HomeMy WebLinkAboutPR 20505: EDC, INDUSTRIAL SCAFFOLDING, LLC P. 12. No. 20505
10/08/2018 KVM
RESOLUTION NO.
A RESOLUTION APPROVING AN ECONOMIC INCENTIVE
CONTRACT & LOAN AGREEMENT BETWEEN
INDUSTRIAL SCAFFOLDING,LLC AND THE CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION
WHEREAS, the City Council deems it in the public interest to authorize the City of Port
Arthur Section 4A Economic Development Corporation ("PAEDC") to enter into an Economic
Incentive Contract & Loan Agreement (the "Agreement") with Industrial Scaffolding, LLC
("Industrial Scaffolding"); and
WHEREAS, Industrial Scaffolding has presented an application qualifying as a Section
4A project as set forth in the Executive Summary of the Agreement; and
WHEREAS, PAEDC has reviewed the Industrial Scaffolding application and
accompanying financial statements and recommends approval thereof; and
WHEREAS, at their regular Board meeting of October 1, 2018, the PAEDC Board of
Directors approved entering into the Agreement with Industrial Scaffolding offering an incentive
of$300,000.00 for the purchase of land to relocate their corporate office from Beaumont to the
PAEDC Spur 93 Business Park; and
WHEREAS, Industrial Scaffolding shall increase its staff by December 31, 2019, to
employ 27 Port Arthur residents with an annual total payroll of not less than $1,313,521.00 as
detailed in the Agreement attached hereto as Exhibit "A"; and
WHEREAS, Industrial Scaffolding has reviewed and approved the Agreement.
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 enter into the Agreement with
Industrial Scaffolding, and the President and Secretary of PAEDC are authorized to sign the
Agreement in substantially the same form attached hereto as Exhibit "A".
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., 2018,
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 Bollard, City Secretary
i;96I 1, rage 2
APPROVED:
Floyd Batiste, AED CEO
APPROVE►. • S T O ORM:
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R. Tizeno, City Attorney
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EXHIBIT "A"
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
&
INDUSTRIAL SCAFFOLDING, LLC
Industrial Scaffolding, LLC ("Incentive Recipient") is a Texas limited liability company
which was established in 2008. Incentive Recipient provides work access solutions, including
erecting and dismantling scaffolding, scaffolding rental and shoring services, to oil and
petrochemical clients directly and through general contractors. Incentive Recipient plans to
relocate its corporate office from Beaumont, Texas to Port Arthur, Texas. Walden Road Properties,
LLC, an affiliated entity to Incentive Recipient, is going to purchase six (6) acres in the Spur 93
Business Park. Incentive Recipient will enter into a ground lease agreement with Walden Road
Properties and plans to utilize incentive funds acquired through the City of Port Arthur Section 4A
Economic Development Corporation (the "PAEDC") to construct a new office, warehouse and lay-
down yard to in order to continue to expand the business.
PAEDC has agreed as consideration for the promise and performance of Incentive Recipient
to conditionally grant Incentive Recipient $300,000 in accordance with an Economic Incentive
Contract& Loan Agreement (the "Agreement") for the construction of a new office, warehouse and
lay down yard. PAEDC and Incentive Recipient have agreed that incentive credits shall be in an
amount not to exceed $300,000.
Incentive Recipient shall comply with the Performance Milestone Schedule in the
Agreement to meet its promised performance under the Agreement, and to provide all reports and
other affirmative commitments as outlined in the Agreement.
Incentive Recipient shall secure Owners Consent to Pledge from Walden Road Properties in
order to secure its performance under the Agreement by executing and recording a deed of trust on
the property located at in favor of PAEDC.
Incentive Recipient has further agreed to execute the First Source Referral Agreement and to
utilize the services of the PAEDC on a non-exclusive basis to find qualified applicants for
employment at the Project.
ECONOMIC INCENTIVE & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
INDUSTRIAL SCAFFOLDING, LLC
("INCENTIVE RECIPIENT")
INTRODUCTION 1
AGREEMENT TERM 1
PARTIES 1
PROMISED PERFORMANCE 2
(A) PERFORMANCE BY PAEDC 2
(B) PERFORMANCE BY INCENTIVE RECIPIENT 3
(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 6
RECORDS/INSPECTION/PAEDC AUDIT 6
HOLD HARMLESS 7
SUBCONTRACTS 8
CONFLICT OF INTEREST/DISCLOSURE OBLIGATION 8
NONDISCRIMINATION/EMPLOYMENT/REPORTING 9
LEGAL AUTHORITY 9
NOTICE OF LEGAL OR REGULATORY CLAIMS 10
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 14
COMPLIANCE WITH FEDERAL,STATE AND LOCAL LAWS 14
CONDITIONS PRECEDENT 14
MISCELLANEOUS 14
ATTORNEY APPROVALS 15
AGREEMENT EXECUTION 17
Exhibit"A" Conditional Commercial Promissory Note
Exhibit"B" Owner's Consent to Pledge
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
Exhibit"H" Lease between Walden Road Properties& Industrial Scaffolding,LLC
Exhibit"I" Special Warranty Deed
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ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
INDUSTRIAL SCAFFOLDING, LLC
("INCENTIVE RECIPIENT")
INTRODUCTION
Incentive Recipient provides work access solutions, including erecting and dismantling
scaffolding, scaffolding rental and shoring services, to oil and petrochemical clients directly and
through general contractors. Incentive Recipient plans to relocate its corporate office from
Beaumont, Texas to Port Arthur, Texas. Walden Road Properties, LLC, an affiliated entity to
Incentive Recipient, is going to purchase six (6) acres in the Spur 93 Business Park. Incentive
Recipient will enter into a ground lease agreement with Walden Road Properties and plans to utilize
incentive funds acquired through the City of Port Arthur Section 4A Economic Development
Corporation (the "PAEDC") to construct a new office, warehouse and lay-down yard to in order to
continue to expand the business.
AGREEMENT TERM
EFFECTIVE DATE
1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered into
with an effective date of , 2018 (the "Effective Date"), by and between the PAEDC and
Incentive Recipient.
TERMINATION DATE
2. This Agreement expires on the earlier of(i) four(4) years from the date the certificate of
occupancy for the Project on the Property is issued, or(ii) at such earlier date as Incentive Recipient
meets the performance milestones set forth in this Agreement or(iii) the date upon which Incentive
Recipient 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 501 Procter Street, 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"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.
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4. Industrial Scaffolding, LLC ("Incentive Recipient") is a limited liability company.
Incentive Recipient's corporate address is 6164 W. Port Arthur Rd., Beaumont, Texas 77705 and
registered agent is Michael Roebuck.
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
i. PAEDC shall conditionally grant Incentive Recipient an incentive of $300,000,
subject to the conditions and limitations herein, which Incentive Recipient is not
required to repay 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 6 acres of
land in the Business Park as more fully described in the Deed of Trust attached
hereto as Exhibit"C"to this Agreement (the "Property").
iii. PAEDC shall record the Special Warranty Deed described in Exhibit "P' to this
Agreement (the "Special Warranty Deed") at the Closing pursuant to the Purchase
Agreement between the Parties.
(b) PERFORMANCE BY INCENTIVE RECIPIENT
(1) Incentive Recipient, subject to the terms and conditions of the Purchase Agreement,
shall close on the purchase of the Property for the development of the Project no later
than the deadline as shown in the Performance Milestone Schedule in this
Agreement.
(2) Incentive Recipient shall begin construction on an approximate 10,800 square foot
office/warehouse no later than the deadline as specified in the Performance
Milestone Schedule in this Agreement.
(3) Incentive Recipient shall have received its certificate of occupancy and shall occupy
its Project on the Property within eighteen (18) months from the close of the
Purchase Agreement or at such other time thereafter as may be reasonably agreed
upon between PAEDC and Incentive Recipient.
(4) Incentive Recipient shall continually conduct business operations during normal
business hours for a period that is the lesser of(i) four (4) years from the date of its
receipt of certificate of occupancy for the Project on the Property or (ii) the
Termination Date.
(5) Incentive Recipient shall generate $3,940.563.00 in total payroll by December 2021
and provide PAEDC evidence of same by submitting W-2s or 1099 documentation.
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(6) Incentive Recipient shall provide PAEDC an Owner's Consent to pledge as set forth
in Exhibit"H" and deliver to PAEDC a first lien Deed of Trust on the Property.
(7) 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.
(8) 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 satisfy its
performance of this Agreement or 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 $300,000.
(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.
(3) Incentive Recipient will receive a $1.00 credit for each $13.14 of payroll paid to
residents of Port Arthur during the term of the incentive agreement. PAYROLL TO
NON-RESIDENTS CANNOT BE CREDITED.
(4) If Incentive Recipient has not logged credits equal to the $300,000 of payroll as
committed, but has operated its facilities and paid all property taxes and other city
taxes, fees and assessments associated with the Project. Incentive Recipient may (i)
cancel its remaining obligations of this Agreement or (ii) request an extension of the
term of this Agreement.
(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
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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 listed below, PAEDC shall, as requested by Incentive Recipient,
issue documentation to the Incentive Recipient setting forth the total uncreditedlunpaid amount
remaining.
PERFORMANCE MILESTONE SCHEDULE
Deadline Milestone
(a) Industrial Scaffolding, LLC Issue a status report to PAEDC
December 31,2018 CEO on the construction of new facility in the Spur 93
Business Park.
(b)
January 31, 2019 Industrial Scaffolding, LLC provide PAEDC CEO with
payroll status report on new hires of Port Arthur residents
from the date of Construction Permit issuance from the City
of Port Arthur.
(c)
April 30, 2019 Industrial Scaffolding, LLC provide PAEDC CEO with
payroll status report on new hires of Port Arthur residents
from January 31, 2019 to April 30, 2019.
(d)
August 31, 2019 Industrial Scaffolding, LLC provide PAEDC CEO with
payroll status report on new hires of Port Arthur residents
from April 30, 2019 to August 31, 2019.
(e)
December 31, 2019 Industrial Scaffolding, LLC provide PAEDC CEO with
payroll status report on new hires of Port Arthur residents
from April 30, 2019 to August 31, 2019.
1 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.
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(f)
December 31, 2019 Industrial Scaffolding, LLC provide PAEDC CEO with
W-2's or 1099 of Port Arthur Residents Hired or
Employed in 2019. Annualized payroll should equal
$ 1,313,521.00
(g)
December 31, 2020 Industrial Scaffolding, LLC Maintain Annualized payroll
of$ 1,313,521.00 for Port Arthur Residents (submit
W-2's or 1099 for the year ending 2020)Accumulated PA
Payroll should equal $2,627,042.00
(h) December 31, 2021 Industrial Scaffolding, LLC Maintain Annualized payroll of
$1,313,521.00 for Port Arthur Residents (submit W-2's or
1099 for the year ending 2021)Accumulated PA payroll
should equal $3,940,563.00
(i) March 31, 2022 Industrial Scaffolding meets all contractual obligations.
EDC Board of Directors to close file
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. PAEDC has promised to execute and to record the Special Warranty Deed described in
Exhibit "I" to this Agreement and pursuant to the Purchase 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. PAEDC will use its best efforts to cure
title defects or eliminate title encumbrances to enable Incentive Recipient to make full utilization of
the Property pursuant to the Purchase Agreement.
9. Incentive Recipient, pursuant to the Purchase Agreement, has undertaken a ground
survey of the Property, and the Property to be conveyed consists of 6 acres tract of land more fully
described in Special Warranty Deed affixed to this Agreement as Exhibit "I" and made a part
hereof for all purposes.
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 under this Agreement without the
prior written consent of the PAEDC and the City, except for Permitted Affiliates as defined herein,
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 which consent shall not unreasonably
be withheld, delayed or conditioned.
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT
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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
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/PAEDC AUDIT
14. Incentive Recipient acknowledges that while it does not have an affirmative obligation
to create additional payroll for the hiring of Port Arthur residents, as employment at the Project in
the Business Park expands, Incentive Recipient shall utilize the First Source Referral Agreement to
locate qualified employment applicants for its business requirements.
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
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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 Chapters 501, 504, Texas Local Government Code, 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 pursuant to Exhibit"A".
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
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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.
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 Chapters 501, 504, Texas Local Government Code and Chapter
171,Texas Local Government Code.
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, except
involving Permitted Affiliates, 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) 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 in Incentive Recipient's discretion, reasonably exercised, to Port Arthur
residents; and
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(b) Agreements for work to be performed in connection with the Project shall be awarded in
Incentive Recipient's discretion, reasonably exercised, 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 as required in
Exhibit "F". Incentive Recipient acknowledges that PAEDC does not intend to restrain
any advertising in additional publications or media nor direct any others than that stated.
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 involving the Property; and 2) any material claim against Incentive
Recipient, which may impede continued operations at the Property. 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
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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).
33. 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
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) 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.
(c) Withhold and/or disallow further PAEDC incentives to Incentive Recipient.
(d) 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
#1592041
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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
or discount 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. 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.
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
#1592041
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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
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 a nuisance 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 upon reasonable
advance written notice of at least 48 hours with Incentive Recipient allowed to monitor such access
and to obtain split samples all subject to PAEDC agreeing to restore the Property to the condition
prior to its investigation and to indemnify Incentive Recipient for any damage or harm to the extent
caused by or arising from PAEDC or its duly authorized officers, agents, employees, contractors or
subcontractors' subject actions upon the Property. 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" Owner's Consent to Pledge
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
Exhibit"H" Lease between Walden Road Properties and Industrial Scaffolding, LLC
Exhibit"I" Special Warranty Deed
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
#1592041 Page 14
City of Port Arthur Section 4A Economic Development Corporation
501 Procter Street
Port Arthur, Texas 77640
ATTN: Floyd Batiste, Chief Executive Officer
Mike Roebuck
Industrial Scaffolding
6164 W. Port Arthur Rd.
Beaumont, Texas 77705
ATTN: Michael Roebuck
Telephone: 409-284-4262
E-mail: mike@echogroup.net
All notice requirements set forth herein shall be made in writing by national overnight delivery
service or certified mail.
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. The Purchase Agreement is closed.
c.
d.
MISCELLANEOUS
50. Permitted Affiliates. For purposes of this Section, "Permitted Affiliates" shall mean(i) a
subsidiary of Buyer, (ii) a corporation or other entity into or with which Buyer has merged or
consolidated, or to which substantially all of Buyer's stock or assets are transferred, (iii) any
#1592041 Page 15
corporation or other entity which controls, is controlled by, or is under common control with Buyer,
(iv) a limited liability company in which Buyer is a member, or (v) any corporation or other entity
with which Buyer is otherwise affiliated.
51. Force Majeure. No Party shall be liable for any failure to perform its obligations where
such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or
other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or
not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation,
terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike,
lockout or interruption or failure of electricity or communication service, and no other Party will
have a right to terminate this Agreement in such circumstances.
Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable
steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable
events, that all non-excused obligations were substantially fulfilled, and that the other Party was
timely notified of the likelihood or actual occurrence which would justify such an assertion, so that
other prudent precautions could be contemplated.
52. PAEDC Approval Pursuant to Covenants and Restrictions. PAEDC shall not
unreasonably withhold, delay or condition its approval to any consent or approval it retains the right
to grant pursuant to the Covenants and Restrictions of record at the Closing of the Purchase
Agreement.
ATTORNEY APPROVALS
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
VERIFIED BY
CITY COUNCIL RESOLUTION:
Resolution Number:
Valecia R. Tizeno, City Attorney
#1592041
Page 16
#1592041
Page 17
AGREEMENT EXECUTION
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of , 2018.
By: By:
President Secretary
EDC Representative EDC Representative
11159204!
Page 18
INDUSTRIAL SCAFFOLDING, LLC
SIGNED AND AGREED TO on the day of , 2018.
By:
Title
Acknowledgment
NI592041
Page 19
EXHIBIT "A"
CONDITIONAL COMMERCIAL PROMISSORY NOTE
Port Arthur,Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when Industrial
Scaffolding, LLC, a limited liability company (hereinafter called "Maker") breaches or exercises
the Buyout Option of 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 ,2018.
Effective Date of Note: The Note shall be dated effective the day of
201 which is the date upon which Lender provided notification to Maker of its default or
exercise of the Buyout Option under the Economic Incentive Contract & Loan Agreement (the
"Agreement")by and between Lender and Maker dated ,2018 ("Date of Default").
Principal Amount: Principal amount is $300,000 less the incentive credits earned by Maker
according to the Economic Incentive Contract and Loan Agreement (described
hereinabove) for a total due at the Effective Date of
Term of the Loan: From the Date of Default, Maker shall thereafter make equal monthly
installments of principal and interest (interest being calculated as hereinafter specified at the rate of
10% per annum) until , 20_ (the "Final Payment Date"). Lender shall provide to
Maker, a payment amortization schedule for the monthly installments due hereunder. Maker agrees
that all principal and interest on this Note shall be due and payable by the Final Payment Date.
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 at the rate of ten percent(10%)per annum as detailed herein.
All past due principal and interest shall bear interest from date of maturity until paid at the
rate of fifteen percent (15%) per annum, or to the maximum extent allowed by law (whichever is
lesser)as may hereafter be in effect,payable on demand after maturity.
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
first class United States mail, 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 mail, in accordance with the foregoing
provisions, shall be deemed to have been given to and received by Maker as of the date on which
such notice was deposited with the United States Postal Service, properly addressed and with
postage prepaid.
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 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 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).
Page 2
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
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 day of , 2018.
Industrial Scaffolding,LLC
By:
THE STATE OF TEXAS §
§ ACKNOWLEDGMENT
COUNTY OF JEFFERSON §
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared
, 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
Industrial Scaffolding, LLC for the purposes and consideration therein expressed, and the
Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
,2018.
Notary Public, State of Texas
Page 3
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
Industrial Scaffolding,LLC
Attn: Michael Roebuck
6164 W. Port Arthur Rd.
Beaumont, Texas 77705
Page 4
EXHIBIT "B"
OWNER'S CONSENT TO PLEDGE
OWNER'S CONSENT TO PLEDGE
, 2018
The undersigned, Walden Road Properties, LLC a Texas limited liability company
(hereinafter called "Owner"), whose address is P.O. Box 1915, Nederland, Texas 77627 for
value received, and for the purpose of enabling Industrial Scaffolding, LLC (hereinafter called
"Debtor"), whose address is 6164 W. Port Arthur Rd., Beaumont, Texas 77705, to obtain or
maintain credit or other financial accommodations from the City of Port Arthur Section 4A
Economic Development Corporation (hereinafter called "Secured Party"), whose address is 501
Procter Street, Port Arthur, Texas 77640 hereby grants to Secured Party, and consents to
Debtor's granting to Secured Party, a security interest in and a lien upon the Collateral
(hereinafter defined and described on Exhibit A to the Deed of Trust) to secure payment of the
Obligations (hereinafter defined), and in connection therewith, does hereby covenant, stipulate
and agree as follows:
1. As used herein, the term "Obligations" refers to and includes all liabilities and
indebtedness of Debtor to Secured Party, howsoever created or arising and howsoever evidenced,
whether now existing or hereafter arising, whether direct or indirect, whether joint or several,
whether absolute or contingent, and whether due or to become due, and whether evidenced by
promissory note, guaranty, surety agreement, overdraft, open account, instrument, document,
acceptance, letter of credit or otherwise, together with all costs and expenses and attorney's fees
and legal expenses which may be paid or incurred by Secured Party in enforcing its security
interest and lien hereunder or in connection with protecting, preserving, handling, dealing with,
selling or otherwise disposing of or realizing upon the Collateral or its security interest and lien
therein, and together with any and all renewals, rearrangements and extensions of any or all of
the above described items of indebtedness or liability.
2. Owner assigns, releases and transfers to Debtor, for the purpose of pledging,
hypothecating and granting security interests in and liens upon the Collateral, all of Owner's
right, title and interest therein and irrevocably authorizes and empowers Debtor to grant security
interests in and liens upon the Collateral to Secured Party to secure payment of the Obligations,
and any part thereof, upon such terms and conditions as debtor may determine, it being stipulated
that the Collateral shall be and become subject to disposition in accordance with the terms and
conditions of any of the Obligations and any security agreement, assignment or other document
of lien or encumbrance which may be executed by Debtor to Secured party covering or
pertaining to the Collateral and that the terms and provisions of any such Obligations or security
agreement, assignment or other document of lien or encumbrance which may be executed by
Debtor to Secured Party covering or pertaining to the Collateral shall be fully binding upon
Owner and upon the Collateral and such are hereby ratified, confirmed and adopted by Owner.
The Owner authorizes the Secured Party to deliver all or any part of the Collateral or the
Page 5
proceeds thereof to or upon the order of the Debtor and to allow Debtor to use, sell, transfer and
deal with the Collateral and proceeds thereof as though Debtor were the sole and absolute owner
thereof.
3. Owner specifically waives any notice of the creation, advancement, increase,
existence, extension or renewal of, or of any indulgence with respect to the Obligations, and any
part thereof, and of nonpayment thereof or default thereon, and waives demand, protest,
presentment and notice of demand, protest and presentment with respect to the Obligations, and
waives notice of the amount of the Obligations outstanding at any time, and agrees that the
maturity of the Obligations, ad any part thereof, may be accelerated, extended, rearranged or
renewed by Secured Party in its discretion or as may be agreed by Debtor without notice to or
consent by Owner. Owner waives notice of acceptance of the Agreement of Owner by the
Secured Party.
4. Owner agrees that no renewal, rearrangement or extension of or any other
indulgence with respect to the Obligations, or any part thereof, no release of any security for the
Obligations, or any part thereof, no release of Debtor or of any other person primarily or
secondarily liable on the Obligations, or any part thereof (including any maker, endorser,
guarantor, surety or other person), no delay in enforcement of payment of the Obligations, or any
part thereof, and no delay or omission or lack of diligence or care in exercising any right or
power with respect to the Obligations or any other security therefor or guaranty thereof or under
this Agreement of Owner shall in any manner impair or affect the rights of Secured Party
hereunder or under any security agreement, assignment or other document of lien or
encumbrance executed by Debtor to Secured Party covering or pertaining to the Collateral.
Owner specifically agrees that it shall not be necessary or required, and that Owner shall not be
entitled to require, that Secured Party file suit or proceed to obtain or assert a claim for personal
judgment against Debtor or that Secured Party proceed against or foreclose against or seek to
realize upon any other security now or hereafter existing for the Obligations or file suit or
proceed to obtain or assert a claim for personal judgment against any other party(whether maker,
guarantor, endorser, surety or other person), obligated on the Obligations before, or as a
condition of, or at any time after foreclosing upon or otherwise selling or disposing of or
utilizing the Collateral for the purpose of paying the Obligations or any part thereof. Owner
expressly waives any right to the benefit of or to require or control application of any other
security or the proceeds of any other security now existing or hereafter obtained by Secured
Party as security for the Obligations, and agrees that Secured Party shall have no duty or
obligation insofar as Owner is concerned to apply any monies, payments or other property at any
time received by or paid to Secured Party upon any of the Obligations, except as Secured Party
shall determine in its sole discretion.
5. Owner represents and warrants to Secured Party that Owner is the lawful owner
of the Collateral free and clear of all liens, security interests, claims, charges and encumbrances,
except in favor of Secured Party, and that Owner has the full right and authority to deliver,
pledge, assign and transfer ownership interest in the Collateral and to authorize, and make, the
pledge, delivery, assignment and transfer herein contemplated.
Page 6
6. The authority herein granted by Owner shall remain in full force and effect until
such time, if any, as written revocation of such authority is received by the
Secured Party from Owner, but such revocation shall not affect or impair any
rights of Secured Party with respect to the Collateral as security for any
Obligations incurred prior to receipt of such revocation; nor shall revocation by
any Owner serve to revoke the authority herein granted by any other Owner.
7. To the extent the Collateral is of a type not covered by the provisions of the Texas
Business and Commerce Code, Owner does hereby assign, transfer and convey, and consents to
Debtor's assigning, transferring and conveying, the Collateral to Secured Party as collateral
security for the Obligations.
8. Secured Party is given the right, at any time or times, in its discretion, to sign any
counterpart, copy or reproduction of this Agreement of Owner signed by Owner and to file same
as a financing statement signed by Owner as "debtor" under the Texas Business and Commerce
Code. Secured Party may, if deemed necessary or desirable by Secured Party, at any time or
times, file any photographic or other reproduction of this Agreement of Owner or any financing
statement executed in connection with this Agreement of Owner as a financing statement.
9. The Agreement of Owner shall be binding upon Owner and its successors and
assigns and shall inure to the benefit of Secured arty and its successors and
assigns. The rights and remedies of Secured Party hereunder are cumulative, and
the exercise of any one or more of the remedies provided herein shall not be
construed as a waiver of any of the other remedies of the Secured Party. The law
governing this Agreement of Owner and the interpretation and construction
thereof shall be that of the State of Texas existing as of the date hereof; provided,
that if any additional rights or remedies are hereafter granted to secured parties or
lienholders by the laws of the State of Texas, the Secured Party shall also have
and may exercise any such additional rights or remedies. Any provision found to
be invalid under the laws of the State of Texas, or any other state having
jurisdiction, shall be invalid only with respect to the offending provision. All
words used herein shall be construed of such gender and number as the
circumstances may require.
10. It is further agreed that Owner shall immediately deliver any of the Collateral
received by Owner to the Secured Party. As used herein, the term Collateral" refers to and
includes the following described property and any and all additions, accessions and substitutions
therefor, together with all proceeds, monies, income, products and benefits attributable or
accruing to said property of which Owner is or may become entitled to receive on account of
said property, including, but not by way of limitation, premium, redemption proceeds and other
principal payments, all dividends and other distributions on or with respect to capital stock
whether payable in cash, stock or other property, all other subscription rights and all proceeds of
whatever kind, type, nature or description (including, without limitation, all equipment,
inventory, accounts, general intangibles, chattel paper, money, instruments, documents, deposit
accounts, certificates of deposit, securities and all proceeds of the foregoing):
Page 7
EXECUTED on the day of , 2018.
Walden Road Properties, LLC
By:
Its:
Page 8
EXHIBIT "C"
DEED OF TRUST
Date: , 2018
Grantor: Industrial Scaffolding, LLC
Grantors' Mailing Address
(including county): 6164 W. Port Arthur Rd.
Beaumont, Texas 77705
Telephone: (409)284-4262
(Jefferson County)
Trustee: GUY N. GOODSON
Trustee's Mailing Address: Germer PLLC
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): 501 Procter Street
Port Arthur, Texas 77640
(Jefferson County)
Note
Date: , 2018
Amount: $300,000 less incentive credits earned by Grantor
according to that certain Economic Incentive Contract and
Loan Agreement between Grantor and Beneficiary.
Maker: Industrial Scaffolding, LLC
Payee: PAEDC (Beneficiary)
Final Maturity Date:
Property: See Attachment for legal description.
Physical address is , Port Arthur,Texas 77642.
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 Deed of Trust, 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 or 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) 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;
(h) 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;
(i) 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;
(j) 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;
(k) 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;
(1) 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;
(m)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;
(n) 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
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(o) 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 or certificates thereof 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 all 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;
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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 default and 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 principal 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 law 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.
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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 (except to Permitted
Affiliates) 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 HEREWITH.
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SIGNED AND AGREED TO on the day of , 2018.
a
By:
Signature
Its:
Title
THE STATE OF TEXAS
§ ACKNOWLEDGEMENT
COUNTY OF JEFFERSON §
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared
, 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 , a , for the purposes and consideration therein
expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2018.
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
Guy N. Goodson
Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
Naze 6
Attachment to Deed of Trust
Legal Property Description
Being a 6.000 acres tract of land in the WILLIAM McFADDEN Survey No. 416,
Jefferson County, Texas, and being a portion of Block 4 of the "REPLAT OF THE
AMENDED PLAT OF PORT ARTHUR ECONOMIC DEVELOPMENT
CORPORATION BUSINESS PARK SUBDIVISION", a map of which said
Replat is of record under Clerk's File No. 2014038835 in the Official Public
Records of Jefferson County, Texas.
Page 7
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 wrongfully influencing or wrongfully 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.
By:
Signature
Its:
Title
EXHIBIT "E"
COMPLIANCE STATEMENT
Industrial Scaffolding, LLC 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.
Industrial Scaffolding, LLC,
a limited liability company
By:
Signature
Its:
Title
EXHIBIT "F"
FIRST SOURCE REFERRAL AGREEMENT
Resolution Number:
Project Name: INDUSTRIAL SCAFFOLDING, LLC
Project Address: 6164 W. Port Arthur Rd., Beaumont,Texas 77705
Project Contact Person: Michael Roebuck
Project Contact Person Phone Number: (409) 284-4262
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 Industrial Scaffolding, LLC (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
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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.
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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
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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
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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.
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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 , 2018.
By: By:
Ingrid Holmes, President , Secretary
EDC Representative EDC Representative
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INDUSTRIAL SCAFFOLDING,LLC
SIGNED AND AGREED TO on the day of , 2018.
By:
Acknowledgment
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EXHIBIT "G"
INCENTIVE RECIPIENT APPLICATION TO PAEDC
Page-9-
EXHIBIT "H"
LEASE BETWEEN WALDEN ROAD PROPERTIES
AND INDUSTRIAL SCAFFOLDING, LLC
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EXHIBIT "I"
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
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
The City of Port Arthur Section 4A Economic Development Corporation ("Grantor")
in consideration of the sum of TEN AND NO/100 DOLLARS (S 10.00) and other good and
valuable consideration, to Grantor in hand paid by Walden Road Properties, LLC ("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 only to the following:
(1) all 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;
(2) taxes on the above described property for 2018 and subsequent years not yet due
and payable; and
(3) [INSERT PERMITTED EXCEPTIONS PER PSA]
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.
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Grantor hereby reserves unto itself, its successors and assigns, any and all of the oil and
gas and their constituents, sulfur, coal, lignite, uranium, and other fissionable material,
geothermal energy, base and precious metals, rock, stone, gavel, and any other mineral
substances presently in or under the premises described in Exhibit A. The within reservation of
the aforesaid materials and minerals pertains to the exclusive right to execute any and all oil and
gas leases and any other mineral leases or other contractual arrangements whereby the right of
exploring, mining, removing and marketing of the hereinabove reserved minerals could be
transferred by Grantor to third parties, and the within reservation also pertains to the exclusive
right to receive any and all bonuses, royalties, shut-in and/or delayed marketing payments and
any other types of rental or lease payments associated with any of the aforementioned leases or
other contractual arrangements with third parties; together with the ownership of any future
reversionary oil and gas and their constituents, and other mineral rights, in total, upon the
expiration of any such lease or other contractual arrangement with third parties. The foregoing
reservation does not include a right to enter upon or use the surface of the premises described in
Exhibit A.
Grantor hereby reserves unto itself the right to repurchase the tract if Grantee fails to
develop the facilities (building) for user occupancy within the lesser of(i) eighteen months from
the closing of the purchase of the tract. If construction has not been completed as specified in
the preceding sentence, PAEDC shall have the option to repurchase the property from the
purchaser (user) on the basis of the original purchase price per acre with the purchaser (user) to
bear all costs incurred by PAEDC in its exercise of its rights of repurchase, including but not
limited to, attorney fees, title and recording fees, closing costs and related expenses. This
repurchase option may be exercised at any time subsequent to the failure of construction to start
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by the time period specified in this paragraph. Exercise of the option will be by formal action of
the PAEDC Board. Delivery of written notice of exercise of this option shall be the cause of an
immediate halt to development on the purchased tract(s)by the purchaser (user).
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 liability 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 the day of , 2018.
GRANTOR:
City of Port Arthur Section 4A
Economic Development Corporation
By:
Attest:
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the_day of , 2018, by
and of City of Port Arthur
Section 4A Economic Development Corporation.
Notary Public, State of Texas
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Accepted by GRANTEE:
Walden Road Properties, LLC
By:
Attest:
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of
2018, by and of Walden Road
Properties, LLC.
Notary Public, State of Texas
GRANTEE'S MAILING ADDRESS:
Walden Road Properties, LLC
Attn: Michael Roebuck
P.O. Box 1915
Nederland, Texas 77627
Escrow Holder shall notify both Seller and Buyer in writing of the "Effective
Date" of this Agreement and deliver copies of the fully executed Agreement
to each.
I'age- 14-