HomeMy WebLinkAbout(01) PR:13377 TRIANGLE WASTE interoffice_
MEMORANDUM
To: Mayor, City Council, and City Manager
From: Mark T. Sokolow, City Attorney
Date: January 13, 2006
Subject: P. R. No. 13377; Council Meeting January 17, 2006
In re: Triangle Waste
Attached is P. R. No. 13377 with the proposed changes
to the incentive agreement as requested by Triangle Waste.
Ms. McGlynn prepared the initial draft of the resolution. I
inserted the following language "The deed of the 10 acres to
Triangle Waste shall reserve the necessary easements for the city
utilities."
MTS:ts
cc: VIA FACSIMILE (409) 962-4445 Mr. Floyd Batiste
CEO EDC
VIA FACSIMILE (409) 835-2115
Ms. Kate McGlynn
EDC Attorney
z.pr13277.memo
Exhibit "A"
SUMMARY OF CHANGES TO TRIANGLE WASTE L.L.C.
INCENTIVE CONTRACT
FROM FIRST TO SECOND DRAFT
· To address the requirements of the PAEDC Board and City Council for "no
scrap" and "need enclosure/fenced screening for the trucks and portable
toilets," Triangle Waste Solutions, L.L.C. agrees to the following additional
covenants and restrictions:
o Screen property lines with 6-foot fencing with landscaping on the outside
to provide extra protection;
o Screen the transfer station inside the plant with internal fencing;
o Keep Triangle's scrap metal operation at another location; do not move
the operation to the Port Arthur Business Park;
o Design, build and operate the Port Arthur Business Park plant so that
scrap is not visible to any member of the public standing at ground level
on a public way;
o Enclose all operations within buildings that have three walls with the open
side of the buildings facing toward the inside the plant, so that the inside of
buildings are not visible from a public way; and
o Store all equipment, trucks, roll off containers, etc., either behind the
buildings or inside of the plant, so as not to be visible from South Business
Park Drive.
· An Introduction was added to "insert details of performance as
delineated in executive summary or application."
· Exhibit "D" was added because Paragraph F.2. of the Commercial
Security Agreement requires an acknowledgement of the PAEDC's
lien by issuer of the Certificate of Deposit.
· An Attorney Approval section was added for the City Attorney to
verify that the contract is consistent with the City Council's Resolution
approving the contract.
"(A) paragraph as to allow designation of covenants and of lots within sixty (60) days
with an option for the company to withdraw in fifteen (15) days thereof if they do not
agree with the covenants and designation of the lots" was not added because the
covenants and restrictions are now final and recorded, and the lot is selected.
S E C O N D D R A F T
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BE'I1NEEN
THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
&
TRIANGLE WASTE SOLUTIONS, L.L.C.
.Executive Su~
Triangle Waste Solutions, L.L.C. ("Triangle") is a local corporation, engaged in
waste management, which includes providing septic waste equipment and services;
metal collection and resale; and mil-off truck services. Triangle's target market lies
between Lake Charles, Louisiana and Galveston, Texas. Triangle's lease, at its current
location in Beaumont, is nearing expiration and Triangle would like to move and expand.
The City of Port Arthur Section 4A Economic Development Corporation
("PAEDC") will convey a ten (10) acre parcel in the new PAEDC Business Park (the
"Park") to Triangle, which cost the PAEDC an estimated $392,040. In exchange,
Triangle agrees to hire 21 new employees, bringing the total number of employees in
the new Park facility to 60, with an estimated annual payroll of $1,650,000. Triangle
promises to use its best efforts to hire Port Arthur, Texas residents. Additionally,
Triangle agrees to meet or exceed the Park's covenants and restrictions; agrees to
meet Triangle-specific 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 grant will automatically convert to a
loan in the amount of $392,040 minus any credits earned (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 $392,040 as collateral to secure the
conditional grant, according to a Commemial Security Agreement executed by
Swinbank, and perfected by filing a Financing Statement (UCC-1 Form) with the
Secretary of State.
Triangle may earn credits to reduce the duration of this contract o[ to reduce
liquidated damages in the event of a breach. Starting when Triangle achieves the
payroll level of $1,650,000 (annualized) and continuing for as long as Triangle maintains
at least this level of employment, Triangle will receive a $1.00 credit for each $9.00 of
payroll.
To avoid surprises, Triangle agrees to send PAEDC bdef 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.
P.R. No. 13377
O1/13/O6 ~t
RESOLUTION NO.
A RESOLUTION APPROVING AN ECONOMIC
INCENTIVE CONTRACT BETWEEN TRIANGLE
WASTE SOLUTIONS, LLC AND THE CITY OF
PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
WHEREAS, On November 10, 2005 the City Council approved
Resolution 05-338, an economic incentive a§reement between Triangle
Waste Solutions, LLC. the City of Port Arthur Section 4A Economic
Development Corporation;
WHEREAS, changes are bein§ requested by Triangle Waste to the
proposed contract as denoted in Exhibit "A'; and
WHEREAS, this contract is being presented to the EDC Board of
Directors and the City Council for approval.
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 City of Port Arthur Section 4A Economic
Development Corporation is herein authorized to enter into an economic
incentive agreement with Triangle Waste Solutions, LLC in substantially
the same form as denoted in Exhibit KB".
Pr13377
Section 3. The deed of the 10 acres to Triangle Waste shall
reserve the necessary easements for the city utilities.
Section 4. That a copy of the caption of the Resolution be
spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this __ day of .,
A.D. 2006, at a Special Meeting of the City Council of the City of Port
Arthur, Texas by the following vote:
AYES: Mayor_
Councilmembers:
NOES:
OSCAR ORTIZ, MAYOR
ATTEST:
EVANGELINE GREEN, CITY SECRETARY
APPROVED AS TO FORM:
MARK T. SOKOLOW, CITY ATTORNEY
GERMER GERTZ, LLP
Pr13377
APPROVED FOR ADMINISTRATION:
STEPHEN FITZGIBBONS; CITY MANAGER
APPROVED AS TO THE AVAILABILITY OF FUNDS:
REBECCA UNDERHILL, DIRECTOR OF FINANCE
APPROVED FOR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION:
FLOYD BATISTE, CEO, ECONOMIC DEVELOPMENT CORPORATION
Pr13377
Exhibit "A" to Resolutio.
SUMMARY OF CHANGES TO TRIANGLE WASTE L.L.C.
INCENTIVE CONTRACT
FROM FIRST TO SECOND DRAFT
· To address the requirements of the PAEDC Board and City Council for "no
scrap" and "need enclosure/fenced screening for the trucks and portable
toilets," Triangle Waste Solutions, L.L.C. agrees to the following additional
covenants and restrictions:
o Screen property lines with 6-foot fencing with landscaping on the outside
to provide extra protection;
o Screen the transfer station inside the plant with internal fencing;
o Keep Triangle's scrap metal operation at another location; do not move
the operation to the Port Arthur Business Park;
o Design, build and operate the Port Arthur Business Park plant so that
scrap is not visible to any member of the public standing at ground level
on a public way;
o Enclose all operations within buildings that have three walls with the open
side of the buildings facing toward the inside the plant, so that the inside of
buildings are not visible from a public way; and
o Store all equipment, trucks, roll off containers, etc., either behind the
buildings or inside of the plant, so as not to be visible from South Business
Park Drive.
· An Introduction was added to "insert details of performance as
delineated in executive summary or application."
· Exhibit "D" was added because Paragraph F.2. of the Commercial
Security Agreement requires an acknowledgement of the PAEDC's
lien by issuer of the Certificate of Deposit.
· An Attorney Approval section was added for the City Attorney to
verify that the contract is consistent with the City Council's Resolution
approving the contract.
"(A) paragraph as to allow designation of covenants and of lots within sixty (60) days
with an option for the company to withdraw in fifteen (15) days thereof if they do not
agree with the covenants and designation of the lots" was not added because the
covenants and restrictions are now final and recorded, and the lot is selected.
TO THE I~ESOLU'I']:ON
S E C 0 N D D R A F T
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BE13NEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
TRIANGLE WASTE SOLUTIONS, L.L.C.
INTRODUCTION ................................................................................................................................... - 1 -
CONTRACT DATES ............................................................................................................................. o 1 -
PARTIES ................................................................................................................................................. ' ] -
(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 .............................. - 5 -
RECORDS I INSPECTION I PAEDC AUDIT .................................................................................... - 5 -
HOLD HARMLESS ............................................................................................................................... - 6 -
SUBCONTRACTS ................................................................................................................................. - 6 -
CONFLICT OF INTEREST I DISCLOSURE OBLIGATION ........................................................... - 7 -
NONDISCRIMINATION I EMPLOYMENT I REPORTING ............................................................. ' ? -
LEGAL AUTHORITY ............................................................................................................................ - 8 -
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST TRIANGLE ................................. o 8 -
CHANGES AND AMENDMENTS ....................................................................................................... - $ '
DEFAULT I TERMINATION ................................................................................................................ - 9 -
TRIANGLE AUDITS ............................................................................................................... ~ .............. - 9 -
ENVIRONMENTAL CLEARANCE REQUIREMENTS .................................................................. - 10 -
ORAL AND WRITTEN CONTRACTS I PRIOR AGREEMENTS ................................................ - 10 -
VENUE .................................................................................................................................................. - 10 -
ADDRESS OF NOTICE AND COMMUNICATIONS ..................................................................... - t0-
CAPTIONS ........................................................................................................................................... - 11 -
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS ................................................. - 11 -
CONDITIONS PRECEDENT ............................................................................................................. - 11 -
ATTORNEY APPROVALS ................................................................................................................ - 11 -
CONTRACT EXECUTION ................................................................................................................. - 12 -
Exhibit "A". ........................ Industrial Park Covenants and Restrictions
Exhibit UB". ....................... Commercial Promissory Note
Exhibit "C". ....................... Commercial Security Agreement
Exhibit UD". ....................... Texas State Bank Acknowledgment
Exhibit "E", ........................ UCC-1 Financing Statement
Exhibit "F". ........................ Certification Regarding Lobbying
ii 1/12/'2006
S E C O N 1) D R A F T
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
TRIANGLE WASTE SOLUTIONS, L.L.C.
INTRODUCTION
Triangle Waste Solutions, EEC. (~Triangle") is a local corporation, engaged in
waste management, which includes (1) providing septic waste equipment and services, (2)
metal waste collection and recycle, and (3) roll-off truck services.
Triangle's target market lies between Lake Charles, Louisiana and Galveston,
Texas. Only one-third of the target market lies within in Jefferson County, meaning that
the majority of services provided will be exported, thereby infusing new do[lam into the
local economy.
Triangle's 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"
CONTRACT DATES
CONTRACT START DATE
1. This Economic Incentive Contract and Loan Agreement ("Agreement") is entered
into with an effective date of ,2006, but in no case later than March 31, 2006,
by and between PAEDC and 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.
Triangle/PAEDC Contract - 1 - l/1Zr2006
$ E C O N D D R A F T
Trian,qle Waste Solutions, L.L.C. ("Triangle") is a Texas Limited Liability
Corporation. (name) is duly authorized to enter into and execute
this contract for Triangle. The corporation's registered agent in Texas is Capitol Corporate
Services, Inc., 800 Brazos, Suite 1100, Austin, TX 78701, A'FI'N:
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE aY PAEDC
(1) PAEDC shall convey to Triangle ten (10) acres of land in the new PAEDC
Business Park (the "Park"); Specifically, Lot lA on South Business Park
Drive, Port Arthur, Texas, 77640. The PAEDC estimates a cost to the
PAEDC of THREE HUNDRED NINETY TWO THOUSAND FORTY AND
NO/100 DOLLARS ($392,040).
This is PAEDC's sole obligation.
Triangle is totally responsible for complying with all city, county, state and
federal statutes, ordinances, regulations and permits.
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.
(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 pm-approved by the EDC Board. The Park's covenants and
restrictions am contained in Exhibit "A" and are incorporated by reference
into this contract in their entirety.
(2) Triangle agrees to the following additional covenants and restrictions to
address the concerns of the PAEDC and City Council regarding the potential
unsightliness of portable toilets and scrap:
a. Screen property lines with 6-foot fencing with landscaping on the outside
to provide extra protection;
b. Screen the transfer station inside the plant with internal fencing;
c. Keep Triangle's scrap metal operation at another location; do not move
the operation to the Port Arthur Business Park;
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S E C 0 N D D R A F T
d. Design. build and operate the Port Arthur I~usiness Park plant ao that
scrap is not visible to any member of the public standing at ground level
on a public way;
e. Enclose all operations within buildings that have three walls with the open
side of the buildings facing toward the inside the plant, so that the inside
of buildings are not visible from a public way; and
f. Store all equipment, trucks, roll off containers, etc., either behind the
buildings or inside of the plant, so as not to be visible from South
Business Park Drive.
(3) Triangle will hire at least 21 new employees by December 31, 2006, bringing
the total number of employees at the Park to 60 employees, with an
estimated annual total payroll of $1,650,000 per year,~ as measured by
Internal Revenue Service (IRS) forms VV-2 and W-3.
(4] 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.
(5) Contemporaneously with PAEDC's land grant to Triangle, Triangle will
execute a commercial security agreement giving PAEDC a security interest
in a $392,040 Certificate of Deposit at Texas State Bank. See Exhibit "C."
(6) 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.
(7) 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
(1) Triangle may earn credits against the estimated $392,040 grant, to either
reduce the duration of this contract or reduce the amount of liquidated
contract damages in the event of a breach by Triangle. Starting when
Triangle achieves the performance level described in Paragraph 5(b)(3), and
continuing for as long as Triangle maintains this promised performance,
Triangle will earn a $1.00 credit for each $9.00 of payroll reportable to the
IRS on IRS Form W-2. Total credit cannot exceed $392,040.
(2) TRIANGLE will forfeit any credits it earned during a period for which a report
is scheduled but TRIANGLE, nonetheless, fails to issue the report.
I This assumes 2000 hours per year and an average employee wage of $27,500 per year.
- 3 - 1/12/2006
S g ¢ 0 N B I) 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 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) Apr 1 2006 Review architectural plans with the EDC Board for approval
(b) i Apr 5, 2006 Issue a status repor(3. to PAEDC's Chief Executive Officer ("CEO") for the
period from the effective date of this contract to March 31, 2006.
[ (c) i June 30, 2006 Complete facility construction
i (d) i July 5, 2006 Status report for April 1, 2006 to June 30, 2006. _
(e) Oct 5 2006 Status report for July 1, 2006 to September 30, 2006.
i (f) Dec. 31, 2006 : Achieve performance of 21 new (60 total) employees;
; Annualized total payroll of $1,650,000.
(g) Feb 5, 2007 [Status report~ for January 1, 2006 to December 31, 2006; Sustam i
employment
~ 5 2007 Status re ort for January 1, 2007 to June 30, 2007; Susta n employment
i h Juy , , P
()
i ~':~"'"-~_-; -~ ~,~'~0 ..... ~'~,~ re,~ort for Jan 1, 2007 to December 31, 2007 Sustain employment
008 Status re ort for Jan 1 2008 to June 30, 2008 Sustain employment
· July5 2 P ·
(J)
Feb. 5, 20095 Close out rep_.~ for presentation to the PAEDC Board at its February 2009
(k) ! ,
meet ng.
2 Examples of reasonable assurances are copies of pending contracts and customer commitment letters.
3 Status reports shall include the status of construction, employment and the pementage of employees who
are Port Arthur residents.
4 February 5t~ status report~ shall also include the identity of all stockholders 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.
- 4 - 1/12/2006
S [ C O N D b R A F T
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. 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 incentive obligations detailed in this Agreement.
9. Triangle shall not use the land 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.
LIQUIDATED DAMAGES FOR BREACH OF CONTRACT BY TRIANGLE_
10. In the event Triangle fails to perform its obligations under this contract, the
$392,040 .qrant value, 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 "B."
11. 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 provision of law, nor shall any action taken in the exercise of any right or remedy be
deemed a waiver of any other rights or remedies. Failure to exercise any right or remedy
hereunder shall not constitute a waiver of the right to exercise that or any other right or
remedy at any time.
RECORDS I INSPECTION / PAEDC AUDIT
12. Triangle shall maintain records as necessary to allow the PAEDC to audit and
verify proper utilization of Lot lA in compliance with this Agreement and the
representations and warranties contained herein and in Triangle's application.
13. 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 pertainin.q to this Aqreement.
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,
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
reportincl objective is to include documentation necessary to for PAEDC to verif~ said
report without further outside inquiry.
14. 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
1/12/'2006
S E C O N D D R A F T
report by Triangle detailing Triangle's compliance with its obligations provided herein.
Further, in the event any litigation, claim or audit adsing 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.
15. Triangle shall provide PAEDC with all reports necessary for PAEDC compliance
with Article 5190.6 V.T.C.A.
16. 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, 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 the conditional land grant automatically become a loan, as
described herein.
17. 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 Agreement, the PAEDC may establish requirements
for the timely correction of any such deficiencies by Triangle.
HOLD HARMLESS
18. 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 the land
grant provided by this Agreement.
SUBCONTRACTS
19. 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 pdor 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).
20. 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
- 6 - 1/12~20o6
S E C 0 N D D R A F T
sub¢ontractor'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.
21. Triangle, as well as all of its approved subcontractors, shall comply with all
applicable federal, state, and local laws, regulations, and ordinances relating to the land
granted under this Contract and operations and activities conducted on said land.
CONFLICT OF INTEREST / DISCLOSURE OBLIGATION
22. Conflict of Interest: No employee, agent, officer or elected or appointed official
of the City of Port Arthur or the PAEDC who has participated in a decision making process
related to this 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.
23. 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 benerit, 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
24. 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 conducted in whole or in
part on the land provided under this Contract. Additionally:
(a) To the greatest extent feasible, opportunities for training and employment arising
in connection with the planning and carrying out of any project on the land
granted under this Contract will 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.
- 7 - 1/i2d2oo6
S E C 0 N 1) I) R A F T
(c) If Triangle advertises for employment in any media then it will advertise in the
~Port Arthur News".
LEGAL AUTHORITY
25. Triangle assures and guarantees that Triangle possesses legal and/or corporate
authority to enter into this Contract, receive land 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.
26. 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
27. Triangle shall give PAEDC immediate notice in wdting 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
28. 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.
29. 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 period of performance of this Contract issue policy directives
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.
- 8 - ~/]2/2006
S E C O N D D R A F T
30. 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
31. 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
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 Commercial 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 and/or disallow further PAEDC incentives to Triangle;
(d) 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 taws of the State of Texas;
32. 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
33. If directed by PAEDC Board, Triangle shall arrange for a compliance audit by a
certified public accountant to vedfy performances reported under this Contract.
34. 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.
35. Subject to financial privacy requirements of Triangle and properly designated
requests for non-disclosure due to proprietary reasons, all approved audit reports may be
made available for public inspection.
- 9 - 1112?2oo6
S [ C 0 N D D R A F T
ENVIRONMENTAL CLEARANCE REQUIREMENTS
36. 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.
ORAL AND WRITTEN CONTRACTS I PRIOR AGREEMENTS
37. 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.
38. The documents listed below are hereby made a part of this Contract, and
constitute promised performances by Triangle in accordance with this Contract:
Exhibit "A" Industrial Park Covenants and Restrictions
Exhibit"B" Commercial Promissory Note
Exhibit "C" Commercial Security Agreement
Exhibit "D" Acknowledgment of Swinbank's Pledge by Texas State Bank
Exhibit "Ex Financing Statement (UCC-l)
Exhibit"F" Certification Regarding Lobbying
Triangle Application to PAEDC for funding, by reference
VENUE
39. 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
A'FI'N: Deborah Echols, Executive Director
Triangle Waste Solutions, L.L.C.
ATTN:
-10-
1/12/2006
S E C O N D D R A F T
CAPTIONS
40. 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
41. 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 Triangle's activities at the Park and Triangle performance under this
Contract. Upon request by PAEDC or by the City, Triangle shall furnish satisfactory proof
of its compliance herewith.
CONDITIONS PRECEDENT
42.This contract has no legal consequences unless and until (A) both the PAEDC
Board and the City of Port Arthur City Council approve the contract in its final form; (B) Joe
Swinbank executes the Commercial Security Agreement in Exhibit 'C", thereby becoming
Surety for the performance of this Contract and the collateral promissory note in Exhibit
"B"; (C) Acknowledgment by Texas State Bank that the Certificate of Deposit purchased by
Joe Swinbank is pledged to secure the hereinabove described contract and note.
ATTORNEY APPROVALS
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
VERIFIED AS CONSISTANT
WITH CITY COUNCIL RESOLUTION:
Resolution Number:
Mark T. Sokolow, City Attorney
-11-
1/12/2006
$ E C O N D D R A F T
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, L.LC.
By:_
Print Name
Witness
EXHIBIT "A"
COVENANTS AND RESTRICTIONS
PORT ARTHUR BUSINESS PARK
11130/05
GENERAL
The City of Port Arthur Section 4A Economic Development Corporation (PAEDC) is the
owner of the Port Arthur Business Park (Business Park). PAEDC has determined that it is in the
best interests of the City of Port Arthur, PAEDC, the Business Park and its future occupants to
adopt the following provisions restrictions and covenants to control the development within the
business park.
CONDITIONS OF SALE
Each parcel sold or conveyed to a user by PAEDC is for the purpose of development of
facilities and occupancy by a user. Development o£ facilities (buildings) for user occupancy
must be completed within eighteen months of purchase. If there is an incentive agreement with
the PAEDC, the construction must be completed within the timetables of the incentive
agreement. If construction has not been completed in the period specified, PAEDC shall have
the option to repurchase the property on the basis of reversing (or rescinding) the terms of the
original sale, including price. This option may be exercised at any time subsequent to the failure
of construction to be completed by the specified date. Exercise of the option will be by formal
action of the PAEDC Board. Delivery of written notice of exercise of this option shall be the
cause of an immediate halt to actions to develop the parcel by the parcel owner.
If the owner or lessee of property in the Business Park wishes to sell or assign the
property to a third party, the owner or lessee shall obtain the approval of the PAEDC Board of
Directors, with such approval not to be unreasonably withheld. The owner or lessee shall present
information as to the financial and credit information as to the new buyer or assignee and such
other information as reasonably requested by the PAEDC Chief Executive Officer (CEO). The
new owner or lessee shall be required to assume the obligations in the incentive agreement, with
such changes as are approved by the PAEDC Board of Directors.
If the owner or lessee wishes to subdivide and sell or assign only a portion of its property
to a third party, the owner or lessee shall obtain the approval of the PAEDC Board of Directors
which can deny the request at its discretion. At the discretion of the PAEDC, the PAEDC shall
have a £~st option to repurchase said undeveloped portion for the same cost as delineated in the
incentive agreement or sales agreement and in such additional reasonable amounts as to
reimburse the owner for monies that he has expended in maintaining said portion of the property.
In such case, PAEDC shall have 90 days to notify the owner of its decision in regard to this
option.
LEGAL DESCRIPTION
The Port Arthur Business Park includes all land as described in Appendix A, and on such
other property as approved by PAEDC.
TERMS AND DEFINITIONS
For the purposes of these covenants and restrictions, certain terms, phrases, words and
their derivatives shall have their meaning as specified in this section. Where terms are not
defined, they shall have their ordinary accepted meanings within the context with which they are
used. Webster's Ninth New Collegiate Dictionary, Copyright 1987, shall be considered as
providing ordinary accepted meaning.
(1) Board. City of Port Arthur Section 4A Economic Development Corporation Board of
Directors.
(2) Building. Any structure built for the support, shelter and enclosure of persons, animals,
chattels or movable property of any kind. When subdivided in a manner sufficient to prevent the
spread of fire, each portion so subdivided may be deemed a separate building.
(3) City council. The governing and legislative body of the City of Port Arthur.
(4) District. A section of the City of Port Arthur for which the regulations governing the
height, area or use of the land and buildings are uniform.
(5) Height. The vertical distance of a building measured from the average established grade at
the street line or from the average natural from yard ground level, whichever is higher, to (I) the
highest point of the roo~'s surface ifa fiat surface; (2) to the deck line of mansard roofs; or (3) to
the mean height level between eaves and ridge for hip and gable roofs, and, in any event,
excluding chimneys, cooling towers, elevator bulkheads, penthouses, tanks, water towers, radio
towers, ornamental cupolas, domes or spires and parapet walls not exceeding ten feet in height. If
the street grade has not been officially established, the average from yard shall be used for a base
level.
(6) Lot. Land occupied or to be occupied by a building and its accessory buildings, and
including such open spaces as are required under these covenants and restrictions and having its
principal frontage upon a public street or officially approved place.
(7) Occupancy. The use or intended use of the land or buildings by proprietors or tenants.
(8) Planning and zoning commission. The agency designated in the City Charter as the
planning commission and appointed by the city council as an advisory body to it and which is
authorized to recommend changes in the zoning ordinance.
(9) Parking lot or structure, commercial (motor vehicle). An area or structure devoted to the
parking or storage of motor vehicles. May include, in the case of a parking structure only, a
facility for servicing of motor vehicles provided such facility is primarily an internal function for
use only by motor vehicles occupying the structure and creates no special problems of ingress or
egress.
(10) Structure. Any structure built for the support, shelter and enclosure of persons, animals,
chattels or movable property of any kind. When subdivided in a manner sufficient to prevent the
spread of fire, each portion so subdivided may be deemed a separate building.
COVENANTS & RESTRICTIONS - 119105 Page 2 of 13
(11) Yard. An open space other than a court, on the lot in which a building is situated and
which is not obstructed from a point 30 inches above the general ground level of the graded lot to
the sky, except as provided for roof overhang and similar features and for the usual trees and
landscape planting.
(12) Yard, front. An open, unoccupied space on a lot facing a street extending across the fi'ont
of the lot between the side lot lines and from the from face of the building to the front lot or
street line with the minimum horizontal distance between the street line and the main building
line as specified for the district in which it is located. The front face of the building shall not
necessarily be determined by the primary access to the building or any unit therein.
(13) Yard, rear. An open, unoccupied space, except for permitted detached accessory
buildings, trees and planting, extending across the rear of a lot from one side lot line to the other
side lot line and having a depth between the building and the rear lot line.
(14) Yard, side. An open, unoccupied space or spaces on one or two sides of a main building
situated between the building and a side line of the lot and extending through from the front yard
to the rear yard. Any lot line not the rear line or a front line shall be deemed a side line.
REVIEW AND APPROVAL OF USES AND IMPROVEMENTS
All uses that occupy parcels and all facilities and improvements constructed in the park
(including all alterations and additions to the site and such facilities and improvements) shall be
subject to approval by PAEDC and may require approval by the City of Port Arthur. PAEDC
and the City may at their sole discretion involve other parties in the review of proposed uses and
improvements. In cases where specialized evaluations are deemed necessary, PAEDC may
require a fee to cover the cost of the services of consultants engaged to perform these
evaluations. No construction may be initiated upon any parcel in the Business Park until
approval has been granted by PAEDC (and where required, by the City of Port Arthur). Failure
of the user of a parcel to seek approval for development plans in a timely manner will not be the
basis for granting an extension as to the timetable for construction. Approval means formal
action by the PAEDC Board, (and where requffed by City Council of the City of Port Arthur)
and the receipt of written confirmation of approval from a competem authority of these bodies.
Application for approval shall be made in writing and must contain all submission requirements
specified by PAEDC. Such requirements will include site plans, building plans and
specifications, and other such information as PAEDC and the City may request.
COVENANTS & RESTRICTIONS - 1/9105 Page 3 of 13
PERMITTED OCCUPANCIES
Sites and facilities within the Business Park may be occupied by the uses specified in the
f~llowing chart (Parcels arc as designated on the Business Park Final Plat).
Parcels 1, 2, 3, 5, 7 & 9 - Office, warehouse, distribution, light fabrication and assembly,
recycling, manufacturing and other approved uses.
Parcel 4 & 8 - Office and other approved uses.
Parcel 6, 10 - Warehouse, distribution, manufacturing, assembly and other approved
Other uses may be approved by PAEDC at its sole discretion which includes career
centers and other types of development as approved by the PAEDC and as authorized by State
Law. All occupancies permitted may be subject to additional restrictions imposed as a result of
review of user applications provided that such specific requirements are intended to implement
the restrictions previously established by the PAEDC in these Covenants and Restrictions or
subsequent amendments.
PROHIBITED OCCUPANCIES
Specifically prohibited uses include manufacturing and process operations that transmit
noise, or release odors, fumes or dust that materially exceed City, State, or Federal Standards or
discharge a waste stream that is not acceptable (due to content or volume) for the City's sanitary
sewer system. Any use that requires onsite treatment of waste in order to meet thc above
requirements will be allowed only on the basis of a special use permit from PAEDC, the City of
Port Arthur, the TCEQ or the applicable regulatory agency. In general, on site treatment of
significant quantities of special waste will not be permitted. A special use permit' may, at the
sole discretion of PAEDC, bc granted, conditional upon continued and demonstrative
conformance to specific requirements and standards. Failure by the user receiving such
conditional approval to strictly conform to the requirements and standards imposed will bc the
basis of termination of the special usc permit, without recourse by thc user. Notice of
termination of any permit required by any regulatory agency (including thc City) will require the
user to immediately cease all onsitc processes that generate or contribute to the subject waste
stream.
In addition, all exterior site uses including parking areas, truck maneuvering and docking
areas, storage and equipment yards and the like will be developed and maintained in strict
conformance with these covenants and restrictions and with the specific terms of approvals
granted by PAEDC and the City of Port Arthur.
COVENANTS & RESTRICTIONS - 119105 Page 4 of 13
CONSTRUCTION STANDARDS, CODES AND ORDINANCES
All improvements constructed in the Business Park shall meet or exceed the standards
and ordinances of the City of Port Arthur, State of Texas statutes and regulations, and national
standards. It shall be thc duty of the user of any parcel in the Business Park to conform to such
requirements and to obtain all approvals and permits granted by governing authorities. Such
requirements include but are not limited to City Building Permits and local drainage,
environmental and utility requirements. Review and approval by PAEDC and the City of Port
Arthur under the above provisions for Review and Approval of Uses and Improvements does not
relieve or mitigate in any way this separate duty of the user.
The owners or lessees of the property shall take such precautions as to commence and
complete the improvements wherein laborers, subcontractors and contractors axe promptly paid
with no materials and mechanic's liens being filed on the property. Prior to commencing
construction, the owner or lessee shall provide to thc PAEDC such evidence of financial ability
to complete thc project, which may include letters of credit, and contractor's performance bonds
and payment bonds.
PROPERTY MAINTENANCE
Owners and Users of parcels and improvements shall perform regular and routine
maintenance on these properties. Undeveloped parcels shall be kept mowed and free of debris.
Developed parcels (including site and facilities) shall be maintained in a manner consistent with
the users' approved proposal for use and improvements.
Lawns and landscaping shall be kept free of overgrowth, trash and debris. Parking or
storage of vehicles, equipment or materials in areas other than approved outdoor storage is
prohibited. Areas shall be maintained free of trash, sediment, debris, and abandoned or unsightly
equipment.
Outdoor storage areas other than those approved by PAEDC are prohibited. Approved
outdoor storage areas shall bc well maintained and shall be kept neat and orderly in appearance.
Only materials and equipment that are in active nsc at the site may be stored on site. Storage of
derelict or junked materials, equipment or vehicles onsite is prohibited.
Buildings and other structures shall be kept in an attractive condition. Exterior surfaces
shall bc washed and painted as required to maintain a fresh appearance. Exterior materials that
deteriorate shall be replaced.
No open burning of rubbish is permitted on the site. All waste material shall be confined
to trash receptacles in approved and screened locations for removal from the site.
In case of fire or damage from other causes, the owner or lessee shall restore the
improvements within nine (9) months unless granted an extension by PAEDC.
COVENANTS & RESTRICTIONS - 1/9/05 Page 5 of 13
INSURANCE
The lot owners and lessees shall maintain casualty insurance in an amount sufficient to
replace the buildings. A copy of the certificate of insurance shall be given to the PAEDC and the
PAEDC shall be listed as an additional insured. If the lot owner or lessee fails to maintain or pay
for the insurance, the PAEDC (in its sole discretion) may pay for the costs thereof, assess the lot
owners and lessees, and file liens.
ASSESSMENT
The lessees and private owners of the land in the Business Park shall pay assessments to
the PAEDC for the maintenance of the street signage and landscaping, the costs to enforce these
deed restrictions, and the costs to maintain business park, such assessments shall be a minimum
of $200 per acre per year and shall be payable on or before December 31st of each year.
Additional assessments, as determined by the PAEDC Board of Directors shall not exceed the
actual proportionate share of the expenditures made by the PAEDC plus a 10% administrative
fee. The proportionate share shall be the number of acres owned or leased divided by 246.
CONTINUATIONS~ AMENDMENT AND VARIATION OF COVENANTS AND
RESTRICTIONS
These covenants and restrictions shall remain in force on all parcels and shall be binding
on all current and future owners and lessees of parcels within the Business Park. Variation in
these covenants and restrictions is limited to one of the following methods:
PAEDC (subject to the approval of the City of Port Arthur) may from time to time amend
the provisions, covenants and restrictions.
PAEDC may in its sole discretion grant variances to these provisions, covenants and
restrictions as a part of the approval of the Review and Approval of Use and
Improvement process. Such variances must be requested in writing by the user of the
parcel. PAEDC will notify all adjacent parcel owners of the request for variation by
posting such notice and will receive and consider comments from such parcel owners in
evaluating such variances. It is the intent of PAEDC to maintain the general character
and intent of the provisions, covenants and restrictions and to comply with Article 5190.6
V.T.C.A.
COVENANTS & RESTRICTIONS - 1/9L05 Page 6 of 13
SITE DEVELOPMENT
Building sites of individual users must be planned to have an attractive image and must
be well maintained. The following requirements shall apply to the development of sites within
thc Business Park:
Cate~orv Reouirements
Set Backs Building Street Frontage 45 feet
Side and rear lot lines 15 feet
Paving Street Frontage 20 feet
Side and rear lot lines No requirement
Landscaping All non paved areas Maintained lawns
Street Fronta ,e 1 tree per 100 feet of frontage - 2 inch caliper
Paving Parking Automobile Concrete
Trucks and Trailers Concrete
Aprons and maneuvering areas Concrete
Access and Entry As approved by PAEDC
May not conflict with street ttaffic or access to adjacent
;ires.
Utilities All connections and service underground and;
Equipment (transformers etc.) screened from public
view
Outdoor Not allowed forward of the line of the building face
Yards and Fully screened from frontage with berms, planting or
Storage walls constructed in conformance with standards for
Ares front face of buildings
Area Parcels 1, 2, 3, 5, 7, 9 No larger than the area of the building
Limitations Parcels 4, 8 Not permitted
Parcel 6, 10 No limit
Fencing Side and rear yards only
Visible from Street Decorative iron or as approved by PAEDC (no wood
fences permitted)
Side and rear Chain link or as approved by PAEDC (no wood fences
>ermitted)
Ancillary Structures and Equipment Constructed to meet applicable building standards
Tanks, trash receptacles and other equipment screened
from public view
Mail boxes as approved by PAEDC
Flagpoles as approved by PAEDC
Lighting Pole or building mounted lighting
All lighting will be natural in color (no uncorrected
high pressure sodium fixtures)
Lighting must be controlled to prevent glare as seen
from adjacent public ways and adjacent properties
COVENANTS & RESTRICTIONS - 119/05 Page 7 of 13
SITE DEVELOPMENT
Category Reauirements
Surface drainage must be controlled within site
Drainage
boundaries.
Discharge into drainage ways as approved by
responsible authorities.
Signage All signs must be approved by PAEDC
May be internally or externally illuminated
May not be animated
Site Mounted Signs Maximum of 6 feet in height
Base no more than 2 feet above ground
No closer then 10 feet to property line
Compatible with building color and materials
Integrated and compatible with landscaping
Building Mounted Signs Not painted on building
May not extend beyond building profile
Must be compatible is size, color and material with
building
BUILDING DESIGN AND CONSTRUCTION
Building design including all exterior materials aad colors must be attractive, compatible
with adjacent development and be approved by the PAEDC.
~ate~orv Beauirements
Exterior Materials Except for trim and accents, no wood will be permitted
Walls Facing Frontage and Public Ways Concrete or masonry
Walls Facing Side and Parcel 1, 2, 3, Concrete, masonry, or metal panels
Rear Yards 5, 6, 7, 9, 10
Parcel 4, 8 Concrete or masonry
Roofing Materials Any roof surface that is exposed to public view must be approved
Roof top equipment by PAEDC
No more than five feet in height and screened from public view
[ Awnings and Canopies Compatible with building design and approved by PAEDC
Exterior Colors Exterior surfaces will be predominately neutral or natural colors.
Bright accent or trim colors will be considered by the PAEDC.
COVENANTS & RESTRICTIONS - 1/9/05 Page 8 of 13
ENFORCEMENT OF COVENANTS AND RESTRICTIONS
Determination regarding the meaning, applicability and enforcement of these covenants
and re,fictions is the sole domain of PAEDC Board of Directors. inquiry in regard to such
matters shall be made to PAEDC in writing. A determination rendered in writing by PAEDC
Board of Directors shall be deemed final and binding on all parties.
Enforcement of the provisions, covenants and restrictions shall be in accordance with law
or through civil or criminal proceedings initiated by PAEDC or by the City of Port Arthur.
Enforcement action may include but is not limited to restraint of violations, recovery of costs,
nttomeys fees and damages, assessments, fines, civil penalties, foreclosure, and judicial sale.
COVENANTS & RESTRICTIONS - 1/9105 Page 9 of 13
APPENDIX "A"
DESCRIPTION OF A
297.960 ACRE TRACT OR PARCEL OF LAND
OUT OF AND PART OF
THE WM. McFADDIN SURVEY, ABSTRACT NO. 416,
THE T. & N.O.R.R. SURVEY, SECTION NO. 5, ABSTRACT NO. 238,
AND THE T. & NO.R.R. SURVEY, SECTION NO. 9, ABSTRACT NO. 242
JEFFERSON COUNTY, TEXAS
AUGUST 20, 2001
All that certain tract or parcel of land lying and being situated in Jefferson County,
Texas, parts of the WM. McFADDIN SURVEY, ABSTRACT NO. 416, the T. & N.O.R.R.
SURVEY, SECTION NO. 5, ABSTRACT NO. 238, and the T. & N.O.R.R. SURVEY,
SECTION NO. 9, ABSTRACT NO. 242, and being parts of Blocks 14, 15 and 16, Range N,
Blocks 14, 15 and 16, Range O, and Blocks 15 and 16, Range P of the Lands of the Port
Arthur Land Co., the plat of which said subdivision is of record in Volume 1, Page 22 of the
Map Records of Jefferson County, Texas, and being a part of that certain tract of land herein
referred to as the "McFaddin and Cordts" tract, which said McFaddin and Cordts tract is
designated 'TRACT NO. 18-C" and is described in that certain instrument from W.P.H.
McFaddin, Jr., and J.L.C. McFaddin, as Trustees of the McFaddin Trust to J.L.C. McFaddin,
Di McFaddin Houk, Perry McFaddin Duncan, W.P.H. McFaddin Jr., Mamie McFaddin Ward,
Camelia B. McFaddin and Di Vernon McFaddin Cordts, W.P.H. McFaddin Jr., and J.L.C.
McFaddin, jointly, and Mamie McFaddin Ward, W.P.H. McFaddin, Jr., J.L.C. McFaddin, and
Camelia B. McFaddin and Di Vernon McFaddin Cordts, jointly, dated February 26, 1948 and
recorded in Volume 692, Page 22 of the Deed Records of Jefferson County, Texas, and
which said TRACT NO. 18-C is indicated on that certain plat entitled "PARTITION MAP NO.
3 OF THE McFADDIN TRUST PROPERTY IN JEFFERSON COUNTY, TEXAS ... "which
said plat is of record in Volume 8, Page 110 of the Map Records of Jefferson County, Texas,
and being a part of that certain tract of land herein referred to as the "Cordts" tract, which
said Cordts tract is described in that certain instrument from E.G. Cordts, Jr., Independent
Executor of the Estate of Di Vernon McFaddin Berly to E.G. Cordts, Jr., Colleen Clave
Cordts and Anna Camelia Cordts, dated September 13, 1994 and recorded under County
Clerk's File No. 94-9432523 of the Official Public Records of Real Property of Jefferson
County, Texas, and the said tract herein described being that exact same certain tract of
land herein referred to as the "PAEDC" tract, which said PAEDC tract is described in that
certain instrument from E.G. Cordts, Jr., ..., Colleen Clare Cordts Rice, ..., and Anna
Camelia Cordts Edwardson .... to Port Arthur Economic Development Corporation, dated
February 28, 2001 and recorded under County Clerk's File No. 2001007554 of the Official
Public Records of Real Property of Jefferson County, Texas, and the said tract herein
described being more particularly described as follows:
BEGINNING at a iron red with a Texas Department of Transportation aluminum cap
(TxDOT Type I Monument) found for the southeast comer of the said tract herein
COVENANTS & RESTRICTIONS * 119105 Page 10 of 13
described, the said comer being the southeast comer of the said PAEDC tract, and the said
corner also being the most southerly southwest comer of that certain tract of land herein
referred to as the "Parcel 31" tract, which said Parcel 31 tract is so designated and is
described in that certain instrument from E.G. Cordts, Jr., Colleen Clare Cordts Rice and
Anna Camelia Cordts Edwardson to Jefferson County, dated March 15, 1999 and recorded
under County Clerk's File No. 1999009190 of the Official Public Records of Real Property of
Jefferson County, Texas, and the said comer being in the north line of that certain tract of
land herein referred to as the "Parcel 32" tract, which said Parcel 32 tract is so designated
and is described in that certain instrument from The Mamie McFaddin Ward Heritage
Foundation to Jefferson County, dated December 12, 1996 and recorded under County
Clerk's File No. 96-9638512 of the Official Public Records of Real Property of Jefferson
County, Texas, the said comer being an interior angle point comer in the southwesterly
right-of-way line of Texas State Highway Spur 93, and the said TxDOT Type I Monument
found for comer being East (Assumed Basis of Beadngs - called South 89° 37' 00" East)
along and with the south line of the said PAEDC tract, said north line of the Parcel 32 tract
and north line of that certain tract of land herein referred to as the 'Ward" tract, which said
Ward tract is designated 'q'PACT NO. 19-C" and is described in the hereinbefore referenced
instrument recorded in Volume 692, Page 22 of the Deed Records of Jefferson County,
Texas, and which said TRACT NO. 19-C is indicated on the hereinbefore referenced plat of
record in Volume 8, Page 110 of the Map Records of Jefferson County, Texas, a total
distance of 5,430.99 feet (called 5,431.07 feet) from a 5/8" iron red with a yellow cap
stamped "RPLS 3636" found for reference;
THENCE West (called North 89° 37' 00" West) along and with the said south line of
the PAEDC tract, north line of the Parcel 32 tract and north line of the Ward tract, passing at
a distance of 16.92 feet (called 16.92 feet) a 5/8" iron rod found for the most northerly
northwest comer of the said Parcel 32 tract, the said comer being an exterior angle point
comer in the said southwesterly right-of-way line of Texas State Highway Spur 93, and
passing at a distance of 4,938.57 feet (called 4,938.91 feet) a 5/8" iron rod with a yellow cap
stamped "RPLS 3636" found for reference at the southeast comer of that certain tract of
land herein referred to as the 'q'PACT 196-A" tract, which said TRACT 196-A tract is so
designated and is described in that certain instrument (titled "RIGHT-OF-WAY
EASEMENT") from Di Vemon McFaddin Kibodeaux, formerly Di Vernon McFaddin Cordts,
joined therein by her husband, Oren J. Kibodeaux to Jefferson County Drainage Distdct No.
7 dated January 4, 1968 and recorded in Volume 1531, Page 123 of the Deed Records of
Jefferson County Texas, and passing at a distance of 5,430.99 feet (called 5,431.07 feet)
the hereinbefore said 5~8" iron rod with a yellow cap stamped "RPLS 3636" found for
reference at the southwest comer of the said TRACT 196-A tract, and continuing (West)
along and with the said south line of the PAEDC tract and north line of the Ward tract, a total
distance of 5,545.27 feet (called 5,545.35 feet) to a point for the southwest corner of the said
tract herein described, the said corner being the southwest comer of the said PAEDC tract,
and the said comer also being the northwest comer of the said Ward tract, and the said
corner being in the eastedy line of that certain tract of land herein referred to as the '"TRACT
A" tract, which said TRACT A tract is so designated and is described in that certain
instrument from Darling Klaver, et al to Jefferson County Drainage District No. 7 dated
November 22, 1971 and recorded in Volume 1727, Page 481 of the Deed Records of
Jefferson County, Texas, and the said comer being in the centerline of Rhodiar Gully;
COVENANTS & RESTRICTIONS - 119105 Page 11 of t3
THENCE North 120 17' 39" West (called North 11° 54' 13" West) along and with the
westedy line of the said PAEDC tract, the said eastedy line of the TRACT A tract and said
centedine of Rhodair GulLy, a distance of 724,96 feet (called 724.92 feet) to a point for the
most westedy northwest comer of the said tract herein described, the said comer being the
most westerly northwest corner of the said PAEDC tract, and the said comer also being the
most southerly comer of that certain tract of land herein referred to as the "J.L.C. McFaddin"
tract, which said J.L.C. McFaddin tract is designated 'q'PACT NO. 12~C" and is described in
the hereinbefore referenced instrument recorded in Volume 692, Page 22 of the Deed
Records of Jefferson County, Texas, and which said TRACT NO. 12-C is indicated on the
hereinbefore referenced plat of record in Volume 8, Page 110 of the Map Records of
Jefferson County, Texas;
THENCE North 39° 57' 00" East (called North 40° 20' 00" East) along and with the
most westerly northwest line of the said PAEDC tract and most southerly southeast line of
the said J.L.C. McFaddin tract, passing at a distance of 132.53 feet (called 132.53 feet) a
5/8" iron rod with a yellow cap stamped "RPLS 3636" found for reference at the nod~hwest
comer of the hereinbefore said TRACT 196-A tract, and passing at a distance of 736.10 feet
(called 735.85 feet) a 5/8" iron rod with a red plastic cap stamped "S&P INC" set for
reference at the northeast comer of the said TRACT 196-A tract (and which said 5/8" iron
rod with a red plastic cap set for reference is North 37° 58' 15" West a distance of 0.39 feet
from a 5/8" iron rod with a yellow cap stamped "RPLS 3636" found for reference), and
continuing (North 39° 57' 00" Ease) along and with the said most westedy northwest line of
the PAEDC tract and most southerly southeast line of the J.L.C. McFaddin tract, a total
distance of 3,925.49 feet (called 3,925.61 feet) to a ~" iron rod found for the most northerly
comer of the said tract herein described, the said comer being the most northerly corner of
the said PAEDC tract, and the said comer also being the most westedy comer of that certain
tract of land herein referred to as the "Bamette - 1483/177" tract, which said Bamette -
1483/177 tract is described in that certain instrument from Gulf Refining Company to N.K.
Bamette, Jr. dated October 24, 1966 and recorded in Volume 1483, Page 177 of the Deed
Records of Jefferson County, Texas;
THENCE South 49° 46' 07" East (called South 49° 23' 24" East) along and with the
most northerly northeast line of said PAEDC tract and southwesterly line of the said
Bartnette - 1483/177 tract, a distance of 1,317.60 feet (called 1,317.54 feet) to a'½" iron rod
found for an intedor corner of the said tract herein described, the said comer being an
interior corner of the said PAEDC tract, and the said comer also being the most southerly
comer of the said Bamette - 1483/177 tract;
THENCE North 40° 07' 58" East (called North 40° 33' 04" East) along and with the
most easterly northwest line of the said PAEDC tract and southeasterly line of the said
Bamette - 1483/177 tract, a distance of 151.95 feet (called 151.86 feet) to a 5/8" iron rod
with a yellow cap stamped "RPLS 3636" found for the most easterly northwest comer of the
said tract herein described, the said corner being the most easterly northwest corner of the
said PAEDC tract, and the said comer also being the most westedy comer of that certain
tract of land herein referred to as the "Bamette - 1483/176" tract, which said Bamette -
1483/176 tract is described in that certain instrument from Di Vernon McFaddin Cordts
joined therein by her husband, Edwin G. Cordts to N.K. Bamette, Jr. dated October 11, 1966
COVENANTS & RESTRICTIONS- 1/9/05 Page 12 of 13
and recorded in Volume 1483, Page 176 of the Deed Records of Jefferson County, Texas,
and the said 5/8" iron rod with a yellow cap stamped "RPLS 3636" found for comer being
South 40° 11' 19" West (called South 40° 33' 04" West) along and with the said
southeasterly line of the Barnette - 1483/177 tract, northwesterly line of the said Bamette -
1483/176 tract and southeasterly line of that certain tract of land herein referred to as the
"LNVA" tract, which said LNVA tract is described in that certain instrument from Gulf
Refining Company to the Lower Neches Valley Authority dated Apdl 8, 1975 and recorded in
Volume 1876, Page 290 of the Deed Records of Jefferson County, Texas, a total distance of
499.44 feet (called 500.00 feet) from a 5/8" iron rod found for the most northerly comer of
the said Bamette - 1483/176 tract, the said comer also being the most eastedy comer of the
said LNYA tract, and the said comer being in the hereinbefore said southwesterly right-of-
way line of Texas State Highway Spur 93;
THENCE South 83° 44' 08" East (called South 83° 21' 35" East) along and with the
most easterly north line of the said PAEDC tract and southerly line of the said Bamette -
1483/176 tract, a distance of 557.12 feet (called 557.12 feet) to a 5/8" iron rod found for the
most northerly northeast corner of the said tract herein described, the said comer being the
most northerly northeast comer of the said PAEDC tract, and the said comer also being the
most northerly northwest corner of the hereinbefore said Parcel 31 tract, and the said comer
being in the said southwesterly right-of-way line of Texas State Highway Spur 93, and the
said 5/8" iron rod found for corner being South 27° 38' 14" East (called South 27° 11' 44"
East) along and with the said southwesterly fight-of-way line of Texas State Highway Spur
93, a distance of 499.26 feet (called 499.56 feet) from the hereinbefore said 5/8" iron rod
found for the most northerly comer of the Bamette - 1483/176 tract and most easterly corner
of the LNVA tract;
THENCE South 27° 30' 14" East (called South 27° 07' 03" East) along and with the
most easterly northeast line of the said PAEDC tract, southwesterly line of the said Parcel
31 tract and said southwesterly right-or-way line of Texas State Highway Spur 93, a total
distance of 3,294.33 feet (called 3,294.40 feet) to the Point of Beginning and
Containing 297.960 acres (called 297.9732 acres) of land, more or less,
Prepared by
Schaumburg & Polk, Inc.
E. James Verrett,
Registered Professional Land Surveyor No. 1781
COVENANTS & RESTRiCTiONS - 119/05 Page 13 of 13
EXHIBIT "B"
COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when Triangle
Waste Solutions, LL.C., 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
,2006.
Effective Date: the . day of ,200 .("date of breach")
Principal Amount: $ , which is $392,040 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) to pay to the order of CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION, (herein called
"Lender"), at its office at P.O. Box 1089, Port Arthur, Texas 77640-1089, or such other
place or places as the holder hereof shall from time to time designate in written notice to
Maker, the principle amount, in legal and lawful money of the United States of Amedca,
together with interest thereon from the date hereof until maturity at the rate of ten percent
(10%) per annum as detailed herein.
All past due principal and interest shall bear interest from date of maturity until paid
at the rate of fifteen percent (15%) per annum, or to the maximum extent allowed by law
(whichever is less) as may hereafter be in effect, payable on demand after maturity.
This note is due and payable as follows: Monthly on the 1st of each month, starting
the month immediately following the month the Note became effective.
Any notices required or permitted to be given by the holder hereof to Maker
pursuant to the provisions of this note shall be in writing and shall be either personally
delivered or transmitted by first class United States mail, addressed to Maker at the
address designated below for receipt of notice (or at such other address as Maker may,
from time to time, designate in wdting to the holder hereof for receipt of notices
hereunder). Any such notice personally delivered shall be effective as of the date of
delivery, and any notice transmitted by mail, in accordance with the foregoing provisions,
shall be deemed to have been given to and received by Maker as of the date on which
such notice was deposited with the United States Postal Service, properly addressed and
with postage prepaid.
This note is also secured by and entitled to the benefits of all other security
agreements, pledges, collateral assignments, deeds of trust, guaranties, mortgages,
assignments, and lien instruments, if any, of any kind executed by Maker or by any other
party as security for any loans owing by Maker to the Lender. Such lien instruments shall
include those executed simultaneously herewith, those heretofore executed, and those
hereafter executed.
If any installment or payment of principal or interest of this note is not paid when
due or any drawer, accepter, endorser, guarantor, surety, accommodation party or other
person now or hereafter primarily or secondarily liable upon or for payment of all or any
part of this note (each hereinafter called an "other liable party") shall die, or become
insolvent (however such insolvency may be evidenced); or if any proceeding, procedure or
remedy supplementary to or in enforcement of judgment shall be resorted to or
commenced against Maker or any other liable party, or with respect to any property of any
of them; or if any governmental authority or any court at the instance thereof shall take
possession of any substantial part of the property of or assume control over the affairs or
operations of, er a receiver shall be appointed for or take possession of the property of, or
a writ or order of attachment or garnishment shall be issued or made against any of the
property of Maker or any other liable party; or if any indebtedness for which Maker or any
other liable party is primarily or secondarily liable shall not be paid when due or shall
become due and payable by acceleration of maturity thereof, or if any event or condition
shall occur which shall permit the holder of any such indebtedness to declare it due and
payable upon the lapse of time, giving of notice or otherwise; or if Maker or any other liable
party (if other than a natural person) shall be dissolved, wound up, liquidated or otherwise
terminated, or a party to any merger or consolidation without the written consent of
Lender; or if Maker or any other liable party shall sell substantially all or an integral portion
of its assets without the written consent of Lender; or if Maker or any other liable party fails
to furnish financial information requested by Lender; or if Maker or any other liable party
furnishes or has furnished any financial or other information or statements which are
misleading in any respect; or if a default occurs under any instrument now or hereafter
executed in connection with or as security for this note; or any event occurs or condition
exists which causes Lender to in good faith deem itself insecure or in good faith believe
the prospect of payment or performance by Maker or any other liable party under this note,
under any instrument or agreement executed in connection with or as secudty for this
note, or under any other indebtedness of Maker or any other liable party to Lender is
impaired; thereupon, at the option of Lender, the principal balance and accrued interest of
this note and any and all other indebtedness of Maker to Lender shall become and be due
and payable forthwith without demand, notice of default, notice of acceleration, notice of
intent to accelerate the maturity hereof, notice of nonpayment, presentment, protest or
notice of dishonor, all of which are hereby expressly waived by Maker and each other
liable party. Lender may waive any default without waiving any prior or subsequent
default.
If this note is not paid at maturity whether by acceleration or otherwise, and is
placed in the hands of any attorney for collection, or suit is filed hereon, or proceedings are
had in probate, bankruptcy, receivership, reorganization, arrangement or other legal
proceedings for collection hereof, Maker and each other liable party agree to pay Lender
its collection costs, including court costs and a reasonable amount for attorney's fees.
It is the intention of Maker and Lender to conform strictly to applicable usury laws.
Accordingly, if the transaction contemplated hereby would be usurious under applicable
law, then, in that event, notwithstanding anything to the contrary herein or in any
agreement entered into in connection with or as security for this note, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under applicable
law that is taken, reserved, contracted for, charged or received under this note or under
any of the other aforesaid agreements or otherwise in connection with this note shall under
no circumstances exceed the maximum amount of interest allowed by applicable law, and
any excess shall be credited on this note by the holder hereof (or, if this note shall have
been paid in full, refunded to Maker); (ii) in the event that maturity of this note is
accelerated by reason of an election by the holder hereof resulting from any default
hereunder or otherwise, or in the event of any required or permitted prepayment, then
such consideration that constitutes interest may never include more than the maximum
amount allowed by applicable law, and excess interest, if any, provided for in this note or
otherwise shall be canceled automatically as of the date of such acceleration or
prepayment and, if theretofore prepaid, shall be credited on this note (or if this note shall
have been paid in full, refunded to Maker); and (iii) all calculations of the rate of interest
taken, reserved, contracted for, charged or received under this note or under any of the
other aforesaid agreements or otherwise in connection with this note, that are made for the
purpose of determining whether such rate exceeds the maximum lawful rate shall be
made, to the extent permitted by applicable law, by amortizing, prorating, allocating, and
spreading such interest over the entire term of the loan evidenced by this note(including all
renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No partial prepayment shall reduce, postpone or delay the obligation of Maker to
continue paying the installments herein provided on their respective due dates following
any such partial prepayment until this note is fully paid.
The Maker and each other liable party are and shall be directly and primarily, jointly
and severally, liable for the payment of all sums called for hereunder; and, except for
notices specifically required to be given by the holder hereof to Maker pursuant to the
earlier provisions of this note, Maker and each other liable party hereby expressly waive
demand, presentment for payment, notice of nonpayment, protest, notice of protest, notice
of intention to accelerate maturity, notice of acceleration of maturity, and all other notice,
filing of suit and diligence in collecting this note or enforcing or handling any of the security
therefor, and do hereby agree to any substitution, exchange or release, in whole or in part,
of any security here-for or the release of any other liable pady, and do hereby consent to
any and all renewals or extensions from time to time, of this note, or any part hereof, either
before or after maturity, all without any notice thereof to any of them and without affecting
or releasing the liability of any of them. Each other liable party does further agree that it
will not be necessary for the holder hereof, in order to enforce payment of this note by
such other liable party, to first institute suit or exhaust its remedies against Maker or any
other liable party er to enforce its rights against any security therefor.
SIGNED AND AGREED TO on the __ day of ,200__.
TRIANGLE WASTE SOLUTIONS, L.L.C.
By:.
Position
ACKNOWLEGEMENT
THE STATE OF TEXAS *
COUNTY OF JEFFERSON
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally
appeared , a representative of Triangle Waste
SoLutions, EL.C. 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 Triangle Waste Solutions, L.L.C, for the purposes and consideration
therein expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the __ day of
,200__.
NOTARY PUBLIC, STATE OF TEXAS
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
TRIANGLE WASTE SOLUTIONS, L.L.C.
EXHIBIT "C"
COMMERCIAL SECURITY AGREEMENT
Dated ,200__
Suret,, Secured Party
Ioe Swinbank Port Arthur Economic Development
Corporation ("PAEDC')
P.O. Box 19129 ~.44 4' Street
Houston, Texas 77224 Port Arthur, Texas 77640
(hereinafter referred to as "Surety" whether one or more) (hereinafter referred to as "Secured Party")
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, Surety grants to Secured Party the security interest (and the pledges and
assignments as applicable) hereinafter set forth and agrees with Secured Party as
follows:
A. OBLIGATIONS SECURED. The first priority lien and pledges and
assignments as applicable granted hereby are to secure punctual payment and
performance by the principal, TRIANGLE WASTE SOLUTIONS, EEC
("TRIANGLE"), of the following obligations: (i) certain promissory note(s) of even
date herewith in the original principal sum of $392,040, executed by Triangle and
payable to the order of Secured Party, and any and all extensions, renewals,
modifications and rearrangements thereof, (ii) certain obligations of Triangle to Secured
Party under that certain Economic Incentive Contract and Loan Agreement of even date
and all extensions, renewals, modifications and rearrangements thereof, and (iii) any
and all other indebtedness, liabilities and obligations whatsoever and of whatever nature
of Swinbank to Secured Party whether direct or indirect, absolute or contingent,
primary or secondary, due or to become due and whether now existing or hereafter
arising and howsoever evidenced or acquired, whether joint or several, or joint and
several (all of which are herein separately and collectively referred to as the
"Obligations"). Surety acknowledges that the security interest (and pledges and
assignments as applicable) hereby granted shall secure all future advances as well as
any and all other indebtedness, liabilities and obligations of Triangle or Surety to
Secured Party whether now in existence or hereafter arising.
B. USE OF COLLATERAL. N/A.
C. DESCRIPTION OF COLLATERAL. Surety hereby grants to Secured
Party a f~rst priority lien in (and hereby pledges and assigns as applicable) and agrees
that Secured Party shall continue to have a security interest in (and a pledge and
assignment of as applicable), the following property, to wit:
A fn-st priority lien on Texas State Bank Certificate of Deposit Number
, in the name of Joe Swinhank.
The term "Collateral" as used in this Agreement shall mean and include, and the
security interest (and pledge and assignment as applicable) shall cover, all of the
foregoing property, as well as any accessions, additions and attachments thereto and the
proceeds and products thereof, including without limitation, all cash, general
intangibles, accounts, inventory, equipment, fixtures, farm products, notes, drafts,
acceptances, securities, instruments, chattel paper, insurance proceeds payable because
of loss or damage, or other property, benefits or rights arising therefrom, and in and to
all returned or repossessed goods arising from or relating to any of the property
described herein or other proceeds of any sale or other disposition of such property.
As additional security for the punctual payment and performance of the
Obligations, and as part of the Collateral, Surety hereby grants to Secured Party a
security interest in, and a pledge and assignment of, any and all money, property,
deposit accounts, accounts, securities, documents, chattel paper, claims, demands,
instrumems, items or deposits of the Surety, and each of them, or to which any of them
is a party, now held or hereafter coming within Secured Party's custody or control,
including without limitation, all certificates of deposit and other depository accounts,
whether such have matured or the exercise of Secured Party's rights results in loss of
interest or principal or other penalty on such deposits, but excluding deposits subject to
tax penalties if assigned. Without prior notice to or demand upon the Surety, Secured
Party may exercise its rights granted above at any time when a default has occurred or
Secured Party deems itself insecure. Secured Party's rights and remedies under this
paragraph shall be in addition to and cumulative of any other rights or remedies at law
and equity, including, without limitation, any rights of set-off to which Secured Party
may be entitled.
D. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SURETY. Surety represents and warrants as follows:
1. Ownership; No Encumbrances: Except for the security interest (and
pledges and assignments as applicable) granted hereby, the Surety is, and as to any
property acquired after the date hereof which is included within the Collateral, Surety
will be, the owner of all such Collateral free and clear from all charges, liens, security
interests, adverse claims and encumbrances of any and every nature whatsoever.
2. No Financing Statements: There is no financing statement or similar
ftling now on file in any public office covering any part of the Collateral, and Surety
will not execute and there will not be on file in any public office any financing
statement or similar filing except the financing statements filed or to be filed in favor of
Secured Party.
3. Accuracy of Information: All information furnished to Secured Party
concerning Surety, the Collateral and the Obligations, or otherwise for the purpose of
obtaining or maintaining credit, is or will be at the time the same is furnished, accurate
and complete in all material respects.
4. Authority: Surety has full right and authority to execute and perform
this Agreement and to create the security interest (and pledges and assignment as
applicable) created by this Agreement. The making and performance by Surety of this
Agreement will not violate any articles of incorporation, bylaws or similar document
respecting Surety, any provision of law, any order of court or governmental agency, or
any indenture or other agreement to which Surety is a party, or by which Surety or any
of Surety's property is bound, or be in conflict with, result in a breach of or constitute
(with due notice and/or lapse of time) a default under any such indenture or other
agreement, or result in the creation or imposition of any charge, lien, security .interest,
claim or encumbrance of any and every nature whatsoever upon the Collateral, except
as contemplated by this Agreement.
5. Addresses: The address of Surety designated at the beginning of this
Agreement is Surety's place of business if Surety has only one place of business;
Surety's chief executive office if Surety has more than one place of business; or
Surety's residence if Surety has no place of business. Surety agrees not to change such
address without advance written notice to Secured Party.
E. GENERAL COVENANTS. Surety covenants and agrees as follows:
1. Assessments: Surety shall promptly pay when due all taxes, assessments,
license fees, registration fees, and governmental charges levied or assessed against
Surety or with respect to the Collateral or any part thereof.
2. No Encumbrances: Surety agrees not to suffer or permit any charge,
lien, security interest, adverse claim or encumbrance of any and every nature
whatsoever against the Collateral or any part thereof.
3. No Removal: Except as otherwise provided in this Agreement, Surety
shall not remove the Collateral from the county or counties designated at the beginning
of this Agreement without Secured Party's prior written consent.
4. No Transfer: Except as otherwise provided in this Agreement with
respect to inventory, Surety shall not, without the prior written consent of Secured
Party, sell, assign, transfer, lease, charter, encumber, hypothecate or dispose of the
Collateral, or any part thereof, or interest therein, or offer to do any of the foregoing.
5. Notices and Reports: Surety shall promptly notify Secured Party in
writing of any change in the name, identity or structure of Surety, any charge, lien,
security interest, claim or encumbrance asserted against the Collateral, any litigation
against Surety or the Collateral, any theft, loss, injury or similar incident involving the
Collateral, and any other material matter adversely affecting Surety or the Collateral.
Surety shall furnish such other reports, information and data regarding Surety's
financial condition and operations, the Collateral and such other matters as Secured
Party may request from time to time.
6. Additional Filings: Surety agrees to execute and deliver such financing
statement or statements, or amendments thereof or supplements thereto, or other
documents as Secured Party may from time to time require in order to comply with the
Texas Uniform Commercial Code (or other applicable state law of the jurisdiction
where any of the Collateral is located) and to preserve and protect the Secured Party's
rights to the Collateral.
7. Protection of Collateral: Secured Party, at its option, whether before or
after default, but without any obligation whatsoever to do so, may (a) discharge taxes,
claims, charges, liens, security interests, assessments or other encumbrances of any and
every nature whatsoever at any time levied, placed upon or asserted against the
Collateral, (b) place and pay for insurance on the Collateral, including insurance that
only protects Secured Party's interest, (c) pay for the repair, improvement, testing,
maintenance and preservation of the Collateral, (d) pay any ~ing, recording,
registration, licensing or certification fees or other fees and charges related to the
Collateral, or (e) take any other action to preserve and protect the Collateral and
Secured Party's rights and remedies under this Agreement as Secured Party may deem
necessary or appropriate. Surety agrees that Secured Party shall have no duty or
obligation whatsoever to take any of the foregoing action. Surety agrees to promptly
reimburse Secured Party upon demand for any payment made or any expense incurred
by the Secured .Party pursuant to this authorization. These. payments and expenditures,
together with interest thereon from date incurred until paid by Surety at the maximum
comract rate allowed under applicable laws, which Surety agrees to pay, shall constitute
additional Obligations and shall be secured by and entitled to the benefits of this
Agreement.
8. Inspection: Surety shall at all reasonable times allow Secured Party by
or through any of its officers, agents, attorneys or accountants, to examine the
Collateral, wherever located, and to examine and make extracts from Surety's books
and records.
9. Further Assurances: Surety shall do, make, procure, execute and
deliver all such additional and further acts, things, deeds, interests and assurances as
Secured Party may require from time so time to protect, assure and enforce Secured
Party's rights and remedies.
10. Additional Collateral: If Secured Party should at any time be of the
opinion that the Collateral is impaired, not sufficiem or has declined or may decline in
value, or should Secured Party deem payment of the Obligations to be insecure, then
Secured Party may ca/l for additional security satisfactory to Secured Party, and Surety
promises to furnish such additional security forthwith. The call for additional security
may be oral, by telegram, or United States mail addressed to Surety, and shall not
affect any other subsequent right of Secured Party to exercise the same.
F. ADDITIONAL PROVISIONS REGARDING CERTIFICATES OF
DEPOSIT AND SIMILAR COLLATERAL. The following provisions shall apply to
certificates of deposit and similar property included within the Collateral:
1. Collection of Deposits: Surety agrees that Secured Party may, at any
time (whether before or after default) and in its sole discretion, surrender for payment
and obtain payment of any portion of the Collateral, whether such have matured or the
exercise of Secured Party's rights results in loss of interest or principal or other penalty
on such deposits, and, in connection therewith, cause paymem to be made directly to
Secured Party.
2. Notice to Third Party Issuer: With regard to any certificates of deposit
or similar Collateral for which Secured Party is not the issuer, Surety agrees to notify
the issuer or obligor of the interests hereby granted to Secured Party and to obtain from
such issuer or obligor acknowledgement of the interests in favor of Secured Party, the
issuer's or obligor's agreement to waive in favor of Secured Party any and all rights of
set-off or similar rights or remedies to which such issuer or obligor may be entitled,
and, in connection therewith, to execute and cause the issuer or obligor to execute, any
and all acknowledgments, waivers and other agreements in such form and upon such
terms as Secured Party may request.
3. Proceeds: Any and all replacement or renewal certificates, instruments,
or other benefits or proceeds related to the Collateral that are received by Surety shall
be held by Surety in trust for Secured Party and immediately delivered to Secured Party
to be held as part of the Collateral.
4. No Duty: Secured Party shall never be liable for its failure to give notice
to Surety of default in the payment of or upon the Collateral. Secured Party shall have
no duty to f'LX or preserve rights against prior parties to the Collateral and shall never be
liable for its failure to use diligence to collect any amount payable in respect to the
Collateral, but shall be liable only to account to Surety for what it may actually collect
or receive thereon. Without limiting the foregoing, it s specifically understood and
agreed that Secured Party shall have no responsibility for ascertaining any maturities or
similar matters relating to any of the Collateral or for informing Surety with respect to
any of such matters (irrespective of whether Secured Party actually has, or may be
deemed, to have, knowledge thereof).
G. EVENTS OF DEFAULT. Surety shall be in default hereunder upon the
happening of any of the following events or conditions: (i) non-payment when due
(whether by acceleration of maturity or otherwise) of any payment of principal, interest
or other amount due on any Obligation; (ii) the occurrence of any event which under
the terms of any evidence of indebtedness, indenture, loan agreement, security
agreement or, similar instrument permits the acceleration of maturity of any obligation
of Surety (whether to Secured Party or to others); (iii) any representation or warranty
made by Surety to Secured Party in connection with this Agreement, the Collateral or
the Obligations, or in any statements or certificates, proves incorrect in any material
respect as of the date of the making or the issuance thereof; (iv) default occurs in the
observance or performance of, or it' Surety fails to furnish adequate
evidence of performance of, any provision of this Agreement or of any note,
assignment, transfer, other agreement, document or instrument delivered by Surety to
Secured Party in connection with this Agreement, the Collateral or the Obligations; (v)
death, dissolution, liquidation, termination of existence, insolvency, business failure or
winding-up of Surety or any maker, endorser, guarantor, surety or other party liable in
any capacity for any of the Obligations; (vi) the commission of an act of bankruptcy by,
or the application for appointment of a receiver or any other legal custodian for any
part of the property of, assignment for the benefit of creditors by, or the
commencement of any proceedings under any bankruptcy, arrangement, reorganization,
insolvency or similar laws for the relief of suretys by or against, the Surety or any
maker, endorser, guarantor, surety or other party primarily or secondarily liable for
any of the Obligations: (vii) the Collateral becomes, in the judgment of Secured Party,
impaired, unsatisfactory or insufficient in character or value; or (viii) the filing of any
levy, attachment, execution, garnishment or other process against the Surety or any of
the Collateral or any maker, endorser, guarantor, surety or other party liable in any
capacity for any of the Obligations.
H. REMEDIES: Upon the occurrence of an event of default, or if Secured
Party deems payment of the Obligations to be insecure, Secured Party, at its option,
shall be entitled to exercise any one or more of the following remedies (all of which are
cumulative):
1. Declare Obligations Due: Secured Party, at its option, may declare the
Obiigations or any part thereof immediately due and payable, without demand, notice
of intention to accelerate, notice of acceleration, notice of non-payment, presentment,
protest, notice of dishonor, or any other notice whatsoever, ail of which are hereby
waived by Surety and any maker, endorser, guarantor, surety or other party liable in
any capacity for any of the Obligations.
2. Remedies: Secured Party shall have all of the rights and remedies
provided for in this Agreement and in any other agreements executed by Surety, the
rights and remedies Of the Uniform Commercial Code of Texas, and any and all of the
rights and remedies at law and in equity, all of which shall be deemed cumulative.
Without limiting the foregoing, Surety agrees that Secured Party shall have the right to:
(a) require Surety to assemble the Collateral and make it available to Secured Party at a
place designated by Secured Party that is reasonably convenient to both parties, which
Surety agrees to do; (b) peaceably take possession of the Collateral and remove same,
with or without judicial process; (c) without rentoval, render equipntent included within
the Collateral unusable, and dispose of the Collateral on the Surety's premises; (d) sell,
lease or otherwise dispose of the Collateral, at one or more locations, by public or
private proceedings for cash or credit, without assumption of credit risk; and/or (e)
whether before or after default, collect and receipt for, compound, compromise, and
settle, and give releases, discharges and acquittances with respect to, any and all
amounts owed by any person or entity with respect to the Collateral. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, Secured Party will send Surety reasonable
notice of the time and place of any public sale or of the time after which any private
sale or other disposition will be made. Any requirement of reasonable notice to Surety
shall be met if such notice is mailed, postage prepaid, to Surety at the address of Surety
designated at the beginning of this Agreement, at least five (5) days before the day of
any public sale or at least five (5) days before the time after which any private sale or
other disposition will be made.
3. Expe2nses: Surety shall be liable for and agrees to pay the reasonable
expenses incurred by Secured Party in enforcing its rights and remedies, in retaking,
holding, testing, repairing, improving, selling, leasing or disposing of the Collateral, or
like expenses, including, without limitation, attorneys' fees and legal expenses incurred
by Secured Party. These expenses, together with interest thereon from date incurred
until paid by Surety at the maximum contract rate allowed under applicable laws, which
Surety agrees to pay, shall constitute additional Obligations and shall be secured by and
entitled to the benefits of this Agreement.
4. Prnceeds, Surplus, Deficiencies: Proceeds received by Secured Party
from disposition of the Collateral shall be applied toward Secured Party's expenses and
other Obligations in such order or manner as Secured Party may elect. Surety shall be
entitled to any surplus if one results after lawful application of the proceeds. Surety
shall remain liable for any deficiency.
5. Remedies Cumulative: The rights and remedies of Secured Party are
cumulative and the exercise of any one or more of the rights or remedies shall not be
deemed an election of rights or remedies or a waiver of any other right or remedy.
Secured Party may remedy any default and may waive any default without waiving the
default remedied or without waiving any other prior or subsequent default.
I. OTHER AGREEMENTS.
1. Savings Clause: Notwithstanding any provision to the contrary herein,
or in any of the documents evidencing the Obligations or otherwise relating thereto, no
such provision shall require the payment or permit the collection of interest in excess of
the maximum permitted by applicable usury laws. If any such excessive interest is so
provided for, then in such event (i) the provisions of this paragraph shall govern and
control; (ii) neither the Surety nor his heirs, legal representatives, successors or assigns
or any other party liable for the payment thereof, shall be obligated to pay the amount
of such interest to the extent that is in excess of the maximum amount permitted by law;
(iii) any such excess interest that may have been collected shall be, at the option of the
holder of the instrument evidencing the Obligations, either applied as a credit against
the then unpaid principal amount thereof or refunded to the maker thereof; and (iv) the
effective rate of interest shall be automatically reduced to the maximum lawful rate
under applicable usury laws as now or hereafter construed by the courts having
jurisdiction.
2. Joint and Several Responsibility: If this Security Agreement is
executed by more than one Surety, the obligations of all such Suretys shall be joint and
several.
3. Waivers: Surety and any maker, endorser, guarantor, surety or other
party liable in any capacity respecting the Obligations hereby waive demand, notice of
intention to accelerate, notice of acceleration, notice of non-payment, presentment,
protest, notice of dishonor and any other similar notice whatsoever.
4. Severability: Any provision hereof found to be invalid by courts having
jurisdiction shall be invalid only with respect to such provision (and then only to the
extent necessary to avoid such invalidity). The offending provision shall be modified to
the maximum extent possible to confer upon Secured Party the benefits intended
thereby. Such provision as modified and the remaining provisions hereof shall be
construed and enforced to the same effect as if such
offending provision (or portion thereof) had not been contained herein, to the maximum
extent possible.
5. Use of Copies: Any carbon, photographic or other reproduction of any
financing statement signed by Surety is sufficient as a financing statement for all
purposes, including without limitation, filing in any state as may be permitted by the
provisions of the Uniform Commercial Code of such state.
6. Relationship to Other Agreements: This Security Agreement and the
security interests (and pledges and assignments as applicable) herein granted are in
addition to (and not in substitution, novation or discharge of) any and all prior or
contemporaneous security agreements, security interests, pledges, assignments, liens,
rights, titles or other interests in favor of Secured Party or assigned to Secured Party by
others in connection with the Obligations. All lights and remedies of Secured Party in
all such agreements are cumulative, but in the event of actual conflict in terms and
conditions, the terms and conditions of the latest security agreement shall govern and
control.
7. Notices: Any notice or demand given by Secured Party to Surety in
connectiou with this Agreement, the Collateral or the Obligations, shall be deemed
given and effective upon deposit in the United States mail, postage prepaid, addressed
to Surety at the address of Surety designated at the beginning of this Agreement. Actual
notice to Surety shall always be effective no matter how given or received.
8. Headings and Gender: Paragraph headings in this Agreement are for
convenience only and shall be given no meaning or significance in interpreting this
Agreement. All words used herein shall be construed to be of such gender or number as
the circumstances require.
9. Amendments: Neither this Agreement nor any of its provisions may be
changed, mended, modified, waived or discharged orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, amendment,
modification, waiver or discharge is sought.
10. Continuing Agreement: The security interest (and pledges and
assignments as applicable) hereby granted and all of the terms and provisions in this
Agreement shall be deemed a continuing agreement and shall continue in full force and
effect until terminated in writing. Any such revocation or termination shall only be
effective if explicitly confirmed in a signed writing issued by Secured Party to such
effect and shall in no way impair or affect any transactions entered into or rights
created or Obligations incurred or arising prior to such revocation or termination, as to
which this Agreement shall be fully operative until same are repaid and discharged in
full. Unless otherwise required by applicable la Secured Party shall be under no
obligation to issue a termination statement or similar documents unless Surety requests
same in writing and, provided further, that all Obligations have been repaid and
discharged in full and there are no commitments to make advances, incur any
Obligations or otherwise give value.
11. Binding Effect: The provisions of this Security Agreement shall be
binding upon the heirs, personal representatives, successors and assigns of Surety and
the rights, powers and remedies of Secured Party hereunder shall inure to the benefit of
the successors and assigns of Secured Party.
12. Governing Law: This Security Agreement shall be governed by the law
of the State of Texas and applicable federal law.
EXECUTED this __ day of ,200
By:
Joe Swinbank
SUBSCRIBED AND SWORN TO BEFORE ME by the said Joe Swinbank, on
the day of ,2006, to certify which witness my hand and seal
of office.
Notary Public, State of Texas
EXHIBIT "D"
ACKNOWLEDGEMENT
Texas State Bank hereby acknowledges and recognizes that The City of Port
Arthur Section 4A Economic Development Corporation ("PAEDC") hold a first priority
lien against Certificate of Deposit Number , in the name of Joe
Swinbank, to secure Triangle Waste, L.L.C.'s ("Triangle") performance of the Economic
Incentive Contract and Loan Agreement between Traingle and PAEDC.
TEXAS STATE BANK
By
Its
Date
SUBSCRIBED AND SWORN TO BEFORE ME on the day of
,2006, to certify which witness my hand and seal of offtce.
Notary Public, State of Texas
EXHIBIT "E"
UCC FINANCING STATEMENT
~Clty of Port Arthur Section 4A Economic
Development Corporation
4173 39th Street
Port Arthur, Texas 77642
Swinbank ~e ~x~ t~co~ co~
. 9 Houston TX [ 77224 [ USA
~of Po~ Arthur S~fion 4A Economic Development Co~orafion su~
-- 4173 39th Street PoP.bur TX 77642 USA
Texas Sta~ Bank Certificate of Deposit No. for ~92,040.
EXHIBIT "F"
CERTIFICATION REGARDING LOBBYING
For Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his knowledge and belief, that:
1. No funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an
officer or employee of any agency, a member of the City or of the PAEDC
in connection with the awarding of any contract, the making of any grant,
the making of any loan, the entering into of any cooperative agreement, or
modification of any contract, grant, loan, or cooperative agreement.
2 The undersigned shall require that the language of this cert.ification be
included in the award documents for all sub-awards at all tiers (including
subcontracts, sub-grants, and contracts under grants, loans, and
cooperative agreements), and that all Subs shall certify and disclose
accordingly.
This certification is material representation of fact which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite
for making or entering into this transaction.
Signed:
TRIANGLE WASTE SOLUTIONS, L.L.C.
By:
Its:
Date: