HomeMy WebLinkAboutPR 18322: SECTION 4A EDC, AGREEMENT WITH KT HOLDINGS, INC. CITY OF PORT ARTHUR
Port Arthur Economic Development Corporation
Interoffice
MEMORANDUM
To: City Attorney's Office
Floyd Batiste, CEO
Date: May 6, 2014
Subject: P. R. No.18322; Council Meeting on May 13, 2014
A RESOLUTION AUTHORIZING THE CITY OF PORT ARTHUR
SECTION 4A ECONOMIC DEVELOPMENT CORPORATION TO
ENTER INTO AN INCENTIVE CONTRACT & LOAN AGREEMENT
WITH KT HOLDINGS, INC.
Cc: City Council Members
City Manager
FB /pr
P.R. No. 18322
5/6/2014 pr
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION TO ENTER INTO AN ECONOMIC
INCENTIVE CONDITIONAL GRANT AGREEMENT WITH
KT HOLDINGS, INC.
WHEREAS, KT Holdings, Inc. ( "Incentive Recipient ") is a New York corporation
which was incorporated in 2013 and imports and produces specialty food products in its
manufacturing facility at 1500 Sabine Drive, Port Arthur, Texas; and
WHEREAS, Incentive Recipient plans to expand its current business operations in Port
Arthur, Texas by adding two additional packaging lines; and
WHEREAS, on March 3, 2014, the City of Port Arthur Section 4A Economic
Development Corporation (the "PAEDC ") Board approved entering into an Economic Incentive
Contract & Loan Agreement (the "Agreement ") with KT Holdings, Inc.; and
WHEREAS, Incentive Recipient proposes to utilize funds acquired through PAEDC to
acquire additional equipment in order to implement two additional packaging lines, and
Incentive Recipient shall use the grant monies provided by PAEDC exclusively for equipment
listed in the "Agreement "; and
WHEREAS, Incentive Recipient has submitted an irrevocable letter of credit
( #69600599) for an amount not to exceed $139,194.00 attached hereto and to be incorporated
into the "Agreement" to secure its performance under the Agreement; and
WHEREAS, on May 6, 2014, the PAEDC Board of Directors approved the Agreement
attached as Exhibit "A "; and
WHEREAS, the Agreement provides that PAEDC shall assist Incentive Recipient in its
business expansion by providing a conditional grant /loan in the amount of $139,194.00 in
exchange for certain agreements by Incentive Recipient for the creation of additional full -time
and part-time permanent employment at the Port Arthur manufacturing facility and designated
levels of payroll as provided in the Performance Milestone schedule set forth in the Agreement;
and
WHEREAS, Incentive Recipient has reviewed and approved the Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the PAEDC is herein authorized to enter into the Agreement with KT
Holdings, Inc. attached hereto as Exhibit "A"
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., 2014,
at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
•
AYES:
Mayor
Councilrnembers
#1073299 Page 2
NOES:
Deloris "Bobbie" Prince, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
Floyd Batiste, PAEDC CEO
APPROVED A S TO FORM:
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
r !�
Valecia R. • no, City Attorney
8 1073299 Page 3
EXHIBIT "A"
ECONOMIC INCENTIVE CONTRACT& LOAN AGREEMENT
BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
KT HOLDINGS, INC.
Executive Summary
KT Holdings, Inc. ( "Incentive Recipient ") is a New York Corporation which was
incorporated in 2013 and imports and produces specialty food products in its manufacturing
facility in Port Arthur, Texas. Incentive Recipient imports olives and pickled products,
repackages the olives and pickled products into retail size containers, and distributes the
repackaged product to retailers throughout the United States. Incentive Recipient also takes
olives and adds value to them by stuffing them with specialty ingredients. Incentive Recipient
plans to expand its current business operations by the addition of two packaging lines. Incentive
Recipient proposes to utilize incentive funds acquired through the City of Port Arthur Section 4A
Economic Development Corporation (the "PAEDC ") to acquire additional equipment in order to
implement two additional packaging lines. Incentive Recipient's business operations are located
at 1500 Sabine Drive, Port Arthur, Texas 77642. PAEDC shall assist Incentive Recipient in this
business expansion by a conditional grant /loan in exchange for certain agreements by Incentive
Recipient for creation of additional full -time and part-time permanent employment at the Project
and designated levels of payroll. Incentive Recipient will be provided a credit against payroll
paid to full -time and part -time employees who are residents of Port Arthur as outlined in the
Performance Milestone Schedule. Incentive Recipient has been advised that as a condition for
the Economic Incentive by PAEDC, Incentive Recipient must continue conducting its business
operations in Port Arthur, Texas during the term of the Incentive Contract.
PAEDC has agreed as a consideration for the promise and performance of Incentive
Recipient to reimburse Incentive Recipient in accordance with an Economic Incentive Contract
& Loan Agreement (the "Agreement ") for the acquisition by Incentive Recipient of equipment to
be incorporated into the Project. PAEDC and Incentive Recipient have agreed that incentive
credits shall be in an amount not to exceed $139,194.00. Incentive Recipient shall comply with
the Performance Milestone Schedule in the Agreement to meet its promised performance under
the Agreement, and to provide all reports and other affirmative commitments as outlined in the
Agreement.
Incentive Recipient shall secure its performance under the Agreement by delivery of a
letter of credit to PAEDC.
Incentive Recipient has further agreed to execute the First Source Referral Agreement
and to utilize the services of the PAEDC on a non- exclusive basis to find qualified applicants for
employment at the Project.
ECONOMIC INCENTIVE CONTRACT& LOAN AGREEMENT
BETWEEN THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
KT HOLDINGS, INC.
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 5
RECORDS / INSPECTION / PAEDC AUDIT 6
HOLD HARMLESS 7
SUBCONTRACTS 7
CONFLICT OF INTEREST / DISCLOSURE OBLIGATION 8
NONDISCRIMINATION / EMPLOYMENT / REPORTING 8
LEGAL AUTHORITY 9
NOTICE OF LEGAL OR REGULATORY CLAIMS 9
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 13
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS 14
CONDITIONS PRECEDENT 14
ATTORNEY APPROVALS 14
AGREEMENT EXECUTION 16
Exhibit "A" Commercial Promissory Note for Conditional Grant
Exhibit "B" Equipment List
Exhibit "C" Letter of Credit
Exhibit "D" First Source Referral Agreement
Exhibit "E" Certification Regarding Lobbying
Exhibit "F" Compliance Statement
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT BETWEEN
THE CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND
KT HOLDINGS, INC. ( "INCENTIVE RECIPIENT ")
INTRODUCTION
The Incentive Recipient is a New York corporation having its principal business
operations at 1500 Sabine Drive, Port Arthur, Texas 77642. The Incentive Recipient intends to
undertake the following business expansion: Incentive Recipient imports olives and pickled
products and repackages them in retail size jars to distribute to retailers throughout the United
States. Incentive Recipient also imports olives and adds value to them by creating more
specialized products, i.e. — stuffing the olives with blue cheese, jalapenos, etc.— repackaging the
specialized product in retail size jars, and distributing the product throughout the United States.
Incentive Recipient plans to acquire new equipment in order to repackage the olives and pickled
products in vacuum sealed packages and small deli cups. As a result, Incentive Recipient plans
to expand its current business operations by the addition of two additional packaging lines.
Incentive Recipient proposes to utilize incentive funds acquired through the City of Port Arthur
Section 4A Economic Development Corporation (the "PAEDC ") to acquire new equipment for
its expansion project (the "Project "). Current market demands are such that Incentive Recipient
plans to expand the above - referenced business operations at its facility in Port Arthur. PAEDC
will assist Incentive Recipient in this business endeavor by providing the hereinafter described
conditional grant and /or loan or other incentives in exchange for the promise by Incentive
Recipient to meet the Performance Milestone Schedule.
AGREEMENT TERM
EFFECTIVE DATE
1. This Economic Incentive Contract and Loan Agreement ( "Agreement ") is entered
into with an Effective Date as of the approval of the Agreement by the City Council for the City
of Port Arthur, Texas (the "City ").
TERMINATION DATE
2. This Agreement expires the earlier of December 31, 2017, 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 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.
1 Incentive Recipient's principal office is 860 Fifth Avenue, PH H, New York, New York 10065.
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 ") and duly authorized by Resolution of the City Council
of the City of Port Arthur 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. KT Holdings, Inc. is a New York corporation authorized to do business in the state of
Texas. The registered agent in Texas for the Incentive Recipient is Jeffrey B. Roth at 1520
Sabine Avenue, Port Arthur, Texas 77642.
PROMISED PERFORMANCE
5. The parties agree to perform as follows.
(a) PERFORMANCE BY PAEDC
(1) PAEDC shall conditionally grant Incentive Recipient an amount equal to the
lessor of (a) the amount paid by Incentive Recipient for the Equipment or (b)
$139,194.00, subject to the conditions and limitations herein, which Incentive
Recipient shall not be required to repay unless Incentive Recipient breaches this
Agreement. If Incentive Recipient breaches this Agreement, then the grant will
become a loan as provided in the Conditional Commercial Promissory Note (the
"Note ") attached hereto as Exhibit "A ".
(2) PAEDC will use its best efforts to reimburse Incentive Recipient within forty -five
(45) days of receipt for the capital outlays (the "Equipment ") listed in Exhibit
«B»
(3) Incentive Recipient shall secure its performance under this Agreement by delivery
of the letter of credit as shown in Exhibit "C" (the "Letter of Credit "). PAEDC
may reduce Incentive Recipient's Letter of Credit by fifty percent (50 %) once
Incentive Recipient has fully met performance milestones through May 1, 2016 as
set forth in the Performance Milestone Schedule.
HOWEVER, PAEDC WILL ONLY RELEASE FUNDS IN AN AMOUNT EQUAL
TO THE AMOUNT PAID FOR THE EQUIPMENT. PAEDC WILL ONLY
RELEASE FUNDS UPON RECEIPT OF REQUIRED DOCUMENTATION OF
THE PURCHASE, BY INCENTIVE RECIPIENT OF SUCH EQUIPMENT FREE
OF ANY LIEN OR ENCUMBRANCE. REQUIRED DOCUMENTATION
INCLUDED BUT IS NOT LIMITED TO AN INVOICE EVIDENCING THE
PURCHASE OF THE EQUIPMENT.
These payments are PAEDC's only obligations.
(b) PERFORMANCE BY INCENTIVE RECIPIENT
(1) By the end of the Agreement term, Incentive Recipient promises to employ the
equivalent of three full time and fifteen part-time employees at an annual payroll
of $288,730.00 as measured by Internal Revenue Service (IRS) forms W -2 and
W -3.
(2) Incentive Recipient promises that one hundred percent (100 %) of its full time and
part time employees will be Port Arthur residents. Incentive Recipient shall
receive credit only for payroll paid to Port Arthur residents.
(3) Incentive Recipient will utilize the incentive to acquire the Equipment valued at
not less than $139,194.00 as outlined in Exhibit "B ".
(4) Incentive Recipient has secured the conditional grant by obtaining the Letter of
Credit from Citibank, N.A. in the amount of $139,194.00 attached hereto as
Exhibit "C ".
(5) Incentive Recipient will be required to meet the conditions and agreements set
forth in the First Source Referral Agreement attached hereto as Exhibit "D" and
made a part hereof for all purposes.
(6) PAEDC shall only be required to reimburse Incentive Recipient for Equipment
purchased by Incentive Recipient that is substantially similar to the items
described on the 2 attached Exhibit "B ". With each invoice or request for
reimbursement sent to PAEDC, Incentive Recipient will provide a listing of the
specific Equipment, requested for reimbursement and covenant that such request
for reimbursement is being made for the specific Equipment and that all such
Equipment has been acquired by the Incentive Recipient free of any lien or
encumbrance.
(7) Incentive Recipient acknowledges and agrees that the Economic Incentive
proposed under this Agreement is only being provided as to the retention and /or
expansion of the business of Incentive Recipient in Port Arthur, Texas. If
Incentive Recipient at any time during the term of this Agreement discontinues
and /or moves its business operations, including the Equipment identified in
Exhibit "B ", from the City of Port Arthur, Texas, Incentive Recipient shall be
immediately in default under the terms of this Agreement, and all amounts less
any credits given as set forth in Paragraph 5(C)shall become a loan for a period
not to exceed the remaining period for the Incentive as set forth herein.
2 "Materially different" is defined as a change in the type of asset that changes the overall business plan in place at
the time that this contract was executed.
(8) 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 either
reduce the duration of this Agreement or reduce the amount of liquidated damages in
the event Incentive Recipient breaches the Agreement.
(1) Starting on the effective date of the Agreement and for as long as Incentive
Recipient performs as specified in Section 5(b)(1) of this Agreement, Incentive
Recipient will receive a $1.00 credit for each $6.22 of payroll paid to residents of
Port Arthur. PAYROLL TO NON - RESIDENTS CANNOT BE CREDITED.
(2) Total credits cannot exceed $139,194.00.
(3) Incentive Recipient will forfeit any credits it earned during a period for which a
report is scheduled, but for which Incentive Recipient failed to issue the report
pursuant to the Performance Milestone Schedule within 10 days after receipt of
written notice from PAEDC that such report is past due.
(4) Once Incentive Recipient has earned credits equal to $139,194.00, the conditional
grant /loan and all obligations to PAEDC shall terminate.
(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 "D" ( "First Source "). Incentive
Recipient has agreed to the policies and procedures within First Source as a non-
exclusive resource and referral for all appropriate new job openings of Incentive
Recipient.
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 Incentive Recipient and/or
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.
3 Examples of reasonable assurances are copies of pending contracts and customer commitment letters.
7. Incentive Recipient's performance milestones are contained in the following table.
PERFORMANCE MILESTONE SCHEDULE
Deadline Milestone
(a) May 1, 2014 KT Holdings, Inc. Issue a status report to PAEDC CEO on expansion of the facility
(b) September 30, 2014 PAEDC CEO Issue a status report on business expansion and installation of new
equipment and estimated completion date of expansion by KT Holdings, Inc.
(c) May 1, 2015 Achieve employment of one (1) Port Arthur resident Admin/Mgmt, two (2)
Port Arthur Resident Warehouse Workers and fifteen (15) part-time Port Arthur
Residents Packing Line Worker with an accumulative payroll of $288,730 for
Port Arthur resident
(d) September 30, 2015 Issue a business operational report to PAEDC CEO for the period May, 2014
to May 31, 2015
(e) May 1, 2016 Maintain employment of one (1) Port Arthur resident Admin/Mgmt, two (2)
Port Arthur Resident Warehouse Workers and fifteen (15) part-time Port Arthur
Residents Packing Line Worker with an accumulative payroll of $288,730 for
Port Arthur residents. KT Holdings, Inc accumulative payroll for year 1 and 2
Equal $577,460
(f) September 30, 2016 Issue a business operational report to PAEDC CEO for the period May, 2015
to May 31, 2016
(g) May 1, 2017 Maintain employment of one (1) Port Arthur resident Admin /Mgmt, two (2)
Port Arthur Resident Warehouse Workers and fifteen (15) part-time Port Arthur
Residents Packing Line Worker with an accumulative annual payroll of $288,730
For Port Arthur residents. KT Holdings, Inc accumulative payroll for year 1 , 2 and
3 equal $866,190
(h) September 30, 2017 Issue a business operational report to PAEDC CEO for the period May, 2016
to May 31, 2017
(i) December 31, 2017 • KT Holdings, Inc meets all PAEDC contractual performance as Verified by the
PAEDC CEO — Closed Agreement.
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 Incentive Recipient in writing within a
reasonable time after such fact is reasonably determined by the PAEDC Board of Directors.
Should PAEDC fail to fully fund its obligations hereunder, this Agreement shall terminate and
both parties shall be relieve of any further liability hereunder. In the event of such termination,
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 Incentive Recipient or to any third parties for
failure to make payments to Incentive Recipient under the terms and conditions of this
Agreement.
9. The PAEDC shall not be liable, in Agreement or otherwise, to Incentive Recipient, or
to any person or entity claiming by or through Incentive Recipient, for any expense, expenditure
or cost incurred by or on behalf of Incentive Recipient related to the project made the basis of
this Agreement. The PAEDC's sole liability /obligations, if any, shall be to Incentive Recipient
and shall be limited to the obligations detailed in Section 5(a) of this Agreement.
Incentive Recipient 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 Incentive Recipient, which application is incorporated herein for all purposes to the
extent Incentive Recipient has advanced funds to pay for equipment it will be deemed to satisfy
this requirement.
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 thirty -day (30 -day) opportunity to cure the same, the
PAEDC grant, minus any credits earned pursuant to section 5(c) of this Agreement, will
automatically convert to a loan (liquidated damages), effective on the day of breach, as agreed by
Incentive Recipient in the executed Note attached as Exhibit "A." 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.
RECORDS / INSPECTION / PAEDC AUDIT
14. Incentive Recipient must establish and maintain reasonably sufficient records, as
reasonably determined by the PAEDC, to account for the expenditure and utilization of funds
received by Incentive Recipient from PAEDC under the terms and conditions of this Agreement.
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.
15. Incentive Recipient 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 Incentive Recipient's application. Incentive Recipient shall provide reports of
utilization of said funds, as reasonably requested by the PAEDC, and upon termination of this
Agreement.
16. Upon ten -day (10 -day) advance written notice given not later than the 90` day after
the end of the calendar year in which such transactions being audited occurred, 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
belonging to or in use by Incentive Recipient so that PAEDC can ensure the Incentive Recipient
is meeting the Performance Milestone Schedule. Incentive Recipient agrees to maintain such
records in an accessible location. All information obtained by the PAEDC, or 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 one year 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. Further, records relating to real
property acquisition, including any long -term lease, shall be retained for a period equal to the
useful life of any asset purchased with PAEDC funds.
18. Incentive Recipient shall provide PAEDC with all reports reasonably necessary for
PAEDC compliance with the Development Corporation Act.
19. It is expressly understood and agreed by the parties hereto that if Incentive Recipient
fails to submit to PAEDC in a timely and reasonably satisfactory manner any report reasonably
required by this Agreement, PAEDC may, at its sole discretion, withhold further payments to
Incentive Recipient and /or 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. If PAEDC withholds such payments, it shall notify Incentive Recipient 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 Incentive Recipient.
20. The PAEDC reserves the right, from time to time, prior to the termination of this
agreement 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 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. Incentive Recipient may not subcontract for performance credits described in this
Agreement without obtaining PAEDC's written approval, such approval not to be unreasonably
withheld. 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 Chapter 504, Local Government Code
and Chapter 171 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 otherwise). In the event of
any change in ownership or control of Incentive Recipient of five percent 5 %) or greater,
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 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) 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, Texas.
LEGAL AUTHORITY
28. Incentive Recipient assures and guarantees it possesses legal and /or corporate
authority (i) to enter into this Agreement, receive funds 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.
NOTICE OF LEGAL OR REGULATORY CLAIMS
30. Incentive Recipient shall give PAEDC immediate notice in writing of 1) any legal or
regulatory action, including any proceeding before an administrative agency filed against
Incentive Recipient, directly or indirectly; and 2) any material claim against Incentive Recipient,
which may impact continued operations. For purposes herein, "material" claims shall mean
claims in excess of $50,000. 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, in many cases, by the City Council for City of Port Arthur.
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 of Port Arthur with regard to
the operation of the PAEDC's Projects. Based on these considerations, and in order to ensure the
legal and effective performance of this 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 binding upon Incentive Recipient, as if written herein.
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 a material default of any of the material obligations of Incentive
Recipient detailed herein or in the event of a material 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, 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.
(b) Exercise any remedies provided herein and/or within the Letter of Credit;
(c) Withhold, whether temporarily or otherwise, disbursement of grant proceeds pending
correction of the deficiency(s) by Incentive Recipient;
(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 Incentive Recipient's application to
the PAEDC;
(e) Withhold and/or disallow further PAEDC incentives to Incentive Recipient; 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.
COMPLIANCE AUDITS
36. If directed by PAEDC Board not more than once each 12 month period, Incentive
Recipient shall arrange for the performance of a compliance audit performed by a certified public
accountant, of funds received and 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 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. Backup documentation regarding actual expenditures shall be
provided by Incentive Recipient. Said audit must be received and accepted by the
Chief Executive Officer of PAEDC and/or the PAEDC Board.
(b) At the option of Incentive Recipient, each audit required by this section may cover
either its entire operations or each department, agency, or establishment of Incentive
Recipient which received, expended, or otherwise administered PAEDC funds;
(c) Unless otherwise specifically authorized by PAEDC in writing, Incentive Recipient
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, Incentive Recipient shall verify that the expenditures were
exclusively for the assets listed in Exhibit "B ". Any discrepancies in excess of
$5000 shall be specifically documented in writing.
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 and it may be required to submit formal audits at its
expense.
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.
40. PAEDC shall not release any funds for costs incurred by Incentive Recipient under
this Agreement until PAEDC has received certification from Incentive Recipient 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.
SUPPLEMENTAL COVENANT
41. 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."
42. 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 (less any credits given as set forth in Paragraph 5(C)) with interest at the
rate of ten (10 %) percent per annum not later than the 120 day after the date PAEDC notifies
Incentive Recipient of a violation.
43. 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
44. Incentive Recipient understands and agrees that by execution of this Agreement,
Incentive Recipient shall be responsible for providing to PAEDC all information, concerning this
PAEDC funded project, reasonably 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. Incentive Recipient further
understands and agrees that Incentive Recipient shall make all reasonable efforts, but shall not be
required to expend any funds in doing so, 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
45. 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.
46. 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
X Exhibit "A" Commercial Promissory Note for Conditional Grant
X Exhibit "B" Equipment List
X Exhibit "C" Letter of Credit
X Exhibit "D" First Source Referral Agreement
X Exhibit "E" Certification Regarding Lobbying
X Exhibit "F" Compliance Statement
X Incentive Recipient Application to PAEDC
VENUE
47. 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
Incentive Recipient
1500 Sabine Drive
Port Arthur, Texas 77642
ATTN: Eric Moscahlaidis
CAPTIONS
48. 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
49. 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
50. 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.
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 , 2014.
By: By:
President Secretary
EDC Representative EDC Representative
KT HOLDINGS, INC.
SIGNED AND AGREED TO on the day of , 2014.
KT Holdings, Inc.
By:
Eric Moscahlaidis, President
Acknowledgment
•
EXHIBIT "A"
CONDITIONAL COMMERCIAL PROMISSORY NOTE
Port Arthur, Texas
This COMMERCIAL PROMISSORY NOTE becomes effective on the date when KT Holdings,
Inc., a New York corporation (hereinafter called "Maker ") breaches that certain Economic
Incentive Contract and Loan Agreement between the City of Port Arthur Section 4A Economic
Development Corporation (hereinafter called "Lender ") and Maker, dated , 201_
Effective Date of Note: The Note shall be dated effective the day of
201 which is the date upon which Lender provided written notification to Maker of its default
under the Economic Incentive Contract & Loan Agreement (the "Agreement ") by and between
Lender and Maker dated , 201_ ( "Date of Default ").
Principal Amount: Principal amount is $ , which is $ less the
incentive credits earned by Maker according to Paragraph 5(C) of the Agreement.
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 December 31, 2017 (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 13e
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 pursuant to this Agreement; 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;; thereupon, at the option of Lender, the principal
balance and accrued interest of this note and any and all other indebtedness of Maker to Lender
shall become and be due and payable forthwith without demand, notice of default, notice of
acceleration, notice of intent to accelerate the maturity hereof, notice of nonpayment, presentment,
protest or notice of dishonor, all of which are hereby expressly waived by Maker and each other
liable party. Lender may waive any default without waiving any prior or subsequent default.
If this note is not paid at maturity whether by acceleration or otherwise, and is placed in the
hands of any attorney for collection, or suit is filed hereon, or proceedings are had in probate,
bankruptcy, receivership, reorganization, arrangement or other legal proceedings for collection
hereof, Maker and each other liable party agree to pay Lender its collection costs, including court
costs and a reasonable amount for attorney's fees.
It is the intention of Maker and Lender to conform strictly to applicable usury laws.
Accordingly, if the transaction contemplated hereby would be usurious under applicable law, then,
in that event, notwithstanding anything to the contrary herein or in any agreement entered into in
connection with or as security for this note, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law that is taken, reserved, contracted for,
charged or received under this note or under any of the other aforesaid agreements or otherwise in
connection with this note shall under no circumstances exceed the maximum amount of interest
allowed by applicable law, and any excess shall be credited on this note by the holder hereof (or, if
this note shall have been paid in full, refunded to Maker); (ii) in the event that maturity of this note
is accelerated by reason of an election by the holder hereof resulting from any default hereunder or
otherwise, or in the event of any required or permitted prepayment, then such consideration that
constitutes interest may never include more than the maximum amount allowed by applicable law,
and excess interest, if any, provided for in this note or otherwise shall be canceled automatically as
of the date of such acceleration or prepayment and, if theretofore prepaid, shall be credited on this
note (or if this note shall have been paid in full, refunded to Maker); and (iii) all calculations of the
rate of interest taken, reserved, contracted for, charged or received under this note or under any of
the other aforesaid agreements or otherwise in connection with this note, that are made for the
purpose of determining whether such rate exceeds the maximum lawful rate shall be made, to the
extent permitted by applicable law, by amortizing, prorating, allocating, and spreading such interest
over the entire term of the loan evidenced by this note(including all renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No partial prepayment shall reduce, postpone or delay the obligation of Maker to continue
paying the installments herein provided on their respective due dates following any such partial
prepayment until this note is fully paid.
The Maker 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 liable 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 party.
SIGNED AND AGREED TO on the day of , 2014.
KT Holdings, Inc.
By:
THE STATE OF §
§ ACKNOWLEGEMENT
COUNTY OF §
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 KT
Holdings, Inc. for the purposes and consideration therein expressed, and the Capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2014.
Notary Public, State of
MAKERS' ADDRESS FOR RECEIPT OF NOTICE:
EXHIBIT "B"
EQUIPMENT LIST
Equipment: Serial Number: Current Value:
Hobart Mixer 11- 281 -796 $7,000.00
Urschel Model RA SS 241 $19,000.00
Dicer
Five McMaster Carr $5,000.00
Work Benches
Filler MD201 $20,000.00
Deli Cup Briner FG -1015 $30,000.00
Olive Washing Machine 1059 $75,000.00
EXHIBIT "C"
LETTER OF CREDIT
Citibank,N.A.
DATE : APR. 22, 2014
ISSUING BANK:
CITIBANK, N.A.
C/O ITS SERVICER CITICORP NORTH AMERICA, INC.
3800 CITIBANK CENTER, BUILDING B, 3RD FLOOR
TAMPA, FL 33610
BENEFICIARY:
CITY OF PORT ARTHUR
SECTION 4A ECONOMIC DEVELOPMENT CORPORATION.
4173 39TH STREET
PORT ARTHUR, TX 77642
APPLICANT;
KRINOS FOODS LLC
ON BEHALF OF THE OLIVE PACKING CO.
4700 NORTHERN BLVD
LONG ISLAND CITY, N.Y. 11101
GENTLEMEN,
BY ORDER OF OUR CLIENT, KRINOS FOODS LLC ON BEHALF OF THE OLIVE PACKING
CO. (THE 'APPLICANT'), WE HEREBY OPEN OUR IRREVOCABLE STANDBY LETTER OF
CREDIT NO. 69600599, IN YOUR FAVOR FOR AN AMOUNT NOT TO EXCEED IN
AGGREGATE USD 139,194.00 (ONE HUNDRED THIRTY NINE THOUSAND ONE HUNDRED
NINETY FOUR AND 00 /100 UNITED STATES DOLLARS), EFFECTIVE IMMEDIATELY AND
EXPIRING AT THE OFFICE OF OUR SERVICER, CITICORP NORTH AMERICA, INC. AT
3800 CITIBANK CENTER, BUILDING B, 3RD FLOOR, TAMPA, FLORIDA 33610 ATTN. US
STANDBY LETTER OF CREDIT UNIT OR SUCH OTHER OFFICE AS WE MAY ADVISE YOU
FROM TIME TO TIME (THE 'OFFICE'), ON MAY 2, 2015.
FUNDS HEREUNDER ARE AVAILABLE TO YOU AGAINST PRESENTATION OF YOUR SIGHT
DRAFT(S), DRAWN ON US, MENTIONING THEREON OUR LETTER OF CREDIT NUMBER
69600599, ACCOMPANIED BY YOUR WRITTEN AND DATED STATEMENT, SIGNED BY AN
OFFICER OF YOUR COMPANY, STATING THE FOLLOWING:
THE APPLICANT HAS FAILED TO COMPLY WITH THE TERMS AND CONDITIONS OF
CONTRACT TO HIRE AND RETAIN PORT ARTHUR EMPLOYEES SPECIFYING THE
PARAGRAPH(S) AND /OR CLAUSE(S) IN DEFAULT.
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED
AUTOMATICALLY EXTENDED, WITHOUT AMENDMENT, FOR ADDITIONAL PERIOD(S) OF ONE
YEAR FROM THE EXPIRY DATE HEREOF, OR ANY FUTURE EXPIRATION DATE, BUT NOT
BEYOND MAY 2, 2016, UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO ANY
EXPIRATION DATE WE NOTIFY YOU BY REGISTERED MAIL OR BY ANY OTHER RECEIPTED
MEANS THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT RENEWED FOR ANY
SUCH ADDITIONAL PERIOD, WHEREUPON YOU MAY DRAW FOR THE AVAILABLE AMOUNT
UNDER THIS LETTER OF CREDIT BY MEANS OF YOUR SIGHT DRAFT(S), DRAWN ON US,
MENTIONING OUR LETTER OF CREDIT NUMBER.
WE HEREBY AGREE WITH YOU TO HONOR EACH DRAFT DRAWN UNDER AND IN COMPLIANCE
WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT IF PRESENTED,
PAGE 1 OF 2
Citibank,N.A.
TOGETHER WITH THE DOCUMENTS SPECIFIED AT THIS OFFICE ON OR BEFORE THE
STATED EXPIRATION DATE.
SHOULD YOU HAVE OCCASION TO COMMUNICATE WITH US REGARDING THIS LETTER OF
CREDIT, PLEASE DIRECT YOUR CORRESPONDENCE TO OUR OFFICE, MAKING SPECIFIC
MENTION OF THE LETTER OF CREDIT NUMBER INDICATED ABOVE. FOR INQUIRIES YOU
MAY CONTACT US AT 1- 866 -945 -6284.
ALL PARTIES TO THIS LETTER OF CREDIT ARE ADVISED THAT THE U.S. GOVERNMENT
HAS IN PLACE CERTAIN SANCTIONS AGAINST CERTAIN COUNTRIES, INDIVIDUALS,
ENTITIES, AND VESSELS. CITIGROUP ENTITIES, INCLUDING BRANCHES AND, IN
CERTAIN CIRCUMSTANCES, SUBSIDIARIES, ARE/WILL BE PROHIBITED FROM ENGAGING
IN TRANSACTIONS OR OTHER ACTIVITIES WITHIN THE SCOPE OF APPLICABLE
SANCTIONS.
EXCEPT AS FAR AS OTHERWISE EXPRESSLY STATED HEREIN, THIS STANDBY LETTER OF
CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES ('ISP98'),
INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590, AND AS TO MATTERS
NOT GOVERNED BY THE 1SP98, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S.
FEDERAL LAW.
AUTHORIZED SIGNATURE(S).
CITIBANK, N.A.
PAGE 2 OF 2
EXHIBIT "D"
FIRST SOURCE REFERRAL AGREEMENT
CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
FIRST SOURCE REFERRAL AGREEMENT
Resolution Number:
Project Name: KT Holdings, Inc.
Project Address: 1500 Sabine Drive, Port Arthur, Texas 77642
Project Contact Person: Eric Israel
Project Contact Person Phone Number:
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 KT Holdings, Inc. (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 its Chief Executive
Officer 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.
III. REFERRAL
PAEDC will screen and refer applicants according to the qualifications supplied by the
EMPLOYER.
Page 2
IV. 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.
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.
Page 3
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 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.
•
Page 4
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:
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.
Page 5
CITY OF PORT ARTHUR SECTION
4A ECONOMIC DEVELOPMENT CORPORATION
SIGNED AND AGREED TO on the day of , 2014.
By: By:
Kaprina Frank, President Richard Wycoff, Secretary
EDC Representative EDC Representative
Page 6
KT HOLDINGS, INC.
SIGNED AND AGREED TO on the day of , 2014.
By:
Acknowledgment
Page 7
EXHIBIT "E"
CERTIFICATION REGARDING LOBBYING
For Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his knowledge and belief, that:
1. No funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of
any agency, a member of the City or of the PAEDC in connection with the
awarding of any contract, the making of any grant, the making of any loan, the
entering into of any cooperative agreement, or modification of any contract, grant,
loan, or cooperative agreement.
2 The undersigned shall require that the language of this 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.
KT Holdings, Inc.
Date: By:
Signature
Its:
Title
EXHIBIT "F"
COMPLIANCE STATEMENT
KT Holdings, Inc. hereby certifies that it has fully complied with Local
Government Code § 176.006, as amended, which mandates the disclosure
requirements for persons who contract or seek to contract with a local
governmental entity.
KT Holdings, Inc.
Date: By:
Signature
Its:
Title