reduce the duration of this Agreement or reduce the amount of liquidated damages in the event Incentive Recipient breaches the Agreement. (1) Total credits cannot exceed $425,000. (2) Incentive Recipient will forfeit any credits it earned during a period for which a report is scheduled but Incentive Recipient fails to issue the report despite notice of need for such report from PAEDC. #782990 Page 3 (3) Once Incentive Recipient has earned credits equal to $425,000, the conditional grant and all obligations to PAEDC shall terminate; however, no termination of the obligations for a conditional grant shall eliminate the obligations of Incentive Recipient to PAEDC to repay any loan described in Exhibit "A" nor to eliminate any obligations under any collateral security agreements including by not limited to those described in Exhibit "C" which shall remain in full force and effect until the Conditional Commercial Promissory Note(the"Note")is paid in full. (4) Incentive Recipient shall always have the option to cancel all duties and obligations under this Agreement and the Note and Deed of Trust, and have the Property properly transferred solely into its name under a Special Warranty Deed, by paying to PAEDC the difference between $425,000 and any credits generated prior to the date of such payment ("Buyout Option"). This Buyout Option applies even in the event of termination of the Agreement by PAEDC. (d) FIRST SOURCE REFERRAL AGREEMENT PAEDC has adopted policies and procedures to assist Incentive Recipient in locating a qualified workforce within the City. The First Source Referral Agreement is incorporated into this Agreement in Exhibit "F" ("First Source"). Incentive Recipient has agreed to the policies and procedures within First Source as a resource and referral for all appropriate new job openings of Incentive Recipient. PERFORMANCE MILESTONE SCHEDULE 6. Upon failure to achieve a performance milestone and after Incentive Recipient has been given an opportunity of no less than thirty (30) days to cure a default, PAEDC may demand reasonable assurances' from Incentive Recipient that it can and will fully perform its contractual obligations. Failure to provide such reasonable assurances following demand of PAEDC is a breach of contract. 7. Incentive Recipient's performance milestones are contained in the following table. Upon receipt of any status report Iisted below, PAEDC shall, as requested by Incentive Recipient, issue documentation to the Incentive Recipient setting forth the total uncredited/unpaid amount remaining. PERFORMANCE MILESTONE SCHEDULE Deadline MllestQne (a) December 31, 2010 Issue a status report2 to PAEDC's Chief Executive Officer ("CEO") for the period from the November 1, 2010 to December 30,2010. f Examples of reasonable assurances are copies of pending contracts and customer commitment letters and/or payment of an agreed amount showing commitment to contractual obligations. 2 Status reports shall include copies of invoices and check payments for assets purchased with PAEDC funds during the reporting period, quarterly balance sheets,quarterly profit and Ioss statements,and employee reports.As to job creation performance,interim status reports shall include documentation substantiating the accuracy of such reports,including, #782990 Page 4 (b) July 1, 201I Issue a status report2 to PAEDC's CEO for the period from January I, 2011 to June 30, 2011. (c) December 31, 2011 Issue a status report to PAEDC's CEO for the period from July 1, 2011 to December 31, 2011 (d) July 31,2012 Issue a status report to PAEDC's CEO for the period from January 1, 2012 to June 30, 2012. (e) January 31, 2013 Issue a status report2 to PAEDC's CEO for the period from July 1, 2012 to December 31, 2012 (f) January 31,2013 Achieve performance of annualized payroll of $692,000 for year ending December 31, 2012 (g) July 31, 2013 Issue a status report2 to PAEDC's CEO for the period from January 1, 2012 to June 30, 2012. (h) January 31, 2014 Issue a status report to PAEDC's CEO for the period from July 1, 2012 to December 31, 2013 (i) January 31,2014 Achieve performance of annualized payroll of $829,500 for year ending December 31,2013 (j) July 31, 2014 Issue a status report2 to PAEDC's CEO for the period from January 1, 2014 to June 30, 2014. (k) January 31,2015 Issue a status report2 to PAEDC's CEO for the period from July 1, 2014 to December 31, 2014 (1) January 30, 2015 Achieve performance of annualized payroll of $967,000 for year ending December 31, 2014 (m) July 30, 2015 Issue a status report2 to PAEDC's CEO for the period from January 1, 2015 to June 30, 2015. (n) January 31, 2016 Issue a status report2 to PAEDC's CEO for the period from July 1, 2015 to December 31, 2015 (o) January 31, 2016 Maintain achieved performance of annualized payroll of $967,000 for year ending December 31, 2015 (p) July 30, 2016 Issue a status report2 to PAEDC's CEO for the period from January 1, 2016 to June 30, 2016. (q) January 31, 2017 Issue a status report2 to PAEDC's CEO for the period from July 1, 2016 to December 31, 2016. (r) January 31,2017 Maintain achieved performance of annualized payroll of $967,000 for year ending December 31,2016 for example,941 payment reports,Texas Workforce Commission reports,or other such reports confirming total jobs, payroll and other relevant information. Driver's license information is appropriate for interim reporting of Port Arthur residents hired. The reporting objective is to include documentation necessary for PAEDC to verify said report without further outside inquiry. #782990 Page 5 PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY 8. PAEDC has promised performance to execute and to hold in escrow the Special Warranty Deed described in Exhibit "B" to this Agreement. PAEDC has not undertaken any obligation to provide title insurance for the Property nor has ordered or undertaken to secure a commitment of title insurance for the Property. Incentive Recipient may, at its sole cost and expense, secure such title information and title insurance as it deems necessary for its purposes as to the Property. If, upon securing a commitment for title insurance or Incentive Recipient notifies PAEDC of any issue with the condition of title to the Property that may limit access or use of the Property or limit the ability of Incentive Recipient to construct and operate its proposed facilities on the Property, Incentive Recipient shall notify PAEDC within ten (10) days of receipt of the title commitment and describe the curative steps that are deemed necessary to eliminate title defects or exceptions. PAEDC shall cure such title defects or eliminate title encumbrances to enable Incentive Recipient to make full utilization of the Property. 9. PAEDC has not secured a ground survey for the Property, but has provided boundary information to Incentive Recipient which shall be utilized to describe the Property in the Special Warranty Deed, Incentive Recipient may, at its sole cost and expense, undertake a ground survey of the Property, and if such is undertaken, Incentive Recipient shall provide PAEDC with the ground survey, and after approval, PAEDC agrees that all references within this Agreement and all exhibits hereto shall include as the description of the Property the ground survey as provided by Incentive Recipient to PAEDC., If the ground survey reveals any material deviations from the boundary information, then PAEDC shall correct such deviations by conveying additional property to Incentive Recipient up to but not to exceed the ten (10) acres of land promised as an incentive to Incentive Recipient. 10. Incentive Recipient shall not use the Property for any purpose(s) other than that specifically disclosed herein and as further disclosed within its Application made by or on behalf of Incentive Recipient, which is incorporated herein for all purposes. 11. Incentive Recipient may not assign any of its rights wider this Agreement without the prior written consent of the PAEDC and the City nor may Incentive Recipient make any subordinate deed of trust or collateral security agreements as to the Property without the prior written consent of PAEDC. LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT 12. In the event Incentive Recipient fails to perform its obligations under this Agreement, following notice thereof from PAEDC and following a thirty (30) day opportunity to cure the default, the PAEDC grant, minus any credits earned, will automatically convert to a loan (liquidated damages), effective on the day of breach, as agreed by Incentive Recipient in the executed Conditional Commercial Promissory Note contained in Exhibit"A." Further, the PAEDC shall be entitled to recover its reasonable and customary attorney's fees and court costs incurred in collection of said obligation and such remedies as are provided at law or in equity. 13. It is expressly understood and agreed by the parties that the exercise of any right or remedy shall not preclude the exercise of any other right or remedy under this Agreement or under any provision of law, nor shall any action taken in the exercise of any right or remedy be deemed a #782990 Page 6 waiver of any other rights or remedies. Failure to exercise any right or remedy hereunder shall not constitute a waiver of the right to exercise that or any other right or remedy at any time. RECORDS/INSPECTION 1 PAEDC AUDIT 14. Incentive Recipient must establish and maintain sufficient records, as reasonably determined by the PAEDC, to account for the employment and payroll which are the basis of the conditional grant to Incentive Recipient from PAEDC under the terms and conditions of this Agreement. 15. Incentive Recipient shall maintain employment records as necessary to allow the PAEDC to audit and verify proper utilization of First Source and to verify any and all other covenants, representations and warranties contained herein and in Incentive Recipient's Application. 16. Upon ten-day (10-day) advance notice, Incentive Recipient shall give the PAEDC, or any of its duly authorized representatives, access to and right to examine all books, accounts, records, reports, files and other papers, things or property directly related to this Agreement and belonging to or in use by Incentive Recipient. Such rights to access shall continue as long as the records related to this Agreement are retained by Incentive Recipient. Incentive Recipient agrees to maintain such records in an accessible location. All information obtained by the PAEDC, or its duly authorized representatives, shall be regarded as the confidential business information of Incentive Recipient and the PAEDC shall take reasonable measures to protect such information from disclosure to third parties; however, PAEDC is subject to the requirements of the Texas Open Meetings Act and Open Records Act (Tex. Gov. Code, 551 & 552). Incentive Recipient agrees that disclosures to the public required by the Texas Open Meetings Act, Texas Open Records Act, or any other legal requirement will not expose PAEDC (or any party acting by, through or under PAEDC) to any claim, liability or action by Incentive Recipient (or any party working by, through or under). 17. All records pertinent to this Agreement shall be retained by Incentive Recipient at least three years following the date of termination of this Agreement, whether said termination is a result of default or whether said termination is a result of final submission of a close out report by Incentive Recipient detailing its compliance with its obligations provided herein. Further, in the event any litigation, claim or audit arising out of or related to this Agreement is instituted before the expiration of the three (3) year period and extends beyond the three year period, the records will be maintained until all litigation, claims or audit findings involving this Agreement and the records made the basis of same have been resolved. 18. Incentive Recipient shall provide PAEDC with all reports necessary for PAEDC compliance with the Development Corporation Act of 1979, as amended. 19. It is expressly understood and agreed by the parties hereto that if Incentive Recipient fails to submit to PAEDC in a timely and satisfactory manner any report required by this Agreement, PAEDC may, at its sole discretion, demand assurances that Incentive Recipient can and will fully perform its contractual obligations. If Incentive Recipient fails to provide adequate assurances then Incentive Recipient is in breach, and any monies advanced by PAEDC automatically become a loan. #782990 Pagel 20. The PAEDC reserves the right, from time to time, to carry out field inspections/audits to ensure compliance with the requirements of this Agreement. After completion of any such audit, the PAEDC may provide Incentive Recipient with a written report of the audit findings. If the audit report details deficiencies in its performance under the terms and conditions of this Agreement, the PAEDC may establish requirements for the timely correction of any such deficiencies by Incentive Recipient. HOLD HARMLESS 21. INCENTIVE RECIPIENT AGREES TO HOLD HARMLESS THE PAEDC AND THE CITY OF PORT ARTHUR FROM ANY AND ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF ANY KIND OR CHARACTER WHICH MAY BE ASSERTED BY ANY THIRD PARTY OCCURRING, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE PROJECT MADE THE BASIS OF THIS AGREEMENT, AND THE UTILIZATION OF GRANT FUNDS PROVIDED BY THIS AGREEMENT, PROVIDED THAT SUCH CLAIM, DEMAND OR CAUSE OF ACTION DOES NOT ARISE FROM ANY FRAUD OR MISCONDUCT ON THE PART OF THE PAEDC OR THE CITY OF PORT ARTHUR, OR ANY AGENT,EMPLOYEE OR REPRESENTATIVE OF EITHER. SUBCONTRACTS 22. Incentive Recipient may not subcontract for performance credits described in this Agreement without obtaining PAEDC's written approval, which may be withheld for any reason. Incentive Recipient shall only subcontract for performance credits described in this Agreement after Incentive Recipient has submitted a Subcontractor Eligibility Request, as specified by PAEDC, for each proposed subcontract, and Incentive Recipient has obtained PAEDC's prior written approval. Incentive Recipient, in subcontracting for any performances described in this Agreement, expressly understands that in entering into such subcontracts, PAEDC is in no way liable to Incentive Recipient's subcontractor(s). 23. In no event shall PAEDC's prior written approval of a subcontractor's eligibility, be construed as relieving Incentive Recipient of the responsibility for ensuring that the performances rendered under all subcontracts are rendered so as to comply with all terms of this Agreement, as if such performances rendered were rendered by Incentive Recipient. PAEDC's approval does not constitute adoption, ratification, or acceptance of Incentive Recipient's or subcontractor's performance hereunder. PAEDC maintains the right to insist upon Incentive Recipient's full compliance with the terms of this Agreement, and by the act of subcontractor approval, PAEDC does not waive any right of action which may exist or which may subsequently accrue to PAEDC under this Agreement. 24. Incentive Recipient, as well as all of its approved subcontractors, shall comply with all applicable federal, state, and local laws, regulations, and ordinances for making procurement under this Agreement. #782990 Page 8 CONFLICT OF INTEREST/DISCLOSURE OBLIGATION 25. Conflict of Interest: No employee, agent, officer or elected or appointed official of the City of Port Arthur or the PAEDC who has participated in a decision making process related to this Agreement (without recusing him/herself and executing a conflict affidavit) may obtain a personal or financial interest or benefit from an PAEDC assisted activity, or have an interest in any contract, subcontract, or agreement (or proceeds thereof) with respect to an PAEDC assisted activity, during their tenure or for one (1) year thereafter. Insofar as relates to the conduct hereunder of Incentive Recipient, its agents, employees or representatives, Incentive Recipient shall ensure compliance with applicable provisions under Chapter 504, Local Government Code and Chapter 171 Local Government Code V.T.C.A. 26. Disclosure: In conjunction with execution of this Agreement, Incentive Recipient has fully disclosed to PAEDC all known and potential owners of interests in Incentive Recipient (whether shareholder, partner, limited partner, manager, member or otherwise). In the event of any change in ownership or control of Incentive Recipient of five percent (5 %) or greater, Incentive Recipient shall notify PAEDC in writing. Further, Incentive Recipient shall be obligated to notify in writing the PAEDC in the event any time prior to, during or one (1) year after the term of this Agreement, any City or PAEDC employee or representative or any third party with a conflict of interest obtains or proposes to obtain a financial benefit, direct or indirect, from Incentive Recipient. Failure to provide said notice immediately or no later than five (5) business days after receipt of information shall constitute a default herein. NONDISCRIMINATION/EMPLOYMENT/REPORTING 27. Incentive Recipient shall ensure that no person shall on the grounds of race, color, religion, sex, handicap, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds provided under this Agreement. Additionally, funds shall be used in accordance with the following requirements: (a) To the greatest extent feasible, opportunities for training and employment arising in connection with the planning and carrying out of any project assisted with PAEDC funds provided under this Agreement be given to Port Arthur residents; and (b) To the greatest extent feasible, agreements for work to be performed in connection with the Project shall be awarded to Port Arthur residents and businesses, including, but not limited to, individuals or firms doing business in the field of planning, consulting, design, architecture, building construction, rehabilitation, maintenance, or repair, which are located in or owned in substantial part by persons residing in the City. (c) If Incentive Recipient advertises for employment then it shall among any other advertising that it chooses to undertake covenants that it will advertise in the Port Arthur News, Incentive Recipient acknowledges that PAEDC does not intend to restrain any advertising in additional publications or media nor direct any others than that stated. #782990 Page 9 LEGAL AUTHORITY 28. Incentive Recipient assures and guarantees it possesses legal and/or corporate authority (i) to enter into this Agreement, receive the conditional grant authorized by this Agreement, and (ii) to perform the obligations hereunder. Incentive Recipient has provided, or shall provide, as requested by the PAEDC, such resolutions or other required authorizations necessary to evidence this authority. 29. The person or persons signing and executing this Agreement on behalf of Incentive Recipient, or representing themselves as signing and executing this Agreement on behalf of Incentive Recipient, do hereby warrant and guarantee that he, she, or they have been duly authorized by Incentive Recipient to execute this Agreement on behalf of Incentive Recipient and to • validly and legally bind Incentive Recipient to all terms, performances, and provisions herein set forth. NOTICE OF LEGAL OR REGULATORY CLAIMS 30. Incentive Recipient shall give PAEDC immediate notice in writing of 1) any material legal or regulatory action, including any material proceeding before an administrative agency filed against Incentive Recipient; and 2) any material claim against Incentive Recipient, which may impact continued operations. For purposes herein, "material" claims shall mean claims in excess of $250,000. Except as otherwise directed by PAEDC, Incentive Recipient shall furnish immediately to PAEDC copies of all pertinent documentation of any kind received by Incentive Recipient with respect to such action or claim. CHANGES AND AMENDMENTS 31. Except as specifically provided otherwise in this Agreement, any alterations, additions, or deletions to the terms of this Agreement shall be by amendment in writing and executed by all parties to this Agreement. Such amendments must be approved by the PAEDC Board of Directors and, by the City Council. 32. It is understood and agreed by the parties hereto that performances under this Agreement must be rendered in accordance with the regulations promulgated under the Development Corporation Act, the assurances and certifications made to PAEDC by Incentive Recipient, and the assurances and certifications made to the City with regard to the operation of the PAEDC's Projects. Based on these considerations, and in order to ensure the legal and effective performance of this Agreement by all parties, it is agreed by the parties hereto that the performances under this Agreement are by the provisions of the PAEDC Program and any amendments thereto and may further be amended in the following manner: PAEDC may from time to time during the period of performance of this Agreement issue policy directives which serve to interpret, or clarify performance requirements under this Agreement. Such policy directives shall be promulgated by the PAEDC Board of Directors in the form of PAEDC issuances, shall be approved by the City Council and shall have the effect of qualifying the terms of this Agreement and shall be binding upon Incentive Recipient, as if written herein, and if approved by the Incentive Recipient. If Incentive Recipient does not approve a policy directive as so submitted, then Incentive Recipient may exercise its rights under paragraph 5(c)(4). #782990 Page 10 33. Any alterations, additions, or deletions to the terms of this Agreement which are required by changes in Federal, state law or local Iaw are automatically incorporated into this Agreement without written amendment hereto, and shall become effective on the date designated by such law or regulation. DEFAULT/TERMINATION 34. In the event of default of any of the obligations of Incentive Recipient detailed herein or in the event of breach of any of the representations of or warranties of Incentive Recipient either detailed herein or in its application to the PAEDC, and following any notice and opportunity to cure provided for in this Agreement, and only after Incentive Recipient's refusal of the Buyout Option stated in Section 5(c)(4) of this Agreement, the PAEDC may, at its sole option, terminate this Agreement, in whole or in part. In the event of such termination, the PAEDC may, at its sole option, utilize one or more of the following actions to resolve or otherwise remedy said default: (a) Declare the Note executed in conjunction with this Agreement immediately effective. If Incentive Recipient defaults on the note, then the PAEDC may exercise its default remedies provided under collateral documentation executed in conjunction with said Note and this Agreement. (b) Exercise any remedies provided herein and/or within the Deed of Trust or any Collateral Security Documents. (c) Disallow all or a part of the incentives which are not in compliance with the terms and conditions of this Agreement or in compliance with the representations and warranties contained within this Agreement and Incentive Recipient's application to the PAEDC. (d) Withhold and/or disallow further PAEDC incentives to Incentive Recipient. (e) Exercise any and all other remedies that may be legally available to the PAEDC, under the laws of the State of Texas and as authorized by the terms and conditions of this Agreement. 35: In addition to the foregoing, the parties agree that this Agreement may be terminated at any time when both parties agree, in writing, to the terms and conditions of any such voluntary termination. COMPLIANCE AUDITS 36. If directed by PAEDC Board, and in no case more than once per year, Incentive Recipient shall arrange for the performance of a compliance audit, by a certified public accountant, of performances rendered under this Agreement, subject to the following conditions and limitations: (a) Incentive Recipient shall have a compliance audit which may be limited to use of funds received from the PAEDC, made for any of its fiscal years included within the Term of this Agreement in which Incentive Recipient receives more than $50,000 in PAEDC financial assistance provided by PAEDC in the form of grants, contracts, loans, loan #782990 Page II guarantees, property, cooperative agreements, interest subsidies, or direct appropriations. Said audit must be received and accepted by the Chief Executive Officer of PAEDC and/or the PAEDC Board. (b) Unless otherwise specifically authorized by PAEDC in writing, Incentive Recipient shall submit the report of such audit to PAEDC within thirty(30) days after completion of the audit, but no later than one hundred twenty (120) days after the end of each fiscal period included within the Term of this Agreement. (c) As a part of its audit, Incentive Recipient shall verify that the expenditures were exclusively for the assets listed in Exhibit "E". Any discrepancies in excess of $500 shall be specifically documented in writing. 37. Incentive Recipient understands and agrees that it shall be liable to reimburse immediately PAEDC for any costs disallowed pursuant to financial and compliance audit(s) of funds received under this Agreement. 38. Incentive Recipient shall take all necessary actions to facilitate the performance of any and all such audits, whether annual, mandatory or otherwise requested under this Agreement. 39. Subject to financial privacy requirements of Incentive Recipient and properly designated requests for non-disclosure due to proprietary reasons, all approved audit reports may be made available for public inspection. SUPPLEMENTAL COVENANT 40. Incentive Recipient and any branch, division or department of Incentive Recipient certifies that they have not and will not knowingly employ an "undocumented worker" which means "an individual who, at the time of employment, is not lawfully admitted for permanent residence to the United States or authorized under law to be employed in that manner in the United States." 41. Incentive Recipient acknowledges that it has reviewed Chapter 2264, Texas Government Code and hereby affirmatively agrees by execution of this Agreement to repay the amount of any incentive not later than the 120th day after the date PAEDC notifies Incentive Recipient of a violation. 42. Incentive Recipient acknowledges PAEDC may bring a civil action or cover any amounts owed under this Chapter and further acknowledges that PAEDC may recover court costs and reasonable attorneys' fees incurred in an action brought under §2264.101(a). Incentive Recipient is not liable for a violation of this Chapter by a subsidiary, affiliate or franchisee of the Incentive Recipient or by a person with whom the Incentive Recipient contracts. ENVIRONMENTAL REQUIREMENTS 43. Incentive Recipient acknowledges that there are certain covenants and restrictions as to the operation of facilities within the Business Park as stated on the Special Warranty Deed. As the Project will be located on the Property within the Business Park, Incentive Recipient not only #782990 Page 12 agrees to meet the covenants and restrictions of the Business Park, but also to operate and maintain the Project in conformance with all local, state and federal regulations and to maintain the Property in a condition that will not be derogatory either to the PAEDC or other business operations within the Business Park. During the Term of this Agreement, Incentive Recipient also agrees to allow PAEDC or its duly authorized officers, agents, employees, contractors or subcontractors access to the Property and the Project for environmental review and compliance monitoring. Incentive Recipient further agrees that Incentive Recipient shall make all reasonable efforts to assist PAEDC in handling inquiries and complaints from persons and agencies seeking redress in relation to environmental reviews, audits, notices of violation or other administrative proceedings covered by appropriate permits or certifications as to the Property and/or the Project. ORAL AND WRITTEN AGREEMENTS/PRIOR AGREEMENTS 44. All oral and written contracts between the parties to this Agreement relating to the subject matter of this Agreement that were made prior to the execution of this Agreement have been reduced to writing and are contained in this Agreement. 45. The documents required below are hereby made a part of this Agreement, and constitute promised performances by Incentive Recipient in accordance with this Agreement: Required Exhibit"A" Conditional Commercial Promissory Note Exhibit"B" Special Warranty Deed Exhibit "C" Deed of Trust Exhibit"D" Certification Regarding Lobbying Exhibit"E" Compliance Statement Exhibit"F" First Source Referral Agreement Exhibit"G" Incentive Recipient Application to PAEDC VENUE 46. For purposes of litigation that may accrue under this Agreement, venue shall lie in Jefferson County, Texas, where substantially all the performance will occur. ADDRESS OF NOTICE AND COMMUNICATIONS City of Port Arthur Section 4A Economic Development Corporation 4173-39t Street Port Arthur, Texas 77642 ATTN: Floyd Batiste, Chief Executive Officer Incentive Recipient 9711 Lancaster Road, SE Hebron, OH 43025 (800)827-8790 ATTN: Sean Hutcheson, Asst. General Counsel #782990 Page 13 CAPTIONS 47. This Agreement has been supplied with captions to serve only as a guide to the contents. The caption does not control the meaning of any paragraph or in any way determine its interpretation or application. COMPLIANCE WITH FEDERAL,STATE AND LOCAL LAWS 48. Incentive Recipient shall comply with all Federal, State and local laws, statutes, ordinances, resolutions, rules, regulations, orders and decrees of any court or administrative body or tribunal, including those related to the activities and performances of Incentive Recipient under this Agreement. Upon request by PAEDC and by the City, Incentive Recipient shall furnish satisfactory proof of its compliance herewith. CONDITIONS PRECEDENT 49. This agreement has no legal consequences, and neither party shall rely on the agreement, unless and until a. Both the PAEDC Board and the Port Arthur City Council approve the Agreement in its final executed form. b. c. d. ATTORNEY APPROVALS El APPROVED AS TO FORM: V Guy Goodson, General Counsel for PAEDC VERIFIED BY CITY COUNCIL RESOLUTION: Resolution Number: /a—55L/'7 t7 d.;/..-Valecia R. Tize , City Attorney #782990 Page 14 AGREEMENT EXECUTION CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION SIGNED AND AGREED TO on the a04h day of , 201 By: 1. 1.----."/" / President By: Secretary EDC Re esentative EDC r epresentative #782990 Page 15 • MPW INDUSTRIAL WATER SERVICES,INC. SIGNED AND AGREED TO on the_ 1 c?44`day of_I mi_ rY , 201k By: Ste4a":e. L. Lae 5-ectie.+4.4-Y 4- 6eaera( 44.75e. Title Zi Acknowl gment #782990 Page 16 EXHIBIT "A" CONDITIONAL COMMERCIAL PROMISSORY NOTE Port Arthur,Texas This COMMERCIAL PROMISSORY NOTE becomes effective on the date when MPW Industrial Water Services, Inc., an Ohio corporation (hereinafter called "Maker") breaches that certain Economic Incentive Contract and Loan Agreement between the City of Port Arthur Section 4A Economic Development Corporation (hereinafter called "Lender") and Maker, dated ,2010. Effective Date of Note: the day of ,200 ("date of breach"). Principal Amount: $ , which is $ minus the incentive credits earned by Maker according to that certain Economic Incentive Contract and Loan Agreement between the Lender and Maker(described hereinbefore). Term of the Loan: Payment Schedule: FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office at P.O. Box 1089, Port Arthur, Texas, 77640-1089, or such other place or places as the holder hereof shall from time to time designate in written notice to Maker, the principal amount, in legal and lawful money of the United States of America, together with interest thereon from the date hereof until maturity as detailed herein. This note is due and payable as follows: Any notices required or permitted to be given by the holder hereof to Maker pursuant to the provisions of this note shall be in writing and shall be either personally delivered or transmitted by a courier, including first class United States mail, that utilizes some type of verifiable delivery confirmation addressed to Maker at the address designated below for receipt of notice (or at such other address as Maker may, from time to time, designate in writing to the holder hereof for receipt of notices hereunder). Any such notice personally delivered shall be effective as of the date of delivery, and any notice transmitted by courier with delivery confirmation, in accordance with the foregoing provisions, shall be deemed to have been given to and received by Maker as of the date stated on such delivery confirmation. This note is also secured by and entitled to the benefits of all other security agreements, pledges, collateral assignments, deeds of trust, guaranties, mortgages, assignments, and lien instruments, if any, of any kind executed by Maker or by any other party as security for any loans owing by Maker to the Lender. Such lien instruments shall include those executed simultaneously herewith,those heretofore executed, and those hereafter executed. If any installment or payment of principal or interest of this note is not paid when due or any drawer, acceptor, endorser, guarantor,surety,accommodation party or other person now or hereafter primarily or secondarily liable upon or for payment of all or any part of this note (each hereinafter called an "other liable party") shall die, or become insolvent (however such insolvency may be evidenced); or if any proceeding, procedure or remedy supplementary to or in enforcement of judgment shall be resorted to or commenced against Maker or any other liable party, or with respect to any property of any of them; or if any governmental authority or any court at the instance thereof shall take possession of any substantial part of the property of or assume control over the affairs or operations of, or a receiver shall be appointed for or take possession of the property of, or a writ or order of attachment or garnishment shall be issued or made against any of the property of Maker or any other liable party; or if any indebtedness for which Maker or any other liable party is primarily or secondarily liable shall not be paid when due or shall become due and payable by acceleration of maturity thereof, or if any event or condition shall occur which shall permit the holder of any such indebtedness to declare it due and payable upon the lapse of time, giving of notice or otherwise; or if Maker or any other liable party (if other than a natural person) shall be dissolved, wound up, liquidated or otherwise terminated, or a party to any merger or consolidation without the written consent of Lender; or if Maker or any other liable party shall sell substantially all or an integral portion of its assets without the written consent of Lender; or if Maker or any other liable party fails to furnish financial information requested by Lender; or if Maker or any other liable party furnishes or has furnished any financial or other information or statements which are misleading in any respect; or if a default occurs under any instrument now or hereafter executed in connection with or as security for this note; or any event occurs or condition exists which causes Lender to in good faith deem itself insecure or in good faith believe the prospect of payment or performance by Maker or any other liable party under this note, under any instrument or agreement executed in connection with or as security for this note, or under any other indebtedness of Maker or any other liable party to Lender is impaired; thereupon, at the option of Lender, the principal balance and accrued interest of this note and any and all other indebtedness of Maker to Lender shall become and be due and payable forthwith upon notice as required herein, but without demand, notice of default, notice of acceleration, notice of intent to accelerate the maturity hereof, notice of nonpayment, presentment, protest or notice of dishonor, all of which are hereby expressly waived by Maker and each other liable party. Lender may waive any default without waiving any prior or subsequent default. If this note is not paid at maturity whether by acceleration or otherwise, and is placed in the hands of any attorney for collection, or suit is filed hereon, or proceedings are had in probate, bankruptcy, receivership, reorganization, arrangement or other legal proceedings for collection hereof, Maker and each other liable party agree to pay Lender its collection costs, including court costs and a reasonable amount for attorney's fees. It is the intention of Maker and Lender to conform strictly to applicable usury laws. Accordingly, if the transaction contemplated hereby would be usurious under applicable law, then, in that event, notwithstanding anything to the contrary herein or in any agreement entered into in connection with or as security for this note, it is agreed as follows: (i) the aggregate of all consideration which constitutes interest under applicable law that is taken, reserved, contracted for, charged or received under this note or under any of the other aforesaid agreements or otherwise in connection with this note shall under no circumstances exceed the maximum amount of interest allowed by applicable law, and any excess shall be credited on this note by the holder hereof(or, if this note shall have been paid in full, refunded to Maker); (ii) in the event that maturity of this note is accelerated by reason of an election by the holder hereof resulting from any default hereunder or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest may never include more than the maximum amount allowed by applicable law, and excess interest, if any, provided for in this note or otherwise shall be canceled automatically as of the date of such acceleration or prepayment and, if theretofore prepaid, shall be credited on this note(or if this note shall have been paid in full, refunded to Maker); and (iii) all calculations of the rate of interest taken, reserved, contracted for, charged or received under this note or under any of the other aforesaid agreements or otherwise in connection with this note, that are made for the purpose of determining whether such rate exceeds the maximum lawful rate shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating, and spreading such interest over the entire term of the loan evidenced by this note(including all renewal and extended terms). Maker may prepay all or any part of the principal of this note before maturity without penalty. No partial prepayment shall reduce, postpone or delay the obligation of Maker to continue paying the installments herein provided on their respective due dates following any such partial prepayment until this note is fully paid. The Maker shall be directly and primarily liable for the payment of all sums called for hereunder; and, except for notices specifically required to be given by the holder hereof to Maker Exhibit"A" Page 2 pursuant to the earlier provisions of this note, Maker and each other liable party hereby expressly waive demand,presentment for payment, notice of nonpayment,protest, notice of protest,notice of intention to accelerate maturity, notice of acceleration of maturity, and all other notice, filing of suit and diligence in collecting this note or enforcing or handling any of the security therefor, and do hereby agree to any substitution, exchange or release,in whole or in part, of any security here-for or the release of any other liable party, and do hereby consent to any and all renewals or extensions from time to time, of this note, or any part hereof, either before or after maturity, all without any notice thereof to any of them and without affecting or releasing the liability of any of them. Each holder hereof, in order to enforce payment of this note by any other liable party, shall be required to first institute suit or exhaust its remedies against Maker and to enforce its rights against any security therefor prior to enforcing payment of this Note by any other liable party. SIGNED AND AGREED TO on the id-ii, day of k-r �..rY , 20RC_L. WO Indtis+"rict( Lacks' )[✓✓t`GFfi„rrj.a�, ark 04Z0j ora-tie By: ` ---•1. Signature Its: See.ce.+Qr y ..i. ( ,(2r4( 6,4n SGt Title l THE STATE OF TEN-Aft 0:4 T a § COUNTY OF LT G N G § ACKNOWLEDGEMENT BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared 5-'Z4:1a.:,, L. GDe. , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same as the act and deed ofrtfj 2, zt .4 141the. tea, 1_T,.o,.c for the purposes and consideration therein expressed, and the Capacities therein stated. -� GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the r2+4' day of 1ckAttA.ry , 20KL. ( I c Notar Public,ti S to of Texas p k: MAKERS' ADDRESS FOR RECEIPT OF NOTICE: /APO V..A,csfr4.( J14p (A/11; z;,CG. , aA 0tt:+ (her A/4-1� Marla Kay Bushee do t �,far+,' en-e 1 q7 11 L.a.,c�s- r a,A1 s,e. Notary public 1.4,2.1./4,A. , ki302c In and for the State of Ohio Dl,ro My Commission Expires June 18, 2013 Exhibit"A” Page 3 EXHIBIT `B" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THE INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF JEF'F'ERSON § The City of Port Arthur Section 4A Economic Development Corporation ("Grantor") in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, to Grantor in hand paid by MPW Industrial Water Services,Inc. ("Grantee")the receipt of which is hereby acknowledged, has GRANTED, SOLD and CONVEYED, to Grantee, all that certain property situated in the County of Jefferson, State of Texas,described as follows, to-wit: That tract of land more fully described on Exhibit"A"attached hereto and made a part hereof for all purposes(the"Property"). This conveyance is made subject to the following: (1) easements and rights-of-way appearing of record in the office of the County Clerk of Jefferson County,Texas; (2) all covenants, restrictions, and all conditions, exceptions, reservations and conveyances of minerals and/or royalties, oil and gas and/or mineral leases, affecting the above described property, of record in the Office of the County Clerk of Jefferson County, Texas,to the extent they are still in effect and relate to the above described property; (3) taxes on the above described property for 2010 and subsequent years not yet due and payable;and (4) all zoning laws,regulations and ordinances of municipal and other governmental authorities, if any, but only to the extent that they are still in effect, relating to the above described property. TO HAVE AND TO HOLD, the said Property, together with all rights, hereditaments and appurtenances thereto belonging, unto Grantee, its successors, heirs, and assigns forever. And Grantor does hereby bind itself, its successors, heirs, executors, administrators, and personal representatives to WARRANT AND FOREVER DEFEND the title to said Property unto Grantee, its successors, heirs, and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through,or under Grantor,but not otherwise. When Grantor or Grantee or both of them are more than one(1)person, or when Grantor or Grantee or both of them are a corporation, limited Iiability company, partnership, trustee, administrator, executor, or personal representative, this Deed shall read as though pertinent verbs, nouns, and pronouns are changed correspondingly, and pronouns of the masculine gender where used herein shall be construed to include persons of the female sex. When this Deed is executed by or to or by and to a corporation, limited liability company or partnership,references to "heirs,executors,administrators,and personal representatives" shall be appropriately disregarded, and when this Deed is executed by or to or by and to a natural person or persons, references to"successors"shall be appropriately disregarded. Grantee has joined in this Deed to evidence Grantee's acceptance of this Deed. EXECUTED this thD ay of ,2010. GRANTOR: City of Port Arthur Section 4A Economic Development Corporation • By: � est: i ,� STATE OF TEXAS § COUNTY OF JEFN,RSON § en_ This instrument was acknowledged before me on the day of �� , 201j5, by ofcln Caut,larti and Kt, rt '(ko►na.g of City of Port Arthur Section 4A Economic Development Corporation. a:thAvtalx:— Notary Public, State of Texas CARMELIA STALEY 1p My Commission Expires �� February 23, 2011 Exhibit"B" Page 2 Accepted by GRANTEE: MPW Industrial Water Services,Inc. By: A a._ Attest: /4c-.1 lid/C/A__ STATE OFT-E-XnerffOHrO § COUNTY OF÷EFFERSettJ LKT N6§ This instrument was acknowledged before me on the t? day of J4 t zat , 2Olk by S-fe,,,,: _. L.. (me. and Seat.► M. /'+o.l c ii., of MPW Industrial Water Services,Inc. • ovS)- tis -3L4—ti_ Notary P blic, State Texas ?k e Marla Kay Bushee GRANTEE'S MAILING ADDRESS: Notary public MPW Industrial Water Services,Inc. In and for the State of Ohio I{ La1/4.4c.,Sfer Rid. S. ge.bro„, oK y30 as My Commission Expires A+11.: 4.42.5..c pe _f. June 18, 2013 Exhibit"B” Page 3 EXHIBIT "C" DEED OF TRUST Date: ...7c44-,e.co►t Z v,20P)J Grantor: MPW Industrial Water Services, Inc. Grantors' Mailing Address (including county): 9711 Lancaster Road, SE Hebron, OH 43025 (Licking County) Trustee: GUY N. GOODSON Trustee's Mailing Address: Germer Gertz, L.L.P. P.O. Box 4915 Beaumont, Texas 77704 (Jefferson County) Beneficiary: City of Port Arthur Section 4A Economic Development Corporation(the"PAEDC") Beneficiary's Mailing Address (including county): 4173 39th Street Port Arthur, Texas 77642 (Jefferson County) Note Date: , 2010 Amount: ,$ minus incentive credits earned by Maker according to that certain Economic Incentive Contract and Loan Agreement between Grantor and Beneficiary. Maker: Payee: PAEDC(Beneficiary) Final Maturity Date: Property: See Attachment for legal description. Physical address is , ,Texas The Property covered by this Instrument includes the Land and the following items, whether now owned or hereafter acquired, all of which, including replacements and additions thereto, shall be deemed to be and remain part of the Property covered by this Instrument, and all rights, hereditaments and appurtenances pertaining thereto, all of which are referred to as the "Property": (a) Any and all buildings, improvements, and tenements now or hereafter attached to or placed, erected, constructed, or developed on the Land; (b) all fixtures, now or hereafter attached to Land or Improvements, that are necessary or useful for the complete and comfortable use and occupancy of the Land and Improvements; (c) all water and water rights, timber, crops, and mineral interest pertaining to the Land; (d) all building materials and fixtures now or hereafter delivered to and intended to be installed in or on the Land or the Improvements; (e) all plans and specifications for the Improvements; (f) all Grantor's rights (but not Grantor's obligations)under any contracts tied to the Land or the Improvements that cannot be transferred elsewhere for Grantor's use; (g) (h) all Grantor's rights (but not Grantor's obligations) under any documents, contract rights, accounts, commitments, construction contracts (and all payment and performance bonds, statutory or otherwise, issued by any surety in connection with any such construction contracts, and the proceeds of such bonds), architectural contracts and engineering contracts arising from or by virtue of any transactions tied to the Land or the Improvements that cannot be transferred elsewhere for Grantor's use; (i) all permits, licenses, franchises, certificates, and other rights and privileges now owned or held or hereafter obtained in connection with the Land and the Improvements; (j) all development rights, utility commitments, water and wastewater taps, capital improvement project contracts, utility construction agreements with any governmental authority, including municipal utility districts, or with any utility companies (and all refunds and reimbursements thereunder) tied to the Land or the Improvements; (k) all proceeds, to the extent necessary to satisfy amounts owed to Beneficiary, arising from or by virtue of the sale, lease or other disposition of the Land or the Improvements; (1) all proceeds (including premium refunds), to the extent necessary to satisfy amounts owed to Beneficiary, of each policy of insurance relating to the Land and the Improvements; (m) all proceeds, to the extent necessary to satisfy amounts owed to Beneficiary, from the taking of any of the Land or the Improvements or any rights appurtenant thereto by right of eminent domain or by private or other purchase in lieu thereof, including change of grade of streets, curb cuts or other rights of access, for any public or quasi- public use under any law; (n) all right, title, and interest of Grantor in and to all streets, roads, public places, easements, and rights-of-way, existing or proposed, public or private, adjacent to or used in connection with, belonging or pertaining to the Land; (o) all of the Leases, rents, royalties, bonuses, issues, profits, revenues, or other benefits of the Land or the Improvements, including without limitation cash or securities deposited pursuant to leases to secure performance by the tenants of their obligations thereunder(subject to the Assignment of Rents made in Article V below); and Exhibit"C" Page 2 (p) other interest of every kind and character that Grantor now has or at any time hereafter acquires in and to the Land and the Improvements, including rights of ingress and egress and all reversionary rights or interests of Grantor with respect to such property and all of Grantor's rights (but not Grantor's obligations) under any covenants, conditions, and restrictions for the Land, as the same may be amended from time to time, including Grantor's rights, title, and interests thereunder as declarant or developer, if applicable. Prior Lien(s) (including recording information): None Other Exceptions to Conveyance and Warranty: This conveyance is made expressly SUBJECT TO any and all restrictions, covenants, conditions, easements, right-of-ways, and mineral and/or royalty reservations of record, if any, affecting this Property. For value received and to secure payment of the Note, Grantor conveys the property to Trustee in trust. Grantor warrants and agrees to defend the title to the property. If Grantor performs all the covenants and pays the notes according to their terms, this deed of trust shall have no further effect,and Beneficiary shall immediately release it at Grantor's expense. Grantor's Obligations Grantor agrees to: 1. keep the property in good repair and condition; 2. pay all taxes and assessments on the property when due and, by January 31 of the year immediately following,furnishing Beneficiary copies of tax receipts showing that all such taxes and assessments have been paid; 3. preserve the lien's priority as it is established in this deed of trust; 4. maintain, in a form acceptable to Beneficiary, an insurance policy that a. covers all improvements for their full insurable value as determined when the policy is issued and renewed, unless Beneficiary approves a smaller amount in writing; b. contains an 80% coinsurance clause; c. provides fire and extended coverage, including windstorm coverage; d. protects Beneficiary with a standard mortgage clause; e. provides flood insurance at any time the property is in a flood hazard area; and f. contains such other coverage as Beneficiary may reasonably require; 5. comply at all times with the requirements of the 80% coinsurance clause; 6. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary within twenty days before expiration; 7. keep any buildings occupied as required by the insurance policy; and 8. if this is not a first lien, pay al lien notes that Grantor is personally liable to pay and abide by all prior lien instruments. Beneficiary's Rights 1. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to all rights and responsibilities of Trustee; Exhibit"C" Page 3 2. If the proceeds of the Note are used to pay any debt secured by prior liens, Beneficiary is subrogated to all of the rights and liens of the holders of any debt so paid; 3. Beneficiary shall apply any proceeds received under the insurance policy to repair or replace damaged or destroyed improvements covered by the policy, unless Grantor is in default of the Note or Deed of Trust in which case insurance proceeds may be applied to reduce Grantor's obligation under the Note or Deed of Trust; 4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform • those obligations and be reimbursed by Grantor on demand at the place where the Note is payable for any sums so paid, including attorney's fees, plus interest on those sums from the dates of payments at the rate stated in the note for matured, unpaid amounts. The sum to be reimbursed shall be secured by this deed of trust. 5. If Grantor defaults on the Note or fails to perform any of Grantor's obligations or if default occurs on a prior lien note or other instrument, and the default continues after Beneficiary gives Grantor notice of the defaultand the time within which it must be cured, as may be required by law or by written agreement, then Beneficiary may: a. Declare the unpaid principle balance and earned interest on the note immediately due; b. Request Trustee to foreclose this lien, in which case Beneficiary or Beneficiary's agent shall give notice of the foreclosure sale, as provided by the Texas Property Code as then amended; and c. Purchase the property at any foreclosure sale by offering the highest bid and such purchase shall fully and completely satisfy the Note. Trustee's Duties If requested by Beneficiary to foreclose this lien,Trustee shall: 1. Either personally or by agent give notice of the foreclosure sale as required by the Texas Property Code as then amended; 2. Sell and convey all or part of the property to the highest bidder for cash with a general warranty binding Grantor subject to prior liens and other exceptions to conveyance and warranty; and 3. From the proceeds of the sale,pay in this order: a. Expenses of foreclosure; b. To Beneficiary, the full amount of principle, interest, attorney's fees, and other charges due and unpaid; c. Any amount required by Iaw to be paid before payment to Grantor; and d. To Grantor, any balance. General Provisions 1. If any of the property is reconveyed under this deed of trust, Grantor shall immediately surrender possession to the Beneficiary. If Grantor fails to do so, Grantor shall become a tenant at sufferance of the Beneficiary, subject to an action for forcible detainer. 2. Recitals in any Trustee's deed conveying the property will be presumed to be true. Exhibit"C" Page 4 3. Proceeding under this deed of trust, filing suit or pursuing any other remedy will not constitute an election of remedies. 4. This lien shall remain superior to liens later created even if the time of payment of all or part of the note is extended or part of the property is released. 5. If any portion of the Note cannot be lawfully secured by this deed of trust, payments shall be applied first to discharge that portion. 6. Grantor assigns to Beneficiary all sums payable to or received by Grantor from condemnation of all or part of the property, from private sale in lieu of condemnation, and from damages caused by public works or construction on or near the property. After deducting any expenses incurred, including attorney's fees, Beneficiary may release any remaining sums to Grantor or apply such sums to reduce the note Beneficiary shall not be liable for failure to collect or to exercise diligence in collecting any such sums, 7. Grantor assigns to Beneficiary absolutely, not only as collateral, all present and future rent and other income and receipts from the property. Leases are not assigned. Grantor warrants the validity and enforceability of the assignment. 8. Interest on the debt secured by this deed of trust shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law; any interest in excess of that maximum amount shall be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess shall be canceled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been paid, refunded. This provision overrides other provisions in this and all other instruments concerning the debt. 9. When the context requires, singular nouns and pronouns include the plural. 10. The term Note includes all sums secured by this deed of trust. 11. This deed of trust shall bind, inure to the benefit of, and be exercised by successors in interest of all parties. 12. If Grantor and Maker are not the same person, the term Grantor shall include Maker. 13. If all or any part of the Property is sold, conveyed, leased for a period longer than three (3) years, leased with the option to purchase, or otherwise sold (including contract for deed), without the prior written consent of Beneficiary, then Beneficiary may at its option declare the outstanding balance of the Note(s), plus accrued interest to be immediately due and payable. The creation of a subordinate lien, any sale thereunder, any deed under threat or order of condemnation, any conveyance solely between Makers, the passage of title by reason of the death of a Maker or by operation of law shall not be construed as a sale or conveyance of the Property. 14. THIS DEED OF TRUST IS GRANTED IN CONJUNCTION WITH THAT CERTAIN ECONOMIC INCENTIVE CONTRACT AND LOAN AGREEMENT OF EVEN DATE. SIGNED AND AGREED TO on the i 02.E day of T.(4ac4.k,y , 201% Exhibit"C" Page 5 ?.th4 s•duct'r:..l Water .kr/ie..e15 r..�., avi- DI,,.b k,-, ► . w 4 By: " Signature Its: Sec re.-1"at.ry d' G¢.r.era( CALLA se. Title THE STATE OFA et4T o § § ACKNOWLEDGEMENT COUNTY OFJEFFE SLON-I.rcPCZ0(0 § BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared 5-rePo,_4;.e. 1-. Lfle. , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same as the act and deed of nl a„ Oh,; G,,r ,A,ti, for the purposes and consideration therein expressed, and the Capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 124`. day of Se..n„A.a.Ey ,2018. Notar Public,S to of was G k:a AFTER RECORDING RETURN TO: Guy N. Goodson Germer Gertz,L.L.P. Marla Kay Bushee P.O. Box 4915 Beaumont, Texas 77704 Notary public In and for the State of Ohio My Commission Expires June 18, 2013 Exhibit"C" Page 6 Attachment to Deed of Trust Legal Property Description • Exhibit"C,• Page 7 ARCENEAUX & GATES ARCENEAUX Consulting Engineers, Inc. GATES Engineers ' Surveyors • Planners METES AND BOUNDS DESCRIPTION FOR 10.00 ACRES OF LAND OUT OF BLOCK 10, PORT ARTHUR ECONOMIC DEVELOPMENT CORPORATION BUSINESS PARK SUBDIVISION PORT ARTHUR,JEFFERSON COUNTY,TEXAS Being a 10.00 acre tract or parcel of land out of Block 10 of the Port Arthur Economic Development Corporation Business Park Subdivision as recorded in Clerk's File No. 2005044721 of the Official Public Records of Real Property, County CIerk's Office, Jefferson County, Texas, as situated in and a part of the T.&N.O.RR. Survey, Section No. 5, Abstract No. 238 and the W.M. McFaddin Survey, Abstract No. 416 of said County and being more particularly described by metes and bounds as follows; FOR LOCATIVE PURPOSES, commence at a '/Z" steel rod found marking the Northwest corner of said Block 10 and of said Business Park Subdivision, this point also marks the Southwest corner of a called 14.570 acre tract of land now or formerly owned by N.K. Barnette, Jr., recorded in Volume 1483, Page 290 of the Deed Records of said County, same point also located on the East line of Tract No. 12-C of the partition Map No. 3 of the McFaddin Trust as recorded in Volume 8, Page 110 of the Map Records of said County, said commencing point having a Texas State Plane Coordinate Value of North 13,920,337,39 and East 3,541,237.38; THENCE South 36 deg. 30 min. 51 sec. West (South 39 deg. 57 min. 00 sec. West-plat)along the East line of said Tract No. 12-C and West line of said Block 10 a distance of 1069.80 feet to an angle point for corner, this point also being located on the West line of a proposed 80 feet wide drainage and access easement of said Business Park Subdivision; THENCE South 53 deg. 29 min. 09 sec. East, crossing said proposed 80 feet easement a distance of 80.00 feet to a %2." steel rod with cap marked Arceneaux & Gates set marking the Northwest corner and PLACE OF BEGINNING of the herein described tract of land, said beginning point having a Texas State Plane Coordinate Value of North 13,919,429.98 and East 3,540,665.12; • THENCE South 53 deg. 29 min. 09 sec. East along the North line of this tract a distance of 641.27 feet to a %2" steel rod with cap marked Arceneaux & Gates set marking the Northeast corner of the herein described tract of land; THENCE South 36 deg. 30 min. 51 sec. West along the East line of this tract a distance of 441.23 feet to a '/z" steel rod with cap marked Arceneaux & Gates set located on the Northwesterly line of a cul-de-sac curve of a proposed 75 feet wide Right of Way (called Richard Wycoff Drive)of said Business Park Subdivision marking an angle point for corner; Page 1 of 2 Z:IA&G SURVEYIN01METES&BOUNDS12010\MPW-DIO.deo One Turtle Creek Square 3501 Turtle Creek Dr.,Suite 102 Port Arthur,TX 77642 409/724-7888 FAX 409/724-1447 THENCE along the Westerly proposed Right of Way line and East line of this tract with said cul-de-sac curve to the left having a radius of 59.00 feet, a central angle of 98 deg. 53 min. 42 sec., an arc distance of 101.84 feet, a chord distance of 89.66 feet and a chord bearing of South 37 deg. 34 min. 46 sec. West to a /z"steel rod with cap marked Arceneaux &Gates set marking an angle point for corner and point of reverse curvature of a curve to the right; THENCE continuing along said proposed Westerly Right of Way line and East line of this tract with said curve to the right having a radius of 5.00 feet, a central angle of 48 deg. 23 min. 22 sec., an arc distance of 4.22 feet, a chord distance of 4.10 feet and a chord bearing of South 12 deg, 19 min. 36 sec. West to a W' steel rod with cap marked Arceneaux& Gates set marking an angle point for corner and point of tangency of said curve; THENCE South 36 deg. 30 min. 51 sec. West continuing along said proposed Westerly Right of Way line and East line of this tract a distance of 146.85 feet to a 1/3 steel rod with cap marked Arceneaux &Gates set marking the Southeast corner of the herein described tract of land; THENCE North 53 deg. 29 min. 09 sec. West, departing said proposed Westerly Right of Way line along the South line of this tract a distance of 641.26 feet to a 1/z"steel rod with cap marked Arceneaux & Gates set located on the East line of said proposed 80 feet wide drainage and access easement marking the Southwest corner of the herein described tract of land; THENCE North 36 deg. 30 min. 51 sec. East along the East line of said proposed 80 feet wide easement with the West line of this tract a distance of 681.46 feet to the Northwest corner and PLACE OF BEGINNING and containing in area 435,600 square feet or 10.00 acres of land, more or less. Surveyed: January,2011 F • JOHN R.X608)HODGES '\l v 4583 '9 '�t!.q§ 4�'') ��SUi� R. (Bob) .P.L.S.#4583 •Notes: Plat accompanies this Metes and Bounds Description. Bearings, distances and coordinates referenced to the Texas State Plane Coordinate System, South Central Zone,NAD 83. Grid Scale Factor= 0.999916791. Acreage expressed in Surface Area. Page 2 of 2 2:1,40 SURVHYINCAMEThS&soormszoIoRWW-010.eoe EXHIBIT "D" CERTIFICATION REGARDING LOBBYING For Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his knowledge and belief, that: 1. No funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of the City or of the PAEDC in connection with the awarding of any contract, the making of any grant, the making of any loan, the entering into of any cooperative agreement, or modification of any contract, grant, Ioan, or cooperative agreement. 2 The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub- grants, and contracts under grants, loans, and cooperative agreements), and that all Subs shall certify and disclose accordingly. This certification is material representation of fact which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction. By: `' k Si ature Its: ceore.far y -i- 6e,•a-r4,( (4.14 A.cal Title EXHIBIT "E" COMPLIANCE STATEMENT MPCU 1-44fz.1/4l at-fe,r ce,r11«y t . hereby certifies that it has fully complied with Local Government Code §176.006, effective June 18, 2005, which mandates the disclosure requirements for persons who contract or seek to contract with a local governmental entity. /`'tP4 1.04 , �e.r✓ir Qj��r G. , aK By: /r Signature Its: Sec rei'Ery . (x,,te.,a( 6f,„,"Ise( Title EXHIBIT "F" PORT ARTHUR ECONOMIC DEVELOPMENT CORPORATION FIRST SOURCE REFERRAL AGREEMENT Resolution No: (7 - 5 c Incentive Recipient:puo MIA tA.3 kQ Y SQ.vV;LA 3 ,TnG . Project Name: P r+ I:: Project Address: N.f A VA; /4_6(e, cc* :c "r,,,, Project Contact Person: Q..aY ge,ck Project Contact Person Phone Number: 7110- 174- `Pt Oct This First Source Referral Agreement(the "Agreement") is entered into by and between the Port Arthur Economic Development Corporation ("PAEDC") and i\APEA) 7.indl,t� a.L IAY,LfQ r,Sgxvicg5 ("EMPLOYER"), for recruitment, referral, and placement of Port Arthur residents in regards to the Project. RECITALS A. EMPLOYER will use PAEDC as its first source for recruitment, referral, and placement of new positions created jobs at the Project. The goal of using PAEDC as the first source for its recruitment, referral, and placement needs is to hire qualified Port Arthur residents for the jobs created by EMPLOYER. While there is no specific percentage of Port Arthur residents that must be employed by EMPLOYER, EMPLOYER must show through compliance with the terms of this Agreement that it has used its best efforts to hire Port Arthur residents wherever possible. B. Failure of PAEDC to refer Port Arthur residents to EMPLOYER that are ultimately hired for new positions created by EMPLOYER does not waive, mitigate, eliminate or reduce the requirements placed upon EMPLOYER for the creation of payroll to Port Arthur residents as may be necessary to receive credits under the Incentive Contract. I. GENERAL TERMS A. The EMPLOYER will use PAEDC as its first source for the recruitment, referral and placement of employees for jobs created by the Project. B. PAEDC participation in this Agreement will be carried through the Chief Executive Officer of PAEDC, who is responsible for referral of employees to EMPLOYER. C. PAEDC will provide recruitment, referral and placement services to the EMPLOYER subject to the limitations set out in this Agreement. D. This Agreement shall take effect when signed by the parties below and shall be fully effective for the duration of the incentive contract executed between EMPLOYER and PAEDC (the "Incentive Contract") and any extensions or modifications of the same. E. PAEDC and the EMPLOYER agree that for purposes of this Agreement, "new positions created" include all of EMPLOYERS job openings and vacancies in the Port Arthur Area created through internal promotions, terminations, and expansions of the EMPLOYERS workforce,as a result of the project underlying the Incentive Contract(the"Project"). II. RECRUITMENT A. The EMPLOYER will complete the attached Employment Plan, which will indicate the number of projected new positions created,job descriptions, salary range, and hiring dates. The EMPLOYER will notify PAEDC of its specific need for new employees as soon as that need is identified. B. Notification of specific needs, as set forth in Section II.A. must be given to PAEDC at least five (5) business days before using any other referral source, and shall include, at a minimum, #801188 2 the information set forth in the Employment Plan, including job title, qualifications, desired hiring date, base rate of pay, expected hours of work, expected duration of employment, and job description for the work to be performed. C. Job openings to be filled by internal promotion from the EMPLOYER'S current workforce need not be referred to PAEDC for placement or referral; however, such plans for internal promotions shall be included in the Employment Plan. D. The EMPLOYER will submit to PAEDC, prior to starting work on the Project, the names, and social security numbers of all current employees,including apprentices,trainees, and laid-off workers who will be employed on the Project. III. REFERRAL PAEDC will screen and refer applicants according to the qualifications supplied by the EMPLOYER. IV. PLACEMENT A. PAEDC will notify EMPLOYER, prior to the anticipated hiring dates, of the number of applicants PAEDC will refer. PAEDC will make every reasonable effort to refer at least two qualified applicants for each job opening. B. The EMPLOYER will make all decisions on hiring new employees but will in good faith use reasonable efforts to select its new hires or employees from among the qualified persons referred by PAEDC. C. In the event PAEDC is unable to refer the qualified personnel requested within five (5) business days from the date of notification, the EMPLOYER will be free to directly fill remaining positions for which no qualified applicants have been referred. #801188 3 D. After the EMPLOYER has selected its employees, PAEDC will not be responsible for the employees' actions and the EMPLOYER hereby releases PAEDC, from any liability for employees' actions. E. As herein above stated, failure of PAEDC to refer Port Arthur residents to EMPLOYER that are ultimately hired for new positions created by EMPLOYER does not waive, mitigate, eliminate or reduce the requirements placed upon EMPLOYER for the creation of payroll to Port Arthur residents as may be necessary to receive credits under the Incentive Contract. V. TRAINING PAEDC and the EMPLOYER may agree to develop skills training and on-the-job training programs. Training specifications and cost for such training will be mutually agreed upon by the EMPLOYER and PAEDC and set forth in a separate Training Agreement. VI. CONTROLLING REGULATIONS AND LAWS A. To the extent this Agreement is in conflict with any labor laws or governmental regulations, the laws or regulations shall prevail. B. PAEDC will make every effort to work within the terms of all collective bargaining agreements to which the EMPLOYER is a party. C. The EMPLOYER will provide PAEDC with written documentation that the EMPLOYER has provided the representative of any involved collective bargaining unit with a copy of this Agreement and has requested comments or objections. If the representative has any comments or objections,the EMPLOYER will promptly provide them to PAEDC. VII.EXEMPTIONS A. EMPLOYER may fill new positions created with individuals already employed by the EMPLOYER. #801188 4 B. New positions created that are filled by laid-off workers according to EMPLOYER'S formally established recall procedures and rosters. C. Suppliers located outside of the Port Arthur Area and who will perform no work in the Port Arthur Area. VIII.AGREEMENT MODIFICATIONS,RENEWAL, MONITORING,AND PENALTIES A. If, during the term of this Agreement, the EMPLOYER should transfer ownership of all or a portion of its business concerns affected by this Agreement to any other party by lease, sale, assignment,merger,or otherwise, the EMPLOYER as a condition of transfer shall: 1. Notify the party taking possession of the existence of this Agreement. 2.Notify the party taking possession that full compliance with this Agreement is required in order to avoid default on this Agreement and the Incentive Contract. 3. Notify PAEDC within seven (7)business/calendar days of the transfer. This notice will include the name of the party taking possession and the name and telephone of that party's representative. B. PAEDC shall monitor EMPLOYER'S performance under this Agreement. The EMPLOYER will cooperate in PAEDC' monitoring effort and will submit a Contract Compliance Form to PAEDC quarterly. C. To assist PAEDC in the conduct of the monitoring review, the EMPLOYER will make available payroll and employment records for the review period indicated. D. If additional information is needed during the review, the EMPLOYER will provide the requested information to PAEDC. E. With the EMPLOYER'S submission of the final request for closure of the Agreement from the Board,the EMPLOYER shall: #801188 5 1. Document in a report to the Compliance Officer its compliance with the requirements of this Agreement by submitting 1) Material supporting a good faith effort to comply; 2)Referrals provided by PAEDC and other referral sources; and/or 3) Advertisement of job openings listed with PAEDC and other referral sources; or 2. Submit a request to the Compliance Officer for a waiver of compliance with the requirements of this Agreement due to circumstances beyond the control of EMPLOYER or as otherwise authorized in the Compliance Officer's sole discretion. F. PAEDC, by action of its Board of Directors, may recommend waiver of the requirements of this Agreement if the PAEDC finds that: 1. A good faith effort to employ Port Arthur residents for the Project has been demonstrated by the EMPLOYER; or 2. The EMPLOYER enters into a special workforce development training or placement arrangement with PAEDC; or 3. PAEDC certifies that insufficient numbers of Port Arthur residents in the labor market possess the skills required by the positions created as a result of the Incentive. G. Willful breach of the this Agreement by the EMPLOYER, or failure to submit the Contract Compliance Report upon notice that the same is delinquent, or deliberate submission of falsified data, may be enforced by the Compliance Officer, through imposition of penalties, including monetary fines of up to 30% of the total economic development incentive awarded as determined by the Board of Directors under the Incentive Contract. H. The EMPLOYER and PAEDC, or such other agent as PAEDC may designate, may mutually agree to modify this Agreement, but only in a writing signed by both parites. #801188 6 I. This Agreement and the Incentive Contract between PAEDC and the EMPLOYER may be terminated in accordance with the Incentive Contract due'to EMPLOYER'S noncompliance with the provisions of this Agreement. 3. All terms and conditions of this Agreement shall be enforceable in accordance and shall be subject to the conditions, agreements, obligations, undertakings, and covenants as executed by EMPLOYER under the Incentive Contract. Dated this day of JA.A Le.ry 20 Signed: Port Arthur EDC Signature of Employer PIN L,411-(2, ‹er,/, K/Vic. Name of Company t/ t L4,G4s.&• 4,1 se,_.1 ,..A, OE* 143472T Address 8'00 - 443s5— Telephone itatA rnpi sa rV 4 .Co•w E-mail #801188 7 a3a1H ION baa 131�a'2 a3aa3d3a o 0 o In 0 Vd dO% . • 0 0 a o 03a1H a3aa3j2a o g o o c a ^•VdIo:% g Lo In M o 0 {] aIH ION. 13W 'B�321a3d11 N O 40 0 Cr) T Vis!�Q 'llx4.114. rar •�\\ a.5 4 �I S'x r' 5 a Z4 43 � a1 i• Ca :xa 3ahH d fr t"x L • 4u'< ii.4AS i r O T e- O T O M `x3010 el3HIO ,f j; 3,,, r .. cg f a. 10 !dam Izis3;�;�1,t t yrs i4,...4` . , 32f NtIIag1 v 0, V SSV +} \° \ \ \ 4 ;: aa��3a„,,e O V) M O O O �` S1Nd3I1ddb t▪ CD N 00 co O a 0 _�N.1b1.0140% f Y .y0 FIitV-.r.p t • z t.E ti, la ft 4• ).. .w, a]2ilrnb 2i,Nlw H ' 31/11�SIN 3I ddV M T ., ▪ ;xYd:O# t; U. Z `� �,Ta. 6dt y n:{5 _ v r fry:_ t �.rtc't;> �fY , ' c y t:4 - .y YX v •.g....;:,.,.1-,s1.- 8 < r 3 l.. 4`Y+'i W 0 S1 ►al lddbrr< : v , Y . v I. 0 ` Mrd b0#tld110i -t4� .s4 f. a3iliz 38pi ao L ooQ � O ; T ci SNOWWSd 4O# trr r.' 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CL o o a § ƒ CI- a. § a t J \ i- 2 1 .. w m -4- to m N- 1 ) i PHASE I • Port Arthur Bono**DZ pmentCorpomdon Dater (� fV/Y'ro Amount Requeetedt S. f4j 'Code • Name Contact arty / ...pt/i6V.F.17Z fig r r .C..c Cou6retPasty: � �i c' �?w+,P n,re .C.. g'7/ gL.�i6 7 AO/$ 2dyj e 0area Weber City 0 Phona l argatie lr22-7 Rio "Josue#(vy ) •4_!rink Buskers MCorp. ©LLC OPartnersblp 13 Solo ©HUB/MWBB ©i@on•Profit Structure Proprietorship Bemires M{dustrialf DReeyoling DOktribution Cl Smell ClCommerolei Type 14fanutkoturing , /! 7Z. /,/,, Warehouse Data Rushton Established DateBusinessboll crated Present 4 of Employees or Total Payroll fa ofEmployees dor Grant or Total Payroll Aid 4e..42.0..". Job Classifications& � yC .,v lob Ciessifieations& ,few Wage Seale wawa Beate 44,i en' t4.+,t" • • Ownership ofAppllcant Company Owners with Plvo(3°/d)Percent or Greater Ownership of the Company Name • Title Isof Owaorship lir/"Gee t /S zry C- • • • • Other Sources of Puede and/or Equity List all request end/or approvals of funds from other eo'urees(e.g.banke,credit unl. s,g•vt.entities,eta)together with deaf of application,status and thudius source co tact party name: 1//2^• - .1OtJo.-Cet� are_ h V .. u. Gr i Jf.' 0 Gist 4 rM- r .i. • �/. .. �Lt.�li.Q�. � .yam'�'X ' �. ' Project Cost Lead Amount .{/ Source of Puede Bldg/Renovation 5 4' SOO 64 • Equipment g4•?.. tee &ate lrurnttureJFixtur+es Working Capital .$ rgo0 • Total g . • • • bLaLK Vi `63 RECEIVED FEB 22 2010 City of Port Arthur Section 4A Economic Development Corporation Grant/Loan Incentive Application Date: L//7//0 Please complete the following information and return along with the requested documents. We will review the information that you provide to determine if you are eligible for assistance from the PAEDC. BUSJNESS INFORMATION Business Name: ,4f(A) . 0 alv$4'14/ $$rvf C+rS i , Business Address: 9711 e—g4c4Y ^ed. S:e v hle6rrrn 0,4 93atr Business none( ') /z7-879' Business Fax: (i/v) 3c 3Y77 Email and/or Website Information:(-(1")s-4- "v" 41-15e./-vrc€7. 4677 gyi'psers: Please list all owners with Five(5%)Percent or Greater Ownership of the Company • • Name Social Home City,State& Security No. Date of Birth Address Zip _%Ownership_ /04,41 a-nldvSkik?/ 97/1 Gnu 4rrfw'n d re; • S'e e4c.S 17r6.Ngo f'eiir" OX V3ott fc • Type of Business Organization: 0 Not established 0 Sole Proprietorship 0 Partnership MCorp. 0 C Corp. d LLC 0 HUB/MWBB ©Non-Profit Type of Business: lEllndustrial/Manufacturing 0 Recycling 0 Distribution 0 Warehouse t? Commercial . f 1 ; '\ f ) PIease descbe the type of business(product or service): ..Zi✓ vs to/ Lvvr'rh`Gi ve t Date Business Established: /97Z Federal Tax ID Number: 3i/4Vre/ . Has the business,or any principals of the business been involved in bankruptcy or Insolvency proceedings? 0 Yes ( No If yes,please explain: Are there any personal/business judgments,liens,unsettled lawsuits or major disputes? ❑ Yes id'No If yes,please explain: Have you taken any business development classes? 0 Yes a'No Are you working with a counselor at the Small Business Development Center?0 Yes [YNo Name of Counselor: Phone Number: Are you working with a counselor at the Service Corps of Retired Executives(SCORE)? 0 Yes CY o Name of Counselor: Phone Number: Have you completed a Business Plan? 0 Yes 04o If yes,when/by whom was the Business Plan prepared? Name: Phone Number: 1 e j • . City of Port Arthur Section 4A Economic Development Corporation j Grant/Loan Incentive Application iPlease Indicate the percentage of services or goods sold to perms or companies outside of the City of Port Arthur: vr.Anc:v sr of :S 7"C- % Please expl in: "'bops G'5 ei" .64M- If// ,6e, . pige_ �v/t 60 Qf pa is S e/4-c Cvf74"me%s a•-vel f e.14 r€---%- ,tom/ e •ATI e- Ab Ic.. d rze,',0a,� on Ce, 15rei /I fid rev Q�e�Yi v5 . • • Please indicate the percentage of services or goods sold to persons or companies outside of Jefferson County: Please explain: Please indicate the percentage of services or goods sold to persons or companies outside of the Golden Triangle: a Please explain: I Please indicate the NAICS(NortleAmerican Industry Classification System)number that applies to your industry,and the name given that number. For assistance,please seeti ens e c / • rrAICS Number: 6-Vi 9e" / ebfe— / c4ivie4/ t -vi Ge-j Example: 322222/Coated/Laminated Paper Manufacturing EXHIBIT "G" • / ! / k Port Arthur Economic Development 4173 39th Street Port Arthur,TX Attn:Mr. Floyd Batiste RE: Letter of Intent Dear Mr.Batiste: MPW is submitting its letter of intent for possible expansion and incentives. 1)MPW Industrial Services is the leading service provider of integrated technology- based Industrial Cleaning,Facility Management, and Industrial Water in the United States and Canada. With headquarters in Hebron,Ohio,MPW has been responding to their customers' needs from our network of more than 40 locations since 1972. MPW partners with customers to enhance operational efficiencies improve reliability and minimize costs. With state-of-the-art equipment and the most experienced, safety trained workforce in the industry,MPW provides customers with a diverse range of production- enhancement solutions. Being a leader in innovation and maintenance,MPW continually invests in research to develop specialized tooling and proprietary mobile equipment systems to meet the ever-changing requirements of our diverse customer base. Industries served: Power Generation,Pulp and Paper,Steel,Manufacturing,Automotive,Oil and Gas,Chemical,and Aerospace. 2)MPW plans to expand the Industrial Water Division by building a new facility to service the Gulf Coast. MPW plans on building a 35,000 to 45,000 square foot state of the art water treatment facility. MPW will employee 15 to 20 people upon completion and look to expand to an additional 10 to 15 employees within 3 to 5 years. 3)MPW is asking Port Arthur for a competitive offer of incentives. The funds would be used for the following: land,building,process equipment,and possible canal water use. Estimated total investment for the land,building, and process equipment is 6,000,000 to 6,500,000 million. Estimated total investment for mobile equipment is 4,000,000 to 5,000,000 million. Sincerely, 77 /7 Jared Black General Manager MPW Industrial Services Number of Current Employees: FT PT Please list current Job Classifications&Wage Scales: No.of Employees in this Job Classification _ Wage Scale Classification Ate)me- Current Total Payroll:$ Number of Employees after completion of Project: FT PT Please list projected Job Classifications&Wage Scales: No.of Employees in this Job Classification Wage Scale Classification X7000 Total Projected Payroll:S Number of New Average Water Management Facility Job Titles Employees StartingWa e Initial Needs Plant Manager 1 $66,000 Plant Supervisor(1st,2nd shift) 2! $32,000 Plant Technician 6 $21,000 Plant Maintenance 1 $32,000 Maintenance Mechanic 1 $35,000. Field Service(FS)Technician/F8 Engineer 2 $46,000 CDL Drivers 5 $46,000 • Plant Engineer 1 $56000 Possible Additional Hires Plant Supervisor(3rd shift) 1 $32,000 Plant Technician 3 $21,000 Operations Manager 1 $46,000 • CDL Drivers 3 $45,000 Total 27 $957,000 *Wages basedon cost of living for existing MPW plants and are subject to change based on Texas-Lot Plant Manager-oversees and ensures quality control of operations at plant Plant Supervisor-direct supervisor of plant technicians Plant Technician-Backwashes,regenerates, loads filtration resin media. Loads and unloads filtration ur Plant Maintenance-Does preventative and regular maintenance on equipment in plant • Field Service Technician/Engineer-Designs,troubleshoots, maintains filtration systems CDL Drivers-Deliver and pick up mobile units to/from customers • Logistics Manager-Coordinates delivery and pick up of filtration systems to and from customers. Dispel • I , S CERTIFICATION: Please read the following and sign the applicationform below All owners,officers,partners and/or principals must sign this application. • This is an Equal Opportunity Program. Discrimination is prohibited by Federal Law. Complaints of discrimination may be filed with the appropriate authorities. The information in this application is provided for the purpose of applying for funds under the City of Port Arthur Section 4A Economic Development Corporation's incentive programs. The information in this application is accurate to the best of my knowledge. I understand that personal and/or business information may be requested pursuant to this application and I hereby give consent for such information to be provided to the City of PortArthur Section 4A Economic Development Corporation. I also understand that the City of Port Arthur Section 4A Economic Development Corporation retains the sole decision as to whether or not this application is approved,disapproved,or modified. It is my right to accept or decline the grant and/or loan amount,rate,and terms as approved by the Program. • I authorize the City of Port Arthur Section 4A Economic Development Corporation to obtain a credit report on me through the credit reporting agency of its choice. If an adverse credit decision is made due totally or partly to the information on the credit report,the City of Port Arthur Section 4A Economic Development Corporation will give me a copy of the credit report,a summary of my rights under the Fair Credit Reporting Act,and the source of the credit report so that I may contaotthem if I wish. I UNDERSTAND THAT ALL INFORMATION SUBMITTED TO THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION WILL BE KEPT ON FILE ACCORDING TO THE RECORDS RETENTION LAWS OF TAE STATE OF TEXAS. IF I DO NOT REQUEST THE RETURN OF CERTAIN PRIVILEGED INFORMATION,IT WILL BE DISPOSED OF IN THE MANNER REQUIRED BY LAW. Name(Printed): 4.r4. L U i gGK Name(Printed): Signature: of _ _ Signature: Date: L/241/20i0 Date: Name(Printed): Name(Printed): Signature: Signature: Date: Date: _ Name(Printed): Name(Printed): Signature: Signature: Date: Date: City of Port Arthur Section 4A Economic Development Corporation Grant/Loan Incentive Application The undersigned,as officers,shareholders,and/or principals of r '. _ ("Applicant"),acknowledge that: $ there are no elected or appointed public officials with any ownership interest in said company("Applicant") 0 there are elected or appointed public officials with ownership interest in said company("Applicant"),listed as below: Name Entity %Ownership• • • • • • L. Name(Prfnte • ryr I L. 414.e..k Name(Printed): Signature: t 00.1,..a~ Signature: Date: 6,/2.4/a e►ta Daae:• Name(Printed):, Name(Printed): } Signature: Signature: ' Date: Date: Name(Printed); • Name(Printed): Signature: Signature: Date: Date: . • • City of Port Arthur Section 4A Economic Development Corporation Grant/Loan Incentive Application i CIAs A _._ ) 4. +_ t* .lit E C s r • CT POLICIES AND PROCEDURE$ The undersigned,as officers,shareholders,and/or principals of MP (`Applicant"),acknowledge that in conjunction with the Applicant's application ror economic incentive assistance form the City of Port Arthur Section 4A Economic Development Corporation("PAEDC"),the PAEDC may 'trot" lequiterthat one or more officers,shareholders and/or principals of Applicant execute personal guarantees and/or security agreement-pledge agreements whereby said officer, shareholder and/or principal may be called upon to either guarantee all or a portion of the obligations of the Applicant and/or pledge all or portion of the officer,shareholder, and/or principal's ownership interest in the Applicant in order to secure performance.of the Applicant's obligations. Said potential guarantee and/or pledge may be in addition to any corporate obligation and/or pledge of corporate assets provided by the Applicant in conjunction with its execution of any future Grant Incentive and Loan Agreement, I acknowledge that I have been advised,in advance,of the potential request by the PAEDC for personal liability,whether direct or indirect,and with fill knowledge of said potential, I am requesting that the PAEDC continue its investigation,review and consideration of ► the application filed on behalf of Applicant. Nance(Printed): .��p„�. L.41 wk Name(Printed): Signature: Signature: Date: bl a'J f Rete Date: Name(Printed): Name(Printed): Signature: Signature: Date: Date: { - i Name(Printed): Name(Printed): Signature: Signature: Date: Date: • - _ 1 If . i ' i 1 Grant/Loan Incentive Application City of Port Arthur Section 4A Economic Development Corporation Grant/Loan Incentive Application PROJECT PIease,briefly des rlbe yo r project: 5 c.Arm D e 39 6vO- S3;ar., 5yu/r e F/ ,-Gifi /e ear vQ/e ,a6i/e. ra CiV.C—W7o91 Total amount requested: 7730 Project Cost AMOUNT SOURCE OF FUNDS LAND • 7"/9V 70 BUILDING/RENOVATIONS 3 4,410 040 eft. EQUIPMENT 31 IVO DOO FURNITURE/FIXTURES INVENTORY WORKING CAPITAL 7430 TOTAL: 4 JVV ,009 e cr • • Personal cash available to invest in project:$ Source: What bank have you contacted for financing: Name of Banker: Phone Number: Please list all requests and/or approvals of funds from other sources(e.g.,banks,credit unions,governmental entities,etc.)together with dates of application,status and funding source contact information: