HomeMy WebLinkAboutPR 20041: EDC INCENTIVE AGREEMENT WITH AWC,INC. D/B/A ALFORD, WOODS AND CHILDS TEXAS, INC. r
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MEMORANDUM
To: Mayor, City Council, City anager
From: Floyd Batiste, CEO
Date: December 12, 2017
Subject: P. R.No. 20041; Council Meeting of December 19, 2017
ATTACHED IS PROPOSED RESOLUTION NO. 20041
APPROVING AN ECONOMIC INCENTIVE AGREEMENT
BETWEEN THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION & AWC, INC.
D/B/A ALFORD,WOODS AND CHILDS TEXAS,INC.
P. R. No. 20041
12/12/2017 KVM
RESOLUTION NO.
A RESOLUTION APPROVING AN ECONOMIC INCENTIVE
AGREEMENT BETWEEN THE CITY OF PORT ARTHUR
SECTION 4A ECONOMIC DEVELOPMENT CORPORATION &
AWC, INC. D/B/A ALFORD, WOODS AND CHILDS TEXAS,
INC.
WHEREAS, AWC, Inc. d/b/a Alford, Woods and Childs Texas, Inc. ("Incentive
Recipient") is a Louisiana corporation authorized to do business in the State of Texas; and
WHEREAS, Incentive Recipient intends to establish a National Board Accredited
Pressure Relief Valve Service and assembly operation in the Port Arthur Spur 93 Business Park
to provide local support to customers in the Golden Triangle; and
WHEREAS, the Incentive Recipient has proposed that at the end of a three year period,
the incentive recipient will have employed the equivalent of 13 full time employees that are Port
Arthur residents at an annual payroll of$430,000; and
WHEREAS, at their regular meeting of December 4, 2017, the Port Arthur Section 4A
Economic Development Corporation (the "PAEDC") Board of Directors approved entering into
an Economic Incentive Agreement (the "Agreement") with Incentive Recipient that will offer an
incentive of$1.00 for every $6.65 in payroll to Port Arthur residents not to exceed $100,000 and
subject to the conditions and limitations outlined in the Agreement attached hereto as Exhibit
«A»
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That PAEDC is herein authorized to execute the Agreement in substantially
the same form attached hereto as Exhibit "A", with the Incentive Recipient for an amount not to
exceed$100,000, release of funds based on payroll performance by the incentive recipient.
Section 3. That a copy of the caption of this Resolution shall be spread upon the Minutes
of the City Council.
READ, ADOPTED AND APPROVED on this day of A.D., 2017,
at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
AYES:
Mayor ,
Councilmembers ,
NOES: .
Derrick Freeman, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
7 i
Floyd Batiste, PAEDC CEO
#1459880 Page 2
APPROVED AS TO FORM:
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R. Tizeno, City Attorney
#1459880 Page 3
EXHIBIT "A"
•
ECONOMIC INCENTIVE AGREEMENT
BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
AWC, INC. D/B/A ALFORD, WOODS AND CHILDS TEXAS, INC.
INTRODUCTION 1
AGREEMENT TERM 1
PARTIES 1
PROMISED PERFORMANCE 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 5
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT 5
RECORDS/INSPECTION/PAEDC AUDIT 6
HOLD HARMLESS 7
SUBCONTRACTS 7
CONFLICT OF INTEREST/DISCLOSURE OBLIGATION 8
NONDISCRIMINATION/EMPLOYMENT/REPORTING 8
LEGAL AUTHORITY 9
NOTICE OF LEGAL OR REGULATORY CLAIMS 9
CHANGES AND AMENDMENTS 10
DEFAULT/TERMINATION 10
COMPLIANCE AUDITS 11
SUPPLEMENTAL COVENANT 12
ENVIRONMENTAL REQUIREMENTS 12
ORAL AND WRITTEN AGREEMENTS/PRIOR AGREEMENTS 13
VENUE 13
ADDRESS OF NOTICE AND COMMUNICATIONS 13
CAPTIONS 13
COMPLIANCE WITH FEDERAL,STATE AND LOCAL LAWS 14
CONDITIONS PRECEDENT 14
ATTORNEY APPROVALS 14
AGREEMENT EXECUTION 16
Exhibit"A" First Source Referral Agreement
Exhibit"B" Certification Regarding Lobbying
Exhibit"C" Compliance Statement
ECONOMIC INCENTIVE AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
AWC, INC.DB/A ALFORD,WOODS AND CHILDS TEXAS, INC.
("INCENTIVE RECIPIENT")
AGREEMENT TERM
EFFECTIVE DATE
1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered
into with an Effective Date as of the approval of the Agreement by the City Council for the City
of Port Arthur, Texas(the"City").
TERMINATION DATE
2. This Agreement expires the earlier of , , 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 period from the
effective date of this Agreement through and including the expiration 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 501 Procter Street, Suite 100, Port Arthur, Texas, 77640, 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") and duly authorized by Resolution of the City Council
of the City of Port Arthur 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. AWC, Inc. d/b/a Alford, Woods and Childs Texas, Inc. is a Louisiana corporation
authorized to do business in the state of Texas. The registered agent in Texas for the Incentive
Recipient is Business Filings Incorporated 701 Brazos Street, Suite 720 Austin,Texas 78701.
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
(1) PAEDC shall conditionally grant Incentive Recipient up to $100,000.00, subject
to the conditions and limitations herein, which Incentive Recipient shall not be
required to repay..
(2) PAEDC shall make the first payment to Incentive Recipient after March 15, 2019
when Incentive Recipient has provided PAEDC with proof of an annualized
payroll of Port Arthur Residents, Incentive Recipient will receive $1.00 for each
$6.65 in payroll.'
(3) PAEDC shall make the second payment to Incentive Recipient after March 15,
2020 when Incentive Recipient has provided PAEDC with proof of an annualized
payroll of Port Arthur Residents, Incentive Recipient will receive $1.00 for each
$6.65 in payroll. .
(4) PAEDC total Incentive payment to Incentive Recipient will not exceed $100,000.
These payments are PAEDC's only obligations.
(b) PERFORMANCE BY INCENTIVE RECIPIENT
(1) By the end of the Agreement term, Incentive Recipient promises to employ the
equivalent of 13 full time employees at an annual payroll of $430,000.00 as
measured by Internal Revenue Service(IRS) forms W-2 and W-3.
(2) Incentive Recipient shall receive credit only for payroll paid to Port Arthur
residents.
(3) Incentive Recipient will be required to meet the conditions and agreements set
forth in the First Source Referral Agreement attached hereto as Exhibit "A" and
made a part hereof for all purposes.
(4) Incentive Recipient acknowledges and agrees that the Economic Incentive
proposed under this Agreement is only being provided as to the retention and/or
expansion of the business of Incentive Recipient in Port Arthur, Texas. If
Incentive Recipient at any time during the term of this Agreement discontinues
and/or moves its business operations from the City of Port Arthur, Texas,
Incentive Recipient shall only be entitled to the credit earned as set forth in
Paragraph 5(C)
(5) 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 has the ability to have an annualized payroll of more than$235,000 by September 15,2018
and will be compensated for that additional amount.
Incentive Recipient may earn credits according to the following terms, to reduce the
duration of this Agreement.
(1) Starting on the effective date of the Agreement and for as long as Incentive
Recipient performs as specified in Section 5(b)(1) of this Agreement, Incentive
Recipient will receive a $1.00 credit for each $6.65 of payroll paid to residents of
Port Arthur. PAYROLL TO NON-RESIDENTS CANNOT BE CREDITED.
(2) Total credits cannot exceed$100,000.00.
(3) Incentive Recipient will forfeit any credits it earned during a period for which a
report is scheduled, but for which Incentive Recipient failed to issue the report
pursuant to the Performance Milestone Schedule within 10 days after receipt of
written notice from PAEDC that such report is past due.
(4) Once Incentive Recipient has earned credits equal to $100,000.00, the agreement
and all obligations to PAEDC shall terminate.
(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 "A" ("First Source"). Incentive
Recipient has agreed to the policies and procedures within First Source as a non-
exclusive resource and referral for all appropriate new job openings of Incentive
Recipient.
PERFORMANCE MILESTONE SCHEDULE
6. Although failure to achieve a performance milestone is not a breach of contract, a
failure is grounds for PAEDC to withhold further payments to Incentive Recipient and/or
demand reasonable assurances2 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.
PERFORMANCE MILESTONE SCHEDULE
DATE MILESTONE
(a) July 31, 2018 Issue a Business Operational Report to PAEDC, CEO for the period
2 Examples of reasonable assurances are copies of pending contracts and customer commitment letters.
of December 1, 2017 to July 31, 2018.
(b) August 1, 2018 Achieve enrollment of three(3)Port Arthur Resident into Company
Pre-Employment 6 weeks Service Technician Training Program.
Achieve employment of three(3) full-time permanent employees
(c) September 15, 2018 that are Port Arthur Residents as Technicians and one (1) additional,
full-time permanent Port Arthur employee as office staff with an
annualized payroll of$235,000.
(d) March 15, 2019 Issue a Payroll Report (W-2's) of Port Arthur residents to PAEDC
for year ending 2018.
(c) July 31, 2019 Issue a Business Operational Report to PAEDC, CEO for the period
of August 1, 2018 to July 30, 2019.
Achieve enrollment of three(3) additional Port Arthur Residents
(f) August 1, 2019 into Company Pre-Employment 6 weeks Service Technician
Training Program.
Achieve employment of three(3) additional full-time permanent
(g) September 15, 2019 employees that are Port Arthur Residents as Technicians with an
annualized payroll of$390,000.
(h) December 31, 2019 AWC, Inc. maintain annualized payroll for Port Arthur Residents
year ending December 2019 of$430,000
(i) March 15, 2020 Issue a Payroll Report(W-2's) of Port Arthur residents to PAEDC
for year ending 2019.
AWC, Inc. maintain annualized payroll for Port Arthur Residents
(j) December 31, 2020year ending December 2019 of$430,000
(k) June 2021 AWC, Inc. meets all PAEDC contractual performance as verified by
the PAEDC CEO
(1) June 2021 Prepare close out of contract for PAEDC Board and Council
Approval
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. It is expressly understood and agreed by the parties hereto that the PAEDC funding
obligations herein are contingent upon the actual receipt of adequate sales tax revenue funds to
meet the PAEDC's liabilities under this Agreement. If adequate funds are not available to make
payments under this Agreement, the PAEDC shall notify Incentive Recipient in writing within a
reasonable time after such fact is reasonably determined by the PAEDC Board of Directors.
Should PAEDC fail to fully fund its obligations hereunder, this Agreement shall terminate and
both parties shall be relieve of any further liability hereunder. In the event of such termination,
the PAEDC may, at its sole option, immediately cease all further funding, if any, required by this
Agreement and the PAEDC shall not be liable to Incentive Recipient or to any third parties for
failure to make payments to Incentive Recipient under the terms and conditions of this
Agreement.
9. The PAEDC shall not be liable, in Agreement or otherwise, to Incentive Recipient, or
to any person or entity claiming by or through Incentive Recipient, for any expense, expenditure
or cost incurred by or on behalf of Incentive Recipient related to the project made the basis of
this Agreement. The PAEDC's sole liability/obligations, if any, shall be to Incentive Recipient
and shall be limited to the obligations detailed in Section 5(a) of this Agreement.
RECORDS/INSPECTION/PAEDC AUDIT
10. Incentive Recipient must establish and maintain reasonably sufficient records, as
reasonably determined by the PAEDC, to account for the expenditure and utilization of funds
received by Incentive Recipient from PAEDC under the terms and conditions of this Agreement.
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.
11. Incentive Recipient shall maintain records of the receipt and disposition of all funds
provided hereunder as necessary to allow the PAEDC to audit and verify proper utilization of
said funds in compliance with this Agreement and the representations and warranties contained
herein and in Incentive Recipient's application. Incentive Recipient shall provide reports of
utilization of said funds, as reasonably requested by the PAEDC, and upon termination of this
Agreement.
12. Upon ten-day (10-day) advance written notice given not later than the 90th day after
the end of the calendar year in which such transactions being audited occurred, 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
belonging to or in use by Incentive Recipient so that PAEDC can ensure the Incentive Recipient
is meeting the Performance Milestone Schedule. 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).
13. All records pertinent to this Agreement shall be retained by Incentive Recipient at
least one year 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. Further, records relating to real
property acquisition, including any long-term lease, shall be retained for a period equal to the
useful life of any asset purchased with PAEDC funds.
14. Incentive Recipient shall provide PAEDC with all reports reasonably necessary for
PAEDC compliance with the Development Corporation Act.
15. The PAEDC reserves the right, from time to time, prior to the termination of this
agreement 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
16. 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 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.
CONFLICT OF INTEREST/DISCLOSURE OBLIGATION
17. 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.
18. 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
19. 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 any such project 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 of Port Arthur, Texas.
LEGAL AUTHORITY
20. Incentive Recipient assures and guarantees it possesses legal and/or corporate
authority(i) to enter into this Agreement, receive funds 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.
21. 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
22. Incentive Recipient shall give PAEDC immediate notice in writing of 1) any legal or
regulatory action, including any proceeding before an administrative agency filed against
Incentive Recipient, directly or indirectly; and 2) any material claim against Incentive Recipient,
which may impact continued operations. For purposes herein, "material" claims shall mean
claims in excess of$50,000. 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
23. 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, in many cases, by the City Council for City of Port Arthur.
24. 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 of Port Arthur 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.
25. Any alterations, additions, or deletions to the terms of this Agreement which are
required by changes in Federal, state law or local law 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
26. In the event of a material default of any of the material obligations of Incentive
Recipient detailed herein or in the event of a material 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, 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) Exercise any remedies provided herein;
(b) Withhold, whether temporarily or otherwise, disbursement of grant proceeds pending
correction of the deficiency(s)by Incentive Recipient;
(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; and
(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.
27. 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
28. If directed by PAEDC Board not more than once each 12 month period, Incentive
Recipient shall arrange for the performance of a compliance audit performed by a certified public
accountant, of funds received and 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 guarantees, property, cooperative agreements, interest subsidies, or direct
appropriations. Backup documentation regarding actual expenditures shall be
provided by Incentive Recipient. Said audit must be received and accepted by the
Chief Executive Officer of PAEDC and/or the PAEDC Board.
(b) At the option of Incentive Recipient, each audit required by this section may cover
either its entire operations or each department, agency, or establishment of Incentive
Recipient which received, expended, or otherwise administered PAEDC funds;
(c) 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.
29. 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 and it may be required to submit formal audits at its
expense.
30. 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.
31. 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.
32. PAEDC shall not release any funds for costs incurred by Incentive Recipient under
this Agreement until PAEDC has received certification from Incentive Recipient that its fiscal
control and fund accounting procedures are adequate to assure proper disbursal of and
accounting for funds provided under this Agreement. PAEDC shall specify the content and form
of such certification.
SUPPLEMENTAL COVENANT
33. 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."
34. 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(less any credits given as set forth in Paragraph 5(C)) with interest at the
rate of ten (10%) percent per annum not later than the 120th day after the date PAEDC notifies
Incentive Recipient of a violation.
35. 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
36. Incentive Recipient understands and agrees that by execution of this Agreement,
Incentive Recipient shall be responsible for providing to PAEDC all information, concerning this
PAEDC funded project, reasonably required for PAEDC to meet its responsibilities for
environmental review, decision making, and other action which applies to PAEDC in accordance
with and to the extent specified in Federal, State and Local Law. Incentive Recipient further
understands and agrees that Incentive Recipient shall make all reasonable efforts,but shall not be
required to expend any funds in doing so, to assist PAEDC in handling inquiries and complaints
from persons and agencies seeking redress in relation to environmental reviews covered by
approved certifications.
ORAL AND WRITTEN AGREEMENTS /PRIOR AGREEMENTS
37. 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.
38. 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
X Exhibit "A" First Source Referral Agreement
X Exhibit "B" Certification Regarding Lobbying
X Exhibit "C" Compliance Statement
X Incentive Recipient Application to PAEDC
VENUE
39. 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
501 Procter Street
Port Arthur, Texas 77640
ATTN: Floyd Batiste, Chief Executive Officer
AWC, Inc. d/b/a Alford, Woods and Childs Texas, Inc.
6655 Exchequer Drive
Baton Rouge, LA 70809
CAPTIONS
40. 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
41. 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
42. 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.
ATTORNEY APPROVALS
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
VERIFIED BY
CITY COUNCIL RESOLUTION:
Resolution Number:
Valecia R. Tizeno, City Attorney
AGREEMENT EXECUTION
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION
SIGNED AND AGREED TO on the day of , 2017.
By: By:
President Secretary
EDC Representative EDC Representative
AWC, INC. D/B/A ALFORD, WOODS AND CHILDS TEXAS, INC.
SIGNED AND AGREED TO on the day of , 2017.
AWC, INC. D/B/A ALFORD, WOODS
AND CHILDS TEXAS, INC.
By:
Acknowledgment
EXHIBIT "A"
FIRST SOURCE REFERRAL AGREEMENT
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
FIRST SOURCE REFERRAL AGREEMENT
Resolution Number:
Project Name:
Project Address:
Project Contact Person:
Project Contact Person Phone Number:
This First Source Referral Agreement (the "Agreement"), for recruitment, referral, and
placement of City of Port Arthur Section 4A Economic Development Corporation (the
"PAEDC"), hereinafter, and AWC, INC. D/B/A ALFORD, WOODS AND CHILDS TEXAS,
INC. (the "EMPLOYER"). Under this Agreement, the EMPLOYER will use PAEDC as its first
source for recruitment, referral, and placement of new hires or employees for the new jobs
created by their project and will hire the number of Port Arthur residents specified for new jobs
created by the Project in that certain Economic Incentive Contract & Loan Agreement (the
"Incentive Agreement") between PAEDC and the EMPLOYER.
I. GENERAL TERMS
A. The EMPLOYER will use PAEDC as its first source for the recruitment, referral
and placement of employees.
B. PAEDC participation in this Agreement will be carried out by its Chief Executive
Officer which is responsible for referral and placement of employees, designated by PAEDC.
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 and any extensions or modifications to
the contract.
E. PAEDC and the EMPLOYER agree that for purposes of this Agreement, new
hires and jobs created include all EMPLOYER'S job openings and vacancies in the Port Arthur
Area created as a result of internal promotions, terminations, and expansions of the
EMPLOYER'S workforce, as a result of this project.
II. RECRUITMENT
A. The EMPLOYER will complete the attached Employment Plan, which will
indicate the number of new jobs projected, 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 (Monday- Friday)before using any other referral source,
and shall include, at a minimum, the number of employees needed by job title, qualification,
hiring date, rate of pay,hours of work, duration of employment, and 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 and referral.
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 the 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 (Monday - Friday) from the date of notification, the EMPLOYER will be
free to directly fill remaining positions for which no qualified applicants have been referred.
Notwithstanding, the EMPLOYER will still be required to hire Port Arthur residents in the
percentage specified for new jobs created by the Project in that certain Economic Incentive
Contract & Loan Agreement (the "Incentive Agreement") between PAEDC and the
EMPLOYER.
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.
V. TRAINING
PAEDC and the EMPLOYER may agree to develop skills training and on-the-job
training programs; the 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. Employment openings the contractor will fill with individuals already employed
by the company.
B. Job openings to be filled by laid-off workers according to 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 possession
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 the EMPLOYER'S Agreement.
2. Notify the party taking possession that full compliance with this Agreement is
required in order to avoid termination of the project.
3. EMPLOYER shall, additionally, advise PAEDC within seven (7) business/calendar
days of the transfer. This advice 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 submission of the final request for closure of Agreement
from the Board, the EMPLOYER shall:
1. Document in a report to the Compliance Officer compliance with the hiring
requirements specified in the Incentive Agreement to be Port Arthur residents; or
2. Submit a request to the Compliance Officer for a waiver of compliance with the
hiring requirement at the project to be Port Arthur residents and include the following
documentations:
a. Material supporting a good faith effort to comply;
b. Referrals provided by PAEDC and other referral sources; and
c. Advertisement of job openings listed with PAEDC and other referral sources.
F. Willful breach of the First Source Referral Agreement by the EMPLOYER, or
failure to submit the Compliance Report may be enforced by the Compliance Officer through
notification and possible termination of the Incentive Agreement.
G. The EMPLOYER and PAEDC, or such other agent as PAEDC may designate,
may mutually agree to modify this Agreement.
H. The project may be terminated because of the EMPLOYER'S noncompliance
with the provisions of this Agreement.
CITY OF PORT ARTHUR SECTION
4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of , 2017.
By: By:
Ingrid Holmes, President , Secretary
EDC Representative EDC Representative
AWC, INC. D/B/A ALFORD, WOODS AND CHILDS TEXAS, INC.
SIGNED AND AGREED TO on the day of , 2017.
By:
Acknowledgment
EXHIBIT "B"
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,
loan, 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.
AWC, INC. D/B/A ALFORD,WOODS
AND CHILDS TEXAS, INC.
Date: By:
Signature
Its:
Title
EXHIBIT "C"
COMPLIANCE STATEMENT
AWC, Inc. d/b/a Alford, Woods and Childs Texas, Inc. hereby certifies that
it has fully complied with Local Government Code §176.006, as amended, which
mandates the disclosure requirements for persons who contract or seek to contract
with a local governmental entity.
AWC, INC. D/B/A ALFORD, WOODS
AND CHILDS TEXAS, INC.
Date: By:
Signature
Its:
Title
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