HomeMy WebLinkAboutPR 21282: EDC, AGREEMENT WITH TEAM FABRICATORS, LLC Interoffice
MEMORANDUM
To: Mayor, City Council, Ci M a er
From: Floyd Batiste, CEO
Date: February 11, 2020
Subject: P.R. No. 21282; Council Meeting of February 18, 2020
ATTACHED IS PROPOSED RESOLUTION NO. 21282
APPROVING AN ECONOMIC INCENTIVE CONTRACT &
LOAN AGREEMENT BETWEEN THE CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION AND TEAM FABRICATORS, LLC;
FUNDING AVAILABLE IN EDC ACCOUNT NO. 120-1429-
582.59-01
P. R. No. 21282
02/10/2020 KVM
RESOLUTION NO.
A RESOLUTION APPROVING AN ECONOMIC INCENTIVE
CONTRACT & LOAN AGREEMENT BETWEEN THE CITY
OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION AND TEAM
FABRICATORS, LLC; FUNDING AVAILABLE IN EDC
ACCOUNT NO. 120-1429-582.59-01
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 Team Fabricators, LLC ("Team
Fabricators"); and
WHEREAS, Germer PLLC has indicated that Team Fabricators 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 Team Fabricators application and accompanying
financial statements presented and recommends approval thereof; and
WHEREAS, at their special Board meeting of February 10, 2020, the PAEDC Board of
Directors approved entering into the Agreement with Team Fabricators offering a conditional loan/
grant in the amount of$324,000.00 for the expansion of its Port Arthur, Texas facility; and
WHEREAS, Team Fabricators will expand its pipe fabrication area by 22,800 square feet
and its carbon steel blast paint building by 46,100 square feet; and
WHEREAS, Team Fabricators shall generate a total of approximately $1,088,880.00 in
wages to Port Arthur residents by December 2023 as detailed in the Agreement attached hereto as
Exhibit"A"; and
WHEREAS, Team Fabricators 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 an Economic Incentive
Contract & Loan Agreement with Team Fabricators, LLC, and the President and Secretary of the
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., 2020,
at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES:
Mayor
Councilmembers
•
NOES:
Thurman Bartie, Mayor
ATTEST:
Sherri Bellard, City Secretary
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Page 2
APPROVED:
Floyd Batiste, PAEDC CEO
APPRO D • S T• F O RM:
-
z 11
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R. Tizeno, City Attorney
APPROVED AS TO AVAILABILITY OF FUNDS:
Ock,„.,,0
Kandy Daniel, I terim Finance Director
#1726499 Page 3
EXHIBIT "A"
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
&
TEAM FABRICATORS, L.L.C.
Executive Summary
Team Industries, Inc. ("Team"), a Wisconsin corporation, was formed in 1987. Team
fabricates carbon and stainless steel piping assemblies, piping modules, tanks and vessels for use
by process manufacturers in various industries including petrochemical, refining, food and
beverage, pulp and paper, chemical, pharmaceutical, industrial gas manufacturing, water and
wastewater and electric power generation. Plate and tank fabricating efforts focus on specialty
tanks and custom metal commodities.
The company's professional staff includes engineer and administrative personnel at its
Kaukauna, Wisconsin facilities and its industrial staff are members of the United Association (UA)
of plumbers and steam fitters. Due to significant customer base in the south central United States,
particularly in and around the Houston Metropolitan area, Team initiated plans to acquire and
equip a facility in and around Southeast Texas. To that end, Team has established Team
Fabricators, L.L.C., a Wisconsin limited liability company as its wholly owned subsidiary ("Team
Fabricators"). Team acquired, through an asset purchase, Way Fabricators, Ltd. on Procter Street
Extension in Port Arthur, Texas. In addition to the acquisition of land and buildings, Team and/or
Team Fabricators shall acquire over approximately $1.7 million of shop and office equipment for
their business operations. Team Fabricators expects to have 65-70 fulltime employees by the end
of its first year of operation with employment to grow to 135-150 employees by the end of the fifth
year of business operation. The business plan of Team Fabricators calls for employees to come
from the local region. Team presented an incentive application requesting a conditional loan/grant
to purchase equipment in the total amount of$1,663,211.
In 2008, Team Fabricators entered into an incentive agreement with PAEDC for $650,000
to purchase equipment to go in its $1.7 million of shop and office space located in Port Arthur.
Team Fabricators agreed to hire 125 local people in exchange for the incentive. Team Fabricators
successfully satisfied that incentive in 2014.
Now, Team Fabricators plans to expand its stainless-steel pipe fabrication area by 22,800
square feet and its carbon steel blast and paint building by 46,100 square feet.
The Board of Directors of the City of Port Arthur Section 4A Economic Development
Corporation (the "PAEDC") reviewed the business plan project and company summaries provided
by Team as well as a review of onsite Team facilities by representatives of the PAEDC. PAEDC
has agreed to provide Team Fabricators with a conditional loan/grant in the amount of $324,000
for the expansion for its Port Arthur, Texas facility.
In consideration of the conditional loan/grant, Team Fabricators has agreed to hire
approximately 8 Port Arthur residents to reach an annual total payroll of$1,088,880 by the end for
the fourth year from the end of the Economic Incentive Contract and Loan Agreement (the
"Agreement"). The conditional loan/grant will be secured by a letter of credit from Wells Fargo.
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
TEAM FABRICATORS, L.L.C.
("INCENTIVE RECIPIENT")
INTRODUCTION _
AGREEMENT TERM _
PARTIES _
PROMISED PERFORMANCE
(A) PERFORMANCE BY PAEDC
(B) PERFORMANCE BY INCENTIVE RECIPIENT
(C) CREDITS—SUBSTITUTE PERFORMANCE
PERFORMANCE MILESTONE SCHEDULE
CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY OF PAEDC
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT _
RECORDS / INSPECTION / PAEDC AUDIT _
HOLD HARMLESS _
SUBCONTRACTS _
CONFLICT OF INTEREST / DISCLOSURE OBLIGATION _
NONDISCRIMINATION / EMPLOYMENT / REPORTING _
LEGAL AUTHORITY _
NOTICE OF LEGAL OR REGULATORY CLAIMS _
CHANGES AND AMENDMENTS _
DEFAULT / TERMINATION
COMPLIANCE AUDITS
ENVIRONMENTAL REQUIREMENTS _
ORAL AND WRITTEN AGREEMENTS / PRIOR AGREEMENTS _
VENUE
ADDRESS OF NOTICE AND COMMUNICATIONS _
CAPTIONS _
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS _
CONDITIONS PRECEDENT _
ATTORNEY APPROVALS
AGREEMENT EXECUTION
Exhibit "A" Conditional Commercial Promissory Note
Exhibit "B" Intentionally Deleted
Exhibit "C" Letter of Credit
Exhibit "D" Intentionally Deleted
Exhibit "E" Certification Regarding Lobbying
Exhibit "F" Intentionally Deleted
Exhibit "G" Compliance Statement
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ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
TEAM FABRICATORS, L.L.C. ("INCENTIVE RECIPIENT")
INTRODUCTION
The Incentive Recipient is a Wisconsin limited liability corporation and a wholly owned
subsidiary of Team Industries, Inc., a Wisconsin corporation, doing business in Port Arthur,
Texas. The Incentive Recipient intends to undertake the following business: the fabrication of
carbon stainless steel piping assemblies, piping modules, tanks and vessels for use by project
manufacturers in various industries including petrochemical, refining, food and beverage, pulp
and paper, chemical, pharmaceutical, industrial gas manufacturing, water and wastewater and
electric power plant generation. Plate and tank fabricating focus on specialty tanks and custom
metal commodities. Current market demands are such that Incentive Recipient plans to initiate
and/or expand the above-referenced business operations at its facility in Port Arthur. The City of
Port Arthur Section 4A Economic Development Corporation ("PAEDC") will assist Incentive
Recipient in this business endeavor by providing the hereinafter described conditional grant and/or
loan or other incentives in exchange for the promise by Incentive Recipient of creation of fulitime
permanent jobs.
AGREEMENT TERM
EFFECTIVE DATE
1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered into
with an effective date of , 2020, but in no case later than , 2020, by and
between the PAEDC and Incentive Recipient.
TERMINATION DATE
2. This Agreement expires the earlier of June 30, 2024, or 30 days after Team
Fabricators, L.L.C. either performs fully or breaches the Agreement, subject to earlier
termination or extension, voluntary or involuntary, as provided herein. The period from the
effective date of this Agreement through and including the expiration date of this Agreement as
provided in the previous sentence hereof, is sometimes referred to in this Agreement as the
"Term" of this Agreement.
PARTIES
3. City of Port Arthur Section 4A Economic Development Corporation ("PAEDC"),
located at 501 Procter Street, Port Arthur, Texas, 77640, is a corporation. It is duly authorized
to do business in the State of Texas under Section 4A, Article 5190.6 V.T.C.A. (the
"Development Corporation Act of 1979") and duly authorized by Resolution of the City Council
of the City of Port Arthur to enter into this Agreement. As so authorized and as provided by the
PAEDC bylaws, the President and Secretary of the PAEDC Board have the authority to execute
this Agreement.
4. Team Fabricators, L.L.C. ("Incentive Recipient") is a Wisconsin limited liability
corporation and a wholly owned subsidiary of Team Industries, Inc., a Wisconsin corporation.
The registered agent in Texas for the Incentive Recipient is Michael J Scmidt at 650 Main
Avenue, Port Arthur, Texas 77642.
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
i. PAEDC shall conditionally grant Incentive Recipient $324,000, subject to the
conditions and limitations herein, which Incentive Recipient is not required to pay
back unless Incentive Recipient breaches this Agreement. If Incentive Recipient
breaches this Incentive Agreement, then the grant will become a loan as provided
in the Conditional Commercial Promissory Note attached hereto as Exhibit "A".
ii. PAEDC will use its best efforts to pay invoices or reimburse Incentive Recipient
within forty-five (45) days of receipt for the costs associated with the expansion of
Incentive Recipient's stainless-steel pipe fabrication facility and/or carbon steel.
HOWEVER, PAEDC WILL ONLY RELEASE FUNDS IN AN AMOUNT
EQUIVALENT TO EQUIPMENT FOR WHICH PAEDC HAS DULY EXECUTED
COLLATERAL SECURITY INTEREST. AS TO CAPITAL OUTLAYS, AS
HEREIN DESCRIBED, PAEDC WILL ONLY RELEASE FUNDS UPON RECEIPT
OF REQUIRED DOCUMENTATION OF THE PURCHASE, BY INCENTIVE
RECIPIENT OF SUCH CAPITAL EQUIPMENT AND MATERIALS FREE OF
ANY LIEN OR ENCUMBRANCE.
These payments are PAEDC's only obligations.
(b) PERFORMANCE BY INCENTIVE RECIPIENT
(1) By the end of the Agreement term, Incentive Recipient promises to employ
approximately 8 employees at an annual total payroll of $1,088,880.00, as
measured by Internal Revenue Service (IRS) forms W-2 and W-3.
(2) Incentive Recipient shall make a best effort to employ Port Arthur residents and as
hereinafter provided will receive additional credit for wages paid to Port Arthur
residents.
(3) Incentive Recipient shall provide a letter of credit denoting PAEDC as the holder
as collateral for the loan insubstantially the same form attached as Exhibit " ".
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(4) On demand by PAEDC and in response to Incentive Recipient's failure to achieve a
performance milestone, Incentive Recipient shall provide PAEDC with reasonable
assurances, proposed by Incentive Recipient and reasonably acceptable to PAEDC,
that it has both the intention and the capabilities to perform fully its contractual
obligations.
(C) CREDITS-SUBSTITUTE PERFORMANCE
Incentive Recipient may earn credits according to the following terms, to either reduce
the duration of this Agreement or reduce the amount of liquidated damages in the event
Incentive Recipient breaches the Agreement.
(1) Starting on the effective date of the Agreement and for as long as Incentive
Recipient performs as specified in Section 5(b)(1) of this Agreement, Incentive
Recipient will receive a $1.00 credit for each $3.36 of payroll paid to employees of
Incentive Recipient. Payroll for both Port Arthur and non-Port Arthur residents
shall be credited (the "Payroll Credit"). The Payroll Credit during the term of the
Agreement shall not exceed Three Hundred Twenty-Four Thousand Dollars
($324,000).
(2) Total credits to the Incentive Recipient under the Agreement cannot exceed
Three Hundred Twenty-Four Thousand Dollars ($324,000).
(3) 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.
(4) Once Incentive Recipient has earned credits equal to $324,000, the conditional
Grant and all obligations to PAEDC shall terminate; however, no termination of
the obligations for a conditional Grant shall eliminate the obligations of Incentive
Recipient to PAEDC to repay the Conditional Commercial Promissory Note
described in Exhibit "A" nor to eliminate any obligations under any collateral
security agreements including but not limited to the Letter of Credit described in
Exhibit "C" which shall remain in full force and effect until the Note is paid in
full.
PERFORMANCE MILESTONE SCHEDULE
6. Although failure to achieve a performance milestone is not a breach of contract, a
failure is grounds for PAEDC to withhold further payments to Incentive Recipient and/or demand
reasonable 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 table on the
following page.
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PERFORMANCE MILESTONE SCHEDULE
Deadline Milestone
(a) June 30, 2020 Team Industries to issue a status report to Port Arthur Economic
Development Corporation on construction of paint facility (PAEDC)
(b) June 30, 2021 Issue an Operational and Payroll Status Report to PAEDC
(c) December 30. 2021 Issue an Operational Status Report to PAEDC
(d) March 30, 2022 Achieve employment of eight (8) full-time permanent employees that are
Port Arthur residents with an annualized payroll of $362,960.00 (submit
2021 W-2's/ 1040's for verification)
(e) June 30, 2022 Issue an Operational and Payroll Status Report to PAEDC's CEO for the
period covering January 1, 2022 to June 30, 2022
(f) December 30, 2022 Issue an Operational Status Report to PAEDC
(g) March 30, 2023 Maintain employment of eight(8) full-time permanent employees that are
Port Arthur residents with an annualized payroll of$362,960.00.
Payroll for Years 1 & 2 totaling$725,920.00 (submit 2022 W-2's/ 1040's
( for verification)
(h) June 30, 2023 Issue an Operational and Payroll Status Report to PAEDC's CEO for the
period covering January 1, 2023 to June 30, 2023
(i) December 30, 2023 Issue an Operational Status Report to PAEDC
(j) March 30, 2024 Maintain employment of eight(8) full-time permanent employees that are
Port Arthur residents with an annualized payroll of$362,960.00.
Payroll for Years 1, 2, & 3 totaling$1,088,880.00 (submit 2023W-2's/
1040's for verification)
(k) June 30, 2024 Issue a Status Report to PAEDC's CEO for the period covering
January 1, 2024 to June 30, 2024
(1) June 30, 2024 PAEDC to prepare close out report for PAEDC's Board of Directors
and the Port Arthur City Council for approval
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. It is expressly understood and agreed by the parties hereto that the PAEDC funding
obligations herein are contingent upon the actual receipt of adequate sales tax revenue funds to
meet the PAEDC's liabilities under this Agreement. If adequate funds are not available to make
payments under this Agreement, the PAEDC shall notify Incentive Recipient in writing within a
reasonable time after such fact is reasonably determined by the PAEDC Board of Directors. The
PAEDC, at its sole option, may then terminate this Agreement without further liability. In the
event of such termination by the PAEDC, the PAEDC may, at its sole option, immediately cease
all further funding, if any, required by this Agreement and the PAEDC shall not be liable to
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Incentive Recipient or to any third parties for failure to make payments to Incentive Recipient
under the terms and conditions of this Agreement.
9. The PAEDC shall not be liable, in Agreement or otherwise, to Incentive Recipient, or
to any person or entity claiming by or through Incentive Recipient, for any expense, expenditure
or cost incurred by or on behalf of Incentive Recipient related to the project made the basis of this
Agreement. The PAEDC's sole liability/obligations, if any, shall be to Incentive Recipient and
shall be limited to the obligations detailed in Section 5(a) of this Agreement.
10. Incentive Recipient shall not use the funds herein for any purpose(s) other than that
specifically disclosed herein and as further disclosed within that certain application made by or on
behalf of Incentive Recipient, which application is incorporated herein for all purposes.
11. Funds granted by the PAEDC hereunder shall not be utilized by Incentive Recipient
for repayment of costs, expenditures or expenses incurred prior to the date of this Agreement.
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT
12. In the event Incentive Recipient fails to perform its obligations under this Agreement,
following notice thereof from PAEDC and thirty-day (30-day) opportunity to cure the same, 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 attached hereto as Exhibit "A." Following such
conversion to a loan as aforesaid, the PAEDC, at its sole option, may terminate its remaining
funding obligations, if any, detailed in Section 5 herein. 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 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 must establish and maintain sufficient records, as reasonably
determined by the PAEDC, to account for the expenditure and utilization of funds received by
Incentive Recipient from PAEDC under the terms and conditions of this Agreement.
15. Incentive Recipient shall maintain records of the receipt and disposition of all funds
provided hereunder as necessary to allow the PAEDC to audit and verify proper utilization of said
funds in compliance with this Agreement and the representations and warranties contained herein
and in Incentive Recipient's application. Incentive Recipient shall provide reports of utilization of
said funds, as reasonably requested by the PAEDC, and upon termination of this Agreement.
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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 belonging to or in use by Incentive
Recipient. Such rights to access shall continue as long as the records are maintained by Incentive
Recipient. Incentive Recipient agrees to maintain such records in an accessible location. All
information obtained by the PAEDC, or its duly authorized representatives, shall be regarded as
the confidential business information of Incentive Recipient and the PAEDC shall take reasonable
measures to protect such information from disclosure to third parties; however, PAEDC is subject
to the requirements of the Texas Open Meetings Act and Open Records Act (Tex.Gov.Code, 551
& 552). Incentive Recipient agrees that disclosures to the public required by the Texas Open
Meetings Act, Texas Open Records Act, or any other legal requirement will not expose PAEDC
(or any party acting by, through or under PAEDC) to any claim, liability or action by Incentive
Recipient (or any party working by, through or under).
17. All records pertinent to this Agreement shall be retained by Incentive Recipient at least
three years following the date of termination of this Agreement, whether said termination is a
result of default or whether said termination is a result of final submission of a close out report by
Incentive Recipient detailing its compliance with its obligations provided herein. Further, in the
event any litigation, claim or audit arising out of or related to this Agreement is instituted before
the expiration of the three (3) year period and extends beyond the three year period, the records
will be maintained until all litigation, claims or audit findings involving this Agreement and the
records made the basis of same have been resolved. Further, records relating to real property
acquisition, including any long-term lease, shall be retained for a period equal to the useful life of
any asset purchased with PAEDC funds.
18. Incentive Recipient shall provide PAEDC with all reports necessary for PAEDC
compliance with the Development Corporation Act.
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, withhold further payments to Incentive Recipient
and/or 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 as herein provided.
If PAEDC withholds such payments, it shall notify Incentive Recipient in writing of its decision
and the reasons therefore. Payments withheld pursuant to this paragraph may be held by PAEDC
until such time as the delinquent obligations for which funds are withheld are fulfilled by
Incentive Recipient.
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
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Agreement, the PAEDC may establish requirements for the timely correction of any such
deficiencies by Incentive Recipient.
HOLD HARMLESS
21. INCENTIVE RECIPIENT AGREES TO HOLD HARMLESS THE PAEDC AND
THE CITY OF PORT ARTHUR FROM ANY AND ALL CLAIMS, DEMANDS, AND
CAUSES OF ACTION OF ANY KIND OR CHARACTER WHICH MAY BE ASSERTED BY
ANY THIRD PARTY OCCURRING, ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT, THE PROJECT MADE THE BASIS OF THIS AGREEMENT, AND
THE UTILIZATION OF GRANT FUNDS PROVIDED BY THIS AGREEMENT, PROVIDED
THAT SUCH CLAIM, DEMAND OR CAUSE OF ACTION DOES NOT ARISE FROM ANY
FRAUD OR MISCONDUCT ON THE PART OF THE PAEDC OR THE CITY OF PORT
ARTHUR, OR ANY AGENT, EMPLOYEE OR REPRESENTATIVE OF EITHER.
SUBCONTRACTS
22. Incentive Recipient may not subcontract for performance credits described in this
Agreement without obtaining PAEDC's written approval, which may be withheld for any reason.
Incentive Recipient shall only subcontract for performance credits described in this Agreement
after Incentive Recipient has submitted a Subcontractor Eligibility Request, as specified by
PAEDC, for each proposed subcontract, and Incentive Recipient has obtained PAEDC's prior
written approval. Incentive Recipient, in subcontracting for any performances described in this
Agreement, expressly understands that in entering into such subcontracts, PAEDC is in no way
liable to Incentive Recipient's subcontractor(s).
23. In no event shall PAEDC's prior written approval of a subcontractor's eligibility, be
construed as relieving Incentive Recipient of the responsibility for ensuring that the performances
rendered under all subcontracts are rendered so as to comply with all terms of this Agreement, as
if such performances rendered were rendered by Incentive Recipient. PAEDC's approval does
not constitute adoption, ratification, or acceptance of Incentive Recipient's or subcontractor's
performance hereunder. PAEDC maintains the right to insist upon Incentive Recipient's full
compliance with the terms of this Agreement, and by the act of subcontractor approval, PAEDC
does not waive any right of action which may exist or which may subsequently accrue to PAEDC
under this Agreement.
24. Incentive Recipient, as well as all of its approved subcontractors, shall comply with all
applicable federal, state, and local laws, regulations, and ordinances for making procurement
under this Agreement.
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
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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 Article 5190.6 V.T.C.A. and Chapter
171 Local Government Code V.T.C.A.
26. Disclosure: In conjunction with execution of this Agreement, Incentive Recipient has
fully disclosed to PAEDC all known and potential owners of interests in Incentive Recipient
(whether shareholder, partner, limited partner, manager, member or otherwise). In the event of
any change in ownership or control of Incentive Recipient of five percent (5 %) or greater,
Incentive Recipient shall notify PAEDC in writing. Further, Incentive Recipient shall be
obligated to notify in writing the PAEDC in the event any time prior to, during or one (1) year
after the term of this Agreement, any City or PAEDC employee or representative or any third
party with a conflict of interest obtains or proposes to obtain a financial benefit, direct or indirect,
from Incentive Recipient. Failure to provide said notice immediately or no later than five (5)
business days after receipt of information shall constitute a default herein.
NONDISCRIMINATION / EMPLOYMENT / REPORTING
27. Incentive Recipient shall ensure that no person shall on the grounds of race, color,
religion, sex, handicap, or national origin be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity funded in whole or in
part with funds provided under this Agreement. Additionally, funds shall be used in accordance
with the following requirements:
(a) To the greatest extent feasible, opportunities for training and employment arising in
connection with the planning and carrying out of any project assisted with PAEDC
funds provided under this Agreement be given to Port Arthur residents; and
(b) To the greatest extent feasible, Agreements for work to be performed in connection
with any such project be awarded to Port Arthur residents and businesses, including,
but not limited to, individuals or firms doing business in the field of planning,
consulting, design, architecture, building construction, rehabilitation, maintenance, or
repair, which are located in or owned in substantial part by persons residing in the City
of Port Arthur, Texas.
(c) If Incentive Recipient advertises for employment then it shall among any other
advertising that it chooses to undertake covenants that it will advertise in the Port
Arthur News. Incentive Recipient acknowledges that PAEDC does not intend to
restrain any advertising in additional publications or media nor direct any others than
that stated.
LEGAL AUTHORITY
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28. Incentive Recipient assures and guarantees it possesses legal and/or corporate authority
(i) to enter into this Agreement, receive funds authorized by this Agreement, and (ii) to perform
the obligations hereunder. Incentive Recipient has provided, or shall provide, as requested by the
PAEDC, such resolutions or other required authorizations necessary to evidence this authority.
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 legal or
regulatory action, including any proceeding before an administrative agency filed against
Incentive Recipient, directly or indirectly; and 2) any material claim against Incentive Recipient,
which may impact continued operations. For purposes herein, "material" claims shall mean
claims in excess of $5,000. Except as otherwise directed by PAEDC, Incentive Recipient shall
furnish immediately to PAEDC copies of all pertinent documentation of any kind received by
Incentive Recipient with respect to such action or claim.
CHANGES AND AMENDMENTS
31. Except as specifically provided otherwise in this Agreement, any alterations, additions,
or deletions to the terms of this Agreement shall be by amendment in writing and executed by all
parties to this Agreement. Such amendments must be approved by the PAEDC Board of
Directors and, in many cases, by the City Council for City of Port Arthur.
32. Performances under this Agreement must be rendered in accordance with the
regulations promulgated under the Development Corporation Act, the assurances and
certifications made to PAEDC by Incentive Recipient, and the assurances and certifications made
to the City of Port Arthur with regard to the operation of the PAEDC's Projects. 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.
33. Any alterations, additions, or deletions to the terms of this Agreement which are
required by changes in federal, state 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.
#1725668
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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, 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 Commercial Promissory Note executed in conjunction with this Agreement
immediately effective. If Incentive Recipient defaults on the note, then the PAEDC
may exercise its default remedies provided under collateral documentation executed in
conjunction with said Note and this Agreement
(b) Exercise any remedies provided herein and/or within the Collateral Security
Documents;
(c) Withhold, whether temporarily or otherwise, disbursement of grant proceeds pending
correction of the deficiency(s) by Incentive Recipient;
(d) 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;
(e) Withhold and/or disallow further PAEDC incentives to Incentive Recipient; and
(1) Exercise any and all other remedies that may be legally available to the PAEDC, under
the laws of the State of Texas and as authorized by the terms and conditions of this
Agreement.
35. In addition to the foregoing, the parties agree that this Agreement may be terminated at
any time when both parties agree, in writing, to the terms and conditions of any such voluntary
termination.
COMPLIANCE AUDITS
36. If directed by PAEDC Board, Incentive Recipient shall arrange for the performance of
a compliance audit, by a certified public accountant, of funds received and performances rendered
under this Agreement, subject to the following conditions and limitations:
(a) Incentive Recipient shall have a compliance audit which may be limited to use of funds
received from the PAEDC, made for any of its fiscal years included within the Term
of this Agreement in which Incentive Recipient receives more than $50,000 in PAEDC
#1725668
Page 10
financial assistance provided by PAEDC in the form of grants, contracts, loans, loan
guarantees, property, cooperative agreements, interest subsidies, or direct
appropriations. Backup documentation regarding actual expenditures shall be provided
by Incentive Recipient. Said audit must be received and accepted by the Chief
Executive Officer of PAEDC and/or the PAEDC Board.
(b) At the option of Incentive Recipient, each audit required by this section may cover
either its entire operations or each department, agency, or establishment of Incentive
Recipient which received, expended, or otherwise administered PAEDC funds;
(c) Unless otherwise specifically authorized by PAEDC in writing, Incentive Recipient
shall submit the report of such audit to PAEDC within thirty (30) days after
completion of the audit, but no later than one hundred twenty (120) days after the end
of each fiscal period included within the Term of this Agreement.
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 and it may be required to submit formal audits at its
expense.
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.
40. PAEDC shall not release any funds for costs incurred by Incentive Recipient under this
Agreement until PAEDC has received certification from Incentive Recipient that its fiscal control
and fund accounting procedures are adequate to assure proper disbursal of and accounting for
funds provided under this Agreement. PAEDC shall specify the content and form of such
certification.
ENVIRONMENTAL REQUIREMENTS
41. Incentive Recipient understands and agrees that by execution of this Agreement,
Incentive Recipient shall be responsible for providing to PAEDC all information, concerning this
PAEDC funded project, required for PAEDC to meet its responsibilities for environmental
review, decision making, and other action which applies to PAEDC in accordance with and to the
extent specified in Federal, State and Local Law. Incentive Recipient further understands and
agrees that Incentive Recipient shall make all reasonable efforts to assist PAEDC in handling
inquiries and complaints from persons and agencies seeking redress in relation to environmental
reviews covered by approved certifications.
ORAL AND WRITTEN AGREEMENTS / PRIOR AGREEMENTS
#1725668 Page 11
42. 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.
43. The documents required below are hereby made a part of this Agreement, and
constitute promised performances by Incentive Recipient in accordance with this Agreement:
Required
x Exhibit"A" Conditional Commercial Promissory Note
x Exhibit "B" Intentionally Deleted
x Exhibit "C" Letter of Credit
x Exhibit"D" Intentionally Deleted
x Exhibit"E" Certification Regarding Lobbying
x Exhibit"F" Intentionally Deleted
x Exhibit"G" Compliance Statement
VENUE
44. For purposes of any claim or cause of action that may accrue under this Agreement,
venue shall lie in Jefferson County, Texas, where substantially all the performance under the
Agreement is to be performed.
ADDRESS OF NOTICE AND COMMUNICATIONS
City of Port Arthur Section 4A Economic Development Corporation
501 Procter Street
Port Arthur, Texas 77640
ATTN: Floyd Batiste, Chief Executive Officer
Incentive Recipient
1200 Maloney Road
Post Office Box 350
Kaukauna, Wisconsin 54130
ATTN: John Panetti
CAPTIONS
45. 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
46. 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
#1725668
Page 12
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
47. This agreement has no legal consequences, and neither party shall rely on the
agreement, unless and until both the PAEDC Board and the Port Arthur City Council approve the
Agreement in its final executed form.
ATTORNEY APPROVALS
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
VERIFIED BY
CITY COUNCIL RESOLUTION:
Resolution Number:
Val Tizeno, City Attorney
#1725668
Page 13
AGREEMENT EXECUTION
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of , 2020.
By: By:
President Secretary
EDC Representative EDC Representative
TEAM FABRICATORS, L.L.C.
SIGNED AND AGREED TO on the day of , 2020.
TEAM FABRICATORS, L.L.C.,
Wisconsin limited liability corporation and a
wholly owned subsidiary of Team Industries,
Inc., a Wisconsin corporation
By:
Title
Acknowledgment
#1725668
Page 14
EXHIBIT "A"
CONDITIONAL COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when Team
Fabricators, L.L.C., a Wisconsin business corporation (hereinafter called "Maker") breaches that
certain Economic Incentive Contract and Loan Agreement between the City of Port Arthur
Section 4A Economic Development Corporation (hereinafter called "Lender") and Maker, dated
, 2020.
Effective Date of Note: the day of , 2020 ("date of breach").
Principal Amount: $ , which is $324,000.00 minus the incentive credits earned
by Maker according to that certain Economic Incentive Contract and Loan Agreement between
the Lender and Maker (described hereinbefore).
Term of the Loan: 3 years from the Effective Date (stated above).
Payment Schedule: Monthly from the Effective Date until Principal Amount and all interest due
as herein specified is paid in full.
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
greater) as may hereafter be in effect, payable on demand after maturity.
This note is due and payable as follows: Thirty-six (36) equally monthly installments of
principal and interest on the 15th day of each month starting with the month immediately following
the Effective Date of this Note as stated above.
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 any event occurs or condition exists which causes Lender to in good faith
deem itself insecure or in good faith believe the prospect of payment or performance by Maker or
any other liable party under this note, under any instrument or agreement executed in connection
with or as security for this note, or under any other indebtedness of Maker or any other liable
party to Lender is impaired; thereupon, at the option of Lender, the principal balance and accrued
interest of this note and any and all other indebtedness of Maker to Lender shall become and be
due and payable forthwith 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
#1725668-Ex."A" Page 2
received under this note or under any of the other aforesaid agreements or otherwise in connection
with this note, that are made for the purpose of determining whether such rate exceeds the
maximum lawful rate shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating, and spreading such interest over the entire term of the loan evidenced by
this note(including all renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No partial prepayment shall reduce, postpone or delay the obligation of Maker to
continue paying the installments herein provided on their respective due dates following any such
partial prepayment until this note is fully paid.
The Maker shall be directly and primarily liable for the payment of all sums called for
hereunder; and, except for notices specifically required to be given by the holder hereof to Maker
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.
TEAM FABRICATORS, L.L.C.
SIGNED AND AGREED TO on the day of , 2020.
TEAM FABRICATORS, L.L.C.,
Wisconsin limited liability corporation and
a wholly owned subsidiary of Team
Industries, Inc., a Wisconsin corporation
By:
Title
Acknowledgment
#F725668-Ex."A" Page 3
THE STATE OF §
§ ACKNOWLEGEMENT
COUNTY OF §
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
. 2020.
Notary Public, State of Texas
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
Mr. John Panetti
1200 Malone Road
P.O. Box 350
Kaukauna, Wisconsin 54130
#1725668-Ex."A" Page 4
EXHIBIT "B"
INTENTIONALLY DELETED
EXHIBIT "C"
Letter of Credit
EXHIBIT "D"
INTENTIONALLY DELETE
EXHIBIT "E"
CERTIFICATION REGARDING LOBBYING
For Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his knowledge and belief, that:
1. No funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of
any agency, a member of the City or of the PAEDC in connection with the
awarding of any contract, the making of any grant, the making of any loan, the
entering into of any cooperative agreement, or modification of any contract,
grant, loan, or cooperative agreement.
2 The undersigned shall require that the language of this certification be included
in the award documents for all sub-awards at all tiers (including subcontracts,
sub-grants, and contracts under grants, loans, and cooperative agreements), and
that all Subs shall certify and disclose accordingly.
This certification is material representation of fact which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for
making or entering into this transaction.
TEAM FABRICATORS, L.L.C.
SIGNED AND AGREED TO on the day of , 2020.
TEAM FABRICATORS, L.L.C.,
Wisconsin limited liability corporation and
a wholly owned subsidiary of Team
Industries, Inc., a Wisconsin corporation
By:
Title
Acknowledgment
EXHIBIT "F"
INTENTIONALLY DELETED
#1725668—Ex."F" Page 2
EXHIBIT "G"
COMPLIANCE STATEMENT
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.
TEAM FABRICATORS, L.L.C.
SIGNED AND AGREED TO on the day of , 2020.
TEAM FABRICATORS, L.L.C.,
Wisconsin limited liability corporation and
a wholly owned subsidiary of Team
Industries, Inc., a Wisconsin corporation
By:
Title
Acknowledgment