HomeMy WebLinkAboutPR 23218: VESSEL CLEANING, LLC, PERFORMANCE BASED ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT lec___:,:, _
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PORT*ARTRtiR
ONOMIC DEVELOPMENT CORPORATION
INTEROFFICE MEMORANDUM
Date: June 22, 2023
To: Honorable Mayor& City Council
Through: Ron Burton, City Manager
From: Terry Stokes, Chief Executive Officer
RE: PR 23218 I Vessel Cleaning, LLC— Performance Based Economic Development
Incentive Agreement
Introduction:
The intent of this Agenda Item is to seek the City of Port Arthur Council's approval of a
Performance Based Economic Development Incentive Agreement with Vessel Cleaning, LLC.
Background:
The PAEDC was presented with an application from Vessel Cleaning, LLC for an economic
incentive. Staff has completed the application process and project analysis for the project they
present as an expansion to their current operations. They will build out a marine terminal capable
of berthing up to seven(7) inland tank barges for degassing and cleaning of cargo tanks.
Incentive Terms and Conditions:
Total Incentive Amount: $590,456
- 496,856 based on 10% of total Capital Investment of$4,968,561.00
- $93,600 based on job creation of approximately $1,170,000.00 in Port Arthur payroll
over 3 years; Recipient may receive 8%of wages paid to PA residents up to a total
amount of$93,600.00 over a three-year period.
Budget Impact:
The budgetary impact of this item is $590,456, funds are available in EDC Account No. 120-80-
625-5478-00-00-000.
Recommendation:
It is recommended that the City of Port Arthur Council approve the Performance Based Incentive
Agreement as presented.
P. R.No. 23218
6/22/2023 KVM
RESOLUTION NO.
A RESOLUTION APPROVING AN ECONOMIC
DEVELOPMENT PERFORMANCE AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION AND VESSEL CLEANING,
LLC IN AN AMOUNT NOT TO EXCEED $590,456.00; FUNDS
AVAILABLE IN EDC ACCCOUNT NO. 120-80-625-5478-00-00-000
WHEREAS, the City Council of the City of Port Arthur deems it in the public interest to
authorize the City of Port Arthur Section 4A Economic Development Corporation(the"PAEDC")
to enter into an Economic Development Performance Agreement (the "Agreement") with Vessel
Cleaning, LLC; and
WHEREAS, PAEDC has reviewed Vessel Cleaning, LLC's incentive application,
accompanying financial statements and proposals for the expansion of their current operations to
include a marine terminal capable of berthing up to seven(7)inland tank barges for degassing and
cleaning of cargo tanks; and
WHEREAS, the PAEDC Board of Directors has concluded that Vessel Cleaning, LLC's
proposed project qualifies as a Section 4A economic development project as set forth in the
Economic Development Act; and
WHEREAS, PAEDC agrees to a conditional incentive to Vessel Cleaning, LLC in the
amount of$590,456.00; and
WHEREAS, in consideration of the Agreement, Vessel Cleaning, LLC shall be obligated
to achieve a total capital investment of$4,968,561.00 plus payroll to Port Arthur residents in the
cumulative amount of$1,170,000.00 over a three-year term; and
FPF
WHEREAS, Vessel Cleaning, LLC has reviewed and approved the Agreement attached
hereto as Exhibit "A".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council of the City of Port Arthur authorizes the Port Arthur
Section 4A Economic Development Corporation to enter into the Economic Development
Performance Agreement with Vessel Cleaning, 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 shall be spread upon the Minutes
of the City Council.
READ, ADOPTED AND APPROVED on this day of A.D., 2023,
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
#1370989 Page 2
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
Terry Stokes, PAEDC CEO
APPROVED AS TO FORM:
f /
Charles Zech, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R.Tizeno,City Attorney
APPROVED AS TO AVAILABILITY OF FUNDS:
Kandy Dani ,Interim Finance Director
#1370989 Page 3
Exhibit "A"
ECONOMIC DEVELOPMENT PERFORMANCE AGREEMENT
VESSEL CLEANING, LLC
This Performance Agreement (this "Agreement") is entered into to be effective as of the
Effective Date (as defined in Article III below), by and between the Port Arthur Economic
Development Corporation, located in Jefferson County, Texas, a Texas non-profit industrial
development corporation under the Development Corporation Act and governed by TEX. Loc.
Gov. CODE chapters 501, 502 and 504 and the Texas Non-Profit Corporation Act (hereinafter
called"PAEDC"), created by, and for the benefit of the City of Port Arthur,Texas(hereinafter the
called the "City"), and Vessel Cleaning, LLC, a corporation registered in the state of Texas and
authorized to do business in the State of Texas (hereinafter called "Company"; the PAEDC and
the Company collectively known as the"Parties"to this Agreement).
RECITALS
WHEREAS, the Development Corporation Act of 1979, as amended (Section 501.001 et
seq, Texas Local Government Code, formerly the Development Corporation Act of 1979) (the
"Act") authorizes a development corporation to fund certain projects as defined by the Act and
requires development corporations to enter into performance agreements to establish and provide
for the direct incentive or make an expenditure on behalf of a business enterprise under a project;
and
WHEREAS, Section 501.158 of the Act requires a performance agreement to provide at a
minimum for a schedule of additional payroll or jobs to be created or retained and capital
investment to be made as consideration for any direct incentives provided or expenditures made
by a corporation under an agreement and to specify the terms under which repayment must be
made if the business enterprise does not meet the performance requirements specified in the
agreement; and
WHEREAS,the Company provides product recovery and recycling of cargos transported
by inland tank barges; and
WHEREAS, the Company is seeking to undertake improvements to its existing facility
located within the City of Port Arthur("Facility")by undertaking building and land improvements;
and acquiring additional equipment for its services; while also committing to a minimum capital
investment of $4,968,561.00 for land acquisition, improvements to the Facility and associated
infrastructure, and in the acquisition of equipment for Company operational purposes; and
WHEREAS, the Company also intends to create an additional 18 full-time jobs with an
average annual salary of$77,500.00,representing a total annual payroll of$1,395,000.00.
WHEREAS, the Company is seeking a Performance-Based Cash Grant from the PAEDC
to help offset certain costs associated with its proposed Facility,land acquisition and infrastructure
improvements, equipment purchases, and additional payroll; and
WHEREAS, the PAEDC desires to provide funding to the Company pursuant to the
Performance-Based Cash Grant, as an incentive for the new improvements, land purchase,
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infrastructure, equipment, and payroll to be undertaken by Company; and
WHEREAS,the Parties are executing and entering into this Agreement to set forth certain
terms and obligations of the Parties; and
WHEREAS, the Parties recognize that all agreements of the Parties hereto and all terms
and provisions hereof are subject to the laws of the State of Texas and all rules, regulations and
interpretations of any agency or subdivision thereof at any time governing the subject matters
hereof; and
WHEREAS, the Parties agree that all conditions precedent for this Agreement to become
a binding agreement have occurred and been complied with, including all requirements pursuant
to the Texas Open Meetings Act and all public notices and hearings; if any,have been conducted
in accordance with Texas law; and
WHEREAS, on the Effective Date, the commitments contained in this Agreement shall
become legally binding obligations of the Parties.
NOW,THEREFORE,in consideration of the mutual covenants,benefits and agreements
described and contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and further described herein,the Parties
agree as follows:
ARTICLE I
RECITALS
1. Recitals. The recitals set forth above are declared true and correct by the Parties
and are hereby incorporated as part of this Agreement.
ARTICLE II
AUTHORITY AND TERM
1. Authority. The PAEDC's execution of this Agreement is authorized by the Act and
constitutes a valid and binding obligation of the PAEDC upon approval by the PAEDC and the
City of Port Arthur. The Company's execution of this Agreement is authorized by the appropriate
authority and constitutes a valid and binding obligation of the Company.
2. Term. This Agreement shall become enforceable upon the Effective Date,
hereinafter established,and shall continue until the Expiration Date,hereinafter established,unless
terminated sooner or extended by written mutual agreement of the Parties in the manner provided
for herein.
3. Purpose. The purpose of this Agreement is to formalize the agreements between
the Company and the PAEDC and specifically state the covenants and representations of the
Parties, and the incentives associated with the Company's commitment to abide by the provisions
of the Act and to abide by the terms of this Agreement which has been approved by the PAEDC
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and the Company as complying with the specific requirements of the Act. It is expressly agreed
that this Agreement constitutes a single transaction.
4. Administration of Agreement. Upon the Effective Date, the PAEDC delegates the
administration and oversight of this Agreement to the Chief Executive Officer of the PAEDC.Any
proposed amendments to the Agreement shall require the approval of the Board of Directors of the
PAEDC.
ARTICLE III
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings ascribed below.
All undefined terms shall retain their usual and customary meaning as ascribed by common and
ordinary usage.
"Bankruptcy" shall mean the dissolution or termination of a Party's existence as a going
business, insolvency, appointment of receiver for any party of such Party's property and such
appointment is not terminated within ninety(90)days after such appointment is initially made,any
general assignment for the benefit of creditors,or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against such party and such proceeding is not dismissed
within ninety(90) days after the filing thereof.
"Business Operations" shall mean the industrial water services provided by Company,
including the development and installation of recycling systems, and a variety of remediation,
filtration, and purification technologies; along with the use of necessary equipment to perform,
and ancillary uses to support, said operations (such as office administration and storage of raw
materials).
"Capital Investment" shall mean those items set forth in Article IV Section 1.
"Compliance Reporting Form" shall mean the certification by Company on a form
provided by the PAEDC that the obligations outlined within this Performance Agreement have
been fulfilled.
"Effective Date" shall be the date of the last signing by a Party to this Agreement.
"Expiration Date"shall mean the date of termination provided for under Article VII of this
Agreement.
"Force Majeure" shall mean any contingency or cause beyond the reasonable control of a
Party, including, without limitation, natural disasters or other acts of God or the public enemy,
war, riot, civil commotion, insurrection, government or de facto governmental action, fires,
explosions, floods, strikes, lock-outs, slowdowns, work stoppages, unusual and unforeseeable
delay that results from an interruption or failure of any public utilities,(e.g.,electricity,gas,water),
terrorism,bioterrorism,pandemic or epidemic.
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"New Jobs"shall mean those jobs that are created for the purposes of satisfying Company's
obligations herein and shall exclude any job relocated from any other location of Company within
the City of Port Arthur.
"Performance-Based Cash Grant" or "PBC Grant" shall have the meaning set forth in
Article V, Section 1.
"Project" shall mean the Capital Investment for improvements, infrastructure, equipment,
and job creation as provided herein.
ARTICLE IV
PERFORMANCE OBLIGATIONS OF COMPANY
The obligation of the PAEDC to pay funds from the PBC Grant shall be conditioned upon
the Company's continued compliance with and satisfaction of each of the Company's obligations
under this Article IV (the "Performance Obligations").
1. Capital Investment. The Company shall make a new Capital Investment of at least
four million nine hundred sixty eight thousand five hundred sixty one dollars ($4,968,561)
for the land acquisition, facility and building improvements, infrastructure installation, and
equipment purchases, specifically for the industrial service operations of the Company and as
specifically depicted in Exhibit"A,"on or before June 30, 2024.
2. New Jobs. The Company is not obligated to create any New Full-Time Jobs in
accordance with this Agreement, but intends to create, employ, and maintain 18 new Full-Time
Jobs, in exchange for PBC Grant incentives as provided in Article V.
For purposes of this Agreement: "Full-Time Jobs" shall mean the number of the
Company's employees (a) that have a regular work schedule of at least 36 hours per week as
reported on the Texas Employers Quarterly Wage Report from the Texas Workforce, (b) are
entitled to at least the customary employer-sponsored benefits package afforded by the Company
to its similarly situated employees at other locations,and(c)who are full-time residents of the City
of Port Arthur; and "Annual Payroll" shall mean the total wages and bonuses paid, exclusive of
benefits, to the Full-Time Jobs.
3. Payment of Legal Fees. Each Party shall bear its own legal fees in connection with
the negotiation of this Agreement. The Company commits to reimburse the PAEDC for the
necessary legal fees in the preparation of any amendment to this Agreement, if and when such
amendment is requested by the Company. Timely payment shall be made within sixty (60) days
of submittal of invoice to the Company by the PAEDC or its assigns.
ARTICLE V
PAEDC OBLIGATIONS
1. PBC Grant. Subject to the conditions provided herein, the PAEDC shall release
incremental portions of the PBC Grant funds, which total Five Hundred Ninety Thousand Four
Hundred Fifty-Six Dollars ($590.456.00) to the Company in accordance with the following
schedule:
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(a) Distribution 1 —A cash grant in the amount of$496,856.00 shall be paid to
the Company no later than 30 days following the receipt by the PAEDC of the
Compliance Reporting Form certifying the Completion of the Capital Investment,
as described above in Section IV(1).
(b) Distribution 2 — Optional Employment and Payroll Grant 1: A cash grant
equal to eight percent(8%)of the total annual salary for each Full-Time Job created
and maintained between January 1,2024 and December 31,2024(Year 1),the total
amount of which shall not exceed $31,200.00, and which shall be paid to the
Company no later than 30 days following the receipt by the PAEDC of the
Compliance Reporting Form (including W-2s and other information as may be
required by the PAEDC to confirm compliance).
(c) Distribution 3 — Optional Employment and Payroll Grant 2: A cash grant
equal to ten percent (8%) of the total annual salary for each Full-Time Job created
and maintained between January 1, 2025 and December 31, 2025 (Year 2), as well
as for any Full-Time Job created in Year 1 and retained through Year 2, the total
amount of which shall not exceed $31,200.00, and which shall be paid to the
Company no later than 30 days following the receipt by the PAEDC of the
Compliance Reporting Form (including W-2s and other information as may be
required by the PAEDC to confirm compliance).
(d) Distribution 4 — Optional Employment and Payroll Grant 3: A cash grant
equal to ten percent (8%) of the total annual salary for each Full-Time Job created
and maintained between January 1, 2026 and December 31, 2026 (Year 3), as well
as for any Full-Time Job created in Year 1 and Year 2, and retained through Year
3, the total amount of which shall not exceed $31,200.00, and which shall be paid
to the Company no later than 30 days following the receipt by the PAEDC of the
Compliance Reporting Form (including W-2s and other information as may be
required by the PAEDC to confirm compliance).
2. The Company will provide any internal backup that the PAEDC may request to
verify compliance of the Performance Obligations of Company. The Compliance Reporting Form
will be provided to the Company by the PAEDC.
ARTICLE VI
COVENANTS AND DUTIES
1. Covenants and Duties. The Company makes the following covenants and
warranties to the PAEDC and agrees to timely and fully perform the obligations and duties
contained in Article IV of this Agreement.
(a) The Company is authorized to do business and is in good standing in the
State of Texas and shall remain in good standing in the State of Texas during any
term of this Agreement.
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(b) The execution of this Agreement has been duly authorized by the Company,
and the individual signing this Agreement is authorized to execute such Agreement
and bind the Company. Said authorization, signing, and binding effect is not in
contravention of any law, rule, regulation, or of the provisions of the Company's
organizational documents, or of any agreement or instrument to which the
Company is a party to or by which it may be bound.
(c) The Company is not a party to any Bankruptcy proceedings currently
pending or contemplated, and the Company has not been informed of any potential
involuntary Bankruptcy proceedings.
(d) To its current,actual knowledge,the Company has acquired and maintained
all necessary rights, licenses, permits, and authority to carry on its business in the
City and will continue to use its best efforts to maintain all necessary rights,
licenses,permits, and authority.
(e) The Company agrees to obtain or cause to be obtained,all necessary permits
and approvals from City and/or all other governmental agencies having jurisdiction
over the Project.
(f) The Company shall be responsible for paying, or causing to be paid, to the
City and all other governmental agencies the cost of all applicable permit fees and
licenses required for construction of the Project. The Company agrees to develop
the Project in accordance with the ordinances, rules, and regulations of the City in
effect on the date the Project was designed, unless specified otherwise in this
Agreement or in another agreement between the Parties.
(g) The Company agrees to commence and complete the Project in strict
accordance with this Agreement.
(h) The Company shall cooperate with the PAEDC in providing all necessary
information to assist the PAEDC in complying with this Agreement. Cooperation
shall include, but not be limited to, providing evidence and copies of construction
contracts, payments for construction, permits, construction supply purchases, and
any other documentation deemed necessary by PAEDC to substantiate the reported
Capital Investment.
(i) During the term of this Agreement, Company agrees to not knowingly
employ any undocumented workers as part of the Project, and, if convicted of a
violation under 8 U.S.C. Section 1324a(1),Company shall be in Default(as defined
below). Company is not liable for an unknown violation of this Section by a
subsidiary,affiliate,or franchisee of Company or by a person with whom Company
contracts, provided however that identical federal law requirements provided for
herein shall be included as part of any agreement or contract which Company enters
into with any subsidiary, assignee, affiliate,or franchisee for which the PBC Grant
provided herein will be used.
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(j) Company shall not be in arrears and shall be current in the payment of all
City taxes and fees.
2. PAEDC's Covenants and Duties.
(a) The PAEDC represents and warrants to the Company that the execution of
this Agreement has been duly authorized by the PAEDC, and the individual
signing this Agreement is empowered to execute such Agreement and bind the
PAEDC. Said authorization, signing, and binding effect is not in contravention of
any law, rule, regulation, or of the provisions of the PAEDC's organizational
documents, or of any agreement or instrument to which the PAEDC is a party to
or by which it may be bound.
(b) PAEDC shall cooperate with the Company in providing all necessary
information and documentation to assist the Company in complying with this
Agreement.
ARTICLE VII
TERMINATION
1. Termination. This Agreement shall terminate upon the earliest occurrence of any
one or more of the following:
(a) The mutual agreement of the Parties, as reflected in writing signed by the
Parties;
(b) The Company satisfying all the Performance Obligations set forth in
Article IV,but in no event later than April 1, 2027; or
(c) The PAEDC electing to terminate this Agreement by written notice to the
Company following an Event of Default by the Company.
ARTICLE VIII
DEFAULT
1. The Company's Events of Default. The following shall be considered a"Default"
by the Company:
(a) Failure of the Company to timely perform any term, covenant, obligation,
duty, or agreement contained in this Agreement, including without
limitation its Performance Obligations; or
(b) PAEDC determines that any representation or warranty contained herein in
or in any financial statement, certificate, report or opinion prepared and
submitted to PAEDC in connection with or pursuant to the requirements of
this Agreement was false, incorrect or misleading in any material respect
when made;
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(c) Any judgment is assessed against the Company or any attachment or other
levy against the property of the Company with respect to a claim, in any
instance in an amount greater than $250,000.00, remains unpaid, unstayed
on appeal, not discharged, not bonded or not dismissed for a period of one
hundred eighty(180) days; or
(d) The Company makes an assignment for the benefit of creditors; files a
petition in bankruptcy; is adjudicated insolvent or bankrupt; commences
any action relating to the Company under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction whether now or hereafter in effect; or if there is commenced
against the Company any such action and such action remains undismissed
or unanswered for a period of ninety(90) days from such filing.
2. PAEDC Events of Default. PAEDC failure to fulfill any obligation set forth within
the terms and conditions of this Agreement shall be deemed a"Default"by the PAEDC.
3. Remedies for Default.
(a) In the event of Default by the Company, the PAEDC shall give the
Company written notice of such Default and if the Company has not cured
such Default within 60 days after receipt of such Notice, an "Event of
Default" by the Company shall have occurred. Upon the occurrence and
during the continuance of an Event of Default by the Company,the PAEDC
shall have the right to terminate this Agreement, and pursue all rights and
remedies provided by applicable law. After such termination by the
PAEDC,the PAEDC shall have no further obligation to the Company under
this Agreement. The PAEDC also retains the right, at its sole discretion, to
withhold payment of any PBC Grant funds during the continuance of any
such Default, or, following termination of this Agreement in accordance
with this paragraph 3,require repayment of all or any portion of PBC Grant
funds already paid, as may be appropriate in consideration of the
circumstances leading to such termination and whether such PBC Grant
funds already paid due to valid compliance with one or more Performance
Obligations as provided in Article IV, and as certified with the PAEDC.
(b) In the event of Default by the PAEDC,the Company shall give the PAEDC
written notice of such Default and if the PAEDC has not cured such Default
within 60 days after receipt of such Notice, an "Event of Default" by the
PAEDC shall have occurred. Upon the occurrence and during the
continuance of an Event of Default by the PAEDC,the Company shall have
the right to terminate this Agreement, and pursue all rights and remedies
provided by applicable law. After such termination by the Company, the
Company shall have no further obligation to the PAEDC under this
Agreement.
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ARTICLE IX
MISCELLANEOUS
1. Binding Agreement. The terms and conditions of this Agreement shall be binding
on and inure to the benefit of the Parties, and their respective successors and assigns. This
Agreement is not binding until it has been approved by the Port Arthur Economic Development
Corporation and the City of Port Arthur; upon said approval, the Chief Executive Officer of the
PAEDC shall be responsible for the administration of this Agreement and shall have the authority
to execute any instruments,duly approved by the PAEDC, on behalf of the Parties related thereto.
2. Mutual Assistance. The Parties will do all things reasonably necessary or
appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other
in carrying out such terms and provisions.
3. Independent Contractors.
(a) It is expressly understood and agreed by all Parties hereto that in performing
their services hereunder, Company at no time will be acting as an agent of
the PAEDC and that all consultants or contractors engaged by Company
respectively will be independent contractors of Company; and nothing
contained in this Agreement is intended by the Parties to create a partnership
or joint venture between the Parties and any implication to the contrary is
hereby expressly disavowed the Parties hereto understand and agree that the
PAEDC will not be liable for any claims that may be asserted by any third
party occurring in connection with services performed by Company
respectively under this Agreement, unless any such claims are due to the
fault of the PAEDC.
(b) By entering into this Agreement, except as specifically set forth herein, the
Parties do not waive, and shall not be deemed to have waived, any rights,
immunities, or defenses either may have, including the defense of parties,
and nothing contained herein shall ever be construed as a waiver of
sovereign or official immunity by the PAEDC, with such rights being
expressly reserved to the fullest extent authorized by law and to the same
extent which existed prior to the execution hereof.
(c) No employee of the PAEDC,or any board member or agent of the PAEDC,
shall be personally responsible for any liability arising under or growing out
of this Agreement.
Notice. Any notice required by or permitted under this Agreement must be in
writing. Notice may be given by certified or registered mail, personal delivery,
courier delivery, or e-mail and will be effective when received, provided that (a)
any notice received on a Saturday, Sunday,or holiday will be deemed to have been
received on the next day that is not a Saturday, Sunday, or holiday and (b) any
notice received after 5:00 P.M. local time at the place of delivery on a day that is
not a Saturday, Sunday, or holiday will be deemed to have been received on the
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next day that is not a Saturday, Sunday, or holiday. Any address for notice may be
changed by not less than ten days' prior written notice given as provided herein.
If intended for PAEDC: Port Arthur Economic Development Corporation
Attention: Chief Executive Officer
501 Procter Street, Suite 100.
Port Arthur, TX 77640
With a copy to:
Denton,Navarro, Rocha, Bernal, & Zech, PC
Attention: Charles E. Zech
2500 W. William Cannon, Suite 609
Austin,Texas 78745
If to Company: Vessel Cleaning, LLC
Attention: General Manager
5848 Procter Extension
Port Arthur, TX 77642
4. Governmental Records. All invoices, records and other documents required for
submission to the PAEDC pursuant to the terms of this Agreement are Governmental Records for
the purposes of Texas Penal Code Section 37.10.
5. Governing Law. The Agreement shall be governed by the laws of the State of
Texas, and the venue for any action concerning this Agreement shall be in the Courts of Jefferson
County, Texas, United States of America. The Parties agree to submit to the personal and subject
matter jurisdiction of said court.
6. Amendment. This Agreement may be amended by mutual written agreement of the
Parties, as approved by the Board of Directors by the PAEDC and the City of Port Arthur.
7. Legal Construction. In the event any one or more of the provisions contained in
this Agreement shall, for any reason,be held invalid,illegal,or unenforceable in any respect, such
invalidity,illegality, or unenforceability shall not affect other provisions of this Agreement, and it
is the intention of the Parties to this Agreement that, in lieu of each provision that is found to be
illegal, invalid,or unenforceable, a provision be added to this Agreement which is legal,valid and
enforceable and is as similar in terms as possible to the provision found to be illegal, invalid, or
unenforceable.
8. Interpretation. Each of the Parties has been represented by counsel of their
choosing in the negotiation and preparation of this Agreement. Regardless of which Party prepared
the initial draft of this Agreement, this Agreement shall, in the event of any dispute, whatever its
meaning or application, be interpreted fairly and reasonably and neither more strongly for or
against any Party.
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9. Entire Agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter covered in this Agreement. There is no other collateral
oral or written agreement between the Parties that, in any manner, relates to the subject matter of
this Agreement, except as provided for in any Exhibits attached hereto or duly executed
amendments to this Agreement.
10. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and
several paragraphs.
11. Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument,but all of the counterparts shall constitute one
and the same instrument.
12. Exhibits. Any Exhibits attached hereto are incorporated by reference for all
purposes.
13. Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
14. Indemnification. COMPANY SHALL RELEASE, HOLD HARMLESS,
DEFEND AND INDEMNIFY THE PAEDC,INCLUDING ITS RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES AND REPRESENTATIVES, AND THE CITY COUNCIL
MEMBERS AND MAYOR INDIVIDUALLY AND ACTING IN THEIR CAPACITY OF
REVIEWING AND APPROVING ACTIONS OF THE PAEDC (COLLECTIVELY "THE
INDEMNITEES")FROM AND AGAINST ANY AND ALL SUITS,CLAIMS AND OTHER
DEMANDS OF EVERY TYPE WHATSOEVER, INCLUDING ALL REASONABLE
ATTORNEY'S FEES AND COSTS, ARISING FROM OR OTHERWISE RELATING TO
THE PAEDC CONTRIBUTION(WHERE SUCH SUIT,CLAIM,OR DEMAND IS BASED
ON COMPANY PROVIDING INCORRECT DATA) OR THE DESIGN,
CONSTRUCTION OR OPERATION OF THE FACILITY, AND SUCH OBLIGATION
SHALL NOT BE AFFECTED BY ANY ACTUAL OR ALLEGED NEGLIGENCE,
CONTRIBUTORY NEGLIGENCE, OR STRICT LIABILITY ON THE PART OF THE
INDEMNITEES (OTHER THAN AS A RESULT OF THE GROSS NEGLIGENCE,
RECKLESS DISREGARD,OR WILLFUL MISCONDUCT OF THE INDEMNITEES).
15. Additional Instruments. The Parties agree and covenant to cooperate, negotiate in
good faith, and to execute such other and further instruments and documents as may be reasonably
required to fulfill the public purposes provided for and included within this Agreement.
16. Force Majeure. Whenever a period of time is herein prescribed for action to be
taken by Company, Company shall not be liable or responsible for, and there shall be excluded
from the computation of any such period of time, any delays due to causes of any kind whatsoever
which are caused by Force Majeure.
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17. Time Periods. Unless otherwise expressly provided herein, all periods for delivery
or review and the like will be determined on a"calendar" day basis. If any date for performance,
approval, delivery or Closing falls on a Saturday, Sunday or legal holiday(state or federal)in the
State of Texas, the time therefor will be extended to the next day which is not a Saturday, Sunday
or legal holiday.
18. Assignability. This Agreement may be assigned to a domestic owner, parent or
subsidiary of the Company qualified to do business in the State of Texas,the assignment of which
will be in writing and signed by the Company and Company's assignee.
[SIGNATURE PAGES IMMEDIATELY FOLLOWING]
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Executed on this day of , 2023
COMPANY:
Vessel Cleaning, LLC,
A
By:
Name:
Title:
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Executed on this day of , 2023
PORT ARTHUR
ECONOMIC DEVELOPMENT
CORPORATION
By:
Name: Terry Stokes
Title: Chief Executive Officer
APPROVED AS TO FORM:
By:
PAEDC Attorney
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