HomeMy WebLinkAboutPR 13328: TRIANGLE WASTE..... ~1" ~,1"':; ] ] , 1!),';'.:)0!~ ::!,:C-':[ PAGE 2/8 RightFax
No'w:;nh ::r 10, 2005
econo~c ~cemive a~eem~t ~tween ~e
A~hur Section 4A Fzonomic Development
the Pleasure Island Shrimp House, Inc.
We will deliver lhe other m,o tomo~ow.
S!,acerely,
Ci EI~¥1ER (}ERr'z, L.L.P.
Kathleen A. McOry~n~..__J
['C I! :~X ,ii' ! ' . [!1:!,c,' il..,.:)'}l. 1~( ? ;' ?0,~ * PHON~: 409.654.6700 ° FAX: 409.835.2115
PAGE 5/8 RightFax
P.R. No. 13328
11/10/2005 km
]R:BL:ICL~TION NO.
,~,,bl~ ...... Il,,,, ,,L,C ~ND THE CITY OF PORT
WI.F:~i~D~,~. :~, ':;it ~,' Coxnc:L~L deems it Jn the public: interest
. . Sec~zon 4A Economic
.'i : ;'~ste Solutions, LLC.
~h~ff~}~:~:5~'.~k.L 1:}:,~ ~',~cXs and opinions in the preamble
E,:c]'o~ c i~?,'~] ~lX',~ t~ ~',,;rl~x~ral~4c>~ is herein authozized to entc~
LL;: : : ~,] F~:esi,::tent: and Secretary of the ~:~" of
~ ::, : - I; ;~ ].:tl(?ement il~ substantially the same
~],9!:.~:??~:. ~ /,,t ~ c.::py o~ this Resolution be spread
~:;):;:~ ~ ;-~ ir ~:,~ m 2 ~ ~:~'l~ <'.i :'.¢ Council.
D R A F T
ECONOMIC INCENTIVE CONTRAC3' & LOAN AGREEMENT
BETWEEN
THE CiTY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
TRIANGLE WASTE SOLUTIONS, INC.
CONTRACT DATES
CONTRACT START DATE
1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered
into with an effective date of ,2005, but in no case later than December 21,
2005, by and between the City of Port Arthur Section 4A Economic Development
Corporation ('PAEDC") and Triangle Waste Solutions, Inc. ("Triangle").
CONTRACT END DATE
2. This contract expires the earlier of January 15, 2009, or 30 days after Triangle
either performs fully or breaches the contract, subject to earlier termination or extension,
voluntary or involuntary, as provided herein. In the event of breach, although this contract
expires, the promissory note in Exhibit "A" becomes effective.
PARTIES
3. City of Port Arthur Section 4A Economic Development Corporation ("PAEDC"),
located at 4173-39t~ Street, Port Arthur, Texas, 77642, is a corporation. It is duly
authorized to do business in the State of Texas under Section 4A, Article 5190.6 V.T.C.A.
(the Development Corporation Act of 1979) and duly authorized by Resolution of the City
Council of the City of Port Arthur to enter into this contract. So authorized and as provided
by the PAEDC bylaws, the President and Secretary of the PAEDC Board have the
authority to execute this contract.
Trian.qle Waste Solutions, Inc. ("Triangle") is a ja~dd state} corporation.
is duly authorized to enter into and execute this contract for
Triange. The corporation's registered agent in Texas is at
Triangle/PAEDC Contract - 1 - 11/11/2005
D R A F T
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
(1) PAEDC shall convey to Triangle ten (10) acres of land in the new PAEDC
Business Park (the "Park"), with an estimated fair market value of THREE
HUNDRED SIXTY THOUSAND AND NO/100 DOLLARS ($360,000).
Within sixty (60) days of contract execution, PAEDC will designate the exact
location of the acreage granted, but in every case the location will be
adjacent to an improved road. Triangle will have the option of terminating
this contract within 15 days of the site designation.
PAEDC has installed underground utility mains into the Park, but PAEDC is
not responsible for the cost of installing underground facility service lines
from the mains. Additionally, PAEDC will not pay utility connection costs.
This is PAEDC's sole obligations.
(b) PERFORMANCE BY TRIANGLE
(1) Triangle will select an architect and general contractor who will build an
attractive facility that both complies with the Park's covenants and restrictions
and has been pre-approved by the EDC Board. The Park's covenants and
restrictions are contained in Exhibit "B" and incorporated by reference into
this contract in their entirety.
(2) Triangle will hire at least 21 new employees by December 31, 2006, bringing
its total to 60 employees, with an estimated annual total payroll of $1,650,000
per year,~ as measured by Internal Revenue Service (IRS) forms W-2 and
(3) Triangle will use its best efforts to hire Port Arthur, Texas, residents to the
maximum extent feasible and shall track and report actual performance as a
percent of total employees.
(4) Contemporaneously with PAEDC's land grant to Triangle, Triangle will
execute a commercial security agreement giving PAEDC a security interest
~n a $360,000 Certificate of Deposit at Texas State Bank. See Exhibit "C."
(5) On demand by PAEDC and in response to Triangle's failure to achieve a
performance milestone, Triangle shall provide PAEDC with assurances that it
has both the intention and the capabilities to perform fully its contractual
obligations.
1 This assumes 2000 hours per year and an average employee wage of $27,500 per year.
- 2 - I 1/11/2005
D R A F T
(6) Triangle, as one of the first residents of the Park shall use its best efforts to
be the model of cleanliness, maintenance, and beauty.
(C) TRIANGLE CREDITS -- SUBSTITUTE PERFORMANCE
Triangle may earn credits according to the following formulas, to either reduce
the duration of this contract or reduce the amount of liquidated contract
damages in the event Tdangle breaches the contract.
(1) Starting on the effective date of the contract, Triangle will receive a $1.00
credit for each $9.00 of payroll reportable to the IRS. This credit is
equivalent to $1.00 for each $3.00 of new payroll dollar promised.
(2) Total credit cannot exceed $360,000.
(3) Triangle will forfeit any credits it earned during a period for which a report is
scheduled but Triangle fails to issue it.
- 3 - 11/11/206~
D R A F T
TRIANGLE'S PERFORMANCE MILESTONE SCHEDULE
6. Although failure to achieve a performance milestone is not a breach of contract,
a failure is grounds for PAEDC to withhold further payments to Tdangle and/or demand
reasonable assurances2 from Triangle that it can and will fully perform its contractual
obligations. Failure to provide demanded assurances is a breach of contract.
7. Triangle's performance milestones are contained in the table below.
TRIANGLE'S PERFORMANANCE MILESTONE SCHEDULE
(a) ! Feb 5, 2006 issue a status report3 to PAEDC's Chief Executive Officer ("CEO") for the
~ [period from the effective date of this contract to January 31, 2006.
~(b) ~-Feb. 8, 2006 ~:-I~eview architectural ~!._a..n_?__w~it_h_t__h_e_.._E?_.C_.~_o. ard f0! a~pr-°-v--a-!
(c~ Apr 5 2006 { Status report for January 1, 2006 to March 31, 2006.
[ Ma 30 2006 i Com eta facility construction
d , y ~ P
i-;e;'?j~'; 5, 2006 i status report for April 1, 2006 to June 30, 2006.
~(f) IOct 5 2006 i Status reportfor July l, 2OO6 t° September 30' 2006'
(g) / Dec. 31, 2006 i Achieve performance of 21 new (60 total) employees;
i Annualized total payroll of $1,650,000.
i(h) ]Feb 5, 2007 i Status repo~ for January 1, 2006 to December 31, 2006; Sustain
] employment
'(i) i July 5, 2007 Status report for January 1, 2007 to June 30, 2007; Sustain _e_m_p?~_en
(J) i Feb. 5, 2008 Status report for Jan. 1, 2007 to December 31, 2007; Sustain employment
' (k) I July 5, 2008 i Status report for Jan. 1, 2008 to June 30, 2008; Sustain employment
( ) i Feb. 5, 20115 i Close out repor~ for presentation to the PAEDC Board at its February 2011
i ', i meeting
2 Examples of reasonable assurances are copies of pending contracts and customer commitment letters.
~ Status reports shall include copies of invoices and check payments for machinery and equipment
purchased with PAEDC funds.
"February 5th status reports shall also include identity of current General Manager and members who own
more than 5% of the shares.
~ Or thirty (30) days after Triangle fully performs. The EDC Board will determine if performance is complete.
D R A F T
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. It is expressly understood and agreed by the parties hereto that the PAEDC
funding obligations herein are contingent upon the actual receipt of adequate sales tax
revenue funds to meet the PAEDC's liabilities under this Agreement. If adequate funds
are not available to make payments under this Agreement, the PAEDC shall notify Triangle
in writing within a reasonable time after such fact is reasonably determined by the PAEDC
Board of Directors. The PAEDC, at its sole option, may then terminate this Agreement
without further liability. In the event of such termination by the PAEDC, the PAEDC may,
at its sole option, immediately cease all further funding, if any, required by this Agreement
and the PAEDC shall not be liable to Triangle or to any third parties for failure to make
payments to Triangle under the terms and conditions of this Agreement.
9. The PAEDC shall not be liable, in contract or otherwise, to Triangle, or to any
person or entity claiming by or through Triangle, for any expense, expenditure or cost
incurred by or on behalf of Triangle related to the project made the basis of this
Agreement. The PAEDC's sole liability/obligations, if any, shall be to Triangle and shall be
limited to the conditional funding obligations detailed in this Agreement.
10. Triangle shall not use the funds herein for any purpose(s) other than that
specifically disclosed herein and as further disclosed within that certain application made
by or on behalf of Triangle, which application is incorporated herein for all purposes.
11. Funds granted by the PAEDC hereunder shall not be utilized by Triangle for
repayment of costs, expenditures or expenses incurred prior to the date of this Agreement.
LIQUIDATED DAMAGES FOR BREACH OF CONTRACT BY TRIANGLE
12. In the event Triangle fails to perform its obligations under this contract, the
PAEDC grant, minus any credits earned, will automatically convert to a loan (liquidated
damages), effective on the day of breach, as agreed by Triangle in the executed
Commercial Promissory Note contained in Exhibit "A."
13. It is expressly understood and agreed by the parties that any right or remedy
shall not preclude the exercise of any other right or remedy under this Contract or under
any prevision 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.
- 5 - 11/11/2oo5
D R A F T
RECORDS I INSPECTION I PAEDC AUDIT
14. Triangle must establish and maintain sufficient records, as reasonably
determined by the PAEDC, to account for the expenditure and utilization of funds received
by Triangle from PAEDC under the terms and conditions of this Agreement.
15. Triangle shall maintain records of the receipt and disposition of all funds
provided hereunder as necessary to allow the PAEDC to audit and vedfy proper utilization
of said funds in compliance with this Agreement and the representations and warranties
contained herein and in Triangle's application. Triangle shall provide reports of utilization
of said funds, as reasonably requested by the PAEDC, and upon final termination of this
contract.
16. Triangle shall give the PAEDC, or any of its duly authorized representatives,
access to and right to examine all books, accounts, records, reports, files and other
papers, things or property belonging to or in use by Triangle pertaininR to this ARreement.
Such rights to access shall continue as long as the records are maintained by Triangle.
Triangle agrees to maintain such records in an accessible location. As to job creation
performance, interim status reports shall include documentation substantiating the
accuracy of such reports, including, for example, 941 payment reports, Texas Workforce
Commission reports, or other such reports confirming total jobs, payroll and other relevant
information. Driver's license information is appropriate for interim reporting of Port Arthur
residents hired. Year end reports shall be substantiated with IRS Forms W-2 and W-3.
The reportinR objective is to include documentation necessary to for PAEDC to verify said
report without further outside inquiry.
17. All records pertinent to this Agreement shall be retained by Triangle at least
three years following the date of termination of this Agreement, whether said termination is
a result of default or whether said termination is a result of final submission of a close out
report by Triangle detailing Triangle's compliance with its obligations provided herein.
Further, in the event any litigation, claim or audit arising out of or related to this Agreement
is instituted before the expiration of the three (3) year period and extends beyond the three
year period, the records will be maintained until all litigation, claims or audit findings
involving this Agreement and the records made the basis of same have been resolved.
Further, records relating to real property acquisition, including any long-term lease, shall
be retained for a period equal to the useful life of any machinery or equipment purchased
with PAEDC funds.
18. Triangle shall provide PAEDC with all reports necessary for PAEDC compliance
with Article 5190.6 V.T.C.A.
19. It is expressly understood and agreed by the parties hereto that if Triangle fails
to submit to PAEDC in a timely and satisfactory manner any report required by this
Contract, PAEDC may, at its sole discretion, withhold further payments to Triangle and/or
demand assurances that Triangle can and will fully perform its contractual obligations. If
Triangle fails to provide adequate assurances then Triangle is in breach and any monies
advanced by PAEDC automatically become a loan. If PAEDC withholds such payments, it
shall notify Triangle in writing of its decision and the reasons therefore. Payments withheld
- 6 - tl/t]~2oo5
D R A F T
pursuant to this paragraph may be held by PAEDC until such time as the delinquent
obligations for which funds are withheld are fulfilled by Triangle.
20. The PAEDC reserves the right, from time to time, to carry out field
inspections/audits to ensure compliance with the requirements of this Agreement. After
completion of any such audit, the PAEDC, at its option, may provide Triangle with a written
report of the audit findings, if the audit report details deficiencies in Triangle's performance
under the terms and conditions of this A0reement, the PAEDC may establish requirements
for the timely correction of any such deficiencies by Triangle.
HOLD HARMLESS
21. Triangle agrees to hold harmless the PAEDC and the City of Port Arthur from
any and all claims, demands, and causes of action of any kind or character which may be
asserted by any third party occurring, arising out of or in any way related to this
Agreement, the project made the basis of this Agreement and the utilization of grant funds
provided by this Agreement.
SUBCONTRACTS
22. Triangle may not subcontract for performance credits described in this Contract
without obtaining PAEDC's written approval, which may be withheld for any reason.
Triangle shall only subcontract for performance credits described in this Contract after
Triangle has submitted Subcontractor Eligibility Request, as specified by PAEDC, for each
proposed subcontract, and Triangle has obtained PAEDC's prior written approval, based
on the information submitted, of Triangle's intent to enter into such proposed subcontract.
Triangle, in subcontracting for any performances described in this contract, expressly
understands that in entering into such subcontracts, PAEDC is in no way liable to
Triangle's subcontractor(s).
23. In no event shall PAEDC's prior written approval of a subcontractor's eligibility,
be construed as relieving Triangle of the responsibility for ensuring that the performances
rendered under all subcontracts are rendered so as to comply with all terms of this
Contract, as if such performances rendered were rendered by Triangle. PAEDC's
approval does not constitute adoption, ratification, or acceptance of Triangle's or
subcontractor's performance hereunder. PAEDC maintains the right to insist upon
Triangle's full compliance with the terms of this Contract, and by the act of subcontractor
approval, PAEDC does not waive any right of action which may exist or which may
subsequently accrue to PAEDC under this Contract.
24. Triangle, as well as all of its approved subcontractors, shall comply with all
applicable federal, state, and local laws, regulations, and ordinances for making
procurement under this Contract.
CONFLICT OF INTEREST I DISCLOSURE OBLIGATION
25. Conflict of Interest: No employee, agent, officer or elected or appointed official
of the City of Port Arthur or the PAEDC who has participated in a decision making process
- 7 - ll/l lf20ff3
D R A F T
related to this contract (without recusing him/herself and executing a conflict affidavit) may
obtain a personal or financial interest or benefit from an PAEDC assisted activity, or have
an interest in any contract, subcontract, or agreement (or proceeds thereof) with respect to
an PAEDC assisted activity, during their tenure or for one (1) year thereafter. Triangle
shall ensure compliance with applicable provisions under Article 5190.6 V.T.C.A. and
Chapter 171 Local Government Code V.T.C.A.
26. Disclosure: In conjunction with execution of this Agreement, Triangle has fully
disclosed to PAEDC all known and potential owners of interests in Triangle (whether
stockholder, manager, member or otherwise). In the event of any change in ownership or
control of Triangle of five percent (5 %) or greater, Triangle shall notify PAEDC in writing.
Further, Triangle shall be obligated to notify in writing the PAEDC in the event any time
prior to, during or one (1) year after the term of this Contract, any City or PAEDC employee
or representative or any third party with a conflict of interest obtains or proposes to obtain
a financial benefit, direct or indirect, from Triangle. Failure to provide said notice
immediately or no later than five (5) business days after receipt of information shall
constitute a default herein.
NONDISCRIMINATION I EMPLOYMENT / REPORTING
27. Triangle shall ensure that no person shall on the grounds of race, color, religion,
sex, handicap, or national origin be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity funded in whole or in
part with funds provided under this Contract. Additionally, funds shall be used in
accordance with the following requirements:
(a) To the greatest extent feasible, opportunities for training and employment arising
in connection with the planning and carrying out of any project assisted with
PAEDC funds provided under this Contract be given to Port Arthur residents;
and
(b) To the greatest extent feasible, contracts for work to be performed in connection
with any such project be awarded to Port Arthur residents and businesses,
including, but not limited to, individuals or firms doing business in the field of
planning, consulting, design, architecture, building construction, rehabilitation,
maintenance, or repair, which are located in or owned in substantial part by
persons residing in the City of Port Arthur.
(c) If Triangle advertises for employment then it will advertise in the Port Arthur
News.
_LEGAL AUTHORITY
28. Triangle assures and guarantees that Triangle possesses legal and/or corporate
authority to enter into this Contract, receive funds authorized by this Contract, and to
perform the services Triangle has obligated to perform hereunder and has provided, and
will in the future provide, as requested by the PAEDC, such corporate resolutions
necessary to evidence this authority.
. ~. H/11/2005
D R A F T
29. The person or persons signing and executing this Contract on behalf of Triangle,
or representing themselves as signing and executing this Contract on behalf of Triangle,
do hereby warrant and guarantee that he, she, or they have been duly authorized by
Triangle to execute this Contract on behalf of Triangle and to validly and legally bind
Triangle to all terms, performances, and provisions herein set forth.
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST TRIANGLE
30. Triangle shall give PAEDC immediate notice in writing of 1) any legal or
regulatory action, including any proceeding before an administrative agency filed against
Triangle, directly or indirectly; and 2) any material claim against Triangle, which may
impact continued operations. For purposes herein, "material" claims shall mean claims in
excess of $15,000. Except as otherwise directed by PAEDC, Triangle shall furnish
immediately to PAEDC copies of all pertinent documentation of any kind received by
Triangle with respect to such action or claim.
CHANGES AND AMENDMENTS
31. Except as specifically provided otherwise in this Contract, any alterations,
additions, or deletions to the terms of this Contract shall be by amendment in writing and
executed by all parties to this Contract.
32. It is understood and agreed by the parties hereto that performances under this
Contract must be rendered in accordance with Article 5190.6 V.T.C.A. (the Development
Corporation act of 1979), the regulations promulgated under Article 5190.6 V.T.C.A., the
assurances and certifications made to PAEDC by Triangle, and the assurances and
certifications made to the City of Port Arthur with regard to the operation of the PAEDC's
Projects. Based on these considerations, and in order to ensure the legal and effective
performance of this Contract by all parties, it is agreed by the parties hereto that the
performances under this Contract are by the provisions of the PAEDC Program and any
amendments thereto and may further be amended in the following manner: PAEDC may
from time to time during the pedod of performance of this Contract issue ~ctives
which serve to establish, interpret, or clarify performance requirements under this Contract.
Such policy directives shall be promulgated by the PAEDC Board of Directors in the form
of PAEDC issuances, shall be approved by the City Council and shall have the effect of
qualifying the terms of this Contract and shall be binding upon Triangle, as if written herein.
33. Any alterations, additions, or deletions to the terms of this Contract which are
required by changes in Federal, state law or local law are automatically incorporated into
this Contract without written amendment hereto, and shall become effective on the date
designated by such law or regulation.
DEFAULT / TERMINATION
34. In the event of default of any of the obligations of Triangle detailed herein or in
the event of breach of any of the representations of or warranties of Triangle either
detailed herein or in Triangle's application to the PAEDC, the PAEDC may, at its sole
D R A F T
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 PAEDC as provided by the laws of the
State of Texas or (ii) any other remedies available to the PAEDC as provided herein, the
PAEDC may, at its sole option, utilize one or more of the following actions to resolve or
otherwise remedy said default:
(a) Declare the Commemial promissory note executed in conjunction with this
Agreement immediately effective. If Triangle defaults on the note, then the
PAEDC may exercise its default remedies provided under collateral
documentation executed in conjunction with said Note and this Agreement
(b) Exercise any remedies provided herein and/or within the Loan/Collateral
Documents;
(c) Withhold, whether temporarily or otherwise, disbursement of grant proceeds
pending correction of the deficiency(s) by Triangle;
(d) Disallow all or a part of the incentives which are not in compliance with the terms
and conditions of this Agreement or in compliance with the representations and
warranties contained within this Agreement and Triangle's application to the
PAEDC;
(e) Withhold and/or disallow further PAEDC incentives to Triangle;
(f) Take any and all other remedies that may be legally available to the PAEDC, as
authorized by the terms and conditions of this Agreement, and as may be
authorized by the laws of the State of Texas;
35. In addition to the foregoing, the parties agree that this Agreement may be
terminated at any time when both parties agree, in writing, to the terms and conditions of
any such voluntary termination.
TRIANGLE AUDITS
36. If directed by PAEDC Board, Triangle shall arrange for the performance of a
compliance audit by a certified public accountant of funds received and performances
rendered under this Contract, subject to the following conditions and limitations:
(a) Triangle shall have a compliance audit which may be limited to use of funds
received from the PAEDC, made for any of its fiscal years included within the
contract period in which Triangle receives more than $50,000 in PAEDC
financial assistance provided by PAEDC in the form of grants, contracts, loans,
loan guarantees, property, cooperative agreements, interest subsidies, or direct
appropriations. Backup documentation regarding actual expenditures shall be
provided by Triangle. Said audit must be received and accepted by the Director
of PAEDC and/or the PAEDC Board.
D R A F T
(b) At the option of Triangle, each audit required by this section may cover either
Triangle's entire operations or each department, agency, or establishment of
Triangle which received, expended, or otherwise administered PAEDC funds;
(c) Unless otherwise specifically authorized by PAEDC in writing, Triangle shall
submit the report of such audit to PAEDC within thirty (30) days after completion
of the audit, but no later than one hundred twenty (120) days after the end of
each fiscal period included within the period of this Contract.
(d) As a part of its audit, Triangle shall verify that the expenditures were exclusively
fo_Ir the 75,000-square-foot building on its Park land. Any discrepancies in
excess of $1,000 shall be specifically documented in writing.
37. Triangle understands and agrees that it shall be liable to reimburse immediately
PAEDC for any costs disallowed pursuant to financial and compliance audit(s) of funds
received under this Contract and it may be required to submit formal audits at Triangle's
expense.
38. Triangle shall take all necessary actions to facilitate the performance of any and
all such audits, whether annual, mandatory or otherwise requested under this Agreement.
39. Subject to financial privacy requirements of Triangle and properly designated
requests for non-disclosure due to proprietary reasons, all approved audit reports ma,/be
made available for public inspection.
40. PAEDC shall not release any funds for costs incurred by Triangle under this
Contract until PAEDC has received certification from Triangle that its fiscal control and
fund accounting procedures are adequate to assure proper disbursal of and accounting for
funds provided under this Contract. PAEDC shall specify the content and form of such
certification.
ENVIRONMENTAL CLEARANCE REQUIREMENTS
41. Triangle understands and agrees that by execution of this Contract, Triangle
shall be responsible for providing to PAEDC all information, concerning this PAEDC
funded project, required for PAEDC to meet its responsibilities for environmental review,
decision making, and other action which applies to PAEDC in accordance with and to the
extent specified in Federal, State and Local Law. Triangle further understands and agrees
that Triangle shall make all reasonable efforts to assist PAEDC in handling inquiries and
complaints from persons and agencies seeking redress in relation to environmental
reviews covered by approved certifications.
-11-
I) R A F T
ORAL AND WRITTEN CONTRACTS I PRIOR AGREEMENTS
42. All oral and written contracts between the parties to this Contract relating to the
subject matter of this Contract that were made prior to the execution of this Contract have
been reduced to writing and are contained in this Contract.
43. The documents listed below are hereby made a part of this Contract, and
constitute promised performances by Tdangle in accordance with this Contract:
Exhibit "A" Commercial Promissory Note
Exhibit "B" Industrial Park Covenants and Restrictions
Exhibit "C" Commercial Security Agreement
Exhibit "D" Commercial Security Agreement
Exhibit "E" Certification Regarding Lobbying
Triangle Application to PAEDC for funding, by reference
VENUE
44. For purposes of litigation that may accrue under this Contract, venue shall lie in
Jefferson County, Texas, where substantially all the performance will occur.
ADDRESS OF NOTICE AND COMMUNICATIONS
City of Port Arthur Section 4A Economic Development Corporation
444 4th Street
Port Arthur, Texas 77640
ATTN: Deborah Echols, Executive Director
Triangle Waste Solutions, Inc.
A'I-I'N:
CAPTIONS
45. This contract has been supplied with captions to serve only as a guide to the
contents. The caption does not control the meaning of any paragraph or in any way
determine its interpretation or application.
COMPLIANCE WITH FEDERAL~ STATE AND LOCAL LAWS
46. Triangle 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 Triangle under this Contract. Upon
-12-
D R A F T
request by PAEDC and by the City, Triangle shall furnish satisfactory proof of its
compliance herewith.
CONDITIONS PRECEDENT
47.This contract has no legal consequences unless and until both the PAEDC Board
and the City of Port Arthur City Council approve the contract in its final form.
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
CONTRACT EXECUTION
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of ,200__.
By:. By:
President Eli Roberts Secretary Linda Spears
Witness Witness
SIGNED AND AGREED TO on the __ day of ,200__.
TRIANGLE WASTE SOLUTIONS, INC.
By;.
Print Name
Witness
EXHIBIT "A"
COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when Triangle
Waste Solutions, Inc., hereinafter called "Maker," breaches that certain Economic
Incentive Contract and Loan Agreement between the City of Port Arthur Section 4A
Economic Development Corporation (hereinafter called "Lender") and Maker, dated
., 2005.
Effective Date: the day of ,200 .("date of breach")
Principal Amount: $ , which is $360,000 minus the incentive credits
earned by Maker according to that certain Economic Incentive Contract and Loan
Agreement between the Lender and Maker (described hereinbefore).
Term of the Loan: Three years from effective date.
Payment Schedule: Monthly until principal is paid fully.
FOR VALUE RECEIVED, the undersigned "Maker", whether one or more, and if more
than one, then jointly and severally, promise(s) topay to the order of CITY OF PORT
,,A, RTHU,,R, SECTION 4A ECONOMIC DEVELOPMENT CORPORATION, (herein called
Lender'), at its office at P.O. Box 1089, Port Arthur, Texas 77640-1089, or such other
~lace or places as the holder hereof sha from time to time designate in written notice to
aker, the pr nciple amount, in legal and lawful money of the United States of America,
together with interest thereon from the date hereof until maturity at the rate of ten percent
(10%) per annum as detailed herein.
All past due pr ncipal and nterest shal bear interest from date of maturity until paid
at the rate of fifteen percent (15%) per annum, or to the maximum extent allowed by law
(whichever is less) as may hereafter be in effect, payable on demand after maturity.
This note is due and payable as follows: On demand with accrued interest from the
effective date.
Any notices required or perm tted to be g ven by the holder hereof to Maker
pursuant to the prov sions of this note shall be in writing and shall be either personally
delivered or transmitted by first class United States mail, addressed to Maker at the
address designated below for receipt of notice (or at such other address as Maker may,
from t me to t me, designate in wdting to the holder hereof for receipt of notices
hereunder). Any such notice I~ersonally del vered shall be effective as of the date of
delivery, and any notice transmitted by mail, in accordance with the foregoing provisions,
shall be deemed to have been given to and received by Maker as of th.e d.at.e on w. hich,
such notice was deposited with the United States Postal Service, properly aa(3ressea ano
with postage prepaid.
This note is also secured by and entitled to the benefits of all other security
agreements, pledges, collateral assignments, deeds of trust, guaranties, mortgages,
assignments, and lien instruments, if any, of any kind executed by Maker or by any other
party as security for any loans owing by Maker to the Lender. Such lien instruments shall
~nclude those executed simultaneously herewith, those heretofore executed, and those
hereafter executed.
If any insta ment or payment of principal or interest of this note is not paid when
due or any drawer, acceptor, endorser, guarantor, surety, accommodation pa.rty .,or other
person now or hereafter primarily or secondarily liable upon or for payment oT al~ or any
part of this note (each hereinafter called an "other liable party") shall die, or become
~nsolvent (however such insolvency may be evidenced); or if any proceeding, procedure or
remedy supplementary to or in enforcement of judgment shall be resorted to or
commenced against Maker or any other liable party, or w~th respect to any property of any
of them; or f any governmental authority or any court at the instance thereof shall take
possession of any substantial part of the property of or assume control over the affairs or
operations of, or a rece ver shall be appointed for or take possession of the property of, or
a wrt or order of attachment or garmshment shall be issued or made against any of the
property of Maker or any other liable party; or if any indebtedness for which Maker or any
other liable party is primarily or secondarily liable shall not be paid when due or shall
become due and payable by acceleration of maturity thereof, or if any event or condition
shall occur which shall permit the holder of any such indebtedness to declare it due and
payable upon the apse of t me, g v ng of notice or otherwise; or if Maker or any other liable
party ( f other than a natura person) shall be dissolved, wound up, liquidated or otherwise
term nated, or a party to any merger or consolidation without the written consent of
Lender; or if Maker or any other liable party shall sell substantially all or an integral portion
of its assets without the wr tten consent of Lender; or if Maker or any other liable party fails
to furn sh financ a information requested by Lender; or if Maker or any other liable party
furnishes or has furnished any financial or other information or statements which are
misleadin9 in any respect; or if a default occurs under any instrument now or hereafter
executed ~n connection with or as security for this note; or any event occurs or condition
exists which causes Lender to in good faith deem itself insecure or in good faith believe
the prospect of payment or performance by Maker or any other liable party under this note,
under any instrument or agreement executed in connection with or as security for this
note, or under any other indebtedness of Maker or any other liable party to Lender is
impaired thereupon, at the option of Lender, the principal balance and accrued interest of
this note and any and a other indebtedness of Maker to Lender shall become and be due
and payable forthwith without demand, notice of default, notice of acceleration, notice of
intent to accelerate the maturity hereof notice of nonpayment, presentment, protest or
notice of d shonor all of wh ch are hereby expressly waived by Maker and each other
liable party. Lender may wave any default without wavng any prior or subsequent
default.
f th s note is not paid at maturity whether by acceleration or otherwise, and is
p aced n the hands of any attorney for collection, or suit is filed hereon or proceedings are
had in probate, bankruptcy, receivership, reorganization, arrangement or other legal
Droceedlnos for collection hereof, Maker and each other liable party agree to pay Lender
its collection costs, including court costs and a reasonable amount for attorney's fees.
It is the ntention of Maker and Lender to conform strictly to applicable usury laws.
Accordingly, if the transaction contemplated hereby would be usurious under applicable
aw, then, in that event notwthstanding anything to the contrary herein or in any
agreement entered nto n connection wth or as security for this note it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under applicable
law that s taken, reserved, contracted for, char. ged. or received under this note or under
any of the other aforesaid agreements or otherwise in connection with this note shall under
no circumstances exceed the maximum amount of interest allowed by applicable law, and
any excess shall be credited on this note by the holder hereof (or, if this note shall have
been paid in full refunded to Maker); (ii)in the event that maturity of this note is
accelerated by reason of an election by the holder hereof resulting from any default
hereunder or otherwise or in the event of any required or permitted prepayment, then
such cons derat on that constitutes interest may never include more than the maximum
amount allowed by applicab e aw, and excess ~nterest if any provided for in this note or
otherwise shall be canceled automatically as of the date of such acceleration or
prepayment and, if theretofore prepaid, shall be credited on this note (or if this note shall
have been paid in full, refunded to Maker); and (iii) all calculations of the rate of interest
taken reserved, contracted for char~led or received under this note or under any of the
other aforesa d agreements or otherwise in connection with this note, that are made for the
purpose of determining whether such rate exceeds the maximum lawful rate shall be
made, to the extent permitted by applicable law, by amortizing, prorating, allocating, and
spreading such interest over the entire term of the loan evidencedby this note(including all
renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No part a prepayment shal/reduce postpone or delay the obligation of Maker to
cont hue paying the installments herein prowded on their respective due dates following
any such partial prepayment until this note is fully paid.
The Maker and each other liable party are and shall be directly and primarily, jointly
and severa ly liable for the payment of all sums called for hereunder; and, except for
notices specifically required to be g ven by the holder hereof to Maker pursuant to the
earlier provisions of th~s note, Maker and each other liable party hereby expressly waive
demand, presentment for payment not ce of nonpayment, pretest notice of protest, notice
of ntention to accelerate maturity not ce of acceleration of maturity and all other notice,
filing of suit and d gence n co ecting th s note or enforcing or handling any of the security
therefor, and do hereby agree to any substitution, exchange or release, in whole or in part,
of any security hera-for or the release of any other liable party, and do hereby consent to
any and all renewals or extensions from time to time, of th~s note or any par~ hereof, either
before or after maturity, all without any notice thereof to any of them and without affecting]
or releasing the liability of any of them. Each other liable party does further agree that ~t
will not be necessary for the holder hereof, in order to enforce payment of this note by
such other liab e party, to first institute suit or exhaust its remedies against Maker or any
other liable party or to enforce its rights against any security therefor.
SIGNED AND AGREED TO on the __ day of ,200__.
TRIANGLE WASTE SOLUTIONS, INC.
By:
John May
Position
ACKNOWLEGEMENT
THE STATE OF TEXAS *
COUNTY OF JEFFERSON *
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally
appeared , a representative of Tdangle Waste
Solutions, Inc., known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he/she executed the same as the act and deed
of the Tdangle Waste Solutions, Inc., for the purposes and consideration therein
expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the __ day of
,2oo__.
NOTARY PUBLIC, STATE OF TEXAS
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
TRIANGLE WASTE SOLUTIONS, INC.
D R A F T
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
&
TRIANGLE WASTE SOLUTIONS, INC.
Executive Summary
Triangle Waste Solutions, Inc. ("Triangle") is a local corporation. Its lease at its
current location is nearing expiration and Triangle wants to move. Triangle is expanding
and can promise jobs in exchange for an incentive from the City of Port Arthur Section
4A Economic Development Corporation ("PAEDC") promising jobs. The incentive
Triangle desires is a parcel of land in the new PAEDC Business Park (the "Park"),
moving.
PAEDC will convey a ten (10) acre parcel to Triangle, which has an estimated
fair market value of $360,000. In exchange, agrees to hire 21 new employees, bringing
the total number of employees in the Park facility to 60, with an estimated annual payroll
of $1,650,000. Additionally, Triangle agrees to meet or exceed the Park's covenants
and restrictions; agrees to allow the EDC to pre-approve the architectural drawings for
the facility; and agrees to serve as a model of cleanliness and maintenance for other
Park occupants.
If Trian.qle breaches this agreement then the fair market value of the PAEDC
.qrant at the time of contract execution, minus any credits earned, will automatically
convert to a loan (liquidated damages). The loan will have a three-year term, starting
on the date of Triangle's breach, and an interest rate of ten percent (10%). Joe
Swinbank ("Swinbank") will provide a Texas State Bank Certificate of Deposit in the
amount of $360,000 as collateral to secure the loan. When PAEDC conveys the land to
Triangle, Swinbank will execute the Commercial Security Agreement in Exhibit "C,"
which will be perfected by filing the UCC-1 Form in Exhibit "D" with the Secretary of
State.
Triangle may earn credits to reduce the duration of this contract or to reduce
liquidated damages in the event of a breach. Starting on the effective date of the
contract, Triangle will receive a $1.00 credit for each $9.00 of payroll, which is about
$1.00 for each $3.00 in new payroll.
To avoid surprises, Triangle agrees to send PAEDC brief status reports, every
three (3) months for the first year and every six months thereafter, until issuance of a
close out report. Triangle will forfeit its credits for any reporting period for which it did
not issue a report in a timely manner.
D R A F T
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETVVEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
TRIANGLE WASTE SOLUTIONS, INC.
CONTRACT DATES .................................................................................................. - 1 -
PARTIES .................................................................................................................... - 1 -
(A) PERFORMANCE BY PAEDC ................................................................................. - 2 -
(B) PERFORMANCE BY TRIANGLE ............................................................................... - 2 -
(C) TRIANGLE CREDITS -- SUBSTITUTE PERFORMANCE ................................................- 3 -
TRIANGLE'S PERFORMANCE MILESTONE SCHEDULE ...................................... - 4 -
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY ...................... - $ -
LIQUIDATED DAMAGES FOR BREACH OF CONTRACT BY TRIANGLE ............. - $ -
RECORDS / INSPECTION I PAEDC AUDIT ............................................................. - 6 -
HOLD HARMLESS .................................................................................................... - 7 -
SUBCONTRACTS ..................................................................................................... - 7 -
CONFLICT OF INTEREST I DISCLOSURE OBLIGATION ....................................... - 7 -
NONDISCRIMINATION I EMPLOYMENT I REPORTING ......................................... - 8 -
LEGAL AUTHORITY ..................................................................................................
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST TRIANGLE ................ - 9 -
CHANGES AND AMENDMENTS .............................................................................. - 9 -
DEFAULT / TERMINATION ....................................................................................... - 9 -
TRIANGLE AUDITS ................................................................................................. - 10 -
ENVIRONMENTAL CLEARANCE REQUIREMENTS ............................................. - 11 -
ORAL AND WRITTEN CONTRACTS I PRIOR AGREEMENTS ............................. - 12 -
VENUE ..................................................................................................................... - 12 -
ADDRESS OF NOTICE AND COMMUNICATIONS ................................................ - 12 -
CAPTIONS ............................................................................................................... - 12 -
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS .............................. - 12 -
CONDITION PRECEDENT ...................................................................................... - 13 -
CONTRACT EXECUTION ........................................................................................ - 13 -
Exhibit "A". ........................ Commercial Promissory Note
Exhibit "B". ....................... Industrial Park Covenants and Restrictions
Exhibit "C". ....................... Commemial Security Agreement
Exhibit "D". ........................ UCC-1 Financing Statement
Exhibit "E". ........................ Certification Regarding Lobbying
ii 11/11/2005