HomeMy WebLinkAboutPR 13414: 3D ARCHITEC p. R. No. 13414
02/02/06 gt
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE pRESIDENT AND
SECRETARY OF THE CITY OF PORT ARTHUR SECTION
4A ECONOMIC DEVELOPMENT CORPORATION TO EXECUTE
AN INCENTIVE AGREEMENT BETWEEN THE CITY OF
PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION AND 3D AKCHITECTUI~AL METALS SALES,
INC.
WHEREAS, as noted in Exhibit ~A", the Board of Directors of
the City of Port Arthur Section 4A Economic Development Corporation
has approved an incentive agreement to be entered into with 3 D
Architectural Metals Sales, Inc.; and
WHEREAS, an executive summary has been provided by Germer
Gertz as noted in Exhibit ~A", which delineates (1) the major terms
of the agreement (2) that they have approved this project as being
an eligible project under Section 4A Article 5190.6 VTCA, and (3)
that they approve the agreement as to form; and
WHEREAS, pursuant to Section 8.19 of the bylaws, the City of
Port Arthur Section 4A Economic Development Corporation is
submitting this project for approval.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF TEE CITY
OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are
true and correct.
Section 2. That the City of Port Arthur herein approves
the incentive agreement as noted in Exhibit ~B" and herein
authorizes the President and Secretary of the City of Port Arthur
Section 4A Economic Development Corporation to execute the
agreement in substantially the same form as attached hereto as
Exhibit "B".
Section 3. That a copy of the caption of this Resolution
be spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this day of
, A.D., 2006, at a Meeting of the City Council of
the City of Port Arthur, Texas, by the following vote: AYES:
Mayor
Councilmembers
NOES:
MAYOR
ATTEST:
CITY SECRETARY
APPROVED AS TO FORM:
SEE CONFIDENTIAL ~MO DATED FEBRUARY 3, 2006,
CITY ATTOR/qEY
APPROVED FOR ADMINISTRATION:
CITY MANAGER
z. PR13414
EXHIBIT "A"
AUSTIN BEAUMONT HOUSTON
GERME C, ERTT'. ~,vw.germer.¢om
^ T 1' O R 1,4 t~ Y '~i,.J^ T L A W KATHLEENA. McGLYNN
ASSOCIATE
Direct Line: 409.813.8000
kmcglynn@germer.com
February 3, 2006
Via Facsimile No. 1-409-962-4445
Mr. Floyd Batiste
Chief Executive Officer
City of Port Arthur EDC
P.O. Box 3934
Port Arthur, Texas 77642
Re: 3D Architectural Metal Sales, Inc.; GG File #56257
Dear Mr. Batiste:
Attached is the Executive Summary for the City of Port Arthur Section 4A Economic
Development Corporation's ("PAEDC's') contract with 3D Architectural Metal Sales., Inc.
This contract was approved by the PAEDC Board of Directors on February 1, 2006, by a five
to zero vote. The contract has been approved by Germer Gertz, L.L.P. as to its legality and is
an eligible Section 4A project.
Sincerely,
GERMER GERTZ, L.L.P.
Kathleen A. McGlynn Q~)
KAM/lr
cc: lana Barnes
Guy N. Goodson (in thefirm)
P.O. BOX 4915 · BEAUMONT, TX 77704 · PHONE: 409.654.6700 · FAX: 409.835.2115
SECOND DRAFT
ECONOMIC INCENTIVE CONTRACT& LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION
&
3D ARCHITECTURAL METAL SALES, INC,
Executive Summary
3D Architectural Metal Sales, Inc. ("3D") is a Texas corporation, doing
business in Port Arthur, Texas. 3D will manufacture small- to medium-sized
metal buildings and sell the majority of its product outside the Port Arthur
area. Current market demand for the product is such that 3D plans to initiate
and expand operation of its facility in Port Arthur. The City of Port Arthur
Section 4A Economic Development Corporation ("PAEDC") will assist 3D in
this business endeavor by providing conditional grant and loan funds in
exchange for the promise of fulltime permanent jobs.
The City of Port Arthur Section 4A Economic Development Corporation
CPAEDC'') is conditionally granting 3D the sum of $112,000. If 3D breaches
this Agreement then the PAEDC grant, minus any credits earned, will
automatically convert to a loan (liquidated damages), to be paid back over
three years at ten percent interest.
Additionally, PAEDC will loan 3D the sum $103,000, to be paid back
over seven years at four percent interest, with the first of the 84 payments due
one year after the Agreement is executed.
In return for the PAEDC incentives, 3D agrees to hire ten (10) employees
with an annual total payroll of $180,000 within five (5) years, as measured by IRS
forms W-2 and W-3. Fifty (50) percent of the employees must be Port Arthur
residents. Additionally, Richard and Jeanette Daley, 3D's owners, will execute a
Deed of Trust (mortgage) for the property located on Highway 365 in Port Adhur,
Texas.
3D may earn credits to reduce the duration of this Agreement or to reduce
liquidated damages in the event of a breach. Starting on the effective date of the
Agreement, 3D will receive a $1.00 credit for each $4.00 of payroll paid to
residents of Port Arthur.
To avoid surprises, 3D agrees to send PAEDC brief status reports,
every three (3) months for the first year and every six months thereafter, until
issuance of a close out report 3D will forfeit its credits for any reporting
period for which it did not issue a report in a timely manner.
433490 i
EXHIBIT "B"
DRAFT
ECONOMIC INCENTIVE & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
3D ARCHITECTURAL METAL SALES, INC.
INTRODUCTION ................................................................................................................................... ' ! '
AGREEMENT DATES .......................................................................................................................... ' ! -
PARTIES ................................................................................................................................................. - 1 -
PROMISED PERFORMANCE ................................................................................................ - 2 -
(A) PERFORMANCE BY PAEDC ....................................................................................................... - 2 -
(B) PERFORMANCE BY 3D ....................................................................... ; ....................................... - 2 -
(C) 3D CREDITS -- SUBSTITUTE PERFORMANCE ............................................................................ - 3 -
3D'S PERFORMANCE MILESTONE SCHEDULE ......................................................................... - 3 -
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY ........................................ - 5 -
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT BY 3D .......................................... - $ -
RECORDS I INSPECTION / PAEDC AUDIT .................................................................................... - 6 -
HOLD HARMLESS ............................................................................................................................... ' ? -
SUBCONTRACTS ................................................................................................................................. ' '/-
CONFLICT OF INTEREST I DISCLOSURE OBLIGATION ........................................................... - 8 -
NONDISCRIMINATION / EMPLOYMENT / REPORTING ............................................................. - $ '
LEGAL AUTHORITY ............................................................................................................................ - 9 -
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST 3D ................................................ - 9 -
CHANGES AND AMENDMENTS ....................................................................................................... - 9 -
DEFAULT / TERMINATION .............................................................................................................. - 10 -
3D AUDITS ............................................................................................................................................ ]! '
ENVIRONMENTAL CLEARANCE REQUIREMENTS .................................................................. - IZ -
ORAL AND WRITTEN AGREEMENTS / PRIOR AGREEMENTS ............................................. - 1Z -
VENUE .................................................................................................................................................. - ]2 -
ADDRESS OF NOTICE AND COMMUNICATIONS ..................................................................... - ]Z -
CAPTIONS ........................................................................................................................................... - ]3 -
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS .................................................. t3 -
CONDITIONS PRECEDENT ............................................................................................................. - 13 -
ATTORNEY APPROVALS ................................................................................................................. 13 -
AGREEMENT EXECUTION .............................................................................................................. - 14 -
Exhibit"Al" Commercial Promissory Note for Loan
Exhibit "A2" Commercial Promissory Note for Conditional Grant
Exhibit "B" Equipment List
Exhibit "C" Deed of Trust
Exhibit "D" Certification Regarding Lobbying
ii 2/2/20O6
SECOND DRAFT
ECONOMIC INCENTtVE CONTRACT & LOAN AGREEMENT
BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
3D ARCHITECTURAL METAL SALES, INC.
INTRODUCTION
3D Architectural Metal Sales, Inc. C3D") is a Texas corporation, doing business in
Port Arthur, Texas. 3D will manufacture small- to medium-sized metal buildings and sells
the majority of its product outside the Port Arthur area. Current market demand for the
product is such that 3D plans to initiate and expand operation of its facility in Port Adhur.
The City of Port Arthur Section 4A Economic Development Corporation CPAEDC'') will
assist 3D in this business endeavor by providing conditional grant and loan funds in
exchange for the promise of fulltime permanent jobs.
AGREEMENT DATES
AGREEMENT 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 April 15, 2006,
by and between the PAEDC and 3D.
AGREEMENT END DATE
2. This Agreement expires the earlier of April 15, 2011, or 30 days after 3D either
performs fully or breaches the Agreement, subject to earlier termination or extension,
voluntary or involuntary, as provided herein. The period from the effective date of this
Agreement through and including the expiration date of this Agreement as provided in the
previous sentence hereof, is sometimes referred to in this Agreement as the "Term" of this
Agreement.
pARTIES
3. City of Port Arthur Section 4A Economic Development Corporation CPAEDC"),
located at 4173-39th 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 Agreement. So authorized and as
provided by the PAEDC bylaws, the President and Secretary of the PAEDC Board have
the authority to execute this Agreement.
4. 3D Architectural Metal Sales, Inc. ("3D") is a Texas corporation. The registered
agent in Texas for 3D is Jeanette Daley at 2322 Knickerbocker Ln., Nederland, Texas
77627.
3D/PAEDC Agreement . ] .
S E C 0 N D DRAFT
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
(1) PAEDC shall loan 3D the amount of $103,000.00, according to the terms in
the Commercial Promissory Note contained in Exhibit "Al", with material
terms being four percent (4%) interest for a term of seven (7) years;
(2) PAEDC shall conditionally orant 3D up to $112,000.00, subject to the
conditions and limitations herein, which 3D is not required to pay back .unless
3D breaches this Agreement. If 3D breaches this Incentive Agreement then
the grant will become a loan as provided in Exhibit "A2".
(3) PAEDC will use its best efforts to pay invoices, or reimburse 3D for its
payments, for the equipment listed in Exhibit "B" within fifty-five (45) days of
receipt.
These are PAEDC's only obligations.
(b) PERFORMANCE BY 30
(1) By the end of the Agreement term, 3D promises to employ ten (10}
employees at an annual total payroll of $180,000, as measured by Internal
Revenue Service (IRS) forms W-2 and W-3.
(2) 3D promises that at least fifty percent (50%) of its employees will be Port
Arthur residents.
(3) Contemporaneously with PAEDC's loan to 3D, Richard and Jeanette Daley,
owners of 100 percent of 3D's shares, will execute a Deed of Trust for Lot 1
and the northeast 80 feet (of 100 feet) of Lot 2, Block 11 of the Montrese No.
2, on HWY 365 in Port Arthur, Texas. The Deed of Trust is contained in
Exhibit "C".
(4) 3D shall use the Grant monies provided by the PAEDC exclusively for
machinery and equipment that is not materially different2 from the list of
machinery and equipment provided to PAEDC by 3D, a copy of which is
attached as Exhibit "B." With each invoice or request for reimbursement
sent to PAEDC, 3D will include a copy of the Exhibit "B" list with the specific
equipment highlighted. This will enable PAEDC to verify compliance with the
list in Exhibit "B."
1 Payroll is based on 2000 hours per year and a starling wage of $9.00 per hour, per 3D's application.
2 "Materially different" is defined as a change in the type of equipment which changes the overall business
plan in place at the time that this contract was executed.
- 2 - 2/2/2006
S E C 0 N D DRAFT
(5)On demand by PAEDC and in response to 3D's failure to achieve a
performance milestone, 3D shall provide PAEDC with reasonable
assurances, proposed by 3D and reasonably acceptable to PAEDC, that it
has both the intention and the capabilities to perform fully its contractual
obligations.
(c) 3D CREDITS -- SUBSTITUTE PERFORMANCE
3D may earn credits according to the following terms, to either reduce the
duration of this Agreement or reduce the amount of liquidated damages in the
event 3D breaches the Agreement.
(1) Starting on the effective date of the Agreement and for as long as 3D
performs as specified in 5(b)(1 ), 3D will receive a $1.00 credit for each $4.00
of payroll paid to residents of P..¢_rt__A~hJz[. Payroll to non-residents cannot be
credited.
(2) Total credit cannot exceed $112,000.
(3) 3D will forfeit any credits it earned during a period for which a report is
scheduled but 3D fails to issue it.
(4) Once 3D has earned credits equal to $112,000, this Agreement and the
Term thereof shall terminate pursuant to Section 2 hereinabove; however,
the contemporaneous Note (Exhibit "Al") and Deed of Trust (Exhibit "C")
shall remain in effect until the Note is paid in full.
3D'S PERFORMANCE MILESTONE SCHEDULE
6. Although failure to achieve a performance milestone is not a breach of contract,
a failure is grounds for PAEDC to withhold further payments to 3D and/or demand
reasonable assurances3 from 3D that it can and will fully perform its contractual
obligations. Failure to provide such reasonable assurances following demand of PAEDC
is a breach of contract.
7. 3D's performance milestones are contained in the table on the following page.
3 Examples of reasonable assurances are copies of pending contracts and customer commitment letters,
S E C O N D DRAFT
~D'S PERFORMANANCE MILESTONE SCHEDULE
Dea.dlJ[~ Mi!c_stone
(a) Apr 5, 2006 Issue a status report4 to PAEDC's Chief Executive Officer ("CEO") for the
period from the effective date of this Agreement to March 31,2006.
(b) June 30, 2006 Achieve performance of 1 full-time, permanent employee;
Annualized payroll of $18,000.
(c) July 5, 2006 Status report for April 1, 2006 to June 30, 2006.
(d) Oct. 5, 2006 Status report for July 1, 2006 to September 30, 2006.
(e) Feb 5, 2007 ~ Status reports for January 1,2006 to December 31,2006.
(f) Apr. 1, 2007 Achieve performance of 2 full-time, permanent employees;
Annualized payroll of $36,000.
(g) July 5, 2007 Status report for January 1,2007 to June 30, 2007
(h) Feb. 5, 2008 Status report for Jan. 1, 2007 to December 31, 2007.
(i) Apr. 1, 2008 ; Achieve performance of 4 full-time, permanent employees;
Annualized payroll of $72,000.
(j) July 5, 2008 Status report for Jan. 1, 2008 to June 30, 2008.
(k) Feb. 5, 2009 i Status report for Jan. 1, 2008 to December 31, 2008.
(I) Apr. 1,2009I Achieve performance of 6 full-time, permanent employees;
Annualized payroll of $108,000.
(m) July 5, 2009 Status report for Jan. 1, 2009 to June 30, 2009.
(n) Feb. 5, 2010 Status report for Jan. 1, 2009 to December 31, 2009.
(o) Apr. 1,2010 [ Achieve performance of 8 full-time, permanent employees;
Annualized payroll of $144,000.
(p) July 5, 2010 I Status report for Jan. 1, 2010 to June 30, 2010.
(q) Feb. 5,2011 , Status report for Jan 1, 2010 to December 31, 2010.
(r) Apr. 1, 2011 Achieve performance of 10 full-time, permanent employees;
Annualized payroll of $180,000;
(s) Apr. 15, 2011s Close out report for presentation to the PAEDC Board at its February 2011
meeting.
'~ Status reports shall include copies of invoices and check payments for machinery and equipment
purchased with PAEDC funds during the reporting period, quarterly balance sheets, quarterly profit and loss
statements, and employee reports.
s February 5t~ status reports shall also include identity of current General Partner and Limited Partners.
~Or thirty (30) days after 3D fully performs. The EDC Board will determine if performance is complete.
- 4 - 2¢2/28~)6
S E C 0 N D DRAFT
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. It is expressly understood and agreed by the parties hereto that the PAEDC
funding obligations herein are contingent upon the actual receipt of adequate sales tax
revenue funds to meet the PAEDC's liabilities under this Agreement. If adequate funds
are not available to make payments under this Agreement, the PAEDC shall notify 3D in
writing within a reasonable time after such fact is reasonably determined by the PAEDC
Board of Directors. The PAEDC, at its sole option, may then terminate this Agreement
without further liability. In the event of such termination by the PAEDC, the PAEDC may,
at its sole option, immediately cease all further funding, if any, required by this Agreement
and the PAEDC shall not be liable to 3D or to any third padies for failure to make
payments to 3D under the terms and conditions of this Agreement.
9. The PAEDC shall not be liable, in Agreement or otherwise, to 3D, or to any
person or entity claiming by or through 3D, for any expense, expenditure or cost incurred
by or on behalf of 3D related to the project made the basis of this Agreement. The
PAEDC's sole liability/obligations, if any, shall be to 3D and shall be limited to the
conditional funding obligations detailed in this Agreement.
10. 3D shall not use the funds herein for any purpose(s) other than that specifically
disclosed herein and as further disclosed within that certain application made by or on
behalf of 3D, which application is incorporated herein for all purposes.
11. Funds granted by the PAEDC hereunder shall not be utilized by 3D for
repayment of costs, expenditures or expenses incurred prior to the date of this Agreement.
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT BY 3D
12. In the event 3D fails to perform its obligations under this Agreement, following
notice thereof from PAEDC and thirty-day (30-day) opportunity to cure the same, the
PAEDC grant, minus any credits earned, will automatically convert to a loan (liquidated
damages), effective on the day of breach, as agreed by 3D in the executed Commercial
Promissory Note contained in Exhibit "A2." Following such conversion to a loan as
aforesaid, the PAEDC, at its sole option, may terminate its remaining funding obligations, if
any, detailed in Section 5 herein. Further, the PAEDC shall be entitled to recover its
reasonable and customary attorney's fees and court costs incurred in collection of said
obligation and such remedies as are provided at law or in equity.
13. It is expressly understood and agreed by the parties that any right or remedy
shall not preclude the exercise of any other right or remedy under this Agreement or under
any provision of law, nor shall any action taken in the exercise of any right or remedy be
deemed a waiver of any other rights or remedies. Failure to exercise any right or remedy
hereunder shall not constitute a waiver of the right to exercise that or any other right or
remedy at any time.
. $. 2f~f~o~
S E C O N D DRAFT
RECORDS / INSPECTION I PAEDC AUDIT
14. 3D must establish and maintain sufficient records, as reasonably determined by
the PAEDC, to account for the expenditure and utilization of funds received by 3D from
PAEDC under the terms and conditions of this Agreement.
15. 3D shall maintain records of the receipt and disposition of all funds provided
hereunder as necessary to allow the PAEDC to audit and verify proper utilization of said
funds in compliance with this Agreement and the representations and warranties contained
herein and in 3D's application. 3D shall provide reports of utilization of said funds, as
reasonably requested by the PAEDC, and upon final termination of this Agreement.
16. Upon ten-day (10-day) advance notice, 3D 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 3D.
Such rights to access shall continue as long as the records are maintained by 3D. 3D
agrees to maintain such records in an accessible location. As to job creation performance,
interim status reports shall include documentation substantiating the accuracy of such
reports, including, for example, 941 payment reports, Texas Workforce Commission
reports, or other such reports confirming total jobs, payroll and other relevant information.
Driver's license information is appropriate for interim reporting of Port Arthur residents
hired. Year end reports shall be substantiated with IRS Forms W-2 and W-3. The
reporting objective is to include documentation necessary for PAEDC to verify said report
without further outside inquiry. All such information as aforesaid obtained by the PAEDC,
or its duly authorized representatives, shall be regarded as the confidential business
information of 3D and the PAEDC shall take reasonable measures to protect such
information from disclosure to third parties; however, PAEDC is subject to the
requirements of the Texas Open Meetings Act and Open Records Act (Tex. Gov. Code, 551
& 552). 3D agrees that disclosures to the public required by the Texas Open Meetings
Act, Texas Open Records Act, or any other legal requirement will not expose PAEDC (or
any party actin9 by, through or under PAEDC) to any claim, liability or action by 3D (or any
party working by, through or under).
17. All records pertinent to this Agreement shall be retained by 3D at least three
years following the date of termination of this Agreement, whether said termination is a
result of default or whether said termination is a result of final submission of a close out
report by 3D detailing 3D's compliance with its obligations provided herein. Further, in the
event any litigation, claim or audit arising out of or related to this Agreement is instituted
before the expiration of the three (3) year period and extends beyond the three year
period, the records will be maintained until ali litigation, claims or audit findings involving
this Agreement and the records made the basis of same have been resolved. Further,
records relating to real property acquisition, including any long-term lease, shall be
retained for a period equal to the useful Term of any machinery or equipment purchased
with PAEDC funds.
18. 3D shall provide PAEDC with all reports necessary for PAEDC compliance with
Article 5190.6 V.T.C.A.
- 6 - 2/2/2006
S E C 0 N D DRAFT
19. It is expressly understood and agreed by the parties hereto that if 3D fai~s to
submit to PAEDC in a timely and satisfactory manner any report required by this
Agreement, PAEDC may, at its sole discretion, withhold further payments to 3D and/or
demand assurances that 3D can and will fully perform its contractual obligations. If 3D
fails to provide adequate assurances then 3D is in breach and any monies advanced by
PAEDC automatically become a loan. If PAEDC withholds such payments, it shall notify
3D in writing of its decision and the reasons therefore. Payments withheld pursuant to this
paragraph may be held by PAEDC until such time as the delinquent obligations for which
funds are withheld are fulfilled by 3D.
20. The PAEDC reserves the right, from time to time, to carry out field
inspections/audits to ensure compliance with the requirements of this Agreement. After
completion of any such audit, the PAEDC may provide 3D with a written report of the audit
findings. If the audit report details deficiencies in 3D's performance under the terms and
conditions of this Agreement, the PAEDC may establish requirements for the timely
correction of any such deficiencies by 3D.
HOLD HARMLESS
21. SD agrees to hold harmless the PAEDC and the City of Port Arthur from any and
all ctaims, demands, and causes of action of any kind or character which may be asserted
by any third party occurring, arising out of or in any way related to this Agreement, the
project made the basis of this Agreement, and the utilization of grant funds provided by this
Agreement, provided that such claim, demand or cause of action does not arise from any
fraud or misconduct on the part of the PAEDC or the City of Port Arthur, or any agent,
employee or representative of either.
SUBCONTRACTS
22. 3D may not subcontract for performance credits described in this Agreement
without obtaining PAEDC's written approval, which may be withheld for any reason. 3D
shall only subcontract for performance credits described in this Agreement after 3D has
submitted a Subcontractor Eligibility Request, as specified by PAEDC, for each proposed
subcontract, and 3D has ebtained PAEDC's prior written approval. 3D, in subcontracting
for any performances described in this Agreement, expressly understands that in entering
into such subcontracts, PAEDC is in no way liable to 3D's subcontractor(s).
23. In no event shall PAEDC's prior written approval of a subcontractor's eligibility,
be construed as relieving 3D of the responsibility for ensuring that the performances
rendered under all subcontracts are rendered so as to comply with all terms of this
Agreement, as if such performances rendered were rendered by 3D. PAEDC's approval
does not constitute adoption, ratification, or acceptance of 3D's or subcontractor's
performance hereunder. PAEDC maintains the right to insist upon 3D's full compliance
with the terms of this Agreement, and by the act of subcontractor approval, PAEDC does
not waive any right of action which may exist or which may subsequently accrue to PAEDC
under this Agreement.
S E C 0 N D DRAFT
24. 3D, as wel~ as all of its approved subcontractors, sha~l comply with all applicable
federal, state, and local laws, regulations, and ordinances for making procurement under
this Agreement.
CONFLICT OF INTEREST-/DISCLOSURE OBLIGATION
25. Conflict of Interest: No employee, agent, officer or elected or appointed official
of the City of Port Arthur or the PAEDC who has participated in a decision making process
related to this Agreement (without mcusing 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, dudng their tenure or for one (1) year thereafter.
Insofar as relates to the conduct hereunder of 3D, its agents, employees or
representatives, 3D shall ensure compliance with applicable previsions under Article
5190.6 V.T.C.A. and Chapter 171 Local Government Code V.T.C.A.
26. Disclosure: In conjunction with execution of this Agreement, 3D has fully
disclosed to PAEDC all known and potential owners of interests in 3D (whether
stockholder, manager, member or otherwise). In the event of any change in ownership or
control of 3D of five percent (5 %) or greater, 3D shall notify PAEDC in writing. Further, 3D
shall be obligated to notify in writing the PAEDC in the event any time prior to, during or
one (1) year after the term of this Agreement, any City or PAEDC employee or
representative or any third party with a conflict of interest obtains or proposes to obtain a
financial benefit, direct or indirect, from 3D. Failure to provide said notice immediately or
no later than five (5) business days after receipt of information shall constitute a default
herein.
NONDISCRIMINATION / EMPLOYMENT / REPORTING
27. 3D shall ensure that no person shall on the grounds of race, color, religion, sex,
handicap, or national origin be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity funded in whole or in part with
funds provided under this Agreement. Additionally, funds shall be used in accordance with
the following requirements:
(a) To the greatest extent feasible, opportunities for training and employment arising
in connection with the planning and carrying out of any project assisted with
PAEDC funds provided under this Agreement be given to Port Arthur residents;
and
(b) To the greatest extent feasible, Agreements for work to be performed in
connection with any such project be awarded to Port Arthur residents and
businesses, including, but not limited to, individuals or firms doing business in
the field of planning, consulting, design, architecture, building construction,
rehabilitation, maintenance, or repair, which are located in or owned in
substantial part by persons residing in the City of Port Arthur.
S E C O N D DRAFT
(c) If 3D advertises for employment then it will advertise in the Port Arthur News;
however, PAEDC has no intent to restrain advertising in additional publications
or media.
LEGAL AUTHORITY
28. 3D assures and guarantees that 3D possesses legal and/or corporate authority
to enter into this Agreement, receive funds authorized by this Agreement, and to perform
the services 3D 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.
29. The person or persons signing and executing this Agreement on behalf of 3D, er
representing themselves as signing and executing this Agreement on behalf of 3D, do
hereby warrant and guarantee that he, she, or they have been duly authorized by 3D to
execute this Agreement on behalf of 3D and to validly and legally bind 3D to all terms,
performances, and provisions herein set forth.
NOTICE OF LEGAL OR REGULATORY CLAIMS AGAINST 3D
30. 3D shall give PAEDC immediate notice in writing of 1) any legal or regulatory
action, including any proceeding before an administrative agency filed against 3D, directly
or indirectly; and 2) any material claim against 3D, which may impact continued
operations. For purposes herein, "material" claims shall mean claims in excess of $5,000.
Except as otherwise directed by PAEDC, 3D shall furnish immediately to PAEDC copies of
all pertinent documentation of any kind received by 3D with respect to such action or claim.
CHANGES AND AMENDMENTS
31. Except as specifically provided otherwise in this Agreement, any alterations,
additions, or deletions to the terms of this Agreement shall be by amendment in writin.q and
executed by all padies to this Agreement.
32. It is understood and agreed by the parties hereto that performances under this
Agreement must be rendered in accordance with Article 5190.6 V.T.C.A. (the Development
Corporation act of 1979), the regulations promulgated under Article 5190.6 V.T.C.A., the
assurances and certifications made to PAEDC by 3D, and the assurances and
certifications made to the City of Port Adhur 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 Agreement by all parties, it is agreed by the parties hereto that the
performances under this Agreement are by the provisions of the PAEDC Program and any
amendments thereto and may further be amended in the following manner: PAEDC may
from time to time during the pedod of performance of this Agreement issue policy
directives which serve to interpret, or clarify performance requirements under this
Agreement. Such policy directives shall be promulgated by the PAEDC Board of Directors
in the form of PAEDC issuances, shall be approved by the City Council and shall have the
effect of qualifying the terms of this Agreement and shall be binding upon 3D, as if written
herein.
- 9 - 2/2/2006
S E C 0 N D DRAFT
33. Any alterations, additions, or deletions to the terms of this Agreement which are
required by changes in Federal, state law or local law are automatically incorporated into
this Agreement without written amendment hereto, and shall become effective on the date
designated by such law or regulation.
DEFAULT / TERMINATION
34. In the event of default of any of the obligations of 3D detailed herein or in the
event of breach of any of the representations of or warranties of 3D either detailed herein
or in 3D's application to the PAEDC, and following any notice and opportunity to cure
provided for in this Agreement, the PAEDC may, at its sole option, terminate this
Agreement, in whole or in part. In the event of such termination, the PAEDC may, at its
sole option, utilize one or more of the following actions to resolve or otherwise remedy said
default:
(a) Declare the Commercial Promissory Note executed in conjunction with this
Agreement immediately effective, if 3D defaults on the note, then the PAEDC
may exercise its default remedies provided under collateral documentation
executed in conjunction with said Note and this Agreement
(b) Exercise any remedies provided herein and/or within the Loan/Collateral
Documents;
(c) Withhold, whether temporarily or otherwise, disbursement of 9rant proceeds
pending correction of the deficiency(s) by 3D;
(d) Disallow all or a part of the incentives which are not in compliance with the terms
and conditions of this Agreement or in compliance with the representations and
warranties contained within this Agreement and 3D's application to the PAEDC;
(e) Withhold and/or disallow further PAEDC incentives to 3D; and
(f) Exercise any and all other remedies that may be legally available to the PAEDC,
under the laws of the State of Texas and as authorized by the terms and
conditions of this Agreement.
35. In addition to the foregoing, the parties agree that this Agreement may be
terminated at any time when both parties agree, in writing, to the terms and conditions of
any such voluntary termination.
-10-
S E C 0 N D DRAFT
3D AUDITS
36. If directed by PAEDC Board, 3D shall arrange for the performance of a
compliance audit, by a certified public accountant, of funds received and performances
rendered under this Agreement, subject to the following conditions and limitations:
(a) 3D shall have a compliance audit which may be limited to use of funds received
from the PAEDC, made for any of its fiscal years included within the Term of this
Agreement in which 3D receives mere than $50,000 in PAEDC financial
assistance provided by PAEDC in the form of grants, contracts, loans, loan
guarantees, properly, cooperative agreements, interest subsidies, or direct
appropriations. Backup documentation regarding actual expenditures shall be
provided by 3D. Said audit must be received and accepted by the Chief
Executive Officer of PAEDC and/or the PAEDC Board.
(b) At the option of 3D, each audit required by this section may cover either 3D's
entire operations or each department, agency, or establishment of 3D which
received, expended, or otherwise administered PAEDC funds;
(c) Unless otherwise specifically authorized by PAEDC in writing, 3D shall submit
the report of such audit to PAEDC within thirty (30) days after completion of the
audit, but no later than one hundred twenty (120) days after the end of each
fiscal period included within the Term of this Agreement.
(d) As a part of its audit, 3D shall verify that the expenditures were exclusively for
the equipment listed in Exhibit "B". Any discrepancies in excess of $500 shall be
specifically documented in writing.
37. 3D understands and agrees that it shall be liable to reimburse immediately
PAEDC for any costs disallowed pursuant to financial and compliance audit(s) of funds
received under this Agreement and it may be required to submit formal audits at 3D's
expense.
38. 3D shall take all necessary actions to facilitate the performance of any and all
such audits, whether annual, mandatory or otherwise requested under this Agreement.
39. Subject to financial privacy requirements of 3D and properly designated
requests for non-disclosure due to proprietary reasons, all approved audit reports may be
made available for public inspection.
40. PAEDC shall not release any funds for costs incurred by 3D under this
Agreement until PAEDC has received certification from 3D that its fiscal control and fund
accounting procedures are adequate to assure proper disbursal of and accounting for
funds provided under this Agreement. PAEDC shall specify the content and form of such
certification.
-11-
S E C O N D DRAFT
ENVIRONMENTAL CLEARANCE REQUIREMENTS
41. 3D understands and agrees that by execution of this Agreement, 3D 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. 3D further understands and agrees that 3D shall make all
reasonable efforts to assist PAEDC in handling inquiries and complaints from persons and
agencies seeking redress in relation to environmental reviews covered by approved
certifications.
ORAL AND WRITTEN AGREEMENTS / PRIOR AGREEMENTS
42. All oral and written contracts between the parties to this Agreement rotating to
the subject matter of this Agreement that were made prior to the execution of this
Agreement have been reduced to writing and are contained in this Agreement.
43. The documents listed below are hereby made a part of this Agreement, and
constitute promised performances by 3D in accordance with this Agreement:
Exhibit "Al" Commemial Promissory Note for Loan
Exhibit "A2" Commercial Promissory Note for Conditional Grant
Exhibit "B" Equipment List
Exhibit "C" Deed of Trust
Exhibit "D" Certification Regarding Lobbying
3D's Application to PAEDC for funding, by reference
VENUE
44. For purposes of litigation that may accrue under this Agreement, venue shall lie
in Jefferson County, Texas, where substantially all the performance will occur.
ADDRESS OF NOTICE AND COMMUNICATIONS
City of Port Arthur Section 4A Economic Development Corporation
444 4th Street
Port Arthur, Texas 77640
ATTN: Floyd Batiste, Chief Executive Officer
3D Architectural Metal Sales, Inc.
205 West Hwy 365
Port Arthur, Texas 77640
ATTN: Richard Daley
-]:2-
2~2F~00~
S E C O N D DRAFT
CAPTIONS
45. This Agreement has been supplied with captions to serve only as a guide to the
contents. The caption does not control the meaning of any paragraph or in any way
determine its interpretation or application.
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
46. 3D shall comply with al_l Federal, State and local laws, statutes, ordinances,
resolutions, rules, regulations, orders and decrees of any court or administrative body or
tribunal, including those related to the activities and performances of 3D under this
Agreement. Upon request by PAEDC and by the City, 3D shall furnish satisfactory proof of
its compliance herewith.
CONDITIONS PRECEDENT
47. This agreement has no legal consequences, and neither party shall rely on the
agreement, unless and until
a. Both the PAEDC Board and the Port Arthur City Council approve the
Agreement in its final executed form.
b. 3D provides an equipment list for Exhibit "B" of this contract.
C. Richard and Jeanette Daley deliver a fully executed Deed of Trust and
legal description for the real property provided as collateral for this
contract. See Exhibit "C".
ATTORNEY APPROVALS
APPROVED AS TO FORM:
GuyGoodson, GenemlCounsel~rPAEDC
VERIFIED AS CONSISTANT
WITH CITY COUNCIL RESOLUTION:
Resolution Number:
Mark T. Sokolow, City Attorney
-13-
S E C O N D DRAFT
AGREEMENT EXECUTION
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of ,2006
By: By:
President Eli Roberts Secretary Linda Spears
Witness Witness
3D ARCHITECTURAL METAL SALES, INC.
SIGNED AND AGREED TO on the __day of ., 200__.
3D Architectural Metal Sales, Inc., a
Texas corporation.
By:
Position
Witness
-14-
2~2/2006
EXHIBIT "Al"
COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
Effective Date: the day of ,200
Principal Amount: ONE HUNDRED THREE THOUSAND SIX HUNDRED TEN AND
76/100 DOLLARS ($103,000.00).
Term of the Loan: Seven (7) years from effective date.
Payment Schedule: Monthly until principal is paid fully, starting on the 15th day of
., 2007 [one year after execution].
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office
at P O Box 1089 Port Arthur Texas 77640-1089, or such other place or places as the
holder hereof shall from time to time designate in written notice to Maker, the principal
amount, in legal and lawful money of the United States of America, together with interest
thereon from the date hereof until maturity at the rate of four percent (4%) per annum as
detailed herein.
A past due pr nc pa and nterest shall bear interest from date of maturity until paid
at the rate of fifteen percent (15%) per annum, or to the ma,ximum,e~ent all.ow,ed by law
(whichever is less) as may hereafter be in effect, payable on aemana a~zer ma[urity.
This note is due and payable as follows: Eighty four (84) equal monthly
installments of principal and interest paid on the fifteenth of each month.
Any notices required or permtted to be given by the holder hereof to Maker
pursuant to the provisions of this note shall be in writing and shall be either personally
delivered or transmitted by first class United States mail, addressed to Maker at the
address designated below for receipt of notice (or at such other address as Maker may,
from time to time, designate in writing to the holder hereof for receipt of notices
hereunder). Any such notice personally delivered shall be effective as of the date of
delivery, and any notice transmitted by mail, in accordance with the foregoing provisions,
shall be deemed to have been given to and received by Maker as of the date on which
such notice was deposited with the United States Postal Service, properly addressed and
with postage prepaid.
This note is also secured by. and entitled to the benefits of all other security
agreements, pledges collateral assignments, deeds of trust, guaranties, mortgages,
assignments and lien instruments, if any, of any kind executed by Maker or by any other
party as security for any loans owing by Maker to the Lender. Such lien instruments shall
~nclude those execute(] simultaneously herewith, those heretofore executed, and those
hereafter executed.
If any installment or payment of principal or interest of this note is not paid when
due or any drawer, acceptor endorser, guarantor, surety, accommodation party or other
person now or hereafter primarly or secondarily liable upon or for payment of all or any
part of th s note (each here nafter called an "other liable, party") shal die, or be, come
insolvent (however such inso vency may be evidenced); or it any proceea ng, proceaure or
remedy supplementary to or in enforcement of judgment shall be resorted to or
commenced against Maker or any other liable party, or w~th respect to any property of any
of them; or if any governmental authority or any court at the instance thereof shall take
possession of any substantial part of the property of or assume control over the affairs or
operations of or a receiver shall be appointed for or take possession of the property of, or
a writ or order of attachment or garnishment shall be issued or made against any of the
property of Maker or any other liable party; or if any indebtedness for which Maker or any
other liable party is primarily or secondarily liable shall not be paid when due or shall
become due and payable by acceleration of maturity thereof, or if any event or condition
sha occur which sha I permt the holder of any such indebtedness to declare it due and
payable upon the lapse of t me 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
termnated 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 w thout 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 ~n connection with or as security for th s note; or any event occurs or condition
exists which causes Lender to in good faith deem itself insecure or in good faith believe
the prospect of payment or performance by Maker or any other liable party under this note,
under any instrument or agreement executed in connection with or as security for this
note, or under any other indebtedness of Maker or any other liable party to Lender is
impaired; thereupon, at the option of Lender, the principal balance and accrued interest of
this note and any and all other indebtedness of Maker to Lender shall become and be due
and payable forthwith without demand, notice of default, notice of acceleration, notice of
intent to accelerate the maturity hereof, notice of nonpayment, presentment, protest or
notice of dishonor all of which are hereby expressly waived by Maker and each other
liable party. Lender may waive any defaut wthout 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
p. roceedmgs for collection hereof, Maker and each other liable party agree to pay Lender
~ts 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 wit~ or as security for this note, it is agreed as
fotlows: (i) the aggregate of all consideration which constitutes interest under applicable
aw that s taken, reserved contracted for charged or received under this note or under
any of the other aforesaid agreements or otherw se n connection with this note shall under
no circumstances exceed the maximum amount of interest allowed by applicable Iaw, and
any excess sba be credited on th s 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
acce erated by reason of an election by the holder hereof resulting from any default
hereunder or otherwise, or in the event of any required or permtted prepayment, then
such consideration that constitutes interest may never include more than the maximum
amount allowed by app cable law, and excess interest if any provided for in this note or
otherwse shall be canceled automat caly as of the date of such acceleration or
prepayment and, if theretofore prepaid shall be credited on this note (or if this note shall
have been paid in full, refunded to Maker); and (iii) all calculations of the rate of interest
taken reserved, contracted for char~)ed or received under this note or under any of the
other aforesaid agreements or otherwise n connect on with this note, that are made for the
purpose of determining whether such rate exceeds the maximum lawful rate shall be
made, to the extent permitted by applicable law, by amortizing,prorating, allocating, and
spreading such interest over the entire term of the loan evidencedby this note(including all
renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
pena ty No partial prepayment shal/reduce postpone or delay the obligation of Maker to
continue paying the installments herein provided on their respective due dates following
any such partial prepayment until this note is fully paid.
The Maker shall be directly and pdmadly liable for the payment of all sums called
for hereunder and except for nobces specifically required to be g~ven by the holder hereof
to Maker pursuant to the eadier provis ons of th s note, Maker and each other liable party
hereby expressly wa ve demand presentment for payment notice of nonpayment, protest,
not ce 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 handl ng any of the security therefor and do hereby agree to any substitution, exchange
or re ease, in who e or n part, of any security here-for or the release of any other liable
party, and do hereby consent to any and all renewals or extensions from time to time, of
this note, or anypart hereof, either before or after maturity, all without any notice thereof to
any of them andwithout affecting or releasing the liability of any of them. Each holder
hereof in order to enforce payment of this note by any other liable party, shall be required
to first institute suit or exhaust ts remedies against Maker and to enforce its rights against
any security therefor pdor to enforcing payment of this Note by any other liable party.
SIGNED AND AGREED TO on the __.day of ,2006.
3D Architectural Metal Sales, Inc.,
a Texas corporation
By:.
Signature
Its:
Position
ACKNOWLEGEMENT
THE STATE OF TEXAS *
COUNTY OF JEFFERSON *
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally
appeared , known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act and deed of 3D ARCHITECTURAL METAL SALES, INC., a
Texas corporation, 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:
3D Architectural Metal Sales, Inc., a
Texas corporation
cio Richard Daley
205 West Hwy 365
Port Arthur, Texas 77640
EXHIBIT "A2"
COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when 3D
Architectural Metal Sales, Inc., a Texas corporation (hereinafter called "Maker") breaches
that certain Economic incentive Contract and Loan Agreement between th,e, City o,f, Port
Arthur Section 4A Economic Development Corporation (hereinafter called Lender') and
Maker, dated ,2006.
Effective Date of Note: the day of ,200 .("date of breach")
Principal Amount: $. , which is $112,000.00 minus the incentive credits
earned by Maker according to that certain Economic Incentive Contract and Loan
Agreement between the Lender and Maker (described hereinbefore).
Term of the Loan: Three years from effective date.
Payment Schedule: Monthly until principal is paid fully.
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lende,r, at its o~,ce
at P.O. Box 1089, Port Arthur, Texas 77640-1089, or such other place or p~aces as [ne
holder hereof shall from time to time designate in written notice to Maker, the principal
amount, in legal and lawful money of the United States of America, together with interest
thereon from the date hereof until maturity at the rate of ten percent (10%) per annum as
detailed herein.
A past due principal and interest shall bear interest from date of maturity until paid
at the rate of fifteen percent (15%) per annum, or to the maximum extent allowed by law
(whichever is greater) as mayhereafter be in effect, payable on demand after maturity.
This note is due and payable as follows: Thirty-six (36) equal monthly installments
of principal and interest on the fifteenth of each month, starting on the month immediately
following the effective date of the Note.
Any notces required or permitted to be given by the holder hereof to Maker
pursuant to the provisions of this note shall be in writing and shall be either personally
delivered or transmitted by first class United States mail, addressed to Maker at the
address designated below for receipt of notice (or at such other address as Maker may,
from time to time, designate in writing to the holder hereof for receipt of notices
hereunder) Any such notice I~ersonally delivered shall be effective as of the date of
delivery, and any not ce transmitted by mail, in accordance with the foregoing provisions,
sha be deemed to have been given to and received by Maker as of the date on which
such notice was deposited with t]~e 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, f 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 payme.nt of all or any
part of this note (each hereinafter called an "other liable party")shall d~e, or become
~nsolvent (however such insolvency may be evidenced); or if any proceeding, procedure or
remedy supplementary to or in enforcement of judgment shall be resorted to or
commenced against Maker or any other liable party, or w~th respect to any property of any
of them or if any governmental authority or any court at the ~nstance thereof shall take
possession of any substantial part of the property of or assume control over the affairs or
operations of, or a rece ver shall be appointed for or take possession of the property of, or
a 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 primary or secondarily liable shall not be paid when due or shall
become due and payab e 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
payab e 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
termnated, or a party to any merger or consolidation without the written consent of
Lender; or if Maker or any other liable party shall sell substantially all or an integral portion
of its assets without the wr tten consent of Lender;, or if Maker or any other liable party fails
to 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
misleadin9 in any respect; or if a default occurs under any instrument now or hereafter
executed in connect on 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 be eve
the prospect of payment or performance by Maker or any other liable party under this note,
under any instrument or agreement executed in connection with or as security for this
note, or under any other indebtedness of Maker or any other liable party to Lender is
mpa red; thereupon, at the option of Lender the principal balance and accrued interest of
this note and any and a other indebtedness of Maker to Lender shall become and be due
and payable fodhwith without demand, notice of default, notice of acceleration, notice of
ntent to accelerate the maturity hereof notice of nonpayment, presentment, protest or
not ce of dishonor a of which are hereby expressly waived by Maker and each other
liable party. Lender may waive any defaut wthout wavng 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 n probate, bankruptcy, receivership, reorganization, arrangement or other legal
proceedings for collect on hereof, Maker and each other liable party agree to pay Lender
its co ection costs, including court costs and a reasonable amount for attorneys fees.
It is the intention of Maker and Lender to conform strictly to a. pplicable usury laws.
Accordingly if the transacton 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
fo]ows ( ) the aggregate of all consideration which constitutes interest under applicable
aw that s taken, resewed, contracted for charged or received under this note or under
any of the other aforesaid agreements or otherwise in connect on 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 n ful, refunded to Maker); (ii) in the event that maturity of this note is
acce erated 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 char~ed or received under this note or under any of the
other aforesaid agreements or otherwise n connection with th s note, that are made for the
purpose of determining whether such rate exceeds the maximum lawful rate shall be
made, to the extent permitted by applicable law, by amortizing,prorating, allocating, and
spreading such interest over the entire term of the loan evidencedby this note(including all
renewal and extended terms).
Maker may prepay all or any part of the principal of this note before matudtywithout
penalty. No partial prepayment shal/reduce postpone or delay the obligation of Maker to
continue paying the installments herein provided on their respective due dates following
any such partial prepayment until this note is fully paid.
The Maker shall be directly and primarily liable for the payment of all sums called
for hereunder; and, except for not~ces specifically required to be given by the holder hereof
to Maker pursuant to the earlier provisions of th~s note, Maker and each other liable party
hereby expressly waive demand, presentment for payment, notice of nonpayment, protest,
notce 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, n who e or in part, of any security here-for or the release of any other liable
party, and do hereby consent to any and all renewals or extensions from time to t me, 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 liabihty of any of them. Each holder
hereof, in order to enforce payment of this note by any other liable party, shall be required
to first nstitute suit or exhaust its remedies against Maker and to enforce its rights against
any security therefor prior to enforcing payment of this Note by any other liable party.
SIGNED AND AGREED TO on the __ day of ,200__.
3D Architectural Metal Sales, Inc.,
a Texas corporation
By:
Signature
Its:
Position
ACKNOWLEGEMENT
THE STATE OF TEXAS *
COUNTY OF JEFFERSON *
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally
appeared , known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act and deed of 3D ARCHITECTURAL METAL SALES, INC., a
Texas corporation, 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:
3D Architectural Metal Sales, Inc.., a
Texas corporation
205 W. Hwy 365
Port Arthur, Texas 77640
ATTN: Richard Daley
EXHIBIT "B"
EQUIPMENT LIST FROM APPLICATION
EXHIBIT "C"
DEED OF TRUST
Date: ,2006
Grantor: Richard Daley, married to Jeanctte Dalcy.
Grantors' Mailing Address
(including county): 205 West Highway 365
Port Arthur, Texas 77640
(Jefferson County)
Trustee: KATHLEEN A. MCGLYNN
Trustee's Mailing Address: Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
(Jefferson County)
Beneficiary: PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION ("PAEDC")
Beneficiary's Mailing Address
(including county): 4173 39~ Street
Port Arthur, Texas 77642
(Jefferson County)
Note (No. 1)
Date: ,2006
Amount: $103,000.00
Maker: 3D Architectural Metal Sales, Inc.
Payee: PAEDC (Beneficiary)
Final Maturity Date: ,2014
Note (No. 2)
Date: ,2006
Amount: , $112,000.00 minus incentive
credits earned by Maker according to that certain Economic
Incentive Contract and Loan Agreement between Grantor
and Beneficiary.
Maker: 3D Architectural Metal Sales, Inc.
Payee: PAEDC (Beneficiary)
Final Maturity Date: Three years after the date &the Note.
Property: See Attachment for legal description.
Physical address is 205 Hwy 365, Port Arthur, Texas.
The Property covered by this Instrument includes the Land and the following items,
whether now owned or hereafter acquired, all of which, including replacements and additions
thereto, shall be deemed to be and remain part of the Property covered by this Instrument, and all
rights, hereditaments and appurtenances pertaining thereto, all of which are referred to as the
"Property":
(a) Any and all buildings, improvements, and tenements now or hereafter attached to or
placed, erected, constructed, or developed on the Land;
(b) all fixtures, now or hereafter attached to Land or Improvements, that are necessary or
useful for the complete and comfortable use and occupancy of the Land and
Improvements;
(c) all water and water rights, timber, crops, and mineral interest pertaining to the Land;
(d) all building materials and fixtures now or hereafter delivered to and intended to be
installed in or on the Land or the Improvements;
(e) all plans and specifications for the Improvements and for any future development of
or construction on the Land;
(f) all Grantor's rights (but not Grantor's obligations) under any contracts relating to the
Land or the Improvements;
(g) all deposits (including tenant security deposits), bank accounts, funds, instruments,
notes or chattel paper arising from or by virtue of any transactions related to the Land
or the Improvements;
(h) all Grantor's rights (but not Grantor's obligations) under any documents, contract
rights, accounts, commitments, construction contracts (and all payment and
performance bonds, statutory or otherwise, issued by any surety in connection with
any such construction contracts, and the proceeds of such bonds), architectural
contracts and engineering contracts arising from or by virtue of any transactions
related to the Land or the Improvements;
(i) all permits, licenses, franchises, certificates, and other rights and privileges now
owned or held or hereafter obtained in connection with the Land and the
Improvements;
(j) all development rights, utility commitments, water and wastewater taps, capital
improvement project contracts, utility construction agreements with any
governmental authority, including municipal utility districts, or with any utility
companies (and all refunds and reimbursements thereunder) relating to the Land or
the Improvements;
(k) all proceeds arising from or by virtue of the sale, lease or other disposition of the
Land or the Improvements;
(1) all proceeds (including premium refunds) of each policy of insurance relating to the
Land and the Improvements;
(m) all proceeds from the taking of any of the Land or the Improvements or any rights
appurtenant thereto by right of eminent domain or by private or other purchase in lieu
thereof, including change of grade of streets, curb cuts or other rights of access, for
any public or quasi-public use under any law;
(n) all right, title, and interest of Grantor in and to all streets, roads, public places,
easements, and rights-of-way, existing or proposed, public or private, adjacent to or
used in connection with, belonging or pertaining to the Land;
(o) all of the Leases, rents, royalties, bonuses, issues, profits, revenues, or other benefits
of the Land or the Improvements, including without limitation cash or securities
deposited pursuant to leases to secure performance by the tenants of their obligations
thereunder (subject to the Assignment of Rents made in Article V below); and
(p) other interest of every kind and character that Grantor now has or at any time
hereafter acquires in and to the Land and the Improvements, including rights of
ingress and egress and all reversionary rights or interests of Grantor with respect to
such property and all of Grantor's rights (but not Grantor's obligations) under any
covenants, conditions, and restrictions for the Land, as the same may be mended
from time to time, including Grantor's rights, title, and interests thereunder as
declarant or developer, if applicable.
Prior Lien(s) (including recording information): None
Other Exceptions to Conveyance and Warranty:
This conveyance is made expressly SUBJECT TO any and all restrictions, covenants,
conditions, easements, right-of-ways, and mineral and/or royalty reservations of record, if
any, affecting this Property.
For value received and to secure payment of the note, Grantor conveys the property to
Trustee in trust. Grantor warrants and agrees to defend the title to the property. If Grantor
performs all the covenants and pays the notes according to their terms, this deed of trust shall
have no further effect, and Beneficiary shall release it at Grantor's expense.
Grantor's Obligations Grantor agrees to:
1. keep the property in good repair and condition;
2. pay all taxes and assessments on the property when due and by January 31 of the
year immediately following, furnishing Beneficiary copies of tax receipts showing
that all such taxes and assessments have been paid;
3. preserve the lien's priority as it is established in this deed of trust;
4. maintain, in a form acceptable to Beneficiary, an insurance policy that
a. covers all improvements for their full insurable value as determined when the
policy is issued and renewed, unless Beneficiary approves a smaller amount in
writing;
b. contains an 80% coinsurance clause;
c. provides fire and extended coverage, including windstorm coverage;
d. protects Beneficiary with a standard mortgage clause;
e. provides flood insurance at any time the property is in a flood hazard area; and
f. contains such other coverage as Beneficiary may reasonably require;
5. comply at all times with the requirements of the 80% coinsurance clause;
6. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at
least ten days before expiration;
7. keep any buildings occupied as required by the insurance policy; and
8. if this is not a first lien, pay al lien notes that Grantor is personally liable to pay
and abide by all prior lien instruments.
Beneficiary's Rights
I. Beneficiary may appoint in writing a substitute or successor trustee, succeeding to
all rights and responsibilities of Trustee;
2. If the proceeds of the note are used to pay any debt secured by prior liens,
Beneficiary is subrogated to all of the rights and liens of the holders of any debt
so paid;
3. Beneficiary shall apply any proceeds received under the insurance policy to repair
or replace damaged or destroyed improvements covered by the policy, unless
Grantor is in default of Notes or Deed of Trust in which case insurance proceeds
may be applied to reduce Grantor's obligation under Notes or Deed of Trust;
4. If Grantor fails to perform any of Grantor's obligations, Beneficiary may perform
those obligations and be reimbursed by Grantor on demand at the place where the
note is payable for any sums so paid, including attorney's fees, plus interest on
those surns from the dates of payments at the rate stated in the note for matured,
unpaid amounts. The sum to be reimbursed shall be secured by this deed of trust.
5. If Grantor defaults on the note or fails to perform any of Grantor's obligations or
if default occurs on a prior lien note or other instrument, and the default continues
after Beneficiary gives Grantor notice of the default and the time within which it
must be cured, as may be required by law or by written agreement, then
Beneficiary may:
a. Declare the unpaid principle balance and earned interest on the note
immediately due;
b. Request Trustee to foreclosure this lien, in which case Beneficiary or
Beneficiary's agent shall give notice of the foreclosure sale, as provided by
the Texas Property Code as then amended; and
c. Purchase the property at any foreclosure sale by offering the highest bid and
then have the bid credited on the note(s).
Trustee's Duties
If requested by Beneficiary to foreclose this lien, Trustee shall:
1. Either personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then amended;
2. Sell and convey all or part of the property to the highest bidder for cash with a
general warranty binding Grantor subject to prior liens and other exceptions to
conveyance and warranty; and
3. From the proceeds of the sale, pay in this order
a. Expenses of foreclosure;
b. To Beneficiary, the full amount of principle, interest, attorney's fees, and
other charges due and unpaid;
c. Any amount required by law to be paid before payment to Grantor; and
d. To Grantor, any balance.
General Provisions
1. If any of the property is reconveyed under this deed of trust, Grantor shall
immediately surrender possession to the Beneficiary. If Grantor fails to do so,
Grantor shall become a tenant at sufferance of the Beneficiary, subject to an
action for forcible detainer.
2. Recitals in any Tmstee's deed conveying the property will be presumed to be true.
3. Proceeding under this deed of trust, filing suit or pursuing any other remedy will
not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment of
all or part of the note is extended or part of the property is released.
5. If any portion of the note cannot be lawfully secured by this deed of trust,
payments shall be applied first to discharge that portion.
6. Grantor assigns to Beneficiary all sums payable to or received by Grantor from
condemnation of all or part of the property, from private sale in lieu of
condemnation, and fi.om damages caused by public works or construction on or
near the property. After deducting any expenses incurred, including attorney's
fees, Beneficiary may release any remaining sums to Grantor or apply such sums
to reduce the note Beneficiary shall not be liable for failure to collect or to
exercise diligence in collecting any such sums.
7. Grantor assigns to Beneficiary absolutely, not only as collateral, all present and
future rent and other income and receipts from the property. Leases are not
assigned. Grantor warrants the validity and enforceability of the assignment.
Grantor may as Beneficiary's licensee collect rent and other income and receipts
as long as Grantor is not in default under the note or this deed of trust. Grantor
will apply all rent and other income and receipts to payment of the note and
performance of this deed of trust, but if the rent and other income and receipts
exceed the amount due under the note and deed of trust, Grantor may retain the
excess. If Grantor defaults in payment of the note of performance of this deed of
trust, Beneficiary may terminate Grantor's license to collect and then as Grantor's
agent may rent the property if it is vacant and collect all rent and other income
and receipts. Beneficiary neither has not assumes any obligations as lessor or
landlord with respect to any occupant of the property. Beneficiary may exercise
Beneficiary's fights and remedies under this paragraph without taking possession
of the propea'ty. Beneficiary shall apply all rent and other income and receipts
collected under this paragraph first to expenses incurred in exercising
Beneficiary's rights and remedies and then to Grantor's obligations under the note
and this deed of trust in the order determined by Beneficiary. Beneficiary is not
required to act under this paragraph, and acting under this paragraph does not
waive any of Beneflciary's other fights or remedies. If Grantor becomes a
voluntary or involuntary bankrupt, Beneficiary's filing a proof of claim in
bankruptcy will be tantamount to the appointment of a receiver under Texas law.
8. Interest on the debt secured by this deed of trust shall not exceed the maximum
amount of nonusur/ous interest that may be contracted for, taken, reserved,
charged, or received under law; any interest in excess of that maximum amount
shall be credited on the principal of the debt or, if that has been paid, refunded.
On any acceleration or required or permitted prepayment, any such excess shall
be canceled automatically as of the acceleration or prepayment or, if already paid,
credited on the principal of the debt or, if the principal of the debt has been paid,
refunded. This provision overrides other provisions in this and all other
instruments concerning the debt.
9. When the context requires, singular nouns and pronouns include the plural.
10. The term note includes all sums secured by this deed of trust.
11. This deed of trust shall bind, insure to the benefit of, and be exercised by
successors in interest of all parties.
12. If Grantor and Maker are not the same person, the term Grantor shall include
Maker.
13. If all or any part of the Property is sold, conveyed, leased for a period longer than
three (3) years, leased with the option to purchase, or otherwise sold (including
contract for deed), without the prior written consent of Beneficiary, then
Beneficiary may at its option declare the outstanding balance of the Note(s), plus
accrued interest to be immediately due and payable. The creation ora subordinate
lien, any sale thereunder, any deed under threat or order of condemnation, any
conveyance solely between Makers, the passage of title by reason of the death of
a Maker or by operation of law shall not be construed as a sale or conveyance of
the Property.
14. THIS DEED OF TRUST IS GRANTED IN CONJUNCTION WITH THAT
CERTAIN ECONOMIC INCENTIVE CONTRACT AND LOAN AGREEMENT
OF EVEN DATE.
By:
Richard Daley, a married man
By:
Jeanette Daley, wife of Richard Daley
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared
Richard Daley, 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 3D ARCHITECTURAL METAL SALES, INC., a Texas corporation, 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
BEFORE ME, THE UNDERSIGNED Notary Public, on this day personally appeared
Jeanette Daley, 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 3D ARCHITECTURAL METAL SALES, INC., a Texas corporation, 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
AFTER RECORDING RETURN TO:
Kathleen A. McGlynn
Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
Attachment to Deed of Trust
Legal Property Description
EXHIBIT "O"
CERTIFICATION REGARDING LOBBYING
For Contracts, Grants, Loans, and Cooperative Agreements
The undersigned cedifles, 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 cedification 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 cedification is a prerequisite
for making or entering into this transaction.
Signed:
3D Architectural Metal Sales, Inc.
By:
Signature
Its:
Position