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HomeMy WebLinkAboutPR12106:IASIS HEALTHCAREinteroffice MEMORANDUM To: Mayor, City Council, City Manager From: Mark T. Sokolow, City Attorney ~ ~ Subject: P. R. No. 12106; Council Meeting April 1, 2003 Date: March 28, 2003 Attached is P. R. No. 12106 authorizing the Executive Director of the City of Port Arthur Section 4A Economic Development Corporation and the City Manager to execuse an economic incentive agreemen5 with IASIS Healthcare, and Williams and Rao, L.P., upon approval from the Board of Directors of the City of Port Arthur Section 4A Economic Developmenu Corporation. The agreement ms still in the process of being negotiated and, if negotiations are successful, it will be presented au or before Tuesday, April 1, 2003. MTS/ts Attachment Cc: Executive Director, EDC VIA FACSIMILE (409) 724-7585 Jim Wimberley VIA FACSIMILE (409) 985-2833 Carl Parker VIA FACSIMILE (713) 615-5256 Frank McCreary VINSEN & ELKiNS VIA FACSIMILE (713) 758-2346 Steve Robinson VIA FACSIMILE (409) 866-2626 Banker Phares \5 nson k .n ss, z .... ~.L:,ci 25.2t)03 tt 1' l~ gX 409/98.?-$124 ,"~'or~0sed Sa]es ['a< Re\,e,qlle B0n~s ~- icltc.- wG co,:finn l.hat I have t~scussed *&e proposed issuance of sales tax revenue bonds b.- tht- (:~tv ,)t Port ,.~b~ Sectaon aA Econormc Development ~,rpor?tJon trite "(J~,if~g;iaBon"i kSlh thc AUomev General's office :md have been advised fi2a$ pubtc infx-asNucvore ~:),-ovetllt;/~ls. mclud~g s~eet improvmmts ~d water, sewer ired dr~ta~z¢ lac~[Jtias. '~o serv ~ = proposed mspita! and medi~l office buildi~ ~d adiacm~t areas p~opos}'d lot cump'~c~c~ levelopmcnt m ~he City of PoN A~ur, cons~ute an ~li~ble pr2ject ~d,.~ 5,':cti.:~ 4A e~' 0~,' Der eh~prnc~tt Co~ora~on Act m~d, therefore, could appropriately be tin.c{ d w~[t'~ ~.~es ,a., re,'enue bonds ~ssued by O~e ("o¢om~on. ~e specific tc~s and procedmes ~r ~he ,ssuance or'fi': ~ bonds will, of cease, still requke apr~ov~ by thc A~orney General. Please let me ~nox. fsou h,.x,e ax~, questmrcs regarding tkis matter. P. R. No. 12106 03/28/03 ts RESOLUTION NO. A RESOLUTION AUTHORIZING THE EXECUTIVE DIRECTOR OF THE CITY OF PORT ARTHUR SECTION AA ECONOMIC DEVELOPMENT CORPORATION AND THE CITY MANAGER TO EXECUTE AN ECONOMIC INCENTIVE AGREEMENT WITH IASIS HEALTHCARE AND WITH WILLIA/~S AND RAO, L.P., UPON APPROVAL FROM THE BOARD OF DIRECTORS OF THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION WHEREAS, the City Council deems it in the best interests of the citizens of Port Arthur to authorize the Executive Director of the City of Port Arthur Section 4A Economic Development Corporation and the City Manager to enter into an economic incentive agreement with IASIS Healthcare, as well as Williams and Rao, L.P., upon approval from the Board of Directors of the City of Port Arthur Section 4A Economic Development Corporation. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the Executive Director of the City of Port Arthur Section 4A Economic Development Corporation and the City Manager are herein authorized to execute an economic incentive agreement with IASIS Healthcare, as well as Williams and Rao, L.P., in substantially, the same form as attached hereto as Exhibit "A", upon approval from the City of Port Arthur Section 4A Economic Development Corporation, with such changes as are approved to by the City Attorney. Section 3. be spread upon the Minutes of the City Council. READ, A.D., 2003, of Port Arthur, Mayor That a copy of the caption of this Resolution ADOPTED AND APPROVED on this day of at a Regular Meeting of the City Council Texas, by the following vote: AYES: , City Council of the City NOES: ATTEST: OSCAR ORTIZ, MAYOR EVA/qGELINE GREEN, CITY SECRETARY APPROVED AS TO FORM: 5[%RK T. SOKOLOW, CITY ATTORNEY APPROVED FOR ADMINISTRATION: STEVE FITZGIBBONS, CITY MANAGER CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION ECONOMIC INCENTIVE AGREEMENT THIS ECONOMIC INCENTIVE AGREEMENT ("Agreement") effective as of April ,2003, is entered by and between the City of Port Arthur, Texas, a home rule city located in Jefferson County, Texas (the "City"), the City of Port Arthur Section 4A Economic Development Corporation, an economic development corporation organized pursuant to Section 4A of the Development Corporation Act of 1979, as amended ("EDC"), and Williams & Rao, LP, a Texas limited partnership ("Landowner"), and IASIS Healthcare Corporation, a Delaware corporation with principal offices in Franklin, Tennessee ("IASIS") (City, EDC, Landowner and IASIS, individually, a "Party," and collectively, the "Parties"). RECITALS WHEREAS, IASIS owns and operates Park Place Medical Center in Port Arthur, Texas and Mid-Jefferson Hospital in Nederland, Texas and has announced plans to build a new "state of the art" hospital facility; WHEREAS, Landowner has marketable title, fi'ee and clear of all liens and encumbrances, to the real property described in Exhibit "A" consisting of approximately 155 vacant acres; WHEREAS, this real property is adjacent to Highway 365, is within 1000 feet of Highway 69, has two (2) pipeline corridors and a Jefferson County Drainage District No. 7 ("DD7") canal located thereon; WHEREAS, Landowner has executed a Real Estate Purchase Contract dated November 15, 2002, a copy of which is attached as Exhibit "B" ("Purchase Agreement"), to sell to IASIS approximately 30 acres of this 155 acm tract, as described in Exhibit "C" (the "Hospital Site"), so that IASIS may build its new hospital on this site; WHEREAS, subject to the performance by Landowner, the EDC and the City of its commitments described herein, IASIS intends to construct an approximately 300,000 square foot, 220-.bed acute care hospital on the Hospital Site, to include medical/surgical, emergency and imaging servmes (the "Hospital"), as more particularly described on Exhibit ',D"; WHEREAS, Landowner plans to build a medical office building ("MOB"), as described more particularly on the MOB Development Agreement attached hereto as Exhibit"E", on a portion of the Hospital Site, as described in Exhibit "F" (the "MOB Site"); WHEREAS, Landowner has obtained environmental reports indicating that there are no environmental hazards or conditions on the land described in Exhibit "A' and Landowner has obtained geotechnical and other reports indicating that there are no wetlands on the Hospital Site, copies of whic~h reports .and studies are attached hereto as Exhibit "G"; z. economic incentive agreement l_clean copy WHEREAS, based on the site studies and other information, the Parties agree that the Hospital Site and MOB Site are suitable locations for the construction of the Hospital and MOB through reasonable site development preparation; WHEREAS, IASIS and Landowner have requested that the EDC provide or cause to be provided funding for the construction of water, sewer, drainage, streets and other utilities, all as described in Exhibit "H" ("EDC Improvements"), as well as the purchase of right-of-way for these improvements, which will enable them to build the Hospital and MOB, respectively; WHEREAS, IASIS has requested that the Landowner provide, or cause to be provided, funding for the Building Pad Improvements, including costs related to the performance of all soil testing and compaction requirements, as described in Exhibit "I" ("Building Pad Improvements"); WHEREAS, subject to the obligations of Landowner and IASIS contained herein, the EDC has agreed to provide, or cause to be provided, funding for the work related to the EDC Improvements described in Exhibit "H"~ WHEREAS, IASIS has determined that the combination of the purchase of the Hospital Site fi.om Landowner and the improvements to be funded by the Section 4A Economic Development and by the Landowner provides the best proposal for IASIS to construct the Hospital in Port Arthur, Texas; WHEREAS, the EDC anticipates that it will receive additional sales tax revenue that is available for economic development projects, as defined under Article 5190.6 V.T.C.A.; WHEREAS, EDC projects must be approved by the City Council of the City of Port Arthur; WHEREAS, projects undertaken pursuant to this Agreement must principally be for economic development as has been determined by the parties and as established under the guidelines of Article 5190.6 V.T.C.A., as amended; and WHEREAS, the Board of Directors o£the EDC has made a determination that this project will promote economic development and increase employment in the area and that this project meets the requirements of a project that can be lawfully funded; NOW, THEREFORE. in consideration of the premises, the mutual obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto do mutually agree as follows: AGREEMENT TERMS ARTICLE I PARTIES Section 1.1 following entities: Parties. This Agreement is made and entered into by and between the (a) City of Port Arthur, Texas, acting through its City Council, duly authorized by Resolution of the City Council of the City of Port Arthur, a copy of which is attached hereto as Exhibit "J". (b) CityofPort Arthur Section 4A Economic Development Corporation acting herein by its Executive Director, duly authorized by motion or by resolution of the Board of Directors of the Section 4A Economic Development Corporation, a copy of which is attached hereto as Exhibit "K'. (c) Williams & Rao, LP, a Texas limited parmership, whose limited partners are Kirk Williams, M.D. ("Williams") and Srinivasa Rao Kothapalli, M.D. ("Rao"), and whose general partner is Kirk Williams, M.D., individually. (d) IASIS Healthcare Corporation, a Delaware corporation duly qualified to do business in the state of Texas, acting herein by its Chief Executive Officer and/or other officer, duty authorized by resolution of its Board of Directors. Section 1.2 Binding Agreement. The City, the EDC, Landowner and IASIS agree, by the execution hereof, that they are bound to the mutual obligations and to the performance and accomplishment of the tasks described herein. ARTICLE II EDC'S OBLIGATIONS Section 2.1 Obligations of EDC. Subject to the conditions set forth in Section 14.1Co) ("IASIS Deliverables") and 14.1 (c) ("Landowner Deliverables") of this Agreement, the EDC shall perform or arrange to be performed by a design/build firm or construction company the following obligations as to public infrastructure which will be dedicated by the parties to the City of Port (a) Public Utilities and Streets. The EDC shall hire a design/build firm, at the EDC's sole cost and expense, to provide the Hospital Site and the MOB Site with the EDC Improvements, as more particularly described in Exhibit "H", including, without limitation: (1) Storm Sewer System. All storm sewer facilities necessary to provide storm water drainage outside the boundaries of the Hospital Site to serve the Hospital Site and the MOB Site as required by City Code and by existing DD7 regulations. 3 (2) Storm Water Detention and/or Retention. All storm water detention or retention necessary for the Hospital Site and MOB Site at the adjacent DD7 pit, if allowed by existing DD7 regulations, or otherwise. (3) Sanitary Sewer System. A minimum 6" sanitary sewer line using the City's sanitary sewer system (including any applicable meter, tap and impact fees) provided to two (2) locations five feet (5') outside the Hospital and the MOB. The sanitary sewer system shall be provided as necessary to provide sanitary sewer to the Hospital Site and MOB Site and as required by City Code. (4) Domestic Water System. A minimum 6" water system utility line using the City water system (including any applicable meter, tap and impact fees) provided to a point five feet (5') outside the Hospital and the MOB as determined by City Code. The domestic water line shall be provided as necessary to provide potable water to the Hospital Site and as required by City Code. (5) Fire Water Line System. 8" fire water line system (including meter, Siamese connection, tap and impact fees) provided in a loop around the Hospital and to a point five feet (5') outside the Hospital, as determined by IASIS, and the MOB. The fire water line shall be provided as required by City Code. (6) Primary Access Road. A 4-lane divided road built to the Texas Department of Transportation standards shall be designed and built the length of one side of the longest side of the Hospital Site and connected to the Hospital parking lot as to provide access to the Hospital Site. The EDC shall consult with IASIS regarding the design and location of the road and the EDC shall use its best efforts to design and locate all "curb cuts," if any, to the Hospital's and MOB's design specifications. (7) Secondary Access Road. An additional 4-lane divided road or roads built to Texas Department of Transportation standards for this type of development shall be accessible to the 4-lane divided road listed in Section 2.1 (a)(6), above, from Highway 365 along the east edge of the Hospital Site, subject to all non-attainment zone consents and/or requirements imposed by the Texas Department of Transportation, if any. The EDC shall consult with IASIS regarding the design and location of the roads and the EDC shall use its best efforts to design and locate all "curb cuts," if any, to the Hospital's and MOB's design specifications. (8) Green Space. Use good faith efforts to obtain additional property, through donation, purchase or otherwise, to provide a one hundred foot (100') open area the length of the Hospital Site on the south side of the 4-lane divided access road referenced in Section 2.1 (a)(6), above, on property owned by Sun and property owned by Hays. (9) Cleating and Grubbing of Hospital Site. Perform all preliminary site preparation work related to cleating, cutting and grubbing at the Hospital Site as necessary for the public infrastructure, which work shall be completed within sixty (60) days after the Effective Date of this Agreement. Co) Fees Paid or Waived. The EDC shall pay or obtain a waiver of all building permits, tap fees. impact fees and other similar local municipal fees and assessments, as may be required by any code enforcing agency, or otherwise, such that neither the Landowner nor IASIS shall have any liability, cost or expense related thereto. ARTICLE III CITY'S OBLIGATIONS Section 3.1 Obligations of the City. In light of the collateral economic benefit expected to be realized by the Citv as a direct result of the location of the Hospital within the City, including growth in sales and property taxes related to the future development of properties adjacent and/or contiguous to the Hospital Site. including other medical and healthcare related services currently located outside the City, the City shall perform the following obligations, subject to the conditions set forth in Section 14.1 (b) ("IASIS Deliverables") and Section 14.1 (c) ("Landowner Deliverables") of this Agreement: (a) Fees Waived. The City shall waive all City fees or expenses associated with the construction of the Hospital and MOB. including, but not limited to. any building permit fees. tap fees. impact fees or other similar fees, expenses or assessments of the City. CO) Assistance and Coordination. The City shall make its staff and consultants available to the EDC to assist the EDC in the performance of its obligations described in Section 2.1 The City will coordinate with the EDC. IASIS and the Landowners with respect to all activities necessary to assist the completion of the Hospital. the MOB and the EDC Improvements within the time limits described in this Agreement. ARTICLE IV IASIS'S OBLIGATIONS Section 4.1 Obligations oflASIS. Subject to the conditions set forth in Section 14.1(a) ("EDC Deliverables") and Section 14.1 (c) ("Landowner Deliverables") of this Agreement, IASIS shall perform the following obligations: (a) Acquire the land described in the Purchase Agreement within ten (10) days after the delivery of all post-closing deliverables required to be delivered bythe Parties within thirty (30) after the Effective Date, provided all conditions to closing described in the Purchase Agreement are fulfilled. Co) Expend at least $48 million on costs related to construction of the Hospital, exclusive of fees and costs related to designing and equipping the Hospital and contingencies, bringing the total estimated cost to approximately $80 million, with the Hospital to be described more particularly on Exhibit "D", which delineates the following: (i) Square footage of building and ancillary structures; (ii) Quality of and expected costs of construction; 5 (iii) Number of stories per building or structure; (iv) Number of beds; (v) Rentable office space: (vi) Parking facilities and garages: and (vii) Expected costs and types of equipment, inventory, furniture and personal property. (c) The Hospital shall be constructed, receive its certificate of occupancy, and be fully equipped and available for use by the medical community no later than June 30. 2005 and, currently, IAStS' estimated target date for achieving these goals is no later than April 30. 2005. (d) The Hospital shall employ not less than five hundred (500) full-time equivalent employees at the Hospital within one hundred twenty (120) days of date that the Hospital commences operations and IASIS will maintain said number of full-time equivalent employees on its payroll for at least five (5) years. ARTICLE V LANDOWNER OBLIGATIONS Section 5.1 Landowner Obligations. Subjectto the conditions set forth in Section 14.1(a) ("EDC Deliverables") and Section 14.1(b) ("IASIS Deliverables") of this Agreement, Landowner shall perform the following obligations: (a) Complete the construction of the MOB, of at least 50,000 square feet, on the MOB Site no later than January 31, 2005. (b) Employ directly or indirectly through the lessees at the MOB Site not less than one hundred fifty (150) full-t/me equivalent employees within one hundred twenty (120) days after the date the completion of the construction of the MOB. (c) For a fair and reasonable price to be agreed to in the next thirty days and in an amount not to exceed $1,050,000 to be paid by the EDC, Landowner shall sell and transfer by deed to the EDC the five (5) acres of real property, as well as approximately 17 acres for fight of way, utility and drainage purposes, free and clear of all liens and encumbrances, as described in Exhibit "M" and in the foma of deeds as described in Exhibit "N" and Exhibit "N-1" no later than sixty (60) days after the Effective Date of this Agreement. The deed as to the five (5) frontage acres shall provide that the EDC grants to Landowner a right of first refusal to repurchase this property for One Hundred Twenty Five Thousand and No/100 Dollars ($125,000.00) per acre if the EDC desires to sell the property to a third party or use this property for any purpose; with such option to be exercised within thirty (30) days of the EDC notice thereof or it shall be waived. (d) -Landowner agrees to allow spoils from any construction activity as delineated in this Agreement to be deposited and spread evenly on the forty (40) acre site described in Exhibit "O"; 6 (e) Landowner agrees to allow access through the real property described in Exhibit "A" for the transport of clay from the adjacent DD7 pit for the purposes of construction of the Hospital and performance of the EDC Improvements and Building Pad Improvement as described in this Agreement. (f) Landowner shall provide, at a cost not to exceed Ten Thousand and No/100 Dollars ($10,000.00), two (2) 2,500 KVA transformers with loop feed around the Hospital Site with an automatic switchover for the Hospital to a point five feet (5') outside the Hospital as determined by building requirements, plus one (1) 1,500 KVA transformer for the MOB to a point five feet (5') outside the MOB as determined by building requirements. (g) Landowner shall provide natural gas in an amount equal to 25,000 cubic feet per hour in a six inch (6") line at one (1) pound pressure to a point five feet (5') outside the Hospital as determined by building requirements. (h) LANDOWNER Funding to IASIS. The Landowner shall, within sixty (60) days after the Effective Date of this Agreement, escrow funds with a mutually agreeable banking institution sufficient for the completion of the Building Pad Improvements described in Exhibit "I." The Party's acknowledge that the Landowner's obligation for the Building Pad Improvements is One Million Fifty Thousand and No/100 Dollars ($1,050,000.013.. The Building Pad Improvements shall be undertaken by IASIS with contractors selected by IASIS in its sole discretion. The escrow agreement shall be in a form substantially similar to attached Exhibit "L" and. within thirty (30) days al2er the Effective Date, the Landowner agrees to fund into escrow one-half of the total required to be funded into escrow, with the balance to be funded in accordance with the terms of the escrow agreement. IASIS shall have the right to draw on the escrow account to make all payments for the Building Pad Improvements as construction progress invoices are due. Any funds remaimng in the escrow account after the completion of the Building Pad Improvements and payment for such costs shall revert to the Landowner sixty (60) days after completion of the Building Pad Improvements. IASIS assumes the risk and obligation to make any payments ~n excess of the escrowed funds for the Building Pad Improvements and the Landowner shall not be liable to IASIS. or any other person claiming by or through IASIS, for any expense or cost incurred by or on behalf of IASIS in excess of the funds escrowed for the Building Pad Improvements. ARTICLE VI CONTRACTORS AND BONDS Section6.1 EDC Performance and Payment Bonds. The EDC shall require each contractor hired by it or its design/build firm, in the performance of the construction portion of the EDC Improvements to provide performance and payment bonds for such contractor's full contract amount~ Section 6.2 Copies Provided to IASIS and Landowner. The EDC shall provide IASIS and Landowner with copies of all such performance and payment bonds prior to the commencement of any such contractor's work. Section 6.3 IASIS Performance and Payment Bonds. IASIS shall require each contractor hired by it, its general contractor, in the performance of the Building Pad Improvements and the construction of the Hospital to provide performance and payment bonds for such contractor's full contract amount. Section 6.4 Landowner Performance and Payment Bonds. Landowner shall require each contractor hired by it, its general contractor, in the performance of the construction of the MOB to provide performance and payment bonds for such contractor's full contract amount. Section 6.5 Copies Provided to all parties. Tbe parties shall provide to each other copies of all such performance and payment bonds prior to the commencement of any such contractor's work. Section 6.6 Professional Liability Insurance. All engineers and architects hired by the Parties shall possess and maintain professional liability insurance with limits not less than Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) per occurrence. All construction contracts shall have at least a one-year warranty. ARTICLE VH TIME FOR COMPLETION Section 7.1 Timing Generally. The Parties mutually agree that time is of the essence and the beginning dates and completion dates for the EDC Improvements, Building Pad Improvements, construction of the Hospital, and construction of the MOB, as specified in this Agreement, are ESSENTIAL CONDITIONS of this Agreement. The Parties agree that the completion of the EDC Improvements, Building Pad Improvements, construction of the Hospital, and construction of the MOB shall be prosecuted regularly, diligently and without interruption at such rate of progress as will ensure full completion thereof within the time specified in Exhibit "P" ("Schedule for Completion of EDC Improvements") and Exhibit "Q" ("Schedule for Construction of Hospital"), as applicable. The Parties expressly agree that the time for the completion of the work described in this Agreement herein is a reasonable time for the completion of same, taking into consideration the average climatic range and usual conditions prevailing in this locality. Section 7.2 Timely Performance by EDC (a) The EDC shall coordinate completion of the EDC Improvements with the construction of the Hospital as determined by reference to the time schedule attached as Exhibit"Q" to ensure ail public utilities are completed at or before the times required to serve the Hospital. The EDC agrees that its design/build or construction contract EDC Improvements will contain a mutually agreeable calendar day contract provision related to the EDC Improvements, without opportunity for change orders for additional days associated with weather delays. (b) At all times, IASIS and its general contractor shall have the right to meet and confer with the EDC, City and their representatives and contractors regarding the scheduling of the EDC Improvements and enforcement of the corresponding deadlines listed on Exhibit "P". In the event the EDC's contractors neglect, fail or refuse to complete the EDC Improvements within the time periods specified in Exhibit "P", IASIS, by and through its general contractor, shall have the right to meet with the EDC and its general contractor within twelve (12) hours after providing notice to the EDC to discuss the causes for any such delay and to work cooperatively with the EDC in good faith to implement directions and processes, assign responsibilities to EDC's contractors, and prioritize and direct their actions until such time as the EDC Improvements are back on schedule consistent with Exhibit "P". ARTICLE VIII MONITORING Section 8.1 Monitoring by the EDC and/or City. The EDC and Landowner shall have the right to participate in all meetings with IASIS' design professionals preparing plans and specifications for the Building Pad Improvements to review and comment on all preliminary and final plans and specifications and contract documents for the Building Pad Improvements. The EDC, the City and the landowner reserve the right to carry out field inspections/audits, from time to time, as to the Building Pad Improvements to ensure compliance with the requirements of this Agreement. After completion of any such audit, the EDC shall provide the Parties to this Agreement with a written report of the findings so that any alleged breach or noncompliance can be timely cured. Section 8.2 Monitoringby IASIS and/or Landowner. IASIS and Landowner shall have the right to participate in all meetings with the EDC's design professionals preparing the plans and specifications for the EDC Improvements and to review and comment on all preliminary and final plans and specifications and contract documents for the EDC Improvements. IASIS, Landowner and the EDC agree to cooperate in good faith to ensure that the designs and specifications for, and implementation of, the construction of the Hospital and MOB on the Hospital Site integrate with the design and specifications for, and implementation of, the EDC Improvements, and vice versa, to the Parties' mutual satisfaction, particularly with respect to aspects of the respective designs that connect the EDC Improvements to the Hospital Site, such as "curb cuts," utilities and easements. Landowner and IASIS also reserve the right to carry out field inspections/audits, from time to time, as to the EDC Improvements to ensure compliance with the requirements of this Agreement. After completion of any such inspection, the EDC shall be provided with a written report of their findings so that any alleged breach or noncompliance can be timely cured. Section 8.3 Compliance Audits. EDC reserves the right, at its sole expense, to conduct an annual and/or semiannual compliance audit(s) of funds received and performances rendered under this Agreement related to the EDC Improvements and Building Pad Improvements. IASIS and Landowner agree to provide reasonable cooperation during normal business hours to EDC to permit EDC or its authorized representatives to audit their records and to obtain any documents, materials, or information necessary to facilitate such audit. Section 8.4 Release and Acceptance. The EDC will require a release from IASIS and Landowner as to accepting the EDC Improvements as being in compliance with this Agreement prior to the completion of the Hospital and MOB. ARTICLE IX LIQUIDATED DAMAGES Section 9.1 Liquidated Damages for EDC Improvements. In order to ensure that the subcontractors contracting with the design/build firm or construction company hired by the EDC, as the case may be, shall not neglect, fail or refuse to complete the EDC Improvements within the time periods specified in Exhibit"P"., the EDC shall require its design/build firm or construction company to include a daily bonus and liquidated damages provision in all of its subcontracts with respect to the performance of the EDC Improvements, using such amounts as the EDC and its design/build or construction company firm shall deem reasonable and appropriate. Section 9.2 Liquidated Damages for Building Pad Improvements. In order to ensure that the subcontractors contracting with IASIS' general contractor shall not neglect, fail or refuse to complete the Building Pad Improvements within the time periods specified in Exhibit "Q", IASIS shall require its general contractor to include a daily bonus and liquidated damages provision in all of its subcontracts with respect to the performance of the Building Pad Improvements, using such amounts as the IASIS and its general contractor shall deem reasonable and appropriate. ARTICLE X EASEMENTS AND RIGHTS OF WAY Section 10.1 Easements and Rights of Way. IASIS will dedicate to the City, at no cost to the City, free and clear of all liens and encumbrances, the necessary land that it owns or will own for all easements and rights of way for the EDC Improvements listed in Exhibit "H,, which include but is not limited to, the extension of the roads, utility lines, and drainage improvements as described in Exhibit "H". Section 10.2 Additional Rights-of-Way. The EDC shall have the obligation to acquire, at the EDC's expense, other necessary rights-of-way not located on the land described in Exhibit "A." Section 10.3 Access and Permission. Between the Effective Date of this Agreement and completion of the construction of the Hospital, Landowner and IASIS grants the City, the EDC and their agents permission to enter the real property described in Exhibit "A" and the Hospital Site, during normal business hours and upon reasonable notice to Landowner or IASIS. as the case may be, to conduct inspections and to conduct such intrusive testing, such as the taking of core samples, as the EDC deems advisable in the performance of the EDC Improvements. The EDC agrees to indemnify Landowner and IASIS for damages wrongly caused by the negligence or willful misconduct of the City, the EDC or their agents with respect to any such testing, excluding losses or diminution of value arising out of any negative facts uncovered as a result of such testing. 10 ARTICLE XI RETENTION AND ACCESSIBILITY OF RECORDS Section 11.1 Records Retention Generally. Each of the Parties must establish and maintain sufficient records to determine compliance with this Agreement. including but not limited to the documents listed in Exhibit "R". Section 11.2. Retention Period. All records pertinent to this Agreement shall be retained by the Parties for at least five (5) 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 the Parties detailing the Parties' 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 five (5) year period and extends beyond the five (5) 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 shall be retained for a period equal to the useful life of the buildings and improvements thereon. ARTICLE XII CONFLICT OF INTEREST Section 12.1 No Conflict. No person who (1) is an employee, agent, officer or elected or appointed official of the City or the EDC and who exercises or has exercised any functions or responsibilities with respect to activities assisted with funds provided under this Agreement; or (2) who is in a position to participate in a decision making process or gain inside information with regard to such activities, may obtain a substantial personal or financial interest or benefit from an EDC assisted activity, or have a substantial interest in any contract, subcontract, or agreement (or proceeds thereof) with respect to a EDC assisted activity, during their tenure or for one year thereafter. IASIS and Landowner shall report to the EDC any direct or indirect interests that a public official, agent or officer has as to this EDC assisted activity. Section 12.2 Compliance. Each party to this Agreement shall ensure compliance with applicable provisions under Article 5190.6 V.T.C.A. and Chapter 171 Local Government Code V.T.C.A. ARTICLE XIII NONDISCRIMINATION/EMPLOYMENT/REPORTING Section 13.1 Nondiscrimination (a) The Parties to this Agreement shall ensure that no person shall, on the grounds o~ 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 fun~ls provided under this Agreement. The Parties to this Agreement shall do the following: 11 (i) To the greatest extent feasible, opportunities for training and employment arising in connection with the planning and carrying out of any project assisted with EDC funds provided under this Agreement be given to City of Port Arthur residents; and (ii) To the greatest extent feasible, contracts for work to be performed in connection with any such project be awarded to City 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. (iii) The Parties shall notify the EDC of employment opportunities as to give the EDC reasonable opportunity to forward names and resumes of City of Port Arthur residents. (iv) The Parties shall advertise in the Port Arthur News as to all contracting employment and/or training opportunities. (b) Beginning on September 30, 2003, and continuing quarterly until completion of the construction of the Hospital, each oflASIS and Landowner shall furnish to the EDC reports detailing the total number of new full time employees hired by IASIS or Landowner, as the case may be, with said report detailing (i) the new employee(s) by number or otherwise so as to ensure privacy, (ii) the job description/position, (iii) the wage rate, (iv) date of hire, (v) residence of the employee(s), (vi) payroll incurred, and, (vii) any other information reasonably requested by EDC. Further, said report shall provide similar information on all terminations (whether voluntary or otherwise) occurring during the same period. ARTICLE XIV DELIVERABLES AND INFORMATION Section 14.1 Post-Closing Deliverables. The Parties understand that there is a substantial amount of due diligence required by each Party to confirm the feasibility of proceeding with the obligations of the Parties pursuant to this Agreement. Within thirty (30) days after the Effective Date of this Agreement, unless another period of time is otherwise expressly stated, each of the Parties agree to complete and deliver the undertakings set forth below, the failure of which shall constitute breach of a post-closing condition giving rise to termination rights as set forth in Article XV: (a) EDC Deliverables. EDC shall perform the acts and provide IASIS with each of the documents titled "EDC Deliverables" as listed in Exhibit "S" attached hereto. (b) IASIS Deliverables. IASIS shall perform the acts and provide the EDC with each of the documents titled "IASIS Deliverables" as listed in Exhibit "S" attached hereto. (c) Landowner Deliverables. Landowner shall perform the acts and provide IASIS and the EDC with each of the documents titled "Landowner Deliverables" as listed in Exhibit "S" attached heretb. 12 Section 14.2 Provision of Information to EDC. In addition to the post-dosing deliverables, IASIS and Landowner understand and agree tha! by execution of this Agreement, IASIS and Landowner shall be responsible for providing to EDC all infonmation, concerning this EDC funded project, required for EDC to meet its responsibilities for decision making, and other action which applies to the EDC in accordance with and to the extent specified in Federal. state and local law. IASIS and Landowner further understand and agree that they shall make all reasonable efforts to assist EDC in handling inquiries and complaints from persons and agencies seeking information thereon. Section 14.3 ProvisionofInformationtoIASIS and Landowner. EDC and the City agree to respond promptly and to provide reasonable cooperation with IASIS and Landowner with respect to all information requests related to the perfurmance of the EDC Improvements. including information about timing, quality of work, change orders, compliance with requests by IASIS and its general contractor and compliance with this Agreement. Section 14.4 Further Acts and Assurances. At any time and from time to time after the Closing, each of the Parties shall do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such further acts, deeds, assignments, transfers, conveyances, powers of attorney, confirmations and assurances as the other party may reasonably request to more effectively carry out the purposes and intent of this Agreement. ARTICLE XV TERMINATION AND DEFAULT Section 15.1 Termination by EDC (a) Financing Contingency; Right of Termination. The EDC represents that it intends to secure funding for its obligations under this Agreement by selling municipal sales tax bonds or other lawful means for funding economic development activities. It is expressly understood and agreed by the Parties that the EDC funding obligations herein are contingent upon the availability of bond financing or other financing at an interest rate that the EDC believes is prudent and at the estimates of construction or acquisition costs. The Parties agree that the EDC shall have until sixty (60) days after the Effective Date of this Agreement to secure such bond financing as it deems necessary, using its best efforts. In the event the EDC determines it is unable to secure funding of its obligations under this Agreement within the applicable sixty (60) day period, the EDC, at its sole option, may terminate this Agreement by providing Landowner and IASIS with written notification prior to the expiration of such sixty (60) day period. In the event of such termination by the EDC, the EDC shall immediately cease all further funding, if any, required by this Agreement, and the EDC shall not be liable to the Landowner or 1ASIS or to any third parties under the terms and conditions of this Agreement. (b) Failure of IASIS's Post-Closing Deliverables. The EDC shall have the right to terminate this Agreement upon prior written notice and a ten (10) day opportunity to cure in the event either IASIS or the. Landowner fails to deliver its respective post-closing deliverables as described in Section 14.1 (b) and Section 14.1 (c), respectively, within the thirty (30) day period, or 13 such other express period of time, as prescribed therein or such other express period of time, as prescribed therein. In the event ora termination pursuant to this Section 15.1(b), there shall be no further liability between any of the Parties arising out of or related to this Agreement. Section 15.2 Termination by IASIS (a) Failure of EDC's Post-Closing Deliverables. IASIS shall have the right to temainate this Agreement upon prior written notice and a ten (10) day opportunity to cure in the event the EDC fails to deliver its respective post-closing deliverables as described in Section 14.1 (a) within the thirty (30) day period, or such other express period of time, as prescribed therein. In the event ora termination pursuant to this Section 15.2(a), there shall be no further liability between any of the Parties arising out of or related to this Agreement. Co) Failure of Landowner's Post-Closing Deliverables. IASIS shall have the right to terminate this Agreement upon prior written notice and a ten (10) day opportunity to cure in the event Landowner fails to deliver its respective post-closing deliverables as described in Section 14.1 (c) within the thirty (30) day period, or such other express period of time, as prescribed therein. In the event of a termination pursuant to this Section 15.2(b), there shall be no further liability between any of the Parties arising out of or related to this Agreement. Section 15.3 Termination on Mutual Agreement. In addition to the foregoing, the Parties agree that this Agreement may be terminated at any time in the event all of the Parties agree, in writing, to the terms and conditions of any such voluntary termination. Section 15.4 Default. Inthe event a Party defaults under anyofits obligations herein, orin the event any Party breaches any of its representations or warranties, the non-defaulting Party may, at its sole option, terminate this Agreement, in whole or in part. In the event of such termination, in addition to (i) any other remedies available to the non-defaulting Party as provided by the laws of the State of Texas; or (ii) any other remedies available as provided herein, the non-defaulting Party may, at its sole option, utilize one or more of the following actions to resolve or otherwise remedy said default: (a) Withhold Disbursements. In the event the non-defaulting Party is the EDC, withhold, whether temporarily or otherwise, disbursement of additional funding, pending correction of the default(s) by Landowner or IASIS; Co) Other Remedies Available. Take any and all other remedies that may be legally available, as authorized by the terms and conditions of this Agreement and as may be authorized by the laws of the State of Texas. ARTICLE XVI MISCELLANEOUS Section 16.1 Legal Authority. All of the Parties to this Agreement represent and warrant that they poss?ss legal authority to enter into this Agreement. 14 Section 16.2 Due Authorization. The person or persons signing and executing this Agreement on behalf of the Parties, or representing themselves as signing and executing this Agreement on behalf of Recipients, do hereby warrant and guarantee that he, she or they have been duly authorized by Recipients to execute this Agreement on behalf of Recipients and to validly and legally bind Recipients to all terms and provisions herein set forth. Section 16.3 Notice of Claims. All pa~ies to this Agreement shall provide immediate notice in writing of any material action, including any proceeding before an administrative agency, filed in connection with this Agreement or any improvements to be constructed or work performed pursuant to this Agreement or that may effect the ability of any Party to perform its obligations trader this Agreement. Section 16.4 Changes and Amendments. Except as specifically provided otherwise in this Agreement, any alterations, additions, or deletions to the terms of this Agreement shall be by amendment hereto in writing and executed by both Parties to this Agreement. Section 16.5 Policy Directives. It is understood and agreed by the Parties hereto that performances under this Agreement must be rendered in accordance with Article 5190.6 V.T.C.A., the regulations promulgated under Article 5190.6 V.T.C.A., the assurances and certifications made to EDC by IASIS and Landowner, and the assurances and certifications made to the City of Port Arthur with regard to the operation of the EDC's projects. Based on these considerations, and in order to ensure the legal and effective performance of this Agreement by both Parties, it is agreed by the Parties hereto that the performances under this Agreement are in accordance with the provisions of the EDC program and any amendments thereto and may further be amended in the following manner: EDC may from time to time during the period of performance of this Agreement issue policy directives which serve to establish, interpret, or clarify performance requirements under this Agreement. Such policy directives shall be promulgated by the Executive Director of the EDC when authorized by the City Council of Port Arthur and the EDC Board of Directors in the form of EDC issuances shall have the effect of qualifying the terms of this Agreement and shall be binding upon IASIS and Landowner, as if written herein; provided, however, that said policy directives and any amendments to the EDC program shall not alter the terms of this Agreement so as to modify, amend, terminate or discharge any obligation of EDC specified in this Agreement or to modify, amend, terminate or discharge any obligation oflASIS or Landowner, any such amendment or modification being subject to a written agreement among the Parties as required by Section 16.6. Section 16.6 Entire Agreement. This Agreement and the exhibits and attachments referenced herein describe the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior written and oral agreements and understandings between the parties pertaining thereto. No modification, amendment, termination, or discharge of this Agreement or any of its provisions shall be binding on either party unless confimaed by a written instrument signed by authorized representatives of the parties. Section 16.7 Subsequent Legislation. In the event any of the terms or conditions of this Agreement become prohibited as a result of the enactment of any statute, regulation or other law or the judicial or administrative interpretation of any existing or future statute, regulation or other law, the Parties shall promptly convene and negotiate in good faith in an attempt to restructure the 15 Agreement in order to comply with such enactment or interpretation; provided, however, nothing herein shall be construed as authorizing or consenting to any legislative change initiated by either the City or EDC which, in any way, is inconsistent with Section 16.5 ("Policy Directives") and Section 16.6 ("Entire Agreement"), above. Section 16.8 Binding Agreement. This Agreement is binding upon and inures to the benefit of and is enforceable against the Pmties, and their respective legal representatives, successors and assigns. Nov Party shall assign, transfer or subcontract this Agreement without the prior written consent of the other party; provided, however, upon written consent of the EDC, which consent shall not be unreasonably withheld, IASIS may assign this Agreement to its a wholly-owned subsidiary for purposes of facilitating the transfer of interests in all rights and responsibilities to the Hospital and Hospital Site to the entity that will own and operate the Hospital. Section 16.9 Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to such state's conflicts of laws rules. The parties agree that any dispute arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Jefferson County, Texas, and each of the Parties hereby consent to the personal jurisdiction of such courts and agrees not to contest venue therein. Section 16.10. Force Maieure: It is expressly agreed that if the acts of a party shall be delayed or interrupted in the performance or completion of its work hereunder by an embargo, war, fire, flood, earthquake, epidemic or other calamity, act of God or of the public enemy, governmental act (including, but not restricted to, any government priority, preference, requisition, allocation, interference, restraint or seizure, or the necessity of complying with any governmental order, directive, ruling or request) or by any strike or labor dispute involving the owner, or any manufacturer, supplier or carrier of the machinery, mater/als or supplies required hereunder, then the time of completion specified herein shall be extended for a period equivalent to the time lost as a result thereof. Such Force Majeure shall not apply to events caused by the act or omission of the party. Section 16. 11. Notices. Any notice, demand or communication required, permitted or desired to be given hereunder shall be deemed effectively given if given in writing (i) on the date tendered by personal delivery, (ii) on the date received by facsimile or other electronic means (including telegraph and telex), (iii) one day after tendered for delivery by nationally recognized overnight courier, or (iv) three days after tendered for delivery by United States mail, with postage prepaid thereon, certified or reg/stered mail, return receipt requested, in any event addressed as follows: IftolASIS: IASIS Healthcare Corporation 113 Seaboard Lane Ste. A-200 Franklin, TN 37067 Attention: General Counsel Facsimile: 615-467-1271 16 With a copy to: And with copy to: If to EDC or City: With a copy to: With a copy to: Vinson & Elkins 1001 Fannin Street Ste. 2300 Houston. TX 77002 Attention: Steve Robinson. Esq. Facsimile: 713-615~5659 Bass. Berry & Sims PLC AmSouth Center 315 Deadefick Street, Ste. 2700 Nashville. TN 37238-3001 Attention: Leigh Walton. Esq. Facsimile: 615-742-2701 Port Arthur Economic Development Corporation 444 4th Street Port Arthur. TX 77640 Attn: Executive Director Facsimile: 409-983-8222 Stephen Fitzgibbons City Manager City of Port Arthur 444 Fourth Street Port Arthur. TX 77640 Facsimile: 409-982-6743 Mark Sokolow, Esq. City Attorney City of Port Arthur 444 Fourth Street Port Arthur. TX 77640 Facsimile: 409-983-8124 17 And a copy to: James E. Wimberley, Esq. Legal Counsel Port Arthur Economic Development Corporation 3120 Central Mall Drive Port Arthur, TX 77642 Facsimile: 409-724-7585 And a copy to: Igalious "Bce" Mills Executive Director Economic Development Corporation 444 Fourth Street Port Arthur, TX 77642 Facsimile: (409/983-8222 If to Landowner: Williams and Rao. LP c/o Kirk Williams 2401 Harms Circle Port Neches, TX 77651 Facsimile: 409-727-8871 With copy to: Dr. Rao Kothapalli S. 2001 9th Avenue Port Arthur, TX 77642 With a copy to: Banker Phares Attorney at Law 8141 Gladys, Suite 102 Beaumont, TX 77706 Section 16.10 Captions. Each paragraph of this Agreement has been supplied with a caption to serve only as a guide to contents. The caption does not control the meaning ofanyparagraph or in any way determine its interpretation or application. Section 16.11 Compliance with Laws. The Parties 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 related to the activities and performances of the Parties under this Agreement. Upon request by the EDC or by the City, Landowner and IASIS shall fumish satisfactory proof of its compliance herewith. Section 16.12 Costs and Expenses. All expenses of the preparation of this Agreement, including counsel, accounting, brokerage, architect, contractor and advisor fees and disbursements, shall be borne by the respective party incurring such expense, whether or not such transactions are consummated. Section-16.13 Pablic Announcements. At all times, the Parties shall consult with one another before issuing or making any reports, statements or releases to the public with respect to this 18 Agreement or the transactions contemplated hereby and shall use good faith efforts to obtain the other party's approval of the text of any public report, statement or release to be made on behalfof such party. If either party is unable to obtain the approval of its public report, statement or release from the other party and such report, statement or release is, in the opinion of legal counsel to such party, necessary to discharge such party's disclosure obligations under applicable law, then such party may make or issue the legally required report, statement or release and promptly furnish the other party a copy thereof. Nothing herein shall prohibit any party complying with applicable public information laws or from responding to questions presented by the press or media ~vithout flint obtaining prior written consent of the other party. Section 16.14 No Waiver. It is expressly understood and agreed by the Parties hereto that anyright or remedy provided for in any provision of this Agreement 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. [Signatures On Following Pagesl 19 APPROVED IN FORM: James Wimbefley, PAEDC Counsel Mark T. Sokolow, City Attorney Judith Rawls. First Assistant City Attorney Carl Parker. Attomey at Law VINSON & ELK1NS Attorney for Landowner Banker Phares Frank A. Coyle General Counsel IASIS Healthcare Corporation Ecce. omic Incentive Agreement 1 _clean copy 20 SIGNED AND AGREED to on the day of ,2003. Executive Director, Port Arthur Economic Development Corporation Witnessed SIGNED AND AGREED to on the day of ,2003. Witnessed Williams & Rao. LP, a Texas limited partnership, by its general parmer, Kirk Williams. individually SIGNED AND AGREED to on the day of ~ 2003. David R. White, CEO IASIS Healthcare Corporation Witnessed SIGNED AND AGREED to on the day of ,2003. CITY OF PORT ARTHUR Attest: City Manager City Secretary Economic Incentiv~ Agreement l_clean copy 21 EXHIBIT LIST "A" Legal descriptian of the entire (apprc~imately) 155 acres owned by Landowner "B" Real Estate Purchase C~tract between Landowner and IASIS "C" Legal description of approximately 30 acres to be sold by Landowner to IASIS for construction of the Hospital "D" Descriptien of the Hospital "E' Description of the MOB to be built by Landowner "F" Legal description of area wherein Landowner will build the MOB "G' Site studies (i.e., geotechnical reperts) with respect to Hospital Site "H" EDC Improvements to be performed by design-build firm funded by EDC 'T' Design Services for Building Pad Improvements to be performed by IASIS contractors at Landowner's expense "J" Resolution of the CityCouncil of the City of Port Arthur, for the City "K' Resolution of the Board of Directors of the EDC "L" Form of Escrow Agreement "M" Legal descripticn of the five (5) frontage acres and approximately 17 other acres to be deeded and sold by Landowner to EDC "N" Deed for five (5) acres "N-I" Deed for approximately seventeen (17) acres "O" Landowner's 40 acre site to use for depositing spoils "P" Schedule for Completion of EDC Improvements "Q" Schedule for Constmctien of the Hospital "R" Documents to be maintained by Landowner and IASIS "S" Post-Closing Deliverables 22 Exhibit "A" Legal description of the entire (approximately) 155 acres owned by Landowner 23 Exhibit "B" Real Estate Purchase Contract between Landowner and IASIS 24 Exhibit "C" Legal description of approximately 30 acres to be sold by Landowner to IASIS for construction of thc Hospital 25 Exhibit "D" Description of the Hospital 26 Exhibit "E" Description of the MOB to be built by Landowner 27 Exhibit "F" Legal description of area wherein Landowner will build the MOB 28 Exhibit "G" Site studies (i.e., geotechnical reports l with respect to Hospital Site 29 Exhibit "H" EDC Improvements to be performed by design-build firm or construction company funded by EDC (1) Storm Sewer System. All storm sewer facilities necessary to provide storm water drainage outside the boundaries of the Hospital Site to serve the Hospital Site and the MOB Site as required by City Code and by existing DD7 regulations. (2) Storm Water Detention and/or Retention. Ali storm water detention or retention necessary for the Hospital Site and MOB Site at the adjacent DD7 pit, if allowed by existing DD7 regulations, or otherwise. (3) Sanitary Sewer System. A minimum 6" sanitary sewer line using the City's sanitary sewer system (including any applicable meter, tap and impact fees) provided to two (2) locations five feet (5') outside the Hospital and the MOB. The sanitary sewer system shall be provided as necessary to provide sanitary sewer to the Hospital Site and MOB Site and as required byCity Code. (4) Domestic Water System. A n~nimum 6" water system utility line using the City water system (including any applicable meter, tap and impact fees) provided to a point five feet (5') outside the Hospital and the MOB as determined by City Code. The domestic water line shall be provided as necessary to provide potable water to the Hospital Site and as required byCity Code. (5) Fire Water Line System. 8" fire water line system (including meter, Siamese connection, tap and impact fees) provided in a loop around the Hospital and to a point five feet (5') outside the Hospital, as determined by IASIS, and the MOB. The fire water line shall be provided as required by City Code. (6) Primary Access Road. A 4-lane divided road built to the Texas Department of Transportation standards shall be designed and built the length of one side of the longest side of the Hospital Site and connected to the Hospital parking lot as to provide access to the Hospital Site. The EDC shall consult with IASIS regarding the design and location of the road and the EDC shall use its best efforts to design and locate all "curb cuts," if any, to the Hospital's and MOB's design specificatims. (7) Secondary Access Road. An additional 4-lane divided road or roads built to Texas Department of Transportation standards for this type of developmont shall be accessible to the 4-lane divided road listed in Section 2.1 (a)(6), above, from Highway 365 along the east edge of the Hospital Site, subject to all non-attainment zone consents and/or requirements imposed by the Texas Department of Transportatien, if any. The EDC shall consult with IASIS regarding the design and location of the roads and the EDC shall use its best efforts to design and locate all "curb cuts," if any, to the Hospital's and MOB's design specificatims. (8) Green Space. Use good faith efforts to obtain additional property, through donation, purchase or otherwise, to provide a one hundred foot (100') open area the length of the Hospital Site on the south side of the 4-lane divided access road referenced in Section 2.1 (a)(6), above, on property owned by Sun and property owned by Hays. (9) Clearing and Gmbbin~ of Hospital Site. Perform all preliminary site preparation work related to cleating cutting and grubbing at the Hospital Site as necessary for the public infrastructurg which work shall be completed within sixty (60) days after the Effectixe Date of this Agreement. 30 Exhibit "F' Design Services for Building Pad Improvements to be performed by IASIS contractors at Landowner's expense 31 Exhibit "J" Resolution of the City Council of the City of Port Arthur, for the City 32 Exhibit "K" Resolution or minutes of the Board of Directors of the EDC documenting approval of agreement 33 Exhibit "L" Form of Escrow Agreement 34 Exhibit "M" Legal description of the acreage to be deeded by Landowner to EDC 35 Exhibit "N" Deed for 5 acres 36 Exhibit "N-I" Deed for approximately 17 acres 37 Exhibit "O" Landowner's 40 acre site to use for depositing spoils 38 Exhibit "P" Schedule for Completion of EDC Improvements Draft 1. Within one hundred fifty (150) days after the Effective Date, plans and specifications for water, sewer, drainage, utilities, erosion control, and grading included within the EDC Improvements, including a fim~ estimate for the cost thereof, in form satisfactory to IASIS; 2. Within one hundred fifty (150) days after the Effective Date, the EDC shall an agreement of DD7 to accept all outfall resulting from the Hospital Site as required by Exhibit "H"; 3. [Addl 39 Exhibit "Q" Schedule for Construction of the Hospital Draft 1. Within one hundred fifty (150) days of the Effective Date, detailed design drawings for construction of the Building Pad Improvements and the Hospital; 2. Within one two hundred ten (210) days of the Effective Date, submittal of all necessary documentation to the City for a building permit review; 3. Within one hundred twenty (120) days after the Effective Date, legal description of the property contiguous or adjacent to the Hospital, to be attached as Exhibit "F" (the "MOB Site"); 4. A copy of the MOB Development Agreement between Landowner and IASIS, including a description of the medical office building ("MOB") to be built by Landowner, to be attached as Exhibit "E"; 5. Within one hundred twenty (120) days after the Effective Date, legal description of the property contiguous or adjacent to the Hospital, to be attached as Exhibit "F" (the "MOB Site"); 6. An agreement with DD7 to relocate the drainage district canal as presently delineated in Exhibit .... to a new location, as delineated in Exhibit .... , with Landowner deeding the fee title to the new drainage district canal to DD7 and with such relocation to be completed by DD7 within days after the Effective Date of this Agreement, at no cost to the EDC or to the City [LANDOWNER TO FOLLOW UP]; 7. [Add] 40 Exhibit "R" Documents to be maintained by Landowner and IASIS 41 Exhibit "S" Post-Closing Deliverables Pursuant to Section 16.17 of the Agreement, this Exhibit sets forth each of the Parties' Post- Closing Deliverables. The Parties understand that there is a substantial amount of due diligence required by each Party to confirm the feasibility of proceeding with the obligations of the Parties pursuant to this Agreement. within thirty (30) days after the Effective Date of this Agreement, unless otherwise expressly stated, each of the Parties agree to complete the undertakings set forth below, the failure of which shall constitute breach of a post-closing condition giving rise to temaination rights as set forth in Article XV: A. EDC Deliverables. The EDC shall deliver and provide IASIS and Landowner the following: 1. Within sixty (60) days after the Effective Date, a copy of the EDC's contract with its design/build firm; 2. EDC Improvements within sixty (60) days after the Effective Date, calculation of borrowing capacity from the EDC's financial advisor for ail costs to be paid by the EDC related to the EDC Improvements through sales tax bond financing or otherwise; 3. A mutually agreeable time schedule for completion of EDC Improvements, to be attached as Exhibit "P"~ in form satisfactory to IASIS; 4. Within sixty (60) days, written confirmation of the EDC's ability to secure the right of way on Jimmy Johnson Boulevard as required by Exhibit "H"; 5. Within sixty (60) days after the Effective Date, the EDC shall deliver written confirmation of the availability of adequate fill from DD7 as required for the Hospital development project as required by Exhibit "H"; 6. Within sixty (60) days after the Effective Date, written confirmation from a geotechnical engineer selected by IASIS of suitability of adequate fill from the landfill site immediately adjacent to the Hospital Site in the quantity and quality required by IASIS for completion of the Building Pad Improvements; 7. Receipt o f all non-attainment zone consents and/or approvals required from all federal, state and local authorities, including specifically the Texas Department of Transportation, with respect to the planned construction of roads as described on Exhibit "H" and/or confirmation from the EDC that no such consents and/or approvals are required; B. IASIS Deliverables. IASIS shall deliver and provide the EDC and Landowner with the following: Schematic plans for the approximately 300,000 square foot, 220-bed acute care hospital to be constructed by IASIS on the Hospital Site, to include medical/surgical, emergency and imaging services (the "Hospital"), to be attached as Exhibit "D", including a "footprint" showing the proposed dimensions and location of the Hospital on the Hospital Site a~d the MOB on the MOB Site, location of the proposed streets, location of the parking lots, and location of the utility lines; 42 2. Within thirty (30) days of the Effective Date, a copy oflASIS' form of agreement with its architectural firm, Thomas, Miller & Partners, LLC, and its general contractor, R.J. Griffin & Company, with respect to construction of the Hospital; 3. Description of the Building Pad Improvements, including a firm estimate of all costs related to the performance of all cut, clear/grub and compaction requirements, to be attached as Exhibit 'T' ("Building Pad Improvements"); 4. Within sixty (60) days after the Effective Date, IASIS shall deliver a fully executed escrow agreement in a form substantially similar to attached Exhibit "L"; 5. Acquisition of the land described in the Purchase Agreement within ten (10) days after the EDC confirms in writing that it has funding availability under this Agreement as stipulated under item A(4) of Exhibit "S", provided all conditions to closing described in the Purchase Agreement are fulfilled; 6. A mutually agreeable time schedule for construction of Hospital, to be attached as Exhibit C. Landowner Deliverables. Landowner shall deliver and provide the EDC and IASIS with the following: 1. Legal description of the approximately 30 acres, to be attached as Exhibit "C" (the "Hospital Site"); 2. Copies of all site studies for the land described in Exhibit "A", including the Hospital Site, prepared or obtained by Landowner, to be attached as Exhibit "G"; 3. Within sixty (60) days after the Effective Date, Landowner shall transfer by deed to the EDC the five (5) acres of real property as described in Exhibit "M" and in the form of a deed as described in Exhibit "N" and Shall transfer by deed to the EDC approximately seventeen (17) acres for right of way and utility purposes in the form of a deed as described in Exhibit "N-1". 4.Delivery of a clean title report on the Hospital Site property from Port Arthur Abstract; 5. Within ten (10) days after the Effective Date of this Agreement, Landowner shall deliver to the EDC a plat showing the five (5) acres to be deeded to the EDC; 6. Affidavits of non-production and waivers of rights of entry within sixty (60) days of the Effective Date of this Agreement; 7. Reciprocal use easements, access easements and all related collateral documents or agreements within ten (10) days of the Effective Date of this Agreement. 8. Within thirty (30) days after the Effective Date, the Landowner shall deliver a fully executed escrow agreement in a form substantially similar to attached Exhibit "L,; 9. Within sixty (60) days after the Effective Date, the Landowner shall escrow funds with a mutually agreeable banking institution in an amount equal to at least one-half of the cost of the Building Pad Improvements, with the remainder to be funded consistent with the terms of the escrow agreement. 43