HomeMy WebLinkAboutPR 16984: LOAN AGREEMENT BETWEEN WILLFIRE HC, LLC AND THE EDC Interoffice 2012 JUN -- 7 PH 2: 57
MEMORANDUM
To: Mayor, City Council, City Manager
From: Floyd Batiste, CEO 3-
Date: June 6, 2012
Subject: P. R. No16984; Council Meeting on June 12, 2012
Attached is P. R. No. 16984 requesting the City Council
approve an Incentive Contract & Loan Agreement between
WillFire HC, LLC and the City of Port Arthur Section 4A
Economic Development Corporation
1
P. R. No. 16984
6/06/2012
RESOLUTION NO.
A RESOLUTION APPROVING AN ECONOMIC INCENTIVE
CONTRACT & LOAN AGREEMENT BETWEEN WILLFIRE
HC, LLC AND THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
WHEREAS, the City Council deems it in the public interest to authorize the City of Port
Arthur Section 4A Economic Development Corporation (the "PAEDC ") to enter into an
Economic Incentive Contract & Loan Agreement (the "Agreement ") with WillFire HC, LLC
( "WillFire "); and
WHEREAS, Germer Getz, L.L.P has indicated that WillFire has presented an
application qualifying as a Section 4A project as set forth in the Executive Summary of the
Agreement; and
WHEREAS, the PAEDC has reviewed the WillFire application and accompanying
financial statements presented by WillFire and recommends approval thereof; and
WHEREAS, WillFire has proposed to build an 60,000 square foot manufacturing facility
for fabrication assembly and testing of the products as well as a service and product training
center to be located in the PAEDC Spur 93 Business Park; and
WHEREAS, the PAEDC shall convey up to twelve (12) acres of land within the
Business Park at a discount of one -half of the market value of the property as the economic
incentive; and
WHEREAS, WillFire agrees to maintain business operations at its facilities in the
Business Park for a period of seven (7) years and within which time it shall additionally create
payroll of $315,000 or more for Port Arthur residents in order to meet its performance to this
Agreement.
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 PAEDC is herein authorized to enter into the Agreement with
WillFire HC, LLC, and the President and Secretary of PAEDC are authorized to sign the
Agreement in substantially the same form as set forth in Exhibit "A" attached hereto.
Section 3. That a copy of this Resolution shall be spread upon the Minutes of the City
Council.
READ, ADOPTED AND APPROVED on this day of A.D., 2012,
at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
AYES:
Mayor ,
Councilmembers
NOES: •
Deloris "Bobbie" Prince, Mayor
ATTEST:
Sherri Bellard, City Secretary
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I
APPROVED:
Floyd Batiste, PAEDC CEO
APPROV . � S T ► . RM:
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
S ee evi■c■Aon \■ a\ M Qvv\O
Valecia R. Tizeno, City Attorney
APPROVED AS TO THE AVAILABILITY OF FUNDS:
Deborah Echols, Director of Finance
i
#933681 Page 3
Exhibit "A"
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
WILLFIRE HC, LLC
Executive Summary
WillFire HC, LLC ( "Incentive Recipient "), a Delaware limited liability company, operates
through various business entities which is a leader in providing fire protection products and services,
and Incentive Recipient plans to construct a new manufacturing and service center in Southeast Texas to
be Located in Port Arthur, Texas. Incentive Recipient has proposed an approximately 60,000 square
foot manufacturing facility for fabrication assembly and testing of the products of Incentive Recipient as
well as for a service and product training center (the "Project ") to be located on property within the
City of Port Arthur Section 4A Economic Development Corporation (the "PAEDC ") Business Park on
Spur 93 in Port Arthur, Texas (the "Business Park "). The PAEDC along with the City of Port Arthur,
Texas (the "City") shall assist Incentive Recipient in this business endeavor by providing certain
agreements or incentives which, as to the PAEDC, shall include a conditional grant/Ioan in exchange
for certain agreements by Incentive Recipient. Incentive Recipient intends to invest approximately $7 -8
million in land, building and equipment and to initiate its business operations with approximately 41
current employees coming from Iocations in Southeast Texas and generating a payroll of approximately
$1.8 million. With the growth of business, Incentive Recipient anticipates creating additional full -time
permanent jobs and shall use the services of PAEDC to help find qualified applicants as hereinafter
described. Incentive Recipient also anticipates upon completion of construction of the Project, it should
serve over 200 individuals per year in its facilities for training and business development.
The Economic Incentive Contract & Loan Agreement (the "Agreement ") shall be for a period
of five (5) years from the date Incentive Recipient initiates its business operations within the Business
Park. Incentive Recipient has further agreed to execute the First Source Referral Agreement ( "First
Source ") and to utilize the services of the PAEDC to find qualified applicants for additional
employment at the Project. The PAEDC has agreed that as consideration for the promised performance
of Incentive Recipient, PAEDC shall convey to Incentive Recipient up to twelve (12) acres of land
within the Business Park. PAEDC will provide a discount of one -half of the market value of the
property ($52,500 per acre) as the economic incentive for Incentive Recipient to locate its facilities in
Port Arthur and to plan for future business expansion. PAEDC and Incentive Recipient have agreed
that the incentive credit shall be for an amount not to exceed $315,000, representing the discounted
property value of $26,250 times a maximum of twelve (12) acres to be conveyed by PAEDC. As a part
of its performance, in addition to constructing the Project, Incentive Recipient shall continuously
operate its facilities in the Business Park for a period of not less than seven (7) years from the date it
initiates business operations in the Business Park in order to meet its performance pursuant to this
Agreement. Additionally, Incentive Recipient agrees to create $315,000 or more of payroll to Port
Arthur residents during the 7 -year term of the Agreement with the payroll in accordance with Section
5(c) of the Agreement.
Incentive Recipient shall have the option to cancel all duties and obligations under the
Agreement and have the property to be acquired located within the Business Park transferred to it under
Special Warranty Deed by paying to the PAEDC the difference between the undiscounted and the
discounted purchase price at the time the Agreement is cancelled (the "Buyout Option "). The Buyout
Option shall apply even in the event of termination of the Agreement by PAEDC.
Incentive Recipient has agreed to a Performance Milestone Schedule and the providing of status
reports as outlined in the Agreement.
ECONOMIC INCENTIVE & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
WILLFIRE HC, LLC ( "INCENTIVE RECIPIENT ")
INTRODUCTION 1
AGREEMENT TERM 1
PARTIES 1
PROMISED PERFORMANCE 2
(A) PERFORMANCE BY PAEDC 2
(B) PERFORMANCE BY INCENTIVE RECIPIENT 2
(C) CREDITS — SUBSTITUTE PERFORMANCE 3
(D) FIRST SOURCE REFERRAL AGREEMENT 4
PERFORMANCE MILESTONE SCHEDULE 4
CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY OF PAEDC 5
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT 6
RECORDS / INSPECTION / PAEDC AUDIT 6
HOLD HARMLESS 7
SUBCONTRACTS 8
CONFLICT OF INTEREST / DISCLOSURE OBLIGATION 8
NONDISCRIMINATION / EMPLOYMENT / REPORTING 9
LEGAL AUTHORITY 9
NOTICE OF LEGAL OR REGULATORY CLAIMS 10
CHANGES AND AMENDMENTS 10
DEFAULT / TERMINATION 10
COMPLIANCE AUDITS 11
SUPPLEMENTAL COVENANT 12
ENVIRONMENTAL REQUIREMENTS 12
ORAL AND WRITTEN AGREEMENTS / PRIOR AGREEMENTS 13
VENUE 13
ADDRESS OF NOTICE AND COMMUNICATIONS 13
CAPTIONS 14
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS 14
CONDITIONS PRECEDENT 14
MISCELLANEOUS 14
ATTORNEY APPROVALS 15
AGREEMENT EXECUTION 15
Exhibit "A" Conditional Commercial Promissory Note
Exhibit "B" Special Warranty Deed
Exhibit "C" Deed of Trust
Exhibit "D" Certification Regarding Lobbying
Exhibit "E" Compliance Statement
Exhibit "F" First Source Referral Agreement
Exhibit "G" Incentive Recipient Application to PAEDC
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
WILLFIRE HC, LLC ("INCENTIVE RECIPIENT ")
INTRODUCTION
The Incentive Recipient is a Delaware limited partnership doing business in Port Arthur,
Texas. The Incentive Recipient intends to purchase 12 acres of land from the City of Port Arthur
Section 4A Economic Development Corporation pursuant to a Purchase Agreement and construct
an approximately 60,000 square foot manufacturing facility for fabrication assembly and testing of
Incentive Recipient's products as well as for a service and product training center (the "Project ")
to be located on property within the City of Port Arthur Section 4A Economic Development
Corporation's (the "PAEDC ") Business Park on Spur 93 in Port Arthur, Texas (the "Business
Park "). Current market demands are such that Incentive Recipient plans to initiate the above -
referenced business operation.
AGREEMENT TERM
EFFECTIVE DATE
1. This Economic Incentive Contract and Loan Agreement ( "Agreement ") is entered into
with an effective date of , 2012 (the "Effective Date "), by and between the
PAEDC and Incentive Recipient.
TERMINATION DATE
2. This Agreement expires the earlier of May 31, 2018, or 30 days after Incentive
Recipient either performs fully or breaches the Agreement, subject to earlier termination or
extension, voluntary or involuntary, as provided herein (the "Termination Date "). The period
from the Effective Date of this Agreement through and including the Termination 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 ( "PAEDC "),
located at 4173 -39" Street, Port Arthur, Texas, 77642, is a corporation. It is duly authorized to
do business in the State of Texas under Chapter 504, Local Government Code (the "Development
Corporation Act of 1979" as amended) and duly authorized by Resolution of the City Council of
the City of Port Arthur (the "City ") to enter into this Agreement. As 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. WillFire HC, LLC ( "Incentive Recipient ") is a Delaware limited liability company
which has applied for registration as a foreign limited partnership with the Secretary of State of
the State of Texas. Incentive Recipient's corporate address is 204 South Sixth St. Mansfield, TX
76063.
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
i. PAEDC shall conditionally grant Incentive Recipient an incentive of $315,000,
subject to the conditions and limitations herein, which Incentive Recipient is not
required to repay unless Incentive Recipient breaches this Agreement. If Incentive
Recipient breaches this Incentive Agreement or exercises the Buyout Option, then
the conditional grant will become a loan as provided in Exhibit "A".
ii. The conditional grant to Incentive Recipient shall be for the conveyance of up to
twelve (12) acres of land in the Business Park as more fully described in the
Special Warranty Deed attached hereto as Exhibit "B" to this Agreement (the
"Property ").
iii. PAEDC shall record the Special Warranty Deed described in Exhibit "B" to this
Agreement (the "Special Warranty Deed ") and the Deed of Trust described in
Exhibit "C" to this Agreement (the "Deed of Trust ") at the Closing pursuant to the
Purchase Agreement between the Parties, and such Deed of Trust shall be removed
by an appropriate instrument of satisfaction which shall be recorded promptly upon
the satisfaction of the obligations of the Incentive Recipient under this Agreement.
PAEDC WILL ONLY PROVIDE AN INCENTIVE AS TO THE PROPERTY IF
INCENTIVE RECIPIENT HAS DULY EXECUTED A DEED OF TRUST AND /OR
OTHER APPROPRIATE COLLATERAL SECURITY INTEREST AS TO THE
PROPERTY. PAEDC SHALL NOT PROVIDE ADDITIONAL INCENTIVES
EVEN THOUGH THERE ARE DEMONSTRATED INCREASES IN THE VALUE
OF THE PROPERTY DUE TO IMPROVEMENTS PLACED THEREON BY
INCENTIVE RECIPIENT. HOWEVER, INCENTIVE RECIPIENT SHALL
RECEIVE PROCEEDS, LESS THE AMOUNTS DUE UNDER THE NOTE
(INCLUDING COST OF COLLECTION), GENERATED FROM THE SALE OF
ANY COLLATERAL OR PROPERTY HELD FOR PERFORMANCE OF THE
OBLIGATIONS UNDER THE CONDITIONAL GRANT. THE DUTIES AND
OBLIGATIONS OF THIS AGREEMENT ARE PAEDC'S ONLY OBLIGATIONS
TO INCENTIVE RECIPIENT.
(b) PERFORMANCE BY INCENTIVE RECIPIENT
(1) Incentive Recipient, subject to the terms and conditions of the Purchase
Agreement, shall close on the purchase of up to twelve (12) acres of land in the
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Business Park for the development of the Project no later than the deadline as
shown in the Performance Milestone Schedule in this Agreement.
(2) Incentive Recipient shall begin construction on an approximate 60,000 square foot
office /manufacturing facility on the Project no later than the deadline as specified
in the Performance Milestone Schedule in this Agreement.
(3) Incentive Recipient shall have received its certificate of occupancy and shall occupy
its Project on the Property within eighteen (18) months from the close of the
Purchase Agreement or at such other time thereafter as may be reasonably agreed
upon between PAEDC and Incentive Recipient.
(4) Incentive Recipient shall continually conduct business operations during normal
business hours for a period that is the lesser of (i) seven (7) years from the date of
its receipt of certificate of occupancy for the Project on the Property or (ii) the
Termination Date.
(5) Incentive Recipient will be required to meet the conditions and agreements set forth
in the First Source Referral Agreement attached hereto as Exhibit "F" and made a
part hereof for all purposes.
(6) If the conditional grant provided by PAEDC to Incentive Recipient is to be secured
by an interest in real property, Incentive Recipient shall execute the Deed of Trust
contained in Exhibit "C".
(7) On demand by PAEDC and in response to Incentive Recipient's failure to achieve a
performance milestone, Incentive Recipient shall provide PAEDC with reasonable
assurances, proposed by Incentive Recipient and reasonably acceptable to PAEDC,
that it has both the intention and the capabilities to perform fully its contractual
obligations.
(c) CREDITS - SUBSTITUTE PERFORMANCE
Incentive Recipient may earn credits according to the following terms, to satisfy its
performance of this Agreement or either reduce the duration of this Agreement or
reduce the amount of liquidated damages in the event Incentive Recipient breaches the
Agreement or exercises the Buyout Option.
(1) Total credits cannot exceed $315,000.
(2) Incentive Recipient will forfeit any credits it earned during a period for which a
report is scheduled but Incentive Recipient fails to issue the report despite notice of
need for such report from PAEDC.
(3) Once Incentive Recipient has earned credits equal to $315,000, the conditional
grant and all obligations to PAEDC shall terminate.
017934 Page 3
(4) Incentive Recipient shall always have the option to cancel all duties and obligations
under this Agreement and the Note and Deed of Trust, and have the Property
properly transferred solely into its name under a Special Warranty Deed, by paying
to PAEDC the difference between $315,000 and any credits generated prior to the
date of such payment ( "Buyout Option "). This Buyout Option applies even in the
event of termination of the Agreement by PAEDC.
(5) Incentive Recipient shall be credited against the $315,000.00, on a dollar for dollar
basis, as duly reported and audited under this Agreement, all payroll for residents
of Port Arthur employed at the Project. Additionally, Incentive Recipient shall
continually operate on the Property for seven (7) years from the date of certificates
of occupancy. If Incentive Recipient has not logged credits equal to the $315,000
of payroll as committed, but has operated its facilities and paid all property taxes
and other City taxes, fees and assessments associated with the Project, Incentive
Recipient may (i) cancel its remaining obligations under paragraph 5(c)(4) of this
Agreement, (ii) execute and deliver the Promissory Note and Deed of Trust as set
forth in this Agreement or (iii) request an extension of the term of this Agreement.
(d) FIRST SOURCE REFERRAL AGREEMENT
PAEDC has adopted policies and procedures to assist Incentive Recipient in locating a
qualified workforce within the City. The First Source Referral Agreement is
incorporated into this Agreement in Exhibit "F" ( "First Source "). Incentive Recipient
has agreed to the policies and procedures within First Source as a resource and referral
for all appropriate new job openings of Incentive Recipient.
PERFORMANCE MILESTONE SCHEDULE
6. Upon failure to achieve a performance milestone and after Incentive Recipient has been
given an opportunity of no less than thirty (30) days to cure a default, PAEDC may demand
reasonable assurances' from Incentive Recipient 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. Incentive Recipient's performance milestones are contained in the following table.
Upon receipt of any status report listed below, PAEDC shall, as requested by Incentive Recipient,
issue documentation to the Incentive Recipient setting forth the total uncredited /unpaid amount
remaining.
PERFORMANCE MILESTONE SCHEDULE
Deadline Milestone
As set forth in Purchase Agreement Close on the purchase of up to twelve (12) acres of land in the Spur
(a) 93 Port Arthur Business Park.
1 Examples of reasonable assurances are copies of pending contracts and customer commitment letters and/or payment
of an agreed amount showing commitment to contractual obligations.
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December 31, 2012 Begin Construction on an approximately 60,000 sq. ft. office /
(b) manufacturing facility in the Spur 93 Port Arthur Business Park.
July 1, 2013 Issue a Status report on construction progress from November 2012
(c) to June 30, 2013 to PAEDC Deputy Director
December 3I, 2013 Complete construction on the office / manufacturing facility in the
Spur 93 Port Arthur Business Park and initiate business operations.
(d)
Any additional hiring by Incentive Recipient will be under the
PAEDC First Source of Referral Agreement.
Seven (7) years of Continuous WillFire will maintain its business present in the Spur 93 Business
(c) Business Operations Park for no less than seven (7) years after certificate of occupancy is
granted or until performance is otherwise satisfied as set forth herein.
Semiannually by each January and WillFire will provide PAEDC Operational reports every six months
(f) July 31 from the certificate of during the seven (7) year or until performance is otherwise satisfied or
occupancy the Agreement terminated as set forth herein
(g) Annually WillFire will provide PAEDC a copy of its annual property tax statement
to be provided upon payment through the Jefferson County Tax Office.
December 31, 2020 or sooner WilIFire has met all the above milestones , and the Agreement shall be
(h) closed, and any collateral not previously released shall be released
pursuant to the terms of this Agreement.
PAEDC'S CONDITIONAL OBLIGATIONS AND LIMITED LIABILITY
8. PAEDC has promised to execute and to record the Special Warranty Deed described in
Exhibit "B" to this Agreement and pursuant to the Purchase Agreement. PAEDC has not
undertaken any obligation to provide title insurance for the Property nor has ordered or
undertaken to secure a commitment of title insurance for the Property. Incentive Recipient may,
at its sole cost and expense, secure such title information and title insurance as it deems necessary
for its purposes as to the Property. If, upon securing a commitment for title insurance or
Incentive Recipient notifies PAEDC of any issue with the condition of title to the Property that
may limit access or use of the Property or limit the ability of Incentive Recipient to construct and
operate its proposed facilities on the Property, Incentive Recipient shall notify PAEDC within ten
(10) days of receipt of the title commitment and describe the curative steps that are deemed
necessary to eliminate title defects or exceptions. PAEDC will use its best efforts to cure title
defects or eliminate title encumbrances to enable Incentive Recipient to make full utilization of the
Property pursuant to the Purchase Agreement.
9. PAEDC has not secured a ground survey for the Property, but has provided boundary
information to Incentive Recipient which shall be utilized to describe the Property in the Special
Warranty Deed. Incentive Recipient may, pursuant to the Purchase Agreement, undertake a
ground survey of the Property, and if such is undertaken, Incentive Recipient shall provide
PAEDC with the ground survey, and after approval, PAEDC agrees that all references within this
Agreement and all exhibits hereto shall include as the description of the Property in the ground
survey as provided by Incentive Recipient to PAEDC. If the ground survey reveals any material
deviations from the boundary information, then PAEDC shall correct such deviations by
conveying additional property to Incentive Recipient up to but not to exceed the twelve (12) acres
of land promised as an incentive to Incentive Recipient.
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10. Incentive Recipient shall not use the Property for any purpose(s) other than that
specifically disclosed herein and as further disclosed within its Application made by or on behalf
of Incentive Recipient, which is incorporated herein for all purposes.
11. Incentive Recipient may not assign any of its rights under this Agreement without the
prior written consent of the PAEDC and the City, except for Permitted Affiliates as defined
herein, nor may Incentive Recipient make any subordinate deed of trust or collateral security
agreements as to the Property without the prior written consent of PAEDC which consent shall
not unreasonably be withheld, delayed or conditioned.
LIQUIDATED DAMAGES FOR BREACH OF AGREEMENT
12. In the event Incentive Recipient fails to perform its obligations under this Agreement,
following notice thereof from PAEDC and following a thirty (30) day opportunity to cure the
default, the PAEDC grant, minus any credits earned, will automatically convert to a loan
(liquidated damages), effective on the day of breach, as agreed by Incentive Recipient in the
executed Conditional Commercial Promissory Note contained in Exhibit "A." 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 the exercise of 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.
RECORDS / INSPECTION / PAEDC AUDIT
14. Incentive Recipient acknowledges that while it does not have an affirmative obligation
to create additional payroll for the hiring of Port Arthur residents, as employment at the Project in
the Business Park expands, Incentive Recipient shall utilize the First Source Referral Agreement
to locate qualified employment applicants for its business requirements.
15. Incentive Recipient shall maintain employment records as necessary to allow the
PAEDC to audit and verify proper utilization of First Source and to verify any and all other
covenants, representations and warranties contained herein and in Incentive Recipient's
Application.
16. Upon ten -day (10 -day) advance notice, Incentive Recipient 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 directly related to this Agreement and
belonging to or in use by Incentive Recipient. Such rights to access shall continue as long as the
records related to this Agreement are retained by Incentive Recipient. Incentive Recipient agrees
to maintain such records in an accessible location. All information obtained by the PAEDC, or
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its duly authorized representatives, shall be regarded as the confidential business information of
Incentive Recipient 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). Incentive Recipient
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 acting by,
through or under PAEDC) to any claim, liability or action by Incentive Recipient (or any party
working by, through or under).
17. All records pertinent to this Agreement shall be retained by Incentive Recipient 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
Incentive Recipient detailing its compliance with its obligations provided herein. Further, in the
event any litigation, claim or audit arising out of or related to this Agreement is instituted before
the expiration of the three (3) year period and extends beyond the three year period, the records
will be maintained until all litigation, claims or audit findings involving this Agreement and the
records made the basis of same have been resolved.
18. Incentive Recipient shall provide PAEDC with all reports necessary for PAEDC
compliance with the Chapters 501, 504, Texas Local Government Code, as amended.
19. It is expressly understood and agreed by the parties hereto that if Incentive Recipient
fails to submit to PAEDC in a timely and satisfactory manner any report required by this
Agreement, PAEDC may, at its sole discretion, demand assurances that Incentive Recipient can
and will fully perform its contractual obligations. If Incentive Recipient fails to provide adequate
assurances then Incentive Recipient is in breach, and any monies advanced by PAEDC
automatically become a loan pursuant to Exhibit "A".
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 Incentive Recipient with a written report of the audit findings. If
the audit report details deficiencies in its performance under the terms and conditions of this
Agreement, the PAEDC may establish requirements for the timely correction of any such
deficiencies by Incentive Recipient.
HOLD HARMLESS
21. INCENTIVE RECIPIENT AGREES TO HOLD HARMLESS THE PAEDC AND
THE CITY OF PORT ARTHUR FROM ANY AND ALL CLAIMS, DEMANDS, AND
CAUSES OF ACTION OF ANY KIND OR CHARACTER WHICH MAY BE ASSERTED BY
ANY THIRD PARTY OCCURRING, ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT, THE PROJECT MADE THE BASIS OF THIS AGREEMENT, AND
THE UTILIZATION OF GRANT FUNDS PROVIDED BY THIS AGREEMENT, 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.
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SUBCONTRACTS
22. Incentive Recipient may not subcontract for performance credits described in this
Agreement without obtaining PAEDC's written approval, which may be withheld for any reason.
Incentive Recipient shall only subcontract for performance credits described in this Agreement
after Incentive Recipient has submitted a Subcontractor Eligibility Request, as specified by
PAEDC, for each proposed subcontract, and Incentive Recipient has obtained PAEDC's prior
written approval. Incentive Recipient, in subcontracting for any performances described in this
Agreement, expressly understands that in entering into such subcontracts, PAEDC is in no way
liable to Incentive Recipient's subcontractor(s).
23. In no event shall PAEDC's prior written approval of a subcontractor's eligibility, be
construed as relieving Incentive Recipient 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 Incentive Recipient. PAEDC's approval does
not constitute adoption, ratification, or acceptance of Incentive Recipient's or subcontractor's
performance hereunder. PAEDC maintains the right to insist upon Incentive Recipient'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.
24. Incentive Recipient, as well as all of its approved subcontractors, shall comply with all
applicable federal, state, and local laws, regulations, and ordinances for making procurement
under this 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 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. Insofar as relates to the conduct
hereunder of Incentive Recipient, its agents, employees or representatives, Incentive Recipient
shall ensure compliance with applicable provisions under Chapters 501, 504, Texas Local
Government Code and Chapter 171, Texas Local Government Code.
26. Disclosure: In conjunction with execution of this Agreement, Incentive Recipient has
fully disclosed to PAEDC all known and potential owners of interests in Incentive Recipient
(whether shareholder, partner, limited partner, manager, member or otherwis). In the event of
any change in ownership or control of Incentive Recipient of five percent (5 %) or greater, except
involving Permitted Affiliates, Incentive Recipient shall notify PAEDC in writing. Further,
Incentive Recipient 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
11917934 Page 8
financial benefit, direct or indirect, from Incentive Recipient. 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. Incentive Recipient 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) 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 in Incentive Recipient's discretion, reasonably exercised, to Port Arthur
residents; and
(b) Agreements for work to be performed in connection with the Project shall be awarded
in Incentive Recipient's discretion, reasonably exercised, 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.
(c) If Incentive Recipient advertises for employment then it shall among any other
advertising that it chooses to undertake covenants that it will advertise as required in
Exhibit "F ". Incentive Recipient acknowledges that PAEDC does not intend to
restrain any advertising in additional publications or media nor direct any others than
that stated.
LEGAL AUTHORITY
28. Incentive Recipient assures and guarantees it possesses legal and /or corporate authority
(i) to enter into this Agreement, receive the conditional grant authorized by this Agreement, and
(ii) to perform the obligations hereunder. Incentive Recipient has provided, or shall provide, as
requested by the PAEDC, such resolutions or other required authorizations necessary to evidence
this authority.
29. The person or persons signing and executing this Agreement on behalf of Incentive
Recipient, or representing themselves as signing and executing this Agreement on behalf of
Incentive Recipient, do hereby warrant and guarantee that he, she, or they have been duly
authorized by Incentive Recipient to execute this Agreement on behalf of Incentive Recipient and
to validly and legally bind Incentive Recipient to all terms, performances, and provisions herein
set forth.
#917934
Page 9
NOTICE OF LEGAL OR REGULATORY CLAIMS
30. Incentive Recipient shall give PAEDC immediate notice in writing of 1) any material
legal or regulatory action, including any material proceeding before an administrative agency filed
against Incentive Recipient involving the Property; and 2) any material claim against Incentive
Recipient, which may impede continued operations at the Property. Except as otherwise directed
by PAEDC, Incentive Recipient shall furnish immediately to PAEDC copies of all pertinent
documentation of any kind received by Incentive Recipient 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 writing and executed by all
parties to this Agreement. Such amendments must be approved by the PAEDC Board of
Directors and, by the City Council.
32. It is understood and agreed by the parties hereto that performances under this
Agreement must be rendered in accordance with the regulations promulgated under the
Development Corporation Act, the assurances and certifications made to PAEDC by Incentive
Recipient, and the assurances and certifications made to the City 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 period 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 g b binding upon Incentive Recipient, as if written herein, and if
approved by the Incentive Recipient. If Incentive Recipient does not approve a policy directive as
so submitted, then Incentive Recipient may exercise its rights under paragraph 5(c)(4).
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 Incentive Recipient detailed herein
or in the event of breach of any of the representations of or warranties of Incentive Recipient
either detailed herein or in its application to the PAEDC, and following any notice and
opportunity to cure provided for in this Agreement, and only after Incentive Recipient's refusal of
the Buyout Option stated in Section 5(c)(4) of this Agreement, the PAEDC may, at its sole
option, terminate this Agreement, in whole or in part. In the event of such termination, the
#917934
Page 10
PAEDC may, at its sole option, utilize one or more of the following actions to resolve or
otherwise remedy said default:
(a) Declare the Note executed in conjunction with this Agreement immediately effective.
If Incentive Recipient 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 Deed of Trust or any
Collateral Security Documents.
(c) 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 Incentive Recipient's application to the PAEDC.
(d) Withhold and /or disallow further PAEDC incentives to Incentive Recipient.
(e) 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.
COMPLIANCE AUDITS
36. If directed by PAEDC Board, and in no case more than once per year, Incentive
Recipient shall arrange for the performance of a compliance audit, by a certified public
accountant, of performances rendered under this Agreement, subject to the following conditions
and limitations:
(a) Incentive Recipient shall have a compliance audit which may be limited to use of funds
or discount received from the PAEDC, made for any of its fiscal years included within
the Term of this Agreement in which Incentive Recipient receives more than $50,000
in PAEDC financial assistance provided by PAEDC in the form of grants, contracts,
loans, loan guarantees, property, cooperative agreements, interest subsidies, or direct
appropriations. Said audit must be received and accepted by the Chief Executive
Officer of PAEDC and /or the PAEDC Board.
(b) Unless otherwise specifically authorized by PAEDC in writing, Incentive Recipient
shall submit the report of such audit to PAEDC within thirty (30) clays 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.
11917934 Page 11
37. Incentive Recipient 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.
38. Incentive Recipient 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 Incentive Recipient and properly
designated requests for non - disclosure due to proprietary reasons, all approved audit reports may
be made available for public inspection.
SUPPLEMENTAL COVENANT
40. Incentive Recipient and any branch, division or department of Incentive Recipient
certifies that they have not and will not knowingly employ an "undocumented worker" which
means "an individual who, at the time of employment, is not lawfully admitted for permanent
residence to the United States or authorized under law to be employed in that manner in the
United States."
41. Incentive Recipient acknowledges that it has reviewed Chapter 2264, Texas
Government Code and hereby affirmatively agrees by execution of this Agreement to repay the
amount of any incentive not later than the 120' day after the date PAEDC notifies Incentive
Recipient of a violation.
42. Incentive Recipient acknowledges PAEDC may bring a civil action or cover any
amounts owed under this Chapter and further acknowledges that PAEDC may recover court costs
and reasonable attorneys' fees incurred in an action brought under §2264.101(a). Incentive
Recipient is not liable for a violation of this Chapter by a subsidiary, affiliate or franchisee of the
Incentive Recipient or by a person with whom the Incentive Recipient contracts.
ENVIRONMENTAL REQUIREMENTS
43. As the Project will be located on the Property within the Business Park, Incentive
Recipient not only agrees to meet the Covenants and Restrictions of the Business Park, but also to
operate and maintain the Project in conformance with all local, state and federal regulations and to
maintain the Property in a condition that will not be a nuisance either to the PAEDC or other
business operations within the Business Park. During the Term of this Agreement, Incentive
Recipient also agrees to allow PAEDC or its duly authorized officers, agents, employees,
contractors or subcontractors access to the Property and the Project for environmental review and
compliance monitoring upon reasonable advance written notice of at least 48 hours with Incentive
Recipient allowed to monitor such access and to obtain split samples all subject to PAEDC
agreeing to restore the Property to the condition prior to its investigation and to indemnify
Incentive Recipient for any damage or harm to the extent caused by or arising from PAEDC or its
duly authorized officers, agents, employees, contractors or subcontractors' subject actions upon
the Property. Incentive Recipient further agrees that Incentive Recipient shall make all reasonable
efforts to assist PAEDC in handling inquiries and complaints from persons and agencies seeking
#917934 Page 12
redress in relation to environmental reviews, audits, notices of violation or other administrative
proceedings covered by appropriate permits or certifications as to the Property and /or the Project.
ORAL AND WRITTEN AGREEMENTS / PRIOR AGREEMENTS
44. All oral and written contracts between the parties to this Agreement relating 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.
45. The documents required below are hereby made a part of this Agreement, and
constitute promised performances by Incentive Recipient in accordance with this Agreement:
Required
Exhibit "A" Conditional Commercial Promissory Note
Exhibit "B" Special Warranty Deed
Exhibit "C" Deed of Trust
Exhibit "D" Certification Regarding Lobbying
Exhibit "E" Compliance Statement
Exhibit "F" First Source Referral Agreement
Exhibit "G" Incentive Recipient Application to PAEDC
VENUE
46. 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
4173 -39' Street
Port Arthur, Texas 77642
ATTN: Floyd Batiste, Chief Executive Officer
John F. Magura, Vice President of Operations - Americas
Tyco Fire Protection Products
1400 Pennbrook
Parkway, Lansdale, PA
Telephone: (215) 412 -8140
E -mail: John.MaguraaTycofp.com
With a copy upon the certificate of occupancy to the Property, Attention Plant Manager.
All notice requirements set forth herein shall be made in writing.
#917934 Page 13
CAPTIONS
47. 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
48. Incentive Recipient 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, including those related to the activities and performances of Incentive Recipient under
this Agreement. Upon request by PAEDC and by the City, Incentive Recipient shall furnish
satisfactory proof of its compliance herewith.
CONDITIONS PRECEDENT
49. 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. The Purchase Agreement is closed.
c. •
d.
MISCELLANEOUS
50. Permitted Affiliates. For purposes of this Section, "Permitted Affiliates" shall mean
(i) a subsidiary of Buyer, (ii) a corporation or other entity into or with which Buyer has merged
or consolidated, or to which substantially all of Buyer's stock or assets are transferred, (iii) any
corporation or other entity which controls, is controlled by, or is under common control with
Buyer, (iv) a limited liability company in which Buyer is a member, or (v) any corporation or
other entity with which Buyer is otherwise affiliated.
Party shall be liable for any failure to perform its obligations
Force Majeure. No P rry y ations p g
where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm,
hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war
is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or
confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor
dispute, strike, lockout or interruption or failure of electricity or communication service, and no
other Party will have a right to terminate this Agreement in such circumstances.
Any Party asserting Force Majeure as an excuse shall have the burden of proving that reasonable
steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable
events, that all non - excused obligations were substantially fulfilled, and that the other Party was
N917934 Page 14
timely notified of the likelihood or actual occurrence which would justify such an assertion, so
that other prudent precautions could be contemplated.
52. PAEDC Approval Pursuant to Covenants and Restrictions. PAEDC shall not
unreasonably withhold, delay or condition its approval to any consent or approval it retains the
right to grant pursuant to the Covenants and Restrictions of record at the Closing of the Purchase
Agreement. Furthermore, PAEDC warrants it has no objection to the conceptual plan, attached
and incorporated hereto as Exhibit H, for the Project.
ATTORNEY APPROVALS
APPROVED AS TO FORM:
Guy Goodson, General Counsel for PAEDC
VERIFIED BY
CITY COUNCIL RESOLUTION:
Resolution Number:
Valecia R. Tizeno, City Attorney
AGREEMENT EXECUTION
CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of , 2012.
By: By:
President Secretary
EDC Representative EDC Representative
#917934 Page 15
WILLFIRE HC, LLC
SIGNED AND AGREED TO on the day of , 2012.
By:
Title
Acknowledgment
x#917934 Page 16
EXHIBIT "A"
CONDITIONAL COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when WillFire HC,
LLC, a Delaware limited liability company (hereinafter called "Maker") breaches or exercises the
Buyout Option of 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 , 2012
Effective Date of Note: The Note shall be dated effective the day of
201 which is the date upon which Lender provided notification to Maker of its default or
exercise of the Buyout Option under the Economic Incentive Contract & Loan Agreement (the
"Agreement ") by and between Lender and Maker dated , 2012 ( "Date of
Default ").
Principal Amount: Principal amount is $ , which is $ less the incentive
credits earned by Maker according to the Agreement (described hereinabove).
Term of the Loan: From the Date of Default, Maker shall thereafter make equal monthly
installments of principal and interest (interest being calculated as hereinafter specified at the rate
of 10% per annum) until , 20_ (the "Final Payment Date "). Lender shall provide
to Maker, a payment amortization schedule for the monthly installments due hereunder. Maker
agrees that all principal and interest on this Note shall be due and payable by the Final Payment
Date.
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 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
greater) as may hereafter be in effect, payable on demand after maturity.
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
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 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, acceptor, 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, 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 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 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 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
Exhibit "A" Page 2
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 shall be directly and primarily 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 Iiable party, 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 holder hereof, in order to enforce payment of this note by any other liable party,
shall be required to first institute 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
PAY-
SIGNED AND AGREED TO on the day of , 2012.
WillFire HC, LLC
By:
THE STATE OF TEXAS §
§ ACKNOWLEDGMENT
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 WillFire HC, LLC for the purposes and consideration therein expressed, and the Capacities
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2012.
Notary Public, State of Texas
Exhibit "A" Page 3
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
Tyco Fire Protection Products
Attn: John F. Magura
1400 Pennbrook
Parkway, Lansdale, PA
With a copy upon certificate of occupancy to the Property, Attention Plant Manager.
Exhibit "A" Page 4
EXHIBIT "B"
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE
OR STRIKE ANY OR ALL OF TIIE FOLLOWING INFORMATION FROM THE INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE
PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER
SPECIAL WARRANTY DEED
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
The City of Port Arthur Section 4A Economic Development Corporation ( "Grantor")
in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00) and other good and
valuable consideration, to Grantor in hand paid by WillFire HC, LLC ( "Grantee ") the receipt of
which is hereby acknowledged, has GRANTED, SOLD and CONVEYED, to Grantee, all that
certain property situated in the County of Jefferson, State of Texas, described as follows, to -wit:
That tract of land more fully described on Exhibit "A" attached hereto and made
a part hereof for all purposes (the "Property").
This conveyance is made subject only to the following:
(1) all exceptions, reservations and conveyances of minerals and/or royalties, oil and
gas and/or mineral leases, affecting the above described property, of record in the
Office of the County Clerk of Jefferson County, Texas, to the extent they are still
in effect and relate to the above described property;
(2) taxes on the above described property for 2012 and subsequent years not yet due
and payable; and
(3) [INSERT PERMITTED EXCEPTIONS PER PSAI
TO HAVE AND TO HOLD, the said Property, together with all rights, hereditaments
and appurtenances thereto belonging, unto Grantee, its successors, heirs, and assigns forever.
And Grantor does hereby bind itself, its successors, heirs, executors, administrators, and personal
representatives to WARRANT AND FOREVER DEFEND the title to said Property unto
Grantee, its successors, heirs, and assigns, against every person whomsoever lawfully claiming
or to claim the same or any part thereof, by, through, or under Grantor, but not otherwise.
When Grantor or Grantee or both of theirs are more than one (1) person, or when Grantor
or Grantee or both of theirs are a corporation, limited liability company, partnership, trustee,
administrator, executor, or personal representative, this Deed shall read as though pertinent
verbs, nouns, and pronouns are changed correspondingly, and pronouns of the masculine gender
where used herein shall be construed to include persons of the female sex. When this Deed is
executed by or to or by and to a corporation, limited liability company or partnership, references
to "heirs, executors, administrators, and personal representatives" shall be appropriately
disregarded, and when this Deed is executed by or to or by and to a natural person or persons,
references to "successors" shall be appropriately disregarded.
Grantee has joined in this Deed to evidence Grantee's acceptance of this Deed.
EXECUTED this the day of , 2012.
GRANTOR:
City of Port Arthur Section 4A
Economic Development Corporation
By:
Attest:
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the _ day of , 2012, by
and of City of Port Arthur
Section 4A Economic Development Corporation.
Notary Public, State of Texas
Exhibit "B" Page 2
Accepted by GRANTEE:
WillFire HC, LLC
By:
Attest:
THE STATE OF TEXAS §
§
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on the day of
2012, by and of WillFire HC,
LLC.
Notary Public, State of Texas
GRANTEE'S MAILING ADDRESS:
WillFire HC, LLC
Exhibit °B" Page 3
EXHIBIT "C"
DEED OF TRUST
Date: , 2012
Grantor: WillFire HC, LLC
Grantors' Mailing Address
(including county): 1400 Pennbrook
Parkway, Lansdale, PA
Telephone: (2.15) 412 -8140
{ County)
Trustee: GUY N. GOODSON
Trustee's Mailing Address: Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
(Jefferson County)
Beneficiary: City of Port Arthur Section 4A Economic
Development Corporation (the "PAEDC ")
Beneficiary's Mailing Address
(including county): 4173 39 Street 1
Port Arthur, Texas 77642
(Jefferson County)
Note
Date: , 2012
Amount: $315,000 less incentive credits earned by Grantor
according to that certain Economic Incentive Contract and
Loan Agreement between Grantor and Beneficiary.
Maker:
Payee: PAEDC (Beneficiary)
Final Maturity Date: December 31, 2020
Property: See Attachment for legal description.
Physical address is , , 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 Deed of Trust,
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 or installed in or on
the Land or the Improvements;
(e) all plans and specifications for the Improvements;
(f) all Grantor's rights (but not Grantor's obligations) under any contracts tied to the
Land or the Improvements that cannot be transferred elsewhere for Grantor's use;
(g) 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 tied
to the Land or the Improvements that cannot be transferred elsewhere for Grantor's
use;
(h) 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;
(i) 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) tied to the Land or the
Improvements;
(j) all proceeds, to the extent necessary to satisfy amounts owed to Beneficiary, arising
from or by virtue of the sale, lease or other disposition of the Land or the
Improvements;
(k) all proceeds (including premium refunds), to the extent necessary to satisfy amounts
owed to Beneficiary, of each policy of insurance relating to the Land and the
Improvements;
(1) all proceeds, to the extent necessary to satisfy amounts owed to Beneficiary, 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;
(m)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;
Exhibit "C" Page 2
(n) 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
(o) 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 amended
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 immediately 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 or certificates thereof to Beneficiary and deliver
renewals to Beneficiary within twenty days before expiration;
Exhibit "C° Page 3
7. keep any buildings occupied as required by the insurance policy; and
8. if this is not a first lien, pay all lien notes that Grantor is personally liable to pay
and abide by all prior lien instruments.
Beneficiary's Rights
1. 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 the Note or Deed of Trust in which case
insurance proceeds may be applied to reduce Grantor's obligation under the
Note 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 sums 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 principal balance and earned interest on the note
immediately due;
b. Request Trustee to foreclose 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
such purchase shall fully and completely satisfy the Note.
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;
Exhibit "C" Page 4
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 Trustee'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 Iater 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 from 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.
8. Interest on the debt secured by this deed of trust shall not exceed the maximum
amount of nonusurious 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, inure 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 (except to Permitted
Affiliates) 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
Exhibit "C" Page 5
outstanding balance of the Note(s), plus accrued interest to be immediately due
and payable. The creation of a 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 HEREWITH.
SIGNED AND AGREED TO on the day of , 2012.
a
By:
Signature
Its:
Title
THE STATE OF TEXAS §
§ ACKNOWLEDGEMENT
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 , a , for the purposes and consideration
therein expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2012.
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
Guy N. Goodson
Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
Exhibit "C" Page 6
Attachment to Deed of Trust
Legal Property Description
Exhibit °C" Page 7
EXHIBIT "D"
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 wrongfully influencing or wrongfully 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 certification 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.
By:
Signature
Its:
Title
EXHIBIT "E"
COMPLIANCE STATEMENT
hereby certifies that it has fully
complied with Local Government Code §176.006, effective June 18, 2005, which
mandates the disclosure requirements for persons who contract or seek to
contract with a local governmental entity.
a
By:
Signature
Its:
Title
EXHIBIT "F"
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
FIRST SOURCE REFERRAL AGREEMENT
Resolution Number:
Project Name: WillFire HC, LLC
Project Address:
Project Contact Person: John F. Magura, Vice President of Operations - Americas
Project Contact Person Phone Number: (215) 412 -8140
This First Source Referral Agreement (the "Agreement "), for recruitment, referral, and
placement of City of Port Arthur Section 4A Economic Development Corporation (the
"PAEDC "), hereinafter, and WillFire HC, LLC (the "EMPLOYER "). Under this
Agreement, the EMPLOYER will use PAEDC as its first source for recruitment, referral, and
placement of new hires or employees for the new jobs created by their project and will hire the
number of Port Arthur residents specified for new jobs created by the Project in that certain
Economic Incentive Contract & Loan Agreement (the "Incentive Agreement ") between
PAEDC and the EMPLOYER.
I. GENERAL TERMS
A. The EMPLOYER will use PAEDC as its first source for the recruitment,
referral and placement of employees.
B. PAEDC participation in this Agreement will be carried out by the Chief
Executive Officer of the Port Arthur Economic Development Board, which is responsible for
referral and placement of employees, designated by PAEDC.
C. PAEDC will provide recruitment, referral and placement services to the
EMPLOYER subject to the limitations set out in this Agreement.
D. This Agreement shall take effect when signed by the parties below and shall be
fully effective for the duration of the incentive contract and any extensions or modifications to
the contract.
E. PAEDC and the EMPLOYER agree that for purposes of this Agreement, new
hires and jobs created include all EMPLOYER'S job openings and vacancies in the Port Arthur
Area created as a result of internal promotions, terminations, and expansions of the
EMPLOYER'S workforce, as a result of this project.
II. RECRUITMENT
A. The EMPLOYER will complete the attached Employment Plan, which will
indicate the number of new jobs projected, salary range, and hiring dates. The EMPLOYER
will notify PAEDC of its specific need for new employees as soon as that need is identified.
B. Notification of specific needs, as set forth in Section II.A. must be given to
PAEDC at least five (5) business days (Monday - Friday) before using any other referral
source, and shall include, at a minimum, the number of employees needed by job title,
qualification, hiring date, rate of pay, hours of work, duration of employment, and work to be
performed.
C. Job openings to be filled by internal promotion from the EMPLOYER'S current
workforce need not be referred to PAEDC for placement and referral.
D. The EMPLOYER will submit to PAEDC, prior to starting work on the project,
the names, and social security numbers of all current employees, including apprentices,
trainees, and laid -off workers who will be employed on the project.
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III. REFERRAL
PAEDC will screen and refer applicants according to the qualifications supplied by the
EMPLOYER.
W. PLACEMENT
A. PAEDC will notify the EMPLOYER, prior to the anticipated hiring dates, of
the number of applicants PAEDC will refer. PAEDC will make every reasonable effort to
refer at least two qualified applicants for each job opening.
B. The EMPLOYER will make all decisions on hiring new employees but will in
good faith use reasonable efforts to select its new hires or employees from among the qualified
persons referred by PAEDC.
C. In the event PAEDC is unable to refer the qualified personnel requested, within
five (5) business days (Monday - Friday) from the date of notification, the EMPLOYER will
be free to directly fill remaining positions for which no qualified applicants have been referred.
Notwithstanding, the EMPLOYER will still be required to hire Port Arthur residents in the
percentage specified for new jobs created by the Project in that certain Economic Incentive
Contract & Loan Agreement (the "Incentive Agreement ") between PAEDC and the
EMPLOYER.
D. After the EMPLOYER has selected its employees, PAEDC will not be
responsible for the employees' actions and the EMPLOYER hereby releases PAEDC, from
any liability for employees' actions.
#920200 Page 3
V. TRAINING
PAEDC and the EMPLOYER may agree to develop skills training and on-the-job
training programs; the training specifications and cost for such training will be mutually agreed
upon by the EMPLOYER and PAEDC and set forth in a separate Training Agreement.
VI. CONTROLLING REGULATIONS AND LAWS
A. To the extent this Agreement is in conflict with any labor laws or governmental
regulations, the laws or regulations shall prevail.
B. PAEDC will make every effort to work within the terms of all collective
bargaining agreements to which the EMPLOYER is a party.
C. The EMPLOYER will provide PAEDC with written documentation that the
EMPLOYER has provided the representative of any involved collective bargaining unit with a
copy of this Agreement and has requested comments or objections. If the representative has
any comments or objections, the EMPLOYER will promptly provide them to PAEDC.
VII. EXEMPTIONS
A. Employment openings the contractor will fill with individuals already employed
by the company.
B. Job openings to be filled by laid -off workers according to formally established
recall procedures and rosters.
C. Suppliers located outside of the Port Arthur Area and who will perform no work
in the Port Arthur Area.
VIII. AGREEMENT MODIFICATIONS, RENEWAL, MONITORING, AND PENALTIES
A. If, during the term of this Agreement, the EMPLOYER should transfer
possession of all or a portion of its business concerns affected by this Agreement to any other
11920200 Pages
party by lease, sale, assignment, merger, or otherwise, the EMPLOYER as a condition of
transfer shall:
1. Notify the party taking possession of the existence of the EMPLOYER'S
Agreement.
2. Notify the party taking possession that full compliance with this Agreement is
required in order to avoid termination of the project.
3. EMPLOYER shall, additionally, advise PAEDC within seven (7) business /calendar
days of the transfer. This advice will include the name of the party taking possession
and the name and telephone of that party's representative.
B. PAEDC shall monitor EMPLOYER'S performance under this Agreement. The
EMPLOYER will cooperate in PAEDC' monitoring effort and will submit a Contract
Compliance Form to PAEDC quarterly.
C. To assist PAEDC in the conduct of the monitoring review, the EMPLOYER
will make available payroll and employment records for the review period indicated.
D. If additional information is needed during the review, the EMPLOYER will
provide the requested information to PAEDC.
E. With the EMPLOYER submission of the final request for closure of Agreement
from the Board, the EMPLOYER shall:
1. Document in a report to the Compliance Officer compliance with the hiring
requirements specified in the Incentive Agreement to be Port Arthur residents; or
2. Submit a request to the Compliance Officer for a waiver of compliance with the
hiring requirement at the project to be Port Arthur residents and include the following
documentations:
#920200 Page 5
a. Material supporting a good faith effort to comply;
b. Referrals provided by PAEDC and other referral sources; and
c. Advertisement of job openings listed with PAEDC and other referral sources.
F. Willful breach of the First Source Referral Agreement by the EMPLOYER, or
failure to submit the Compliance Report may be enforced by the Compliance Officer through
notification and possible termination of the Incentive Agreement.
G. The EMPLOYER and PAEDC, or such other agent as PAEDC may designate,
may mutually agree to modify this Agreement.
H. The project may be terminated because of the EMPLOYER'S noncompliance
with the provisions of this Agreement.
CITY OF PORT ARTHUR SECTION
4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of , 2012.
By: By:
Roosevelt Petry, Jr., President Pat Holmes, Secretary
EDC Representative EDC Representative
#920200 Page 6
WILLFIRE HC, LLC
SIGNED AND AGREED TO on the day of , 2012.
By:
Acknowledgment
#920200 Page 7