HomeMy WebLinkAboutPR 14122: EDC TRIANGLE WASTEinteroffice
MEMORANDUM
ro~
From:
Date:
Subject:
Mayor, City Council, and City Manager
Mark T. Sokolow, City Attorney ~ ~~
May 16, 2007
P. R. No. 14122; Council Meeting of May 22, 2007
Attached is P. R. No. 14122 as it pertains to approving a new Economic Incentive
Contract and Loan Agreement between Triangle Waste Properties and the City of Port Arthur
Section 4A Economic Development Corporation. This was approved by the PAEDC Board of
Directors at its May 16, 2007 regular meeting, who approved second liens. The attorneys are
still reviewing the form for the second liens and if they concur as to the form, it will be presented
at the council meeting. If the attorneys or Triangle Waste does not concur, then we will ask that
it be tabled.
cc: Guy Goodson
Germer Gertz
Floyd Bastiste, CEO of EDC
Jack Fields
z.pr14122.memo
P.R. No. 14122
05/17/07 gt
RESOLUTION NO.
A RESOLUTION APPROVING AN ECONOMIC
INCENTIVE CONTRACT AND LOAN
AGREEMENT BETWEEN TRIANGLE WASTE
PROPERTIES AND THE CITY OF PORT ARTHUR
SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION.
WHEREAS, at its May 16, 2007 regular meeting, the Board of Directors of the
City of Port Arthur Section 4A Economic Development Corporation approved an
Economic Incentive and Loan Agreement with Triangle Waste Properties; and
WHEREAS, the agreement is attached hereto as Exhibit "A"
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 duly authorized representatives of the City of Port Arthur
Section 4A Economic Development Corporation are herein authorized to execute the
Economic Incentive Contract and Loan Agreement with Triangle Waste Properties in
substantially the same form as denoted in Exhibit "A", and with a deed of trust second
lien to be drafted as per Exhibit "B".
Section 3.
the City Council.
That a copy of this Resolution shall be spread upon the Minutes of
READ, ADOPTED AND APPROVED ON THE __ day of
A.D. 2007, at a Regular Meeting of the City Council of thc City of Port Arthur, Texas by
the following vote:
z.pr14122
AYES: Mayor_
City Council:
NOES:
Attest:
OSCAR ORTIZ, MAYOR
EVANGELINE GREEN, CITY SECRETARY
APPROVED:
FLOYD BATISTE, EDC CEO
APPROVED AS TO FORM:
MAR~ ~
K T. SOKOLOW, CITY ATTORNEY
z.pr14122
EXHIBIT "A"
z.pr14122
~Mark Sokolow
Page 1 of 1
From:
To:
Cc:
Sent:
A~tach:
Subject:
"Robin Woolridge" <robinc@germer. com>
"'Mark Sokolow'" <mark@portarthur.net>
F'elds, Jack <JFields@andrewskurth.com>
Thursday, May 17, 2007 5:05 PM
img-5171701-0001 .pdf
Triangle Waste Incentive Agreement
See a~ached.
Robin M. Woolridge
..... Original Message .....
From: Administrator
Sent: Thursday, May 17, 2007 5:01 PM
To: Robin Woolridge
Subject: Scan Data from administrator
5/18/2007
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND TRIANGLE WASTE PROPERT]UES, LP
Executive Summa
Triangle Waste Properties, LP, a Texas limited partnership, (~) ~ engaged in
metal recycling, which includes metal collection, sorting, cutting, packaging and disposal.
Triangle intends to sell the recycled metal in Beaumont, Texas and Houston, Texas.
The City of Port Arthur Sect/on 4A Economic Development Corporation (~)
will sell a ten (10) acre parcel (!lac "Property") "P '
_ in the PAEDC Business Park ~), with
an estimated fair market value of $3 I0,000, to Triangle at a forty percent (40%) discounted value
of $186,000. Additionally, PAEDC will conditionally grant Triangle $250,000 towards the
coustmetinn of a building and improvements in the Park. Triangle's total grant value is
$374,000, which includes the forty percent (40%) discounted land value and the cash grant of
250,000. In exchange, Triangle agrees to hire 15 new employees, with an estimated annual
payroll of $436,800 by December 31, 2008, as measured by IRS forms W~2 and W-3, and will
maintain said new employees and annual payroll through June 30, 2010. Triangle promises to
use its best efforts to hire Port Arthur, Texas residents. Additionally, Triangle agrees to meet or
exceed the Park's, original and emended, Covenants and restrictions; agrees to meet Triangle-
specific restrictions as specified in this Economic Incentive Contract and Loan Agreement (thee
'_"A~reem..ent~); agrees to allow the PAl]DC to Pre-approve the architectural drawings for the
facility; and agrees to serve as a model of cleanliness and maintenance for other Park occupants.
If Triangle breaches this agreement then the PAEDc grant of $374,000, minus any
credits earned, will automatically Convert to a loan (liquidated damages). The loan will have a
three-year term, starting on the date of Triangle's breach, and an interest rate of ten percent
(10%). To secure the loan, (1) Joe Swinbank and Donald Poarch will provide a Texas State
Bank Certificate or Deposit in the amount of $374,000, according to a Commercial Security
Agreement executed by such parties, and perfected by filing a Financing Statement (UCC-1
Form) with the Secretary of State, and (2) Triangle will grant PAEDC a subordinated Deed of
Trust, with PAEDc holding a second priority lien.
Triangle may earn credits to reduce the duration of this Agreement or to reduce liquidated
damages in the event ora breach. Starting when Triangle achieves the payroll level of $436,800
(annualized).and continuing for as long as Triangle maintains at least that level of employment,
Triangle will receive a $1.00 credit for each $6.00 of payroll paid to residents of Port Arthur.
Payroll to non-Port Arthur residents Cannot be credited.
Triangle agrees to send PAEDC brief status reports, every three (3) months for the first
year and every six (6) months thereafter, until issuance ora close out report. Triangle will forfeit
its credits if it fails to cure such default within five (5) days for any reporting period for which it
did not issue a report in a timely manner.
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND TRIANGLE WASTE PROPERTIES, LP
INTRODUCTION .............................................
CONTRACT DATES .. . · ..................
PARTI~. ' .................................... ~ ................................... - 1 -
(A) E~o~c~ ~y PAEDC .. . .......................................... - 2 -
Pr~PO~c~ ~¥ I~c~rr~ R~c~rr ....
(c) Cl~Drrs _ Su~s~ru'm PS~U~iA~C~ ..... ' .......................................... - 3 -
PERFORMANCE MILESTONE SCH~DULB ..... '. ' ................................................. - 5 -
CONDITIONAL OBLIGATIONs AND LIMITi/D LIABILITY OF PAED-
,y,~-x. niDS / INsPI;CTION / PAEDc AUDIT . -'--" .......................................... 7 -
HOLD HARMLEss ..... · ........................................................ - 7-
SUBCONTRACTs... "~ ...................................................................................... - 9 -
co~;cT oF mT~.~s¥' /~sU~ UBUOATIO~ ......
NONDISCRIMINATioN / SMPLOYMBNT / REPORTnv~
~ sur,,o,u~ ...................... --.~ ........................................... 10-
~o~c~ OF u~oAL o,~ ~oC2~/~'~'ZZZZ-y~ ............................... ~.i.~.. - 10-
CHANoES AND AMEVD~$ . .. ' ' ' · ......... II -
D~FAULr / TiU~AT~ON ........... ~ .' ..................................................... - II -
COMPLIANCE AUDITS ........ ' ........................................................ ;~
ENViaoN'lVi~TAL P'~Q~NTS ......... ' ....................................... - 12 -
o,u~ A~ w~r~ ~om~rr$/'i;/~;~ X~'~ ..................................... - I~-
V-//NUE ............. __.__ ............................... - 14 -
A~.ESs OF ~'~'~~X~i~ZZjZ.~ ......................................... - 14-
CAFrIONs ......................................
Co~,m~c~ wrm ~u.. s~A~ ~'~'~;ZZZ'YY'i'Y~ ................. - ,4-
coNDiT, o~s ~.~c~rr ..........
~ro~ ~F, ov~ ........ ~i" Z'Z ............................................ ~.J... '.. - ;~
AG~ EXBCUTION ...................
Exhibit "A'... ' .... '~' '7 ' '.: "d ............................................. - ~_
................. maustrla! i-'ark Or/ginal Covenants and Rest~/crJ;~
and Amendmen~ No. 1
Exhibk "B'. ................... Conditiona! Commercial Promissory Note
Exh/bit "C- . ................... Commercial Security Agreement
Exb./bit "D". .................... Texas State Bank Acknowledgment
Extfibit "E". ................... UCC-1 Financing Statement
Exhibit "F' . ................... Certification Regarding Lobbying
Exhibit ~G". ...................Form of Deed
Exhibit "H" ~,
.................... opecial Addendum
Exhibit "I' ~-
........................ rmpeny Description
Exhibit" -
J .......................... Subordinated Deed of Trust
$/17/07
ECONOMIC INCENTIVE CONTRACT & LOAN AGREEMENT
BETWEEN CITY OF PORT ARTHUR SECTION 4A
ECONOMIC DEVELOPMENT CORPORATION
AND TRIANGLE WASTE PROPERTIES, LP
INTRODUCTION
Triangle Waste Properties, LP ("_Incentive Recipient") is a Texas limited partnership,
engaged in metal recycling, which includes metal collection, sorting, cutting, packaging and
.disposal (the "Proieet") and the other uses and businesses described as being allowed at the Property
m Exhibit "H" attached hereto. Incentive Recipient's target market is Beaumont, Texas and
Houston, Texas. Approximately ninety percent (90%) of Incentive Reci ient's r
be sold in Beaumont, Texas and annroximat-' .......... P ecycled metal will
Incentive Recipient wants to o,,J~'fft; ;fo --~,~Y, t_t~_~ pe,r. cent~(l .?./.o) will be sold in Houston, Texas.
· v ~ .~o ,~,*[m r~cycung lttcillty at a separate location and can
prormse jobs in exchange for an/ncentive fi.om the City
Corporation (~. of Port Arthur 4A Economic Development
CONTRACT DATES
CONTRACT START DATE
1. This Economic Incentive Contract and Loan Agreement ~) is
entered into with an effective date of
31, 2007, by and between PAEDC and Incentive Recipiem-' 2007, but in no case later than August
CONTRACT END DATE
2. This Agreement expires the earlier of
or 30 days after
Incentive Recipient and PAEDc perform fully, subject to earlier termination or extension, voluntary
or involuntary, as provided herein. In the event of breach, although this Agreement expires, the
promissory note/n Exhibit %4" becomes effective.
PARTIEg
3. City of Port Arthur Section 4A Economic Development Coroffratio,. located at
4173-39th Street, Port Arthur, Texas, 77642, is an economic developmant corporation. It is duly
authorized to do business in the State of Texas under Section 4A, Article 5190.6 V.T.C.A. (the
Development Corporation Act of 1979) and duly authorized by Resolution of the City Council of
the City of Port Arthur to enter into this Agreement. So authorized and as provided by the PAEDC
bylaws, the President and Secretary of the PAEDC Board have the authority to execute this
Agreement.
4. Trianele Waste Properties, L~ (."Incentive Recipient") is a Texas limited partnership.
Joseph B. Swinbank is duly authorized to enter into and execute this Agreement for Triangle. The
corporation's reoist~.oa
~ ,~,, agent m .exas is Triangle Waste Solutions GP, LLC, 1041 Conrad Sauer,
Houston, TX 77043, ATTN: Joe Swinbank.
5/17/07
PROMISED PERFORMANCE
5. Thc parties agree to perform as follows:
(a) PERFORMANCE BY PAEDC
ii.
PAEDC shall convey to Incentive Recipient ten (10) aeras of land valued at
$310,000 in the new PAEDC Business Park (~; specifically described in
Exhibit "I" attached hereto and incorporated herein by reference at a forty percent
(40%) discounted value of $186,000. Thus PAEDC is conditionally granting
Incentive ' '
Recipient $124,000 towards the purchase of the ten (10) acre parcel (th_ge
~ m the Park.
PAEDC has installed underground utility trunk lines for water and sanitary sewer
into the Park, but PAEDC is not responsible for the cost of installing underground
facility service lines fi.om the trunk lines to the Property. Additionally, PAEDC will
not pay utility connection cost for thc Property;
PAEDC shall conditionally grant Incentive Recipient up to
· · - $250,000, subject to the
conditions and lnnitatlons herein, toward the construction of a building and
improvements on the Property in the Park which Incentive Recipient is not 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 £xhibit ~B ".
These payments are PAEDC's only obligations, except as otherwise expressly set forth
herein, including Exhibits hereto.
(1) Incentive Recipient promises to employ fifteen (15) employees at an annual total
payroll of $436,800~ as measured by Internal Revenue Service (IRS) forms W-2
and W-3 by December 31, 2008.
(2) Incentive Recipient will use good faith efforts to ensure that at least fifty percent
(50%) of its employees will be Port Arthur residents. If Incentive Recipient does
not hire the stated percentage of Pon Arthur residents, Incentive Recipient must
provide proof of having made a good faith effort to do so.
(3) Incentive Recipient will select an architect and general contractor who will build an
attractive facility that complies with the ark s covenants and restrictions, original
p ,
and amended, and have been pre-approved by the PAEDC Board. The Park's
original and amended covenants and restrictions are contained in Bxla'bit ~A" and
Payroll is based on 2080 hours per year and a starting wage orS14.00 per hour, per Incentive Recipiont's application.
are incorporated by reference into this Agreement in their entirety. The plans for
the facility shall be submitted to the PAEDC Board for approval as soon as
practicable following execution of this Agreement. The PAEDC Board shall have
a period of thirty (30) days within which to approve such plans or advise Incentive
Recipient of any reasonable objections to such plans with specific recommendations
for resolution of such objections. Incentive Recipient shall then have a period of
fifteen (15) days within which to resubmit revised plans for approval of the
PAEDC Board, which shall then have a period of fifteen (15) days within which to
approve the resubmitted plans or advise Incentive Recipient of any reasonable
objections thereto. This process of approval or rejection for resubmission shall
continue with the same fifteen (15) day limitations for each party as aforesaid until
plans are ultimately approved in their entirety for the facility.
(4) Contemporaneously with PAEDC's land grant to Incentive Recipient, Joe
Swinbank and Donald Poareh will execute a commercial security agreement giving
PAEDC a security interest in a $374,000 Certificate of Deposit at Texas State Bank
(See Exhibits ~C~ ~# "E'), and (b) contemporaneously with the execution of this
Agreement, Incentive Recipient will execute a Deed of Trust in the form of Ex3ibit
"]"attached hereto (the "Second Deed f Trust ) covering the Property subject to
the senior lien of Texas State Bank as the lending bank; said senior lien not to
exceed FOUR MILLION AND NO/100 ($4,000,000) of indebtedness.
(5) Incentive Recipient agrees to the following additional Covenants and restrictions to
address concerns regarding the potential unsightliness of a metal recycling facility:
a. Construction of a covered concrete pad of at least 100' x 100' for metal
processing;
b. Crews on site will operate according to procedures, rules and regulations of
Texas Commission on Environmental Quality ("TCEQ-);
c. The capture of ra/nwater and any process water used at the site will be disposed
of in accordance with all applicable rules and regulations of TCEQ;
d. Design, build and operate so the scrap is not visible to any member of the
public standing at ground level on a public way;
e. Screen property lines from view with an eight (8) foot concrete tiltwall with
landscaping on the outside to provide extra protection and help contain dust,
noise, and odors;
f. Metals will be contained in proper storage containers when not being
processed;
g. Metal Containing radioactive sources will not be recycled or permitted on the
Property in the Park;
h. All roll-off Containers kept on the Property will be for non-hazardons material
and all repairs to these containers will be done at a different location as to
insure this area does not become a repair facility;
i. Store all equipment, trucks, roll off containers, etc., either behind the buildings
or inside of the plant, so as not to be visible from South Business Park Drive.
(6) On demand by PAEDC and in response to Incentive Recipient's failure to achieve a
performance milestone, Incentive Recipient sha/l provide PAEDC, within fifteen
(15) business days, 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) _C~mrrs- Stmsmm-~ l~w.m~oL
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 this Agreement.
(1) Starting on the effective date of this Agreement and for as long as Incentive
Recipient performs as specified in Section 5(I>)(1) of this Agreement, Incentive
Recipient will receive a $1.00 credit for each $6.00 of payroll paid to residents of
Port Arthur. Payroll to non-residents cannot be credited.
(2) Total credit cannot exceed $374,000.
(3) 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 within five (5)
days after same is due.
(4) Once Incentive Recipient has earned credits equal to $374,000, the conditional grant
and all obligations of Incentive Recipient to PAEDC shall terminate, and PAEDC
will release all collateral securing the conditional grant (See Exhibit "H" - Special
Addendum).
6. Although failure to achieve a performance milestone is not a breach of this Agreement,
a failure is grounds for PAEDC to demand reasonable assurances2 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 table on the
following page.
2Examples of reasonable assurances are copies ofpend/ng con~racts and customer COmmitment letters.
5/17/07
PERFORMANCE MII.R~TONE SCI-I~DULE
(a)
~c)
Sept. 1, 2007
Oct. 31, 2007
Feb. 1, 2008
July 31, 2008
Dec. 31, 2008
Feb. 1, 2009
July 31, 2009
Feb. 1, 2010
July 31, 2010
Sept. 30, 2010~
Mile.st~ono.
Review architectural plans with the PAEDC Board for approval;
Issue a ~__~_~.~a-ta to PAEDC's Chief Executive Officer f"CEO-~, for the
pefiod_.from the effective date of this Agreement to September 30, 2007;
Sterns repoJ-t~ for period from the effective date of this Agreement to
December 31, 2007;
Complete facility construction; ~ from January 1, 2008 to June
30, 2008;.
Achieve performance of 15 full-time, permanent employees; Annualize~
payroll of $436,800;
S~~from lanuary I, 2008 to December 31, 2008; Fanployment and
payroll sustained;
~ from January 1, 2009 to June 30, 2009; Employment and
payroll sustained;
---~___._~_~ from January I, 2009 to December 31, 2009; Employment ant
payroll sustained;
~ from January 1, 2010 to June 30, 2010; Employment and
payroll sustained;
~ for presentation to the PAEDC Board at its October 2010
meeting submitted.
PAI:~C'$ CONDITIONAL OBLIGATIONS AND ~ 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. The
PAEDC, at its sole option, may then terminate tiffs Agreement without further liability. In the
event of such termination by the PAEDC, the PAEDC may, at its sole option, immediately cease
all further funding, if any, required by this Agreement and the PAEDC shall not be liable to
s Status reports shall include ~he status consh'uction, cmploymeat and the percentage ofemployeea who are Port Arthur
residents.
4 End of February status reports shall also include identity of all shareholders who own more than five percent (5%) of
the company. Year end reports shall be substanfiat '
s Or th' . ed w~th IRS Forms W-2 and W.3.
u'ty (30) days aflex Triangle and PAEDC fullyparform. The PAEDC Board will determine ifperformance is
complete.
//538886
5117/07
Incentive Recipient or to any third parties for failure to make payments t~ 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) and F-~ibit "tt" of this Agreement.
10. 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 proposes.
I 1. Funds granted by the PAEDC hereunder shall not be utilized by Incentive Recipient
for repayment of costs, expenditures or expenses incurred prior to the date of this Agreement.
LIQUIDATED DAMAGHS 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, 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 2~x~ibit "B." 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 fight 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 fights or remedies. Failure to exercise any fight or remedy hereunder shall not
constitute a waiver of the right to exercise that or any other fight or remedy at any time.
RECORDS / INSPECTION / PAEDC AUDIT
14. Incentive Recipient must establish and maintain sufficient records, as reasonably
determined by the PAEDC, to account for the expenditure and utilization of funds received by
Incentive Recipient from PAI~DC under the tern and conditions of this Agreement.
15. Incentive Recipient shall maintain records of the receipt and disposition of all funds
provided hereunder as necessary to allow the PARDC 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 (lO-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 belonging to or in use by Incentive
Recipient. Such fights to access shall continue as long as the records are maintained by Incentive
Recipient. 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 confidenfiai 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. Ail 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 detailin4g 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. Upon written request, Incentive Recipient shall provide PAEDC with all reports
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 satisfactory manner any report 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 within fifteen 05)
business days 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, 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 HARML~$
21. Incentive Recipient shall indemnify, defend and hold the PAEDC and the City of Port
Arthur (together the "Indemnified Parties") harmless from all injuries, claims, liabilities, costs or
damages (including court costs and reasonable attorney's fees) sustained by or threatened against
any of the Indemnified Parties for injury or death to persons or physical damage to property
arising out of relating to Incentive Recipient's entry or activities upon the property which is the
subject matter of this Contract.
22. Incentive Recipient may not subcontract for p~rformance 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 C°nstitute 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 INT-I/P,~T / 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 PAN. DC assisted activity, or have an interest in
any contract, subcontract, or agreement (or proceeds thereof) with respect to an PABDC assisted
activity, during their tenure or for one (i) 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 Article 5190.6 V.T.C.A. and Chapter
171 Local Government Code V.T.C.A.
26. Disclosure: In conjunction with execution of this Agreement, Incentive Recipient has
fully disclosed to PAEDC all known and potential owners of interests in Incentive Recipient
(whether shareholder, partaer, 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 / KEPORTING
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 discriralnation 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 can'ying out of any project assisted with PAEDC
funds provided under this Agreement be given to Pon 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.
(c)
If Incentive Recipient advertises for employment then it shall among any other
advertising that it chooses to undertake covenants that it will advertise in the Port
Arthur News. 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 gnamntees 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 necessa~ 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
#558886 - 10 - 5117/07
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.
NOTICB 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 $15,000. 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.
C~IANG~ AND AMENDMENTS
31. Except as specifically provided othenvise in this Agreement, any alterations, additions,
or deletions to the terms of this Agreement shall be by amgndment 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 thi~
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 consistent
with the intention of the parties hereunder. 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 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, 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:
Declare the Commercial Promissory 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 Commercial Security
Agreement, Subordinated Deed of Trust, or any other 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 PABDC;
(d) Withhold and/or disallow further PAEDC incentives to Incentive Recipient; and
(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 paaies 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, Incentive Recipient shall arrange for the performance of
a compliance audit, by a cerdfied 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 requi~ed 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 facility and improvements in the Park. Any discrepancies in excess
of $500 shall be specifically documented in writing.
37. Incentive Recipient understands and agrees that it shall be liable to reimburse
immediately PAEDC for any costs disallowed pursuant to financial and compliance audit(s) of
funds received under this Agreement and it may be required to submit formal audits at its
expense.
38. Incentive Recipient shall take all necessary actions to facilitate the performance of any
and all such audits, whether annual, mandatory or otherwise requested under this Agreement.
39. Subject to financial privacy requirements of Incentive Recipient and properly
designated requests for non-disclosure due to proprietary reasons, all approved audit reports may
be made available for public inspection to the extent required by law.
40. PAEDC shall not release any funds for costs incurred by Incentive Recipient under this
Agreement until PAEDC has received certification from Incentive Recipient that its fiscal control
and fund accounting procedures are adequate to assure proper disbursal of and accounting for
funds provided under this Agreement. PAEDC shall specify the content and form of such
certification.
ENVIRONMENTAL REOUIREMENTS
41. Incentive Recipient understands and agrees that by execution of this Agreement,
Incentive Recipient shall be responsible for making all reasonable efforts in providing to PAEDC
all information, concerning this PAEDC funded project, required for PAEDC to meet its
responsibilities for environmental review, decision making, and other action which applies to
PAEDC in accordance with and to the extent specified in Federal, State and Local Law.
Incentive Recipient further understands and agrees that Incentive Recipient shall make all
reasonable efforts to assist PAEDC in handling inquiries and complaints from persons and
agencies seeking redress in relation to environmental reviews covered by approved certifications.
AND ~ A~$ / PMOR A~r~ ~
42. 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.
43. The documents required below are hereby made a part of this Agreement for all
purposes, and constitute promised performances by Incentive Recipient and PAEDC in
accordance with this Agreement:
Required
Exln'bit "A
ExtHbit "B
Exlu'bit "¢'
£~chibit "D
Exhibit "E'
Exhibit
Exhibit "O"
Exhibit
Exhibit "I"
Exhibit "l"
Industrial Park Original Covenants and Restrictions and Amendment No. 1
Commercial Promissory Note for Conditional Grant
Commercial Security Agreement
Texas State Bank Acknowledgment
UCC-I Financing Statement
Certification Regarding Lobbying
Form of Deed
Special Addendum
Property Description
Second Deed of Trust
44. For purposes of litigation that may accrue under this Agreement, venue shall lie in
Jefferson County, Texas, where substantially all the performance will occur.
ADDRESS OF NOTICE AND COMMU~CATION,~
City of Port Arthur Section 4A Economic Development Corporation
444 4th Street
Port Arthur, Texas 77640
ATTN: Floyd Batiste, ChiefExectuive Officer
Triangle Waste Properties, LP
1041 Conrad Saner Road
Houston, Texas 77043
ATTN: Joe Swinbank
CAPTIONS.
45. This Agreement has been supplied with captions to serve only as a guide to the
contents. The caption does not control the meaning of any paragraph or in any way determine its
interpretation or application.
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAW~
46. 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
reasonable satisfactory proof of its Compliance herewith.
CONDITIONS P~ENT
47. This Agreement has no legal consequences, and neither party shall rely on this
Agreement, unless and until:
a. The PAEDC Board and the Pon Arthur City Council approve this Agreement in its
final executed form;
b. Incentive Recipient executes this Conditional Commercial Promissory Note, the
Subordinated Deed of Trust, other collateral security documents and required
affidavits and certificates;
c. Joe Swinbank and Donald Poareh execute the Commercial Security Agreement in
£x~ibit "C~, and deliver the Certificate of Deposit;
d. Acknowledgement by Texas State Bank that the Certificate of Deposit purchased by
Joe Swinbank and Donald Poareh is pledged to secure the hereinable described
contract and note;
e. PAEDC executes and delivers to Incentive Recipient the deed in the form attached
hereto as ExMbit "G" attached.
ATTORNBY APPROVALS
APPROVED AS TO FORM:
VERIFIED BY
CITY COUNCIL RESOLUTION:
Guy Goodson, General Counsel for PARDC
Resolution Number:
Mark T. Sokolow, City Attorney
AGI~F~.MENT BXECUTION
SIGNED AND AGREED TO on the
SIGNED AND AGI~Ft~D TO on the
day of ,2007.
City of Port Arthur Section 4A
Bconomic DeVelopment Corpo~tion
By:.
Richard Wycoff, President
By:.
Keith Daws, Sr., Secretary
Witness
Wimess
day of ,2007.
Trian~e Waste Propexties, LP,
A Texas Limited Partnership.
By: Triangle Waste Solutions, LLC
Its General Partner,
A Texas Limited Liability Company
By:.
Joseph B. Swinbank, President
Acknowledgment
COVENANTS AND RESTRICTIONS
PORT ARTHUR BUSINESS PARK
11/30/05
GI~IERAL
The City of Port Arthur Section 4A Economic Development Corporation (PAEDC) is the
owner of the Port Arthur Business Park (Business Park). PAEDC has determined that it is in the
best interests of the City of Port Arthur, PAEDC, the Business Park and its future occupants to
adopt the following provisions restrictions and covenants to control the development within the
business park.
CONDITIONS OF SALE
Each parcel sold or conveyed to a user by PAEDC is for the purpose of development of
facilities and occupancy by a user. Development of facilities (buildings) for user occupancy must
be completed within eighteen months of purchase. If there is an incentive agreement with the
PAEDC, the constroetion must be completed within the timetables of the incentive agreement.
If construction has not been completed in the period specified, PAEDC shall have the option to
repurchase the property on the basis of reversing (or rescinding) the terms of the original sale,
including price. This option may be exercised at any time subsequent to the failure of
construction to be completed by the specified date. Exercise of the option will be by formal
action of the PAEDC Board. Delivery of written notice of exercise of this option shall be the
cause of an immediate halt to actions to develop the parcel by the parcel owner.
If the owner or lessee of property in the Business Park wishes to sell or assign the property
to a third party, the owner or lessee shall obtain the approval of the PAEDC Board of Directors,
with such approval not to be unreasonably withheld. The owner or lessee shall present
information as to the financial and credit information as to the new buyer or assignee and such
other information as reasonably requested by the PAEDC Chief Executive Officer (CEO). The
new owner or lessee shall be required to assume the obligations in the incentive agreement, with
such changes as are approved by the PAEDC Board of Directors.
If the owner or lessee wishes to subdivide and sell or assign only a portion of its property
to a third party, the owner or lessee shall obtain the approval of the PAEDC Board of Directors
which can deny the request at its discretion. At the discretion of the PAEDC, the PAEDC shall
have a first option to repurchase said undeveloped portion for the same cost as delineated in the
incentive agreement or sales agreement and in such additional reasonable amounts as to reimburse
the owner for monies that he has expended in maintaining said portion of the property. In such
case, PAEDC shall have 90 days to notify the owner of its decision in regard to this option.
2117/07
LF~GAL DBSCRIPTION
The Port Arthur Business Park includes all land as described in Appendix A, and on such
other property as approved by PAEDC.
TERMS AND DEFn~TIONS
For the purposes of these covenants and restrictions, certain terms, phrases, words and
their derivatives shall have thek meaning as specified in this section. Where terms are not
defined, they shall have their ordinary accepted meanings within the context with which they are
used. Webster's Ninth New Collegiate Dictionary, Copyright 1987, shall be considered as
providing ordinary accepted meaning.
(1) Board. City of Port Arthur Section 4A Economic Development Corporation Board of
Directors.
(2) But?d/rig. Any structure built for the support, shelter and enclosure of persons, animals,
chattels or movable property of any kind. When subdivided in a manner sufficient to prevent the
spread of fa-e, each portion so subdivided may be deemed a separate building.
(3) CiO, council. The governing and legislative body of the City of Port Arthur.
(4) District. A section of the City of Port Arthur for which the regulations governing the height,
area or use of the land and buildings are uniform.
(5) tleigl~t. The vertical distance of a building measured from the average established grade at
the street line or from the average natural front yard ground level, whichever is higher, to (1) the
highest point of the roof's surface if a fiat surface; (2) to the deck line of mansard roofs; or (3) to
the mean height level between eaves and ridge for hip and gable roofs, and, in any event,
excluding chimaeys, cooling towers, elevator bulkheads, penthouses, tanks, water towers, radio
towers, ornamental cupolas, domes or spires and parapet walls not exceeding ten feet in height. If
the street grade has not been officially established, the average front yard shall bo used for a base
level.
(6) Lot. Land occupied or to be occupied by a building and its accessory buildings, and
including such open spaces as are required under these covenants and restrictions and having its
principal frontage upon a public street or officially approved place.
(7) Occupancy. The use or intended use of the hnd or buildings by proprietors or tenants.
(8) Planning and zoning commission. The agency designated in the City Charter as the planning
commission and appointed by the city council as an advisory body to it and which is authorized to
recommend changes in the zoning ordinance.
(9) Parking lot or stracture, commercial (motor vehicle). An area or structure devoted to the
parking or storage of motor vehicles. May include, in the case of a parking structure only, a
facility for servicing of motor vehicles provided such facility is primarily an internal function for
use only by motor vehicles occupying the structure and creates no special problems of ingress or
egress.
(10) Structure. Any structure built for the support, shelter and enclosure of persons, animals,
chattels or movable property of any kind. When subdivided in a manner sufficient to prevent the
spread of fire, each portion so subdivided may be deemed a separate building.
(11) Yard. An open space other than a court, on the lot in which a building is situated and
which is not obstructed from a point 30 inches above the general ground level of the graded lot to
the sky, except as provided for roof overhang and similar features and for the usual trees and
landscape planting.
(12) Yard, froot. An open, unoccupied space on a lot facing a street extending across the front
of the lot between the side lot lines and from the front face of the building to the front lot or street
line with the minimum horizontal distance between the street line and the main burring line as
specified for the district in which it is located. The front face of the building shall not necessarily
be determined by the prima~y access to the building or any unit therein.
(13) Yard, rear. An open, unoccupied space, except for permitted detached accessory buildings,
trees and planting, extending across the rear of a lot from one side lot line to the other side lot
line and having a depth between the building and the rear lot line.
(14) Yard, side. An open, unoccupied space or spaces on one or two sides of a main building
situated between the building and a side line of the lot and extending through from the front yard
to the rear yard. Any lot line not the rear line or a front line shall be deemed a side line.
REVIEW AND APPROVAL OF USES AND IM~RO~S
All uses that occupy parcels and ali facilities and improvements constructed in the park
(including all altemfious and additions to the site and such facilities and improvements) shall be
subject to approval by PAEDC and may require approval by the City of Port Arthur. PAEDC
and the City may at their sole discretion involve other parties in the review of proposed uses and
improvements. In cases where specialized evaluations are deemed necessary, PAEDC may
require a fee to cover the cost of the services of consultants engaged to perform these evaluations.
No construction may be initiated upon any pamel in the Business Park until approval has been
granted by PAEDC (and where required, by the City of Port Arthur). Failure of the user of a
parcel to seek approval for development plans in a timely manner will not be the basis for
granting an extension as to the timetable for coustmction. Approval means formal action by the
PAEDC Board, (and where required by City Council of the City of Port Arthur) and the receipt
of written confh'mation of approval from a competent authority of these bodies. Application for
approval shall be made in writing and must contain all submission requirements specified by
PAEDC. Such requirements will include site plans, building plans and specifications, and other
such information as PAEDC and the City may request.
Sites and facilities within the Business Park may be occupied by the uses specified in the
following chart (Parcels are as designated on the Business Park Final Plat).
Parcels 1, 2, 3, 5, 7 & 9 - Office, warehouse, distribution, light fabrication and assembly,
recycling, manufacturing and other approved uses.
Parcel 4 & 8 - Office and other approved uses.
Parcel 6, 10 - Warehouse, distribution, manufacturing, assembly and other approved
Other uses may be approved by PAEDC at its sole discretion which includes career
centers and other types of development as approved by the PAEDC and as authorized by State
Law. All occupancies permitted may be subject to additional restrictions imposed as a result of
review of user applications provided that such specific requirements are intended to implement the
restrictions previously established by the PAEDC in these Covenants and Restrictions or
subsequent amendments.
PRO}IIBITED OCCUPANCIES
Specifically prohibited uses include manufacturing and process operations that transmit
noise, or release odors, fumes or dust that materially exceed City, State, or Federal Standards or
discharge a waste stream that is not acceptable (due to content or volume) for the City's sanitary
sewer system. Any use that requires ousite treatment of waste in order to meet the above
requirements will be allowed only on the basis of a special use permit from PAEDC, the City of
Port Arthur, the TCEQ or the applicable regulatory agency. In general, on site treatment of
significant quantities of special waste will not be permitted. A special use permit may, at the sole
discretion of PAEDC, be granted, conditional upon continued and demonstrative cenformance to
specific requirements and standards. Failure by the user receiving such conditional approval to
strictly conform to the requirements and standards imposed will be the basis of termination of the
special use permit, without recourse by the user. Notice of termination of any permit required by
any regulatory agency (including the City) will require the user to iraniediately cease all onsite
processes that generate or contribute to the subject waste stream.
In addition, all exterior site uses including parking areas, truck maneuvering and docking
areas, storage and equipment yards and the like will be developed and maintained in strict
conformance with these covenants and restrictions and with the specific terms of approvals
granted by PAEDC and the City of Port Arthur.
CONSTRUCTION STANDARDS, CODES AND ORDINANCES
All improvements constructed in the Business Park shall meet or exceed the standards and
ordinances of the City of Port Arthur, State of Texas statutes and regulations, and national
standards. It shall be the duty of the user of any parcel in the Business Park to conform to such
requirements and to obtain ail approvals and permits granted by governing authorities. Such
requirements include but are not limited to City Building Permits and local drainage,
environmental and utility requirements. Review and approval by PAEDC and the City of Port
Arthur under the above provisions for Review and Approval of Uses and Improvements does not
relieve or mitigate in any way this separate duty of the user.
The owners or lessees of the property shall take such precautions as to commence and
complete the improvements wherein laborers, subcontractors and contractors are promptly paid
with no materials and mechanic's liens being filed on the property. Prior to commencing
construction, the owner or lessee shall provide to the PAEDC such evidence of financial ability to
complete the project, which may include letters of credit, and contractor's performance bonds and
payment bonds.
PROPERTY MAINTENANCE
Owners and Users of parcels and improvements shall perform regular and routine
maintenance on these properties. Undeveloped parcels shall be kept mowed and free of debris.
Developed parcels (including site and facilities) shall be maintained in a manner consistent with
the users' approved proposal for use and improvements.
Lawns and landscaping shall be kept free of overgrowth, trash and debris. Parking or
storage of vehicles, equipment or materials in areas other than approved outdoor storage is
prohibited. Areas shall be maintained free of trash, sediment, debris, and abandoned or unsightly
equipment.
Outdoor storage areas other than those approved by PAEDC are prohibited. Approved
outdoor storage areas shall be well maintained and shall be kept neat and orderly in appearance.
Only materials and equipment that are in active use at the site may be stored on site. Storage of
derelict or junked materials, equipment or vehicles ousite is prohibited.
Buildings and other structures shall be kept in an attractive condition. Exterior surfaces
shall be washed and painted as required to maintain a fresh appearance. Exterior materials that
deteriorate shall be replaced.
No open burning of rubbish is permitted on the site. All waste material shall be confined
to trash receptacles in approved and screened locations for removal from the site.
In case of fire or damage from other causes, the owner or lessee shall restore the
improvements within nine (9) months unless granted an extension by PAEDC.
INSURANCE
The lot owners and lessees shall maintain casualty insurance in an amount sufficient to
replace the buildings. A copy of the certificate of insurance shall be given to the PAEDC and the
PAEDC shall be listed as an additional insured. If the lot owner or lessee fails to maintain or pay
for the insurance, the PAEDC (in its sole discretion) may pay for the costs thereof, assess the lot
owners and lessees, and file liens.
ASSESSMENT
The lessees and private owners of the land in the Business Park shall pay assessments to
the PAEDC for the maintenance of the street signage and landscaping, the costs to enforce these
deed restrictions, and the costs to maintain business park, such assessments shall be a minimum of
$200 per acre per year and shall be payable on or before December 31~ of each year. Additional
assessments, as determined by the PAEDC Board of Directors shall not exceed the actual
proportionate share of the expenditures made by the PAEDC plus a 10% adnfinistrative fee. The
proportionate share shall be the number of acres owned or leased divided by 246.
CONTINUATIONS, ~M~'T AND YAKIATION OF COVENANTS AND
I~S~ONS
These covenants and restrictions shall remain in force on all parcels and shall be binding
on all current and future owners and lessees of parcels within the Business Park. Variation in
these covenants and restrictions is limited to one of the following methods:
PAEDC (subject to the approval of the City of Port Arthur) may from time to time amend
the provisions, covenants and restrictions.
PAEDC may in its sole discretion grant variances to these provisions, covenants and
restrictions as a part of the approval of the Review and Approval of Use and Improvement
process. Such variances must be requested in writing by the user of the parcel. PAEDC
will notify all adjacent parcel owners of the request for variation by posting such notice
and will receive and consider comments from such parcel owners in evaluating such
variances. It is the intent of PAEDC to maintain the general character and intent of the
provisions, covenants and restrictions and to comply with Article 5190.6 V.T.C.A.
Si'rtl DBVEI..OP~
Building sites of individual users must be planned to have an attractive image and must be
well maintained. The following requirements shall apply to the development of sites within the
Business Park:
Set Backs Building Street Frontage 45 feet
Side and rear lot 15feet
lines
Paving Street Frontage 20 feet
Side and rear lot No requirement
lines
Landscaping All non paved areas Maintained lawns
Street Frontae 1 tree per 100 feet of frontage - 2 inch caliper
Paving Parking Automobile Concrete
Trucks and Trailers Concrete
Aprons and maneuvering areas Concrete
Access and Entry As approved by PAEDC
May not conflict with street traffic or access to
adjacent sites.
Utilities All connections and service underground and;
Equipment (transformers etc.) screened from public
view
Outdoor Not allowed forward of the line of the building face
Yards and Fully screened from frontage with berms, planting or
Storage wails constructed in conformance with standards for
Ares front face of buildings
Area Parcels 1, 2, 3, 5, 7, No larger than the area of the building
Limitations '9
Parcels 4, 8 Not permitted
Pamel 6, 10 No limit
Fencing Side and rear yards only
Visible from Street Decorative iron or as approved by PAEDC (no wood
fences permitted)
Side and rear Chain link or as approved by PAlS/DC (no wood
fences permitted)
Ancillary Structures and Equipment Constructed to meet applicable building standards
Tanks, trash receptacles and other equipment screened
from public view
Mail boxes as approved by PAEDC
Fla/q)oles as approved by PAEDC
Lighting Pole or building mounted lighting
All lighting will be natural in color (no uncorrected
high pressure sodium fixtures)
Lighting must be controlled to prevent glare as seen
from adjacent public ways and adjacent properties
Drainage Surface drainage must be controlled within site
boundaries.
Discharge into d~ainage ways as approved by
responsible authorities.
Signage All signs must be approved by PAEDC
May be internally or externally illuminated
May not be animated
Site Mounted Signs Maximum of 6 feet in height
Base no more than 2 feet above ground
No closer then 10 feet to property line
Compatible with building color and materials
Integrated and compatible with landscaping
Building Mounted Signs Not painted on building
May not extend beyond building profile
Must be compatible is size, color and material with
budding
BUILDING DI~IGN AND CONSTRUCTION
Building design including all exterior materials and co]ors must be attractive, compatible
with adjacent development and be approved by the PAEDC.
Cate~mrv Reauirements
Exterior Materials Except for trim and accents, no wood will be pennlttrd
Walls Facing Frontage and Public COncrete or masonry
Ways
Walls Facing Side and Parcel 1, 2, Concrete, masonry, or metal panels
Rear Yards 3, 5, 6, 7, 9,
10
Parcel 4, 8 Concrete or masonry
Roofing Materials Any roof surface that is exposed to public view must be approved
by PAEDC
Roof top equipment No more than five feet in height and screened from public view
Awnings and Canopies Compatible with building design and approved by PAEDC
Exterior Colors Exterior surfaces will be predominately neutral or natural colors.
Bright accent or trim colors will be considered by the PAEDC.
ENFORCEMENT O1~ COVENANTS AND RESTRICTIONS
Determination regarding the meaning, applicability and enfomement of these covenants
and restrictions is the sole domain of PAEDC Board of Directors. Inquiry in regard to such
matters shall be made to PAEDC in writing. A determination rendered in writing by PAEDC
Board of Directors shall be deemed f'mal and binding on all parties.
Enforcement of the provisions, covenants and restrictions shall be in accordance with law
or through civil or criminal proceedings initiated by PAEDC or by the City of Port Arthur.
Enforcement action may include but is not limited to restraint of violations, recovery of costs,
attorneys fees and damages, assessments, fines, civil penalties, foreclosure, and judicial sale.
APPENDIX ~A"
DESCRIPTION OF A
297.960 ACRE TRACT OR PARCEL OF LAND
OUT OF AND PART OF
THE WM. MeFADDIN SURVEY, ABSTRACT NO. 416,
THE T. & N.O.R.R. SURVEY, SECTION NO. 5, ABSTRACT NO. 238,
AND THE T. & N.O.R.R. SURVEY, SECTION NO. 9, ABSTRACT NO. 242
JEFFERSON COUNTY, TEXAS
AUGUST 20, 2001
All that certain tract or parcel of land lying and being situated in Jefferson County, Texas,
parts of the WM. McFADDIN SURVEY, ABSTRACT NO. 416, the T. & N.O.R.R. SURVEY,
SECTION NO. 5, ABSTRACT NO. 238, and the T. & N.O.R.R. SURVEY, SECTION NO. 9,
ABSTRACT NO. 242, and being parts of Blocks 14, 15 and 16, Range N, Blocks 14, 15 and 16,
Range O, and Blocks 15 and 16, Range P of the Lands of the Port Arthur Land Co., the plat of
which said subdivision is of record in Volume 1, Page 22 of the Map Records of Jefferson
County, Texas, and being a part of that certain tract of land herein referred to as the "McFaddin
and Cordts" tract, which said McFaddin and Cordts tract is designated "TRACT NO. 18-C" and
is described in that certain insmunent from W.P.H. McFaddin, Jr., and J.L.C. McFaddin, as
Trustees of the McFaddin Trust to J.L.C. McFaddin, Di McFaddin Houk, Perry McFaddin
Duncan, W.P.H. McFeddin Jr., Mamie McFaddin Ward, Camelia B. McFaddin and Di Vernon
McFaddin Cordts, W.P.H. McFaddin Jr., and J.L.C. McFaddin, jointly, and Mamie McFaddin
Ward, W.P.I-I. McFaddin, Jr., J.L.C. McFaddin, and Camelia B. McFaddin and Di Vernon
McFaddin Cordts, jointly, dated February 26, 1948 and recorded in Volume 692, Page 22 of the
Deed Records of Jefferson County, Texas, and which said TRACT NO. 18-C is indicated on that
certain plat entitled "PARTITION MAP NO. 3 OF THE MeFADDIN TRUST PROPERTY IN
JEFFERSON COUNTY, TEXAS ... "which said plat is of record in Volume 8, Page 110 of the
Map Records of Jefferson County, Texas, and being a part of that certain tract of land herein
referred to as the "Cordts" tract, which said Cordts tract is described in that certain instrument
from E.G. Cordts, Jr., Independent Executor of the Estate of Di Vernon McFaddin Berly to E.G.
Cordta, Jr., Colleen Clave Cordts and Anna Camella Cordts, dated September 13, 1994 and
recorded under County Clerk's File No. 94-9432523 of the Official Public Records of Real
Property of Jefferson County, Texas, and the said tract herein described being that exact same
certain tract of land herein referred to as the "PAEDC" tract, which said PAEDC txaet is
described in that certain instrument from E.G. Cordts, Jr., .... Colleen Clare Cordts Rice, ..., and
Arma Camelia Cordts Edwardson, ... to Port Arthur Economic Development Corporation, dated
February 28, 2001 and recorded under County Clerk's File No. 2001007554 of the Official
Public Records of Real Property of Jefferson County, Texas, and the said tract herein described
being more particularly described as follows:
BEGINNING at a iron rod with a Texas Deparanent of Transporattion aluminum cap
(TxDOT Type 1 Monument) found for the southeast comer of the said tract herein described, the
said comer being the southeast comer of the said PAEDC tract, and the said comer also being the
most southerly southwest comer of that certain tract of land herein referred to as the "Parcel 31"
tract, which said Parcel 31 tract ks so designated and is described in that certain instrument from
E.G. Cordts, Jr., Colleen Clare Cordts Rice and Anna Camelia Cordts Edwardson to Jefferson
County, dated March 15, 1999 and recorded under County Clerk's File No. 1999009190 of the
Official Public Records of Real Property of Jefferson County, Texas, and the said comer being in
the north line of that certain tract of land herein referred to as the "Parcel 32" tract, which said
Parcel 32 tract is so designated and is described in that certain instrument from The Mamie
McFaddin Ward Heritage Foundation to Jefferson County, dated December. 12, 1996 and
recorded under County Clerk's File No. 96-9638512 Of the Official Public Records of Real
Property of Jefferson County, Texas, the said comer being an interior angle point comer in the
southwesterly right-of-way line of Texas State Highway Spur 93, and the said TxDOT Type 1
Monument found for comer being East (Assumed Basis of Bearings - called South 89° 37' 00"
East) along and with the south line of the said PAEDC tract, said north line of the Parcel 32 tract
and north line of that certain tract of land herein referred to as the "Ward" tract, which said Ward
tract is designated "TRACT NO. 19-C" and is described in the hereinbefore referenced
instrument recorded in Volume 692, Page 22 of the Deed Records of Jefferson County, Texas,
and which said TRACT NO. 19-C is indicated on the hereinbefore referenced plat of record in
Volume 8, Page 110 of the Map Records of Jefferson County, Texas, a total distance of 5,430.99
feet (called 5,431.07 fee0 from a 5/8" iron rod with a yellow cap stamped "RPLS 3636" found
for reference;
TI~/NCE West (called North 89° 37' 00~ West) along and with the said south line of the
PAEDC tract, north line of the Parcel 32 tract and north line of the Ward tract, passing at a
distance of 16.92 feet (called 16.92 feet) a 5/8" iron rod found for the most northerly northwest
comer of the said Parcel 32 tract, the said corner being an exterior angle point comer in the said
southwesterly right-of-way line of Texas State Highway Spur 93, and passing at a distance of
4,938.57 feet (called 4,938.91 feet) a 5/8" iron rod with a yellow cap stamped "RPLS 3636"
found for reference at the southeast comer of that certain tract of land herein referred to as the
"TRACT 196-A" tract, which said TRACT 196-A tract is so designated and is described in that
certain instrument (titled "RIGHT-OF-WAY EASEMENT") from Di Vernon McFaddin
Kibodeaux, formerly Di Vernon McFaddin Cordts, joined therein by her husband, Oren J.
Kibodeaux to Jefferson County Drainage District No. 7 dated January 4, 1968 and recorded in
Volume 1531, Page 123 of the Deed Records of Jefferson County Texas, and passing at a distance
of 5,430.99 feet (called 5,431.07 feet) the hereinbefore said 5/8" iron rod with a yellow cap
stamped "RPLS 3636" found for reference at the southwest comer of the said TRACT 196-A
tract, and continuing (Vges0 along and with the said south line of the PAEDC tract and north line
of the Ward tract, a total distance of 5,545.27 feet (called 5,545.35 feet) to a point for the
southwest corner of the said tract herein described, the said corner being the southwest comer of
the said pAEDC tract, and the said comer also being the northwest corner of the said Ward tract,
and the said comer being in the easterly line of that certain tract of land herein referred to as the
"TRACT A" tract, which said TRACT A tract is so designated and is described in that certain
instrument from Darling Klaver, et al to Jefferson County Drainage District No. 7 dated
November 22, 1971 and recorded in Volume 1727, Page 481 of the Deed Records of Jefferson
County, Texas, and the said comer being in the centerline of Rhodiar Gully;
THENCE North 12° 17' 39" West (called North 11° 54' 13" West) along and with the
westerly line of the said PAEDC tract, the said easterly line of the TRACT A tract and said
centerline of Rhodair Gully, a distance of 724.96 feet (called 724.92 feet) to a point for the most
westerly northwest comer of the said tract herein described, the said comer being the most
westerly northwest comer of the said PAEDC tract, and the said comer also being the most
southerly comer of that certain tract of land herein referred to as the "$.L.C. McFaddin" tract,
which said J.L.C. McEaddin tract is designated "TRACT NO. 12-C" and is described in the
hereinbefore referenced instrument recorded in Volume 692, Page 22 of the Deed Records of
Jefferson County, Texas, and which said TRACT NO. 12-C is indicated on the hereinbefore
referenced plat of record in Volume 8, Page 110 of the Map Records of Jefferson County, Texas;
THENCE North 39° 57' 00' East (called North 40° 20' 00" East) along and with the most
westerly northwest line of the said PAEDC tract and most southerly southeast line of the said
LL.C. McFaddin tract, passing at a distance of 132.53 feet (called 132.53 feet) a 5/8" iron rod
with a yellow cap stamped "RPLS 3636" fonnd for reference at the northwest comer of the
hereinbefore said TRACT 196-A tract, and passing at a distance of 736.10 feet (called 735.85
feet) a 5/8" iron rod with a red plastic cap stamped "S&P INC" set for reference at the northeast
comer of the said TRACT 196-A tract (and which said 5/8" iron rod with a red plastic cap set
for reference is North 37° 58' 15" West a distance of 0.39 feet from a 5/8" iron rod with a yellow
cap stamped "RPLS 3636" found for reference), and continuing (North 39° 57' 00" Ease) along
and with the said most westerly northwest line of the PAEDC tract and most southerly southeast
line of the LL.C. McFaddin tract, a total distance of 3,925.49 feet (called 3,925.61 feet) to a I/2"
iron rod found for the most northerly comer of the said tract herein described, the said comer
being the most northerly comer of the said PAEDC tract, and the said comer also being the most
westerly comer of that certain tract of land herein referred to as the "Bamette - 1483/177" tract,
which said Bamette - 1483/177 tract is described in that certain instrument from Gulf Refining
Company to N.K. Bamette, Jr. dated October 24, 1966 and recorded in Volume 1483, Page 177
of the Deed Records of Jefferson County, Texas;
THENCE South 49° 46' 07" East (called South 49° 23' 24" East) along and with the most
no~herly northeast line of said PAEDC tract and southwesterly line of the said Bamette -
1483/177 tract, a distance of 1,317.60 feet (called 1,317.54 feet) to a IA" iron rod found for an
interior comer of the said tract herein described, the said comer being an interior comer of the
said PAEDC tract, and the said comer also being the moat southerly comer of the said Bamette -
1483/177 tract;
THENCE North 40° 07' 58' East (called North 40° 33' 04" East) along and with the most
easterly northwest line of the said PAEDC tract and southeasterly line of the said Bamette -
1483/177 tract, a distance of 151.95 feet (called 151.86 fee0 to a 5/8" iron rod with a yellow cap
stamped "RPLS 3636" found for the most easterly northwest comer of the said tract herein
described, the said comer being the most easterly northwest comer of the said PAEDC tract, and
the said comer also being the most westerly comer of that certain tract of land herein refe~ed to
as the "Bamette - 1483/176" tract, which said Bamette - 1483/176 tract is described in that
certain instrument from Di Vernon McEaddin Cordts joined therein by her husband, Edwin G.
Cordts to N.K. Bamette, Jr. dated October 11, 1966 and recorded in Volume 1483, Page 176 of
the Deed Records of Jefferson County, Texas, and the said 5/8" iron md with a yellow cap
stamped "RPLS 3636" found for comer being South 40° 11' 19" West (called South 40° 33' 04"
West) along and with the said southeasterly line of the Barnette - 1483/177 tract, northwesterly
line of the said Bamette - 1483/176 tract and southeasterly line of that certain tract of land herein
refer~ed to as the "LNVA" tract, which said LNVA tract is described in that certain imtmment
from Gulf Refining Company to the Lower Neches Valley Authority dated April 8, 1975 and
recorded in Volume 1876, Page 290 of the Deed Records of Jefferson County, Texas, a tota~
distance of 499.44 feet (called 500.00 feet) from a 5/8" iron md found for the most northerly
comer of the said Eamette - 1483/176 tract, the said comer also being the most easterly comer of
the said LNVA tract, and the said comer being in the hereinbefore said southwesterly right-of-
way line of Texas State Highway Spur 93;
THENCE South 83° 44' 08" East (called South 83° 21' 35" East) along and with the most
easterly north line of the said PAEDC tract and southerly line of the said Eamette - 1483/176
tract, a distance of 557.12 feet (called 557.12 feet) to a 5/8~ iron md found for the most northerly
northeast comer of the said tract herein described, the said comer being the most northerly
northeast comer of the said PAEDC tract, and the said comer also being the most northerly
northwest comer of the hereinbefore said Parcel 31 tract, and the said comer being in the said
southwesterly right-of-way line of Texas State Highway Spur 93, and the said 5/8" iron md found
for comer being South 27° 38' 14" East (called South 27° 11' 44" East) along and with the said
southwesterly right-of-way line of Texas State Highway Spur 93, a distance of 499.26 feet (called
499.56 feet) from the hereinbefore said 5/8" iron md found for the most northerly comer of the
Bamette - 1483/176 tract and most easterly comer of the LNVA tract;
THENCE South 27° 30' 14" East (called South 27° 07' 03" East) along and with the most
easterly northeast linc of the said PAEDC tract, southwesterly line of the said Pamcl 31 tract and
said southwesterly fight-or-way line of Texas State Highway Spur 93, a total distance of 3,294.33
feet (called 3,294.40 feet) to the Point of Beginning and
Containing 297.960 acres (called 297.9732 acres) of land, more or less.
Prepared by
Schaumburg & Polk, Inc.
E. James Verrett,
Registered Professional Land Surveyor No. 1781
AMENDMENT NO. 1 TO
COVENANTS AND RESTRICTIONS
PORT ARTHUR BUSINESS PARK
WHEREAS, the City of Port Arthur Section 4A E~onomic
Development Corporation filed the original Covenants and Restrictions in
the Jefferson County Real Estate Records on or about Janllary 26, 2006, File
No. 2006003269 as it pertains to the land in Appendix "A"; and
WHEREAS, the original deed restrictions stated the following as to
landscaping requirements:
Landscaping All non paved Maintain Lawns
Street Frontage 1 tree per 100 feet of
frontage- 2 inch caliper
WHEREAS, the City of Port Arthur Section 4A Economic
Development Corporation herein desires to amend the Deed Restrictions,
and does herein amend the Deed Restrictions so that the following
landscaping and screening requirements apply.
Landscaping and screening reqnirements.
(a) Purpose. Thc provisions of this section for the installation and maintenance of
landscaping and sereening are m~nded to protect the chm'acter and stability o
commercial, and industrial areas within the City of Port Arthur S~ion 4A Economic
Developmeot Corporation Business Park (the "Park"), to conserve the value of land and
buildings of surrounding properties and ndghborhoods, to enhance tho aesthetic and
visual imago of the Park, to encourage the preservation of existing trees and ~to assist with
dean air. In no case shall these provisions restrict ADA requirements.
Co) Landscape plan required. All building permit applications for new building
construction withiu tho Park shall be accompanied bytwo (2) blueline or blackliue prints
of the landscape plan that has been approved by the PAEDC.
The landscape plan shall contain sufficient detai! to show the following:
(I) The date, scalo~ north arrow and names and add~ess and phone numbers of
each property owner and person preparing the plans.
(2) The footprint of all existing and proposed structures.
(3) Remaining anddor proposed site elements such as power poles, fences, walls,
drainage swales, easements, sidewalks, p~rl~ng lot layout, pedestrian walkways,
and other such elements. ' l
(4) A schedule identifying name, size, number, end location of al landscape
elements.
(5) Name, location and size of existing trees, and WPe end location of °thar
vegetation proposed to ramaln for credit purposes.
(6) The size and location of the parking lot aud the number of spacas, end hew
the owner proposes to address the interior landscaping requirement.
(7) Such other information as may be re~-Sonably necessary to administer and
enforce the provisions of ti~s ordinenc~
(8) Drawu at a scale of one (1) inch equals twenty (20) feet or greater.
(c) Irrigation required.
All landscaped areas shall require an automatic irrigation system sufficient to
~ )ovide complete coverage of required screening landscaped areas, including
sodded or seeded areas along front and side of building.
(2) irrigation system shall be installed and operational l~rior to issuenca °f a
cartificate of ocoupenoy or final building inspection.
(3) State law requires installation by licensed irrigators.
(4) In'igafion systems shall be maintained in good and operating condition.
Certificate of occupancy. No certificate of occupancy for new construction in the
(B~u)siness Park shall be issu~l or f-mai approval of parking lot expansion made unless a
letter is roc, oived from the PAEDC that the property owner has complied with terms and
conditions required herein.
(¢) DefinRions.
(1) Berm. Landscaped earthen hill of three (3) feet height or greater.
(2) Caliper. The measure of the diameter of a tree at eighteen (18) inches above
grade.
Class A trees must be two (2) inches caliper or greater.
Class B trees if multi-t~nked, must have a minimum of three (3) trunks of one (l)
inch calipar each.
(3) Class H tree. A tree with a mature height ofthilly (30) feet or more. See
recommended list.
(4) Class B tree. A tree with a mature height of less than thirty (30) feet. See
r~omraended llst.
Crl~eal root zone. A cixcular region measured outward from. the tree trunk
for the tree's survival.
(6) Drip 1/ne. A vertical line extending fi'om the out.most edge of the tree
canopy or shrub branch to the ground.
(7) £asement. The legal grant of fight-of-use to an area of designated private
property utilized by public corporations (states, municipalities) and also made to
companies providing public services such as gas, electricity, and telephone.
(8) Island. A curbed landscaped area in a parking lot that is surrounded on all
sides by parking spaces,
(9) Landscaped. Shalicousistofanycombinationofturf/grass/groundcover,
shrubs, and trees. It must be installed in a sound manner and in accordance with
accepted standards of thc nursery industry.
(10) Median. A curbed landscaped area in a parking lot that separates parking
aisles.
(11} Openspaeeb#fferplant~ngst~P. The area between sing]e-fsmily
residential and any other zoned property. This strip is to include required trees.
(12) p/~n~ng st~. The area between the curb and sidewalk, two (1) curbs, a
curb and fence, or a sidewalk and fence.
(13) pen~nsul~ A curbed landscaped area that protrudes into parking aisles and
adjoins othor nonparking open space.
(14) Public rlgh~-of-way. The entire strip of land lying between the property
line and a street or thoroughfare, alley, crosswallq or easement.
(1~ shrub. A woody t~lant oflow or medium height, usunllymulti-stemmed-
See recommended list for three foot high hedge.
(16) Vehicular use ~rea. The total area of all the parking spaces and drives
serving the parkin§ area.
(f) Perimeter landscaping and screening.
(1) Whan a commercial or industrial use is established on a lot or premises
located adjacent to any residential zoning district, or when any multiple-family
dwelling use is established on a lot or premises adjacent to any property located in
a single-family residantial zoning district, a ten-foot width of landscaping open-
space buffer strip shall be installed and maintained by the owner, developer or
operator of the commercial or industrial property between it and the adjacent
residentially zoned property.
(2) in an open spaen buffer planting strip required under the terms of this
section, a minimum of one (I) class A Irce or two (2) class B trees shall be
planted and maintained for each twenty-five (25) lineal feet or portion thereof of
said open space buffer strip. The required trees may be planted anywhere within
the buffer strip with a minimum often (10) feet apart for class A lrees and a
minimum of five (5) fe~t apart for class B trees. Refer to definitions on tree size.
(3) In addition, an eight-foot high opaque fence or wall shall be erected and
maintained along the property linc to provide visual screening. Thc fence or wall
shall be masonry or a wood diagonal, hodzental or vertical stockade type privacy
lance, although the framing may be metal.
(4) In lieu of the fence, u thirty-foot wide landscape planted buf~r for the
purpose of sorceninlb may be provided along the property line.
(5) For a thirty-fool wide landscape planted buffer, cae (1) class A tree or two
(2) class B trees shall be planted and maintained for each ten (10) lineal feet of
buffer. The required trees may be planted anywhere within the buf~r strip with a
minimum of twenty (20) feet apart for doss A tre~ and a minimum of ten (10)
feet apart for class B trees. Refer to definitions on tree size.
(6) Tho provisions o f this perimeter landscaping and screening shall net apply
whom districts am separated by a public sire, et.
(7) When a specific uso permit is required, the landscape buffering and fencing
required by this section may be modified or eliminated os a condition of a specific
use permit.
Dumpst~r and immobll~ trash containers. Any fixed or otherwise immobile trash
guSto)n) tainer must be set back l~om the property linc no less then twenty-five (25) fe~t or bo
eempleteiy screened from view from any street via landscaping and solid, opaque fencing
on a minimum ofthr~ (3) sides.
No such container shall bo allowed on city right-of-way.
(h) Landscaping ofoff-stre~t parMng.
(1) perlmeterr~quir~menls.
a. A landscaping edge or buffer shall be required along each side of a
parking lot that faces towards a public right-of-way.
b. The landscaping edge shall be no less than six (6) fe~t wide and may
use up to three (3) feet of Lhe public fight-of-way, if unused and available
at the time of permitting.
c. The landscaping edge shall be for the pattcing lot~s entire Ioagth.
d. The landscaping edge shall contain no lees than one (1) ciass A tree or
two (2) class B treee for each twenty-five (25) lineal foot or fra~ion
thereof of the edge~
e. The required tre~ may be located anywhare within the six (6) foot
landscape edge with a minimum often (10) feet apart for da,ss A treee and
a minimum of five (5) feet apart for ciasa B trees, Refer to definitions on
tree size.
f. If overhead linee are present along the perimeter landscape edge, no
trees will be permitted in that perimeter landscape edge. In addition, no
frees shall bo permiRed within a thirty-foot distance from the outermost
power line.
g A sv:~en no less than thr~ (3) f~ height comprised ora wall, solid
fence, b~m, or plant material or combination of shall bo provided along
the entire length of the landscaping edge or buffer, if any part. of tho
landscaping edge is within ten (10) fo~t of the right-of-way. The screen
does not have to bo sffaight with the sffeot or parking edge.
h. Tho three-foot high screen shall not be on the right-of-way.
i. Tho three-foot high sereoa shall not bu required across driveways.
j. The three-foot hish scrooa shall not be within three (3) feet of a
driveway or restrict a driver's line of sight of approaching vehielee as
determined by the city.
k. Tho required ~e-foot high screen, whoa planted, shall be a minimum
of two (2) f~t in height. See list of snggeeted shrubs.
1. A minimum width of three (3) feet is required for tho bed con~inln-g
the planted screeo.
m. The required thre~feot high screen, if planted shall bo maintained at
no less than three (3) f~et high.
(3) An increase in the slz~ of an existing parking lot by twenty-five (25) go,at
in tho number of parking spaoee or more shall require tho entire parking lot, in
addition to the twoaty-fivo (25) parc, oat expansion, to be brought into complianca
with this semen.
a. A ~a,f area is to be incated between the paved or enrbed portion or
sidewalk of tho edj scent stre~ right-of-way and tho front property line.
b. Thelandscape planting strip shall not bo used for parking, but can be
cxossed with driveways providing direct ingress and egress to &e
development that have been approved by the devalopment sarviees
manager or his desiguee.
¢. This landscape planting strip shall by planted with one (1) class A or
two (2) class B trees for each twenty-five (25) lineal feet or fraction
thereof along the property llne. The required trees may be planted
anywhere within thc landscape planting strip with a minimum of ten (10)
feet apart for class A trees and a minimum of five (S) feet apart for class B
d. Three (3) feet of public right-of-way may be used with written
permission from tho City of Pozt Arthur.
Installation and malntenanee.
(1) All landsceping shall be installed in accordance with accepted standards of
the T~xas Nurseryman's Manual.
(2) All plant material shall be true to name, variety, and size and shall conform
to ali applicable provisions of the American Stendards for Nursery Stock, latest
edition.
(3) The owner and/or tenent shall be responsible for inst~lling and maintairdng
all landscaping according to standard horticultural practices.
(4) All landscaping shall be maintained in a healthy, neat, and orderly condition.
($) No trees may be located within tea (10) fe~ o£a fire hydrant.
(6) No tr~es may be topped if the limbs are three (3) inches in diameter or
greater.
(./) Required three_foot hedges shall be maintained at a minimum of three (3)
(8) Dead, dying or damaged lendscaping mateaial shall be immediately replaced
in conformance herein.
(9) irrigation systorns must be in good and operatlng condition.
(10) Failure to install required material or maintain landscaping within sixty (60)
days of notification shall be subject to legal action
(11) Any request for a variance to the terms of the deed restrictions must be
submitted in writing and be rasponded to in writing by the PAEDC President after
due consideration by the pAEDC Board of Directors.
A letter of credit may be utilized when tho landscaping improvements
~le~l) uired by the PAEDC have not bean completed prior to the isananc~ of a
certificate of occupancy.
(2) The applicant shall post cash or an irrevocable letter of credit payable to the
Port Arthur Section 4A Economic Development Corporation in an amount
equal to one hundred thirty (130) percent of the estimated cost. This amount
shall include the Port Arthur Section 4A Economic Development
Corporation's cost of administering the completion of the improvement in the
event the sub divider defaults as provided herein. The security shall be
deposited with the Port Arthur Section 4A Bconomic Development
Corporation or in escrow wiih a ha~c at the option of the Port Arthur Section
4A Economic Development Corporation. Such letter of credit shall comply
with all statutory requirements and shall be satlsfaetory tn the Port Arthur
Section 4A Economic Development Corporation's attorney as to form,
s,_~l~/iciency, and manner of execution as set fo~ch in these regulations. The
po'led within which required improvements must be completed shall be
specified by the Port Arthur Section 4A Bconomic Development Corporation
or his designee and shall be incorporated in the letter of credit. In those cases
where a letter of eredit has been posted and the required improvements have
not been installed within the terms of the letter of oredit, the PAEDC may
thereupon declare the later of c~ctit in default and require that all of the
improvements be installed.
TREES FOR PORT ARTHUR BUSINES~ PARK
Class A ~ee: Mature height greater than thirty (30) feet
Branches begin at six (6) feet
Must be two (2) inches or greater in caliper when
planted
Common Name Latin Name
Bald Cypress (back proper~y only) Taxodium distichum
Canary Island Date Palm Phoenix canariensis
Cherrybark Oak Quercus falcata var. pagndifolia
Green Ash (back property only) l~raxinus pennsylvanica
Live Oak Que~ns virgi~iana
Sawthooth O~ Quer~s
Loblloly Pine (back property only) Pinus Taeda
N,~,~I! Oak Querens lquttallii
p~ (back property only) Carya illinoinansis
Red Maple Acer mbnnn rDrommondii'
Sabal Palms, Florida Fan Palm/cabbage Sabal palmetto
Palm
Slmmsrd Oak Qu¢~as Shumardii
Slash Pine (back property only) Pinns lglliottli
Soutbem Red Oak Quercns falceta
Spruce Pine (back property only) Pinus glabra
Swamp Ch~qtnut Oak, Cow, Basket Quercus Mic. hauxii
W~-qhll~ ~onia Palm Was~nla robusta
Water Oak Querous ni~'a
White Oak Quercus alba
Willow Oak Quercus phellos
Wi.&mill Palm Tracycarpus forttmcl
Cln.~.e B Tree:
Less than thhty-foot mature height
Eight (8) to ten (10) feet height when planted
Common Name Latin Name
American Holly Ilex opnca
Chinese Fan palm lAvistona chinensis
-Chinese Pist~,~hi~ (back property only) Pistacia chinesis
Crape Myrtle Lagerstroemia indica and hyhiid
Flowerinl~ Pear (sidefoack property only) Pyrus Calleryana 'Bradford', 'Aristocrat'
~apauese Evergreen Oak Que~cus glauca
Parsley Hawthorn Cr~_~gus Marshallii
River Birch Betula nigra
T~xas Redbud Ccrcis canadensis 'Taxeosis'
Tree Ligustrum Ligustrom lucidum
Wax L~,~nun Tre, o Li~ustmm japconicum
Shrubs:
SHRUBS FOR SCREENING REQUIREMENTS
M~ntaln flu-ce-foot height or greater
Must be evergreen
Common Name
Blue Vase Juniper
Bo~ebrush
Latin Name
Junlperus cignensis 'Glauca'
Callistemon rigidus
Comellia 8~s~nqua, uptight Camellia Sasanqua
Chinese Holly Ilex comuta 'Rotunda'
Cloyera Temstoromi~ g~rmnanthem
Dwarf Bur ford Holly ilex comuta 'Buffordii Nana'
Dwarf $~_p_,_~¢se Holly Ilox e~nat a 'Compacta'
Dwarf Wax Myrtle Myrica pusilla
Knglish Boxwood Buxus sempo~vire.ns
Fring= Flowor Loropotalum chinons¢
Garett~nln; t~? J~nine Gardenia jasminoides
Glossy Abelia Abelia grandiflota
I, disa Azalea Rhododendron iRdica
[ lncti~n Hawthorn Raphiolopis indica
Na.ndlna N andinll, domestiex
Oleander DWARF Nerium Oloander
R~I Tip Photinia Photinia glabra
Wax-leaf Li~strum Ligustrum japonloum
SIGNED and AOREED to on this tho ~_ day of -~2~ J 2007.
City of Po~t Aflhur Section 4A
Economic Development Corporation
AcKNOWI~D~/~EN~
~HE STATE OF TEXAS:
COUNTY OF JEFFERS(H4:
BE~14E, THE THqDERSIGNED Notary Public, on this day
personally appeared Richard Wycoff, President, ~own to me to be
the person whose name is described to the foragoing instr~ent,
and ac~owledged to me that he executed the same as the act and
deed of the City of Port Arthur Section 4A Economic Development
Corporation, for the purposes and considerations therein
expressed, and the capacities therein stated.
GIVEN DNDER MY F~ ~ SF~%L OF OF~, this the '~'~ay of
SI~ED ~dAO~ED~on~s~yof
I~dth DaWs, §~., Sec~stary
City of Port Arthur Section 4A
Economic Development Corporat/on
ACKNOWLEDG~gENT
THE STATE OF TEXAS: ·
COUNTY OF JEFFERSON: ~
BEFORE ME, THE TH4DERSIG~IED Notary Public, on this day
personally appeared Keith Daws, Sr., Secretary, known to me to be
the person whose name is described to the foregoing instrument,
and acknowledged to me that he executed the same as the act and
deed of the City of Port Arthur Section 4A Economic Development
Corporation, for the purposes and considerations therein
expressed, and the capacities therein stated. ~
G~V~N %~NDER MY HAND AND SEAL OF OFFICE, this the,~aY of
AFTER RECORDINS, RETURN TO:
City of Port Arthur Section
Corporation
P. O. Box 1089
Port Arthur, TX 77641-1089
4A Economic
Development
APPENDIX"~'
Di~SC~LI~ON OF A
2~7 96O AC~'i~CT O~. PA~C~ OF LA-N~
OUT OF At, a) FAINT OF
THE WM. McFADDIN SURVEY, ABSTRACT NO 416,
THE T. & N O R,R. SUP, VEY, SECTION NO. 5, ABSTRACT NO. 238,
AND THE T & N.O.R R. SURVEY, SECTION NO 9, ABSTRACT NO. 242
JEFFERSON COUNTY, TEXAS
AUGUST 20, 200t
A~I that certa,~ tre~:t or parcel of land ly{ng snd I~ng s(tusted In JefferSon CountY,
Texas, parts of the WM. McFADDIN SURVEY, ABSTRACT NO, 418, the T. & N.O.R.R
SURVEY, SECTION NO, 6, ABSTRACT NO. 238, and the T, & N.O.R.R, SURVEY,
SECTION NO. 9, ABSTRACT NO. 242, and being parts of Blocks 14, 15 and 18, Range N,
Blocks 14, t5 and ~6, Range O, and I~toclcs 15 and 16, Range P of~e Lands of the Port
Nthur Land Co, the pint of v/mob said sub:l~s[on is of record In Volume 1, Page 22 of the
Map Records of Jefferson County, Texas, and being a part af that oedain tract of land herein
referred to as the "McFaddm and Cordts' tract, which said McFaddin and Cordia tract is
designated ~" and ~s described In that certain mstrumant from W P H
McFeddm, Jr, and J.L.C McFaddln, as Ttusteas of the McFed~n Trust to J.L.C. Md=add[n,
Oi McFaddln Houk, Perry McFeddln Dun~n, W P H. McFadden Jr, Mamle McFeddtn Ward,
Carnella I~. McFaddm and Di Vernon McFaddln Cordia, W.P H. McFaddin Jr., and J LC
McFaddln, Jolhtly, and Mamie McFaddln Ward, W P H. Mc. Feddin, Jr., J L.C McFaddin, and
Camel[a B. MoFaddin and DI Vernon MoFaddln Cordls, Jomliy, dated Februmy 26, 1948 and
recorded tn Volume 692. Page 22 of the Deed Records of Jefferson County, Texas, and
which said ~ is Indicated on that eaffain plat entitted 'PARTITION MAP NO
3 OF THE MoFADDIN TRUST PROPERTY IN JEFFERSON COUNTY', TEXAS. "which
said plat ts of record in Valume 8, Page 110 of the Map Records of Jefferson County, Texas,
and being a part of that certain tract of land herein referred to as the "Cordia" tract, which
said Con:its tmc~ Is deaonbed m that certain Instrument fi'om E.G Cordts, Jr., Independent
Executor of the Estate of Di Vemen McJ=acldin Belly to E.G Cordia, Jr., Coilaan Clave
Cordts and Anna Oamel[a Cordts, dated September t3, 1994 and recorded under County
Cle~s File No 94-9432523 of the Official Public Records of Real Property of Jefferson
County, Texas, and the s~d tract herein des~bed being that exact same certain [tact of
rand herein referred to as the 'PAEDC" tTact, which said PAEDC t~3{ la des~bed in that
certain instrument from E G. Cordia, Jr., , Collaen Clare Cordts Rice .... and Anna
Cameha Cordia Eo'wardson, to Port Arthur Economic Development Corpom~n, dated
February 28, 2001 and recorded under County Claim's File No. 2001007554 of the Official
Public Records of Reel Properly of JeffersOn County, Texas, and the said tract herein
des~bed being mom part~ulafly descobed as follows:
[J~.JJ~lJ!~ at a iron rod ~ a Texas Deparlmeat of Transportation aluminum cap
(Tx'DOT Type 1 Monument) found for the southeast oomar of the said lre~ herein
Page 10 of 13
desonbed, the sa~ comer be,ng the southeast comer of the said PAEDC tract, and the said
comer also being the most southerly southwest comer of that sarla~n tract.of land herein
mfermcl to ss the "Parcel 31' ~act, 'wht~ saki Parcel 31 tm~t is so dssignsted and
desr, ribed in that cortaln instrument from E.G Cordia, Jr, Colleen Clam Cordts I~ce and
Anna Camelia Cerdts Edwardson to Jefl'emon County, dated March 15, 1999 and recorded
under County Clerk's Fits No 1999009190 of the Offic. lal Pu~o Records of Resl Property of
Jefferson County, Texas, and the said comer being ~n the north line of that certain tract of
land heroin reran'ed to as the "Panel 32' traot, re, ich said Parcel 32 6'act l.~ so designated
and is described in that certain instrument from The Mamle MoFeddin Ward Hedtage
Foundation to Jefferson County, dated December t2, 'i996 and resorded under County
Clerk's File No 96-9636512 of the Olfi~al Public Records of Real Prope~Y of Jeffemon
County, Texas, the sald comer being an m~ier angle point comer in the southwsat~y
aght-of-way line of Texas State H~ghway Spur 93, and the said TxDOT T~pe t Monument
found for comer being East (Assumed Seals of Bsanngs - called South 89° 37' 0~' East)
along and with the south llne of the said PAEDC tract, said north line of the Parcel 32 bact
and nodh line of that cer~ln tract of land herein referred to as the ~Nard' t~ect, which said
Ward tract Is designated "T[~,CT NO. 19-C" and is described in the hereinbefore referenced
instrument recorded ia Volume 692, Page 22 of the Deed Records of Jeffemon County,
Texas, and which sa~d ~ is indicated on the he~nbefore referenced plat of
record tn Volume 6, Page 1 t0 of the Map Records of JeE, ersofl County, Texas, a total
distance of 5,430.9g feet (~led 5,431.07 feet) from a 5/8" Iron md v,~ a yellow cap
stamped "RPLS 3636" found for reference;
THENCE West (celled North 89° 37' 00' West) along and with the said south line of
the PAEDC tract, north I~ne of the Parcel 32 tract and ner~t line of the Ward tract, pasail~g at
a dlsfance of 16 92 feet (called 16.92 feet} a 5/8" Iron md found for the most nodherly
northwest comer of the said Parcel 32 tract, the san comer being an exte~or angle point
comer in the said southwesterly right-of-way line of Texas State H~ghway Spur 93, and
passing at a distance of 4,938.57 feet (celled 4,938 gl feet) a 5/8" iron rod ~ a yeilowsap
stamped 'RPL$ $636" found for reference at the southeast comer of that cedaln lmct of
land herein referred to as the "TRACT tg6~" tract, whloh said TRACT 196-A tra~ ~ so
designated and ~s described in that nertein instrument (titled
SE~T") from DI Vernon MeFaddln Klbodeaux, fom~ Di Vernon McFadd~ Cordts,
Ioined therein by her husband, Oran J. I~bedeaux to Jefferson County Dmlnage D~nct No.
7 deled January 4, 1968 and recorded In Volume 1631, Page 123 of the Deed Records of
Jeffemon County Texas, and passing at a distance of 5,430 99 feet (celled 6,4~1.07 feet)
the hereinbefore said 5/6" iron rod with a yal~ cap stamped "RPL$ 3836" found for
reference at the southwest comer of the said '~CT 196-A tm~{, and co~nulng (West)
along and w~h the said south line of the PAEDC t~act and norlh line of the Ward tract, a total
distance of 5,545 27 feet (called 5,545.35 feet) to a point for the mxJthwest co rne r of the sa~d
tract here~n descabed, the satd comer being the southwest comer of the said PAEDC tract,
and the sa~l comer also being the non,west comer of the smd Ward tm~ and the said
comer being in the easterly line of that certain ~act of land herein referred to as the 'TRACT
A" tra~ which sa~ TRACT A tract ~s so designated and ~ desonbed ~n that certain
instrument from Darting Klaver, st al to Jefferson County Drainage D~sbict No. 7 dated
November 22. 1971 and rsooe:led in Volume 1727, Pegs 481 of the Deed Records of
Jeffemon County, Texas. and the sa~ comer being ~n the centerllne of Rhod~ar Gully,
Page Il off3
THENCE Nor~ 12° 17' 39' West (called North 11' 54' 13" West) along and with the
westerly line of the sad PAEDC Irac~, 'the saki easterly line of the TRACT A tract and eald
ceate~ne of Rhedmr Gully, a distance of 724,g6 feet (c~lled 724 92 feet) to a point for the
most westerly no.west comer of the sar! lmct ttem~n des~bed, 6~e ~ comer being the
most westerly norlhv,~st comer of the sam PAEDC tract, and the sad comer also being the
most noulherly corner of that cer~ln tract of land hemJn mferrod to as the "J.L.C. M~Faddln"
tract, which said J L C. McFaddm tract rs des;naiad "TRACT NO, 12-C" and ~s described In
the hereL~befom refomnced Instrument mcon~ed ~n Volume 692, Page 22 of the Deed
Records of Jefferson County, Texas, and which sad TRACT NO 12-C is indmefed on the
hereinbefore referenced plat of record ,n Vctume 8, Page ~f0 of the Map Records of
Jefferson County, Texas;
THENCE North 39" 57' 00" East (called North 40° 20' 00" East) along ertl w~t the
most westerly northwest line of the sa~cl PAEDC tract and most southerly southeast line of
the said J,L.C. McFeddm ~mct, passing at a dlstanco of 132.53 feet (called 132.53 fee~) a
5/8" Iron rod with a yellow cap stamped 'RPI.8 3B36" found for reference et the no;thwest
comer of the herembetore said TRACT lg6-A tract, and pe, es~ng at; dLstam:e of 736,10 ~eet
(called 735.85 feet) a 5/8' ;on rod w~ a red plest¢; cap stamped "S&P INC" set for
reference at the northsast comer of the said TRACT IG6-A tract (and which sad 5/8" iron
rod w~h a red plastzc cap set for reference ts North 37, 53' 15" West a distance of 0.3g feet
from a 5/8" roe rod with a yellow cap stamped "RPL8 3~38" found for reference), and
co~nu;ng (North 39° 57' 00" Ease) along end v4th the said most westerly northwest I~ne of
the PAEDC tract and most southerly soub~east lane of the J L C MoFaddln lmcL e ~o~al
d~stence of 3,925.4,9 feet (celled 3,925.61 feet) to a %" iron rod found for Ihs most no.,therly
comer of the said tmc~ herein described, the said comer bang the most noilherly comer of
the said PAEDC tract, and the sa~d comer also being the most westerly corset of that cart~un
tract of land hernia referred lo as the "Bamette ~ 1483/t77' lmc~, whl<Yn said Bamette -
1483/177 tract ts c[escnbed ~n Ihat cazta~n instrument from Gulf Refining Company to N,K.
Bamette, Jr dated October 24, 158B and recorded In Volume 1483, Page 177' of the Deed
Records of Jefferson County, Texas;
THENCE South 4g~ 46' 07, East (calIed South 48° 23' 24' East) along and with the
most northerly northeast line of sold PAEDC Iract and eouthwestedy line of the smd
Barthefte - 1483/177 tm~t, a distance of 1,317 60 feet (called 1,317.54 feet) to a ½' Iron rod
found for an intenor comer of the said tm~ herein clesonbed, the said somer being an
tntenor comer of the sad PAEDC tract, and the said comer also being the most southerly
comer of the sad Bamette - 4483/177 tract,
THENCE Noilh 40° 07' 58" East (~alled No;th 40° 33' 04' East) along and 'wzth ~
most easterly northwest line of the smd PAEDC Irect and southeasterly I~ne of the said
Bamette - 1483/177 Irest, a dtstenca of 151 95 feet (celled 151.86 feet) to e 5[8" ~on rod
with o yellow cap stamped "RPLS 363~" found for the most easterly northwest comer of the
said tract hemm descnbed, the sa~ comer being the most eastedy nodhwest comer of the
said PAl;DC tract, and the said comer also being the mcat westerly ~omer of that es~u~in
lmct of land harem refon~d to as the "Bamette - 1483/176" Irect, wh~d~ sa~l Bamefie -
1483/176 tract is described m thai carta~n mslmmeet fram D[ Vernon MoFaddin Cordls
joined therein by her husband, Edwin G. Cordts to N K Barnefie, Jr, dated O~c~er ~ t, '1966
Paso 12 of 13
and mcordea in Volume 1483. Page '176 of the Deed Records of Jeffersan County, Texas,
and the sad 5/8" ~mn md w~ a yellow cap stamped '~RPL8 3636" found for comer being
South 40~ 11' 19' West (calied South 40~ 33' 04" West) along and vath the sa~d
southeasterly line of the Bamette - 1483/177 tract, noithwesterly Itne of ~ satd garnette -
t483/176 tract a~l southeasterly line of that caftan imct of land hewn referred to as the
"LNVA" Iract, which sad LNV^ tract ~s describes ~n that cartekt Iflstmment from Gulf
Refining Company to ~he Lower Nashes Valley Aullmdty dated Al)hi 8, 'J975 and recorded In
Volume 1876, Page 290 of the Deed Records of Jefferson County, Texas, a total distance of
499.44 feet (ca[lea 50000 feet) from a 5/8" iron rod farad for the most no~hen'y comer of
the saEd Bamette - t483/'176 tract, the sad comer also being the most easterly comer of Ihe
ea~l LNVA tract, and the said comer being in lhe he~nbefom sad southwesterly right-of.
way line of Texas State Highway 8put 93,
THENCE South 83° 44' 08" East (called South 83° 21' 35' East) along and with the
most easterly north line of the said pAEDC (~rast and southerly I~ne of the sa~l I~mette -
t483/t76 lmcL a d~stance of 557.12 feet (called 857 t2 feet) to a 5/8" kon rod found for the
most northerly norlheest comer of the sad lract herein dascflbed0 the said comer being the
most northerly northeast comer ef the said PAEDC lrsot, and the sa~l comer also being the
most northerly norflwvast comer of the hereinbefore sad Parcel 31 tract, and the sald comer
being In the sam southwesterly right-of-way line of Texas State H~ghway Spur 93, and the
saki 5/8" Iron rod found for comer being South 27~ 38' 14' East (called South 27* 11' 44"
East) a~ong and w~th the sad southwesterly right-of-way line of Texes Stets Highway Spur
93, a d~stance of 499~.6 feet {called 499,56 feet) from the hereinbefore said 5/8' ~mn rod
found for the most ~oflberly comer of the Bamstte - 1483f176 trac~ and most easterly comer
of the LNVA tract;
THENCE South 27° 30' 14." East (called South 27° 07' 03" East) along and with the
most easterly no~east hne of the sad PAEDC Iraq sauthwestedy line of the said Parcel
31 tract and ea~d so~hwestarly right-or-way I~ne of Texas Stale H~ghway Spur 93, a totel
distance of 3,294.33 feet (caged 3,294 40 feet) to the Point of Beginning and
Conta~ning 297.960 acres (called 2g?.973~ acres) of land, more or less
p~ared by
Schamal~ttrg &; Polk,
Reg~atea~5 lhofesmonal land S~arveyot No 1'781
Pege 13 oft3
CONDITIONAL COMMRRCIAL PROMISSORY NOTE
Port Arthllr, Texas
This CONDITIONAL COMMERCIAL PROMISSORY NOTE becomes effective on the date
when Triangle Waste Properties, LP, a Texas Limited Partnership (hereinafter called "Maker")
breaches and receives written notification from Lender of such breach, and the effective date of
this Note, 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 ,2007.
Effective Date of Note: the __ day of
receipt of written notice from Lender advising of breach')
, 200 .("date of breach and
Principal Amount: $ , which is $374,000 minus the incentive credits earned by
Maker according to that certain Economic Incentive Contract and Loan Agreement between the
Lender and Maker (described hereinbefore).
Term of the Loam Three years from effective date.
Payment ,~aedule: Monthly until principal is paid fully.
FOR VALUE RECEIVED, the undersigned "Maker", promises to pay to Lender, at its office at
P.O. Box 1089, Pon 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
effective date hereof until maturity at the rate of ten pemem (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 (1555) per annum, or to the maximum extent allowed by law (whichever is
greater) as may hereafter be in effect, payable on demand after maturity.
This note is due and payable as follows: Monthly on the 1~ of each month, starting the
month immediately following the month the Note became effective. The amount of monthly
payment will be a payment of principal and interest sufficient to fully amo~ize the principal
mount of this Note by its maturity date.
Any notices required or permitted to be given by the holder hereof to Maker pursuant to
the provisions of th/s note shall be iu writing and shall be either personally delivered or
transmitted by first class United States marl, 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 entifled 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 exeented. No liens covering any real
property currently serve as security for this Note except for a second deed of trust from Maker to
Lender covering the Property described in Attachment "1~ on South Business Park Drive, Port
Arthur, Texas 77640, for an indebtedness not to exceed $374,000.
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
hereaRer 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 propen7 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
eundition 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 ff Maker or any other liable
party (ff 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 ff
Maker or any other liable patty shall sell substantially all or an integral portion of its assets
without the written consent of Lender; or if Maker or any other liable patty 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 wMch 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, pretest 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 fried 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 ail
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 dufanIt 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(incinding all renewal and extended terms).
Maker may prepay all or any part of the principal of this note before maturity without
penalty. No paxtiai 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 ail sums called for
hereunder; and, except for notices specifically required to be given by the holder hereof to Maker
pur. suant 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 coment 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
fights against any security therefor prior to enforcing payment of this Note by any other liable
party.
-3-
SIGNED AND AGREED TO on the_ day of
., 200
A Texas Limited Partnership.
By: Triangle Waste Solutions, LLC
Its General Panner,
A Texas Limited Liability Company
By:
Joseph B. Swinbank, President
THE STATE OF TEXAS
CO~ OF JEFFERSON
ACKNOWLF. GEMF2/T
BEFORE ME, THE UNDEI~IGNED Notary Public, on this day personally appeared
loseph W. Swinbank, President of Triangle Waste Solutions, LLC, a Texas limited liability
company and General Partner of Triangle Waste Prope~es, LP, a Texas limited pannership
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 such entities, for the
purposes and consideration therein expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND $]~,L OF OFFICE, this the day of
Notary Public, State of Texas
MAKF. RS' ADDRESS FOR RECEIFr OF NOTICE:
TRIANGLE WASTE PROPERTIF, S, LP
c/o Joe Swinbank
1041 Conrad Sauer Road
Houston, Texas 77043
-4-
5117/07
Attachment
DESCRIPTION OF A
10.00 ACRE TRACT OUT OF LOT 2
OF THE
PORT ARTHUR ECONOMIC DEVELOPMENT CORPORATION BUSINESS PARK
PORT ARTHUR, TEXAS
APRIL 16, 2007
That certain 10.00 acre tract out of Lot 2 of the Port Arthur Economic Development
Corporation Business Park, a plat recorded in Clerk's File #2005044721 of the Official Real
Property Records of Jefferson County, Texas; said 10.00 acre tract being more particularly
described by metes and bounds as follows:
(Note: the concrete monuments found in thc center line of South Business Park Drive were used
for the basis of bearings)
COMMENCING at a concrete monument found in the center line of the intersection of
Jade Avenue and South Business Park Drive;
THENCE South 35032'26" West, a distance of 64.52 feet to a ½" iron rod set for the
southeast comer ora mm ora turn out on Jade Avenue and being the POINT OF BEGINNING;
THENCE South (called South) along the west line of Jade Avenue and the east line of
Lot 2, a distance of 342.63 feet (called 342.63 feet) to a ¼" iron rod set for the northeast comer
of Reserve C and being an angle point in the east line of the said 10.00 acre tract;
THENCE West (called West) along the north line of Reserve C, a distance of 150.00
feet (called 150.00 feet) to a ½" iron rod set for the northwest comer of said Res(ave C and being
an interior comer of the east line of the said 10.00 acre tract;
THENCE South (called South) along the west line of Reserve C, a distance of 150.00 feet
to a ½" iron rod set for the southwest comer of said Reserve C and being and angle point on the
east line of the said I0.00 acre tract;
THENCE East (called East) along the south line Reserve C, a distance of 150.00 feet
(called 150.00 feet) to a ½" set for the southeast comer of said Reserve C and a point on the east
line of said Lot 2, a point on the west line of Jade Avenue, and an angle point in the east line of
the said 10.00 acre tract;
THENCE South (called South) along the east line of Lot 2 being the west line of Jade
Avenue, a distance of 40.00 feet (called 40.00 feet) to a ½" iron rod set for the southeast comer
of Lot 2 and the southeast comer of the said 10.00 acre tract;
Ex. "It" ' 5 ' 5117/07
THENCE West (called West) along the south line of said Lot 2, a distance of 836.72 feet
to a ¼" iron rod set for the southwest corner of the said 10.00 acre tract;
THENCE North, a distance of 547.63 feet to a ½" iron rod set on the north line of said
Lot 2 and the south line of the South Business Park Drive; said iron rod being the northwest
comer of the said l 0.00 acre tract;
THENCE East (ca/led East) along the north line of said Lot 2 and the south line of the
South Business Park Drive, a distance of 821.72 feet to a ½" iron rod set for the northwest comer
of the turn out at the intersection of Jade Avenue with the south Iine of South Business Park
Drive;
THENCE South 45000'00'' East (called South 45000,00'' East) along the said turn out, a
distance of 21.21 feet (called 21.21 feet) to the POINT OF BEGINNING and containing 10.00
acres of land, more or less.
Prepared by
Faust Engineering and Surveying, Inc.
Richard F. Faust, P.E.
Registered Professional Land Surveyor No. 4782
COMMERCL~L SECUP~TY AGREEMENT
Debtor(s)
Joe Swinbank
. Donald Poamh
Dated
,2O0
Secured Party
I Port Arthur Economic Development
t Corporation ("PAl]DC")
P.O. Box 19129 [ 4173 39~ Street -
Houston, Texas 77224 / Port Arthur, Texas 77642
hereinafter referred Io as ~Debmr' whether one or more) (here/nailer referred m as ~$ecured party~)
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, Debtor grants to Secured Party the security interest (and the pledges and
assignments as applicable) hereinafter set forth and agrees with Secured Party as follows:
A. OBLIGATIONS SECURED. The first priority lien and pledges and
assignments as applicable granted hereby are to secure punctual payment and performance by
the principal, TRIANGLE WASTE PROPERTIES, LP, of the following: (i) that certain
conditional promissory note(s) of even date herewith in the original principal sum of up to
$374,000, executed by Debtor and payable to the order of Secured Party, but to be effective
only if Debtor defaults under the Contract (defined below) and receive a written notice from
the- Secured Party advising that such note is effective, and any and all exteusious, renewals,
modifications and rearrangements thereof, and (ii) certain obligations of Triangle Waste
Properties, LLC ("Triangle") to Secured Party under that cemin Economic Incentive Contract
and Loan Agreement (the "Con~ract') of even date and all extensions, renewals, modifications
and rearrangements thereof (all of which are herein separately and collectively referred to as
the "Obligations"). Debtor acknowledges that the security interest (and pledges and
assignments as applicable) hereby granted shall secure all future advances as well as any and
all other indebtedness, liabilities and obligations of Debtor under the Con~ract to Secured Party
whether now in existence or hereafter arising.
B. USE OF COLLATNRAL. Debtor represents, warrants and covenants that
Collateral will be used by the Debtor primarily for business use.
C. DESCRIPTION OF COLLATERAL. Debtor hereby grants to Secured Party a
first priority lien in (and hereby pledges and assigns as applicable) and agrees that Secured
Party shall continue to have a security interest in (and a pledge and assignment of as
applicable), the following property, to wit:
[] All Accounts. A security interest in all accounts now owned or existing as well as
any and all that may hereafter arise or be acquired by Debtor, and all the proceeds and
products thereof, including without limitation, all notes, drafts, acceptances,
instruments and chattel paper arising therefrom, and all returned or repossessed goods '
arising from or relating to any such accounts, or other proceeds of any sale or other
disposition of inventory.
n/a
nJa
n/a
[] Specific Accounts. A security interest in the supervised account at Texas State
Bank, including earned interest, described by the Deposit Agreement between the
Financial Institution, the Debtor and the Secured Party. Such agreement attached or
which may hereafter be attached hereto.
[] Ail Inveatory. A security interest in all of Debtor's inventory, including all goods,
merchandise, raw materials, goods in process, fL, fished goods and other tangible
personal property, wheresoever located, now owned or herea~er acquired and held for
sale or lease or fi~ruished or to be furnished under contracts for service or used or
consumed in Debtor's business and all additions and accessions thereto and contracts
with respect thereto and all documents of title evidencing or representing any part
thereof, and all products and proceeds thereof, including, without limitation, all of such
which is now or hereafter located at the following locations: (give locations)
[] All Fixtures. A security interest in all of Debtor's fixtures and appurtenances
thereto, and such other goods, chattels, fixtures, equipment and personal property
affixed or in any manner attached to the real estate and/or building(s) or structure(s),
including all additions and accessions thereto and replacements thereof and articles in
substitution therefor, howsoever attached or affixed, located at the following locations:
(give legal address)
The record owner of the real estate is:
[] All Equipment. A security interest in all equipment of every nature and description
whatsoever now owned or hereafter acquired by Debtor including all appurtenances and
additions thereto and substitutions therefor, wheresoever located, including all tools,
pans and accessories used in connection therewith.
[] Crmaeral Intangibles. A security interest in all general intangibles and other personal
property now owned or hereafter acquired by Debtor other than goods, accounts,
chattel paper, documents and instruments.
[] Chattel Paper. A security interest in all of Debtor's interest under chattel paper,
lease agreements and other instruments or documents, whether now existing or owned
by Debtor or hereafter arising or acquired by Debtor, evidencing both a debt and
security interest in or lease of specific goods.
[] Farm Products. A security interest in alt of Debtor's interest in any and all crops,
livestock and supplies used or produced by Debtor in farming operations wheresoever
located: Debtor's residence is in the county shown at the beginning of this Agreement
and Debtor agrees to notify promptly Secured Party of any change in the county of
Ea."C" -2- 5117/07
X
Debtor's residence; all of Debtor's crops or livestock are presently located in the
following counties: (give counties)
[] Securities. A pledge and assignment of and security interest in the securities
described below, together with all instruments and general intangibles related thereto
and all monies, income, proceeds and benefits attributable or accruing to said property,
including, but not limited to, all stock fights, options, rights to subscribe, dividends,
liquidating dividends, stock dividends, dividends paid in stock, new security or other
properties or benefits to which the Debtor is or may hereafter become entitled to
receive on account of said property. (give description)
[] Certificates of Deposit. A pledge and assignment of and security interest in all of
Debtor's interest in and to the certificates of deposit described below and instruments
related thereto, and all renewals or substitutions therefor, together with all monies,
income, interest, proceeds and benefits attributable or accruing to said property or to
which Debtor is or may hereafter be entitled to receive on account of said property. A
first priority lien on Texas State Bank Certificate of Deposit Number
Donald Poareh. in the name of Joe Swinbank and
[] Inalxuments. A pledge and assignment of and security interest in ail of Debtor's
now owned or existing as well as hereafter acquired or arising instruments and
documents.
n/a
[] Other. A fLrst priority lien on ail of Debtor's interest, now owned or hereafter
acquired, in and to , as detailed
in that certain Incentive Comract and Loan Agreement between Debtor and Secured
Party. Invoice for is attached.
Model Number:
Serif Number:
The term ."Collateral" as used in this Agreement shall mean and include, and the
security interest (and pledge and assignment as applicable) shall cover, ail of the foregoing
property, as well as any accessions, additions and attachments thereto and the proceeds and
products thereof, including without limitation, all cash, general intangibles, accounts,
inventor, equipment, fixtures, farm products, notes, drafts, acceptances, securities,
instmmems, chattel paper, insurance proceeds payable beeanse of loss or damage, or other
property, benefits or rights arising therefrom, and in and to all returned or repossessed goods
arising from or relating to any of the property described herein or other proceeds of any sale or
other disposition of such property.
As additional security for the punctual payment and performance of the Obligations,
and as part of the Collateral, Debtor hereby grants to Secured Party a security interest in, and a
Es-'C" -3- 5117107
pledge and assignment of, any and all money, property, deposit accounts, accounts, securities,
documents, chattel paper, claims, demands, instruments, items or deposits of the Debtor, and
each of them, or to which any of them is a party, now held or hereafter coming within Secured
Party's custody or control, including without limitation, all certificates of deposit and other
depository accounts, whether such have matured or the exercise of Secured Party's fights
results in loss of interest or principal or other penalty un such deposits, but excluding deposits
subject to tax penalties if assigned. Without prior notice to or demand upon the Debtor,
Secured Party may exercise its rights granted above at any time when a default has occurred
under the Contract and Debtor has been advised in writing by Secured Party of such breach.
Secured Party's fights and remedies under this paragraph shall be in addition to and cumulative
of any other fights or remedies at law and equity, including, without limitation, any rights of
set-off to which Secured Party may be entitled.
D. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
Debtor represents and warrants as follows:
1. Ownm-stfip; No Eaenmhran~: Except for the security interest (and pledges and
assignments as applicable) granted hereby, the Debtor is, and as to any property acquired after
the date hereof which is included within the Collateral, Debtor will be, the owner of all such
Collateral free and clear from all charges, liens, security interests, adverse claim~ and
encumbrances of any and every nature whatsoever.
2. No Financing Stateaaems: There is no financing statement or similar filing now
on file in any public office covering any part of the Collateral, and Debtor will not execute and
there will not be on ~e in any public office any financing statement or similar filing except the
financing statements fried or to be filed in favor of Secured Party.
3. Accuracy of Inf-onnaliun: Alt information furnished to Secured Party concerning
Debtor, the Collateral and the Obligations, or otherwise for the purpose of obtaining or
maintaining credit, is or will be at the time the same is furnished, accurate and complete in all
material respects.
4. Authority: Debtor has full right and authority to execute and perform this
Agreement and to create the security interest (and pledges and assignment as applicable)
created by this Agreement. The making and performance by Debtor of this Agreement will
not violate any articles of incorporation, bylaws or similar document respecting Debtor, any
provision of law, any order of court or governmental agency, or any indenture or other
agreement to which Debtor is a party, or by which Debtor or any of Debtor's property is
hound, or be in conflict with, result in a breach of or constitute (with due notice and/or lapse
of time) a default under any such indenture or other agreement, or result in the creation or
imposition of any charge, lien, security interest, claim or encumbrance of any and every nature
whatsoever upon the Collateral, except as contemplated by this Agreement.
5. Addresses: The address of Debtor designated at the beginning of this Agreement
is Debtor's place of business if Debtor has only one place of business; Debtor's chief executive
office if Debtor has more than one place of business; or Debtor's residence if Debtor has no
place of business. Debtor agrees not to change such address without advance written notice to
Secured Party.
E. GENERAL COVENANTS. Debtor covenants and agrees as follows:
1. Operation of the Collateral: Debtor agrees to maintain and use the Collateral
solely in the conduct of its own business, in a careful and proper manner, and in conformity
with all applicable permits or licenses. Debtor shall comply in all respects with all applicable
statutes, laws, ordinances and regulations. Debtor shall not use the Collateral in any unlawful
manner or for any unlawful purposes, or in any manner or for any purpose that would expose
the Collateral to unusual risk, or to penalty, forfeiture or capture, or that would render
inoperative any insurance in connection with the Collateral.
2. Condition: Debtor shall maintain, service and repair the Collateral so as to keep
it in good operating condition. Debtor shall replace within a reasonable time all parts that may
be worn out, lost, destroyed or otherwise rendered unfit for use, with appropriate replacement
parts. Debtor shall obtain and maintain in good standing at all times all applicable permits,
licenses, registrations and certificates respecting the Collateral.
3. Assessmeff~s: Debtor shall promptly pay when due all taxes, assessments,
license fees, registration fees, and governmental charges levied or assessed against Debtor or
with respect to the Collateral or any part thereof.
4. No Encumbrances: Debtor agrees not to suffer or permit any charge, lien,
security interest, adverse claim or encumbrance of any and every nature whatsoever against the
Collateral or any part thereof.
5. No Removal: Except as otherwise provided in this Agreement, Debtor shall not
remove the Collateral from the county or counties designated at the beginning of this
Agreement without Secured Party's prior written consent.
6. No Transfer: Except as otherwise provided in this Agreement with respect to
inventory, Debtor shall not, without the prior written consent of Secured Party, sell, assign,
transfer, lease, charter, encumber, hypothecate or dispose of the Collateral, or any part
thereof, or interest therein, or offer to do any of the foregoing.
7. Notices and Reports: Debtor shall promptly notify Secured Party in writing of
any change in the name, identity or structure of Debtor, any charge, lien, security interest,
claim or encumbrance asserted against the Collateral, any litigation against Debtor or the
Collateral, any theft, loss, injury or similar incident involving the Collateral, and any other
material matter adversely affecting Debtor or the Collateral. Debtor shall furnish such other
reports, information and data regarding Debtor's financial condition and operations, the
Collateral and such other matters as Secured Party may request from time to time.
8. Landlord's Waivers: Debtor shall furnish to Secured Party, if requested, a
landlord's waiver of all liens with respect to any Collateral covered by this Agreement that is
or may be located upon leased premises, such landlord's waivers to be in such form and upon
such terms as are acceptable to Secured Party.
9. Additional Filings: Debtor agrees to execute and deliver such financing
statement or statements, or amendments thereof or supplements thereto, or other documents as
Secured Party may from time to time require in order to comply with the Texas Uniform
Commercial Code (or other applicable state law of the jurisdiction where any of the Collateral
is located) and to preserve and protect the Secured Party's rights to the Collateral.
10. Protection of Collateral: Secured Party, at its option, whether before or after
default, but without any obligation whatsoever to do so, may (a) discharge taxes, claims,
charges, liens, security interests, assessments or other encumbrances of any and every nature
whatsoever at any time levied, placed upon or asserted against the Collateral, (b) place and pay
for insurance on the Collateral, including insurance that only protects Secured Party's interest,
(c) pay for the repair, improvement, testing, maintenance and preservation of the Collateral,
(d) pay any filing, recording, registration, licensing or certification fees or other fees and
charges related to the Collateral, or (e) take any other action to preserve and protect the
Collateral and Secured Party's rights and remedies under this Agreement as Secured Party may
deem necessary or appropriate. Debtor agrees that Secured Party shall have no duty or
obligation whatsoever to take any of the foregoing action. Debtor agrees to promptly reimburse
Secured Party upon demand for any payment made or any expense incurred by the Secured
.Party pursuant to this authorization. These. payments and expenditures, together with interest
thereon from date incurred until paid by Debtor at the maximum contract rate allowed under
applicable laws, which Debtor agrees to pay, shall constitute additional Obligations and shall
be secured by and entitled to the benefits of this Agreement.
11. lmpection: Debtor shall at all reasonable times allow Secured Party by or
through any of its officers, agents, attorneys or accountants, to examine the Collateral,
wherever located.
12. Further Assurances: Debtor shall do, make, procure, execute and deliver all
such additional and further acts, things, deeds, interests and assurances as Secured Party may
require from time so time to protect, assure and enfome Secured Party's rights and remedies.
13. Insurance: Debtor shall have and maintain insurance at all times with respect to
all tangible Collateral insuring against risks of fire (including so-called extended coverage),
theft and other risks as Secured Party may require, containing such terms, in such form and
amounts and written by such companies as may be satisfactory to Secured Party, all of such
insurance to contain toss payable clauses in favor of Secured Party as its interest may appear.
All policies of insurance shall provide for ten (10) days written minimum cancellation notice to
Secured Party and at the request of Secured Party shall be delivered to and held by it. Secured
Party is hereby authorized to act as attorney for Debtor in obtaining, adjusting, setting and
canceling such insurance and endorsing any drafts or instruments. Secured Party shall be
-6-
5117/{}7
authorized to apply the proceeds from any insurance to the Obligations secured hereby whether
or not such Obligations are then due and payable. Debtor specifically authorizes Secured Party
to disclose information from the policies of insurance to prospective insurers regarding the
Collateral.
F. ADDITIONAL PROVISIONS REGARDING ACCOUNTS. The following
provisions shall apply to all accounts included within the Collateral:
1. Definitions: The term ~account', as used in this Agreement, shall have the same
meaning as set forth in the Uniform Commercial Code of Texas in effect as of the date of
execution hereof, and as set forth in any amendment to the Uniform Commemial Code of
Texas to become effective after the date of execution hereof, and also shall include all present
and future notes, instruments, documents, general intangibles, drafts, acceptances and chattel
paper of Debtor, and the proceeds thereof.
2. Additional Warranties: As of the time any account becomes subject to the
security interest (or pledge or assignment as applicable) granted hereby, Debtor shall be
deemed further to have warranted as to each and all of such accounts as follows: (a) each
account and all papers and documents relating thereto are genuine and in all respects what they
purport to be; (b) each account is valid and subsisting and arises out of a bona fide sale of
goods sold and delivered to, or out of and for services theretofore actually rendered by the
Debtor to the account debtor named in the account; (c) the amount of the account represented
as owing is the correct amount actually and unconditionally owing except for normal cash
discounts and is not subject to any setoffs, credits, defenses, deductions or countercharges; and
(d) Debtor is the owner thereof flee and clear of any charges, liens, security interests, adverse
claims and encumbrances of any and every nature whatsoever.
3. Collectiun of Accountn: Secured Party shall have the right in its own name or in
the name of the Debtor, whether before or after default, to require Debtor forthwith to transmit
all proceeds of collection of accounts to Secured Party, to notify any and all account debtors to
make payments of the accounts directly to Secured Party, to demand, collect, receive, receipt
for, sue for, compound and give acquittal for, any and all amounts due or to become due on
the accounts and to endorse the name of the Debtor on all commercial paper given in payment
or part payment thereof, and in Secured Party's discretion to file any claim or take any other
action or proceeding that Secured Party may deem necessary or appropriate to protect and
preserve and realize upon the accounts and related Collateral. Unless and unti! Secured Party
elects to collect accounts, and the privilege of Debtor to collect accounts is revoked by Secured
Party in writing, Debtor shall continue to collect accounts, account for same to Secured Party,
and shall not commingle the proceeds of collection of accounts with any funds of the Debtor.
In order to assure collection of accounts in which Secured Party has a security interest (or
pledge or assignment of as applicable) hereunder, Secured Party may notify the post office
authorities to change the address for delivery of mail addressed to Debtor to such address as
Secured Party may designate, and to open and dispose of such mail and receive the collections
of accounts included herewith. Secured Party shall have no duty or obligation whatsoever to
collect any account, or to take any other action.to preserve or protect the Collateral; however,
should Secured Party elect to collect any account or take possession of any Collateral, Debtor
releases Secured Patay from any claim or claims for loss or damage arising from any act or
omission in connection therewith.
4. Id~gifieation and AssLt, nmt~at of Aecnmnt~: Upon Secured Party's request,
whether before or at~er default, Debtor shall take such action and execute and deliver such
documents as Secured Party may reasonably request in order to identify, confirm, mark,
segregate and assign accounts and to evidence Secured Party's interest in same. Without
limitation of the foregoing, Debtor, upon request, agrees to assign accounts to Secured Party,
identify and mark accounts as being subject to the security interest (or pledge or assignment as
applicable) granted hereby, mark Debtor's books and records to reflect such assignments, and
forthwith to transmit to Secured Party in the form as received by Debtor any and all proceeds
of collection of such accounts.
5. Acconnt Repotta: Debtor will deliver to Secured Party, prior to the tenth (10)
day of each month, or on such other frequency as Secured Party may request, a written report
in form and content satisfactory to Secured Party, showing a listing and aging of accounts and
such other information as Secured Party may request from time to time. Debtor shall
immediately notify Secured Party of the assertion by any account debtor of any set-off, defense
or claim regarding an account or any other matter adversely -affecting an account.
6. Segregation of Reaa'ned Goods: Returned or repossessed goods arising from or
relating to any accounts included within the Collateral shall if requested by Secured Party be
held separate and apart from any other property. Debtor shall as often as requested by Secured
Party, but not less often than weekly even though no special request has been made, report to
Secured Party the appropriate identifying information with respect to any such returned or
repossessed goods relating to accounts included in assignments or identifications made pursuant
hereto.
G. ADDITIONAL PROVISIONS REGARDING INVENTORY. The following
provisions shall apply to all inventory included within the Collateral:
i. Inveatory Reports: Debtor will deliver to Secured Party, prior to the tenth (10th)
day of each month, or on such other frequency as Secured PaW] may request, a written report
in form and content satisfactory to Secured Party, with respect to the preceding month or other
applicable period, showing Debtor's opening inventory, inventory acquired, inventory sold,
inventory returned, inventory used in Debtor's business, closing inventory, any other inventory
not within the preceding categories, and such other information as Secured Party may request
from time to time. Debtor shall immediately notify Secured Party of any matter adversely
affecting the inventory, including, without limitation, any event causing loss or depreciation in
the value of the inventory and the amount of such possible loss or depreciation.
2. Location of Inveatory: Debtor will promptly notify Secured Party in writing of
any addition to, change in or discontinuance of its place(s) of business as shown in this
agreement, the places at which inventory is located as shown herein, the location of its chief
executive office and the location of the office where it keeps its records as set forth herein. All
Collateral will be located at the place(s) of business shown at the beginning of this agreement
as modified by any written notice(s) given pursuant hereto.
3. Use of Invontory: Unless and until the privilege of Debtor to use inventory in
the ordinary course~of Debtor's business is revoked by Secured Party in the event of default or
if Secured Party deems itself insecure, Debtor may use the inventory in any manner not
inconsistent with this Agreement, may sell that part of the Collateral consisting of inventory
provided that all such sales are in the ordinary course of business, and may use and consume
any raw materials or supplies that are necessary in order to carry on Debtor's business. A sale
in the ordinary course of business does not include a transfer in partial or total satisfaction of a
debt.
4. Acc, ount~ aa Proceeds: All accounts that are proceeds of the inventory included
within the Collateral shall be subject to all of the terms and provisions hereof pertaining to
accounts.
5. Protection of Inventory: Debtor shall take all action necessary to protect and
preserve the inventory.
H. ADDITIONAL PROVISIONS KEGARDING SECURITIES AND SIMILAR
COLLATERAL. The following provisions shall apply to all securities and similar property
included within the Collateral:
i. Additional Warranties: As to each and all securities and similar property
included within the Collateral (including securities hereafter acquired that are part of the
Collateral), Debtor further represents and warrants (as of the time of delivery of same to
Secured Party) as follows: (a) such securities are genuine, validly issued and outstanding, fully
paid and non-. assessable, and are not issued in violation of the preemptive rights of any
person or of any agreement by which the issuer or obligor thereof or Debtor is bound; (b) such
securities are not subject to any interest, option or right of any third person; (c) such securities
are in compliance with applicable law concerning form, content and manner of preparation and
execution; and (d) Debtor acquired and holds the securities in compliance with all applicable
laws and regulations.
2. Divideads and Proe.~ds: Any and all payments, dividends, other distributions
(including stock redemption proceeds), or other securities in respect of or in exchange for the
Collateral, whether by way of dividends, stock dividends, recapitalizations, mergers,
consolidations, stock splits, combinations or exchanges of shares or otherwise, received by
Debtor shall be held by Debtor in trust for Secured Party and Debtor shall immediately deliver
same to Secured Party to be held as part of the Collateral. Debtor may retain ordinary cash
dividends unless and until Secured Party requests that same be paid and delivered to Secured
Party (which Secured Party may request either before or after default).
3. Collections: Secured Party shall have the right at any time and from time to time
(whether before or after default) to notify and direct the issuer or obligor to make all
payments, dividends and distributions regarding the Collateral directly to Secured Party.
Secured Party shall have the authority to demand of the issuer or obligor, and to receive and
receipt for, any and all payments, dividends and other distributions payable in respect thereof,
regardless Of the medium in which paid and whether they are ordinary or extraordinary. Each
issuer and obligor making payment to Secured Party hereunder shall be fully protected in
relying on the written statement of Secured Party that it then holds a security interest which
entitles it to receive such payment, and the receipt by Secured Party for such payment shall be
full acquittance therefor to the one making such payment.
4. Voting Rights: Upon default, or if Secured Party deems itself insecure, Secured
Party shall have the right, at its discretion, to transfer to or register in the name of Secured
Party or any nominee of Secured Party any of the Collateral and/or to exercise any or all
voting rights as to any or all of the Collateral. For such purposes, Debtor hereby names,
constitutes and appoints the President or any Vice President of Secured Party as Debtor's
proxy in the Debtor's name, place and stead to vote any and all of the securities, as such proxy
may elect, for and in the name, place and stead of Debtor, as to all matters coming before
shareholders, such proxy to be irrevocable and deemed coupled with an interest. The rights,
powers and authority of said proxy shall remain in full force and effect, and shall not be
rescinded, revoked, terminated, amended or otherwise modified, until all Obligations have
been fully satisfied.
5. No Duty: Secured Party shall never be liable for its failure to give notice to
Debtor of default in the payment of or. upon the Collateral: Secured Party shall have no duty
to fix or preserve rights against prior parties to the Collateral and shall never be liable for its
failure to use diligence to collect any amount payable in respect to the Collateral, but shall be
liable only to account to Debtor for what it may actually collect or receive thereon. Without
limiting the foregoing, it is specifically understood and agreed that Secured Party shall have no
responsibility for ascertaining any maturities, calls, conversions, exchanges, offers, tenders, or
similar matters relating to any of the Collateral or for informing Debtor with respect to any of
such matters (irrespective of whether Secured Party actually has, or may be deemed to have,
knowledge thereof). The foregoing provisions of this paragraph shall he fully applicable to all
securities or similar property held in pledge hereunder, irrespective of whether Secured Party
may have exercised any right to have such securities or similar property registered in its name
or in the name of a nominee.
6. Further Assurances: Debtor agrees to execute such stock powers, endorse such
instnanents, or execute such additional pledge agreements or other documents as may be
required by the Secured Party in order effectively to grant to Secured Party the security interest
in (and pledge and assignment of) the Collateral and to enforce and exercise Secured Party's
rights regarding same.
7. Securities Laws: Debtor hereby agrees to cooperate fully with Secured Party in
order to permit Secured Party to sell, at foreclosure or other private sale, the Collateral
pledged hereunder. Specifically, Debtor agrees to fully comply with the securities laws of the
United States and of the State of Texas and ~o take such action as may be necessary to permit
Secured Pal~ to sell or otherwise transfer the securities pledged hereunder in compliance with
such laws. Without limiting the foregoing, Debtor, at its own expense, upon request by
Secured Party, agrees to effect and obtain such registrations, filings, statements, rulings,
consents and other matters as Secured Party may request.
8. Power of A~orney: Debtor hereby makes, constitutes, and appoints Secured
Party or its nominee, its true and lawful attorney in fact and in its name, place and stead, and
on its behalf, and for its use and benefit to complete, execute and file lth the Umted States
Securities and Exchange Commission one or more notices of proposed sale of securities
pursuant to Rule 144 under the Securities Act of 1933 and/or any similar ~ings or notices with
any applicable state agencies, and said attorney in fact shall have full power and authority to
do, take and perform all and every act and thing whatsoever requisite, proper or necessary to
be done, in the exercise of the rights and powers herein granted, as fully to all intents and
purposes as Debtor might or could do if personally present. This power shall be irrevocable
and deemed coupled with an interest. The rights, powers and authority of said attorney in fact
herein granted shall commence and be in full force and effect from the date of this agreement,
and such rights, powers and authority shall remain in full force and effect, and this power of
attorney shall not be rescinded, revoked, terminated, amended or otherwise modified, until all
Obligations have been fully satisfied.
9. Private Sales: Because of the Securities Act of 1933, as amended, or any other
laws or regulations, there may be legal restrictions or limitations affecting Secured Party in any
attempts to dispose of certain portions of the Collateral in the enforcement of its fights and
remedies hereunder. For these reasons Secured Party is hereby authorized by Debtor, but not
obligated, in the event any default hereunder, to sell all or any part of the Collateral at private
sale, subject to investment letter or in any other manner which will not require the Collateral,
or any part thereof, to be registered in accordance with the Securities Act of 1933, as
amended, or the rules and regulations promulgated thereunder,-or any other law or regulation.
Secured Party is also hereby authorized by Debtor, but not obligated, to take such actions, give
such notices, obtain such rulings and consents, and do such other things as Secured Party may
deem appropriate in the event of a sale or disposition of any of the Collateral. Debtor clearly
understands that Secured Party may in its discretion approach a restricted number of potential
purchasers and that a sale under such circumstances may yield a lower price for the Collateral
or any part or pans thereof than would otherwise be obtainable if same were registered and
sold in the open market, and Debtor agrees that such private sales shall constitute a
commercially reasonable method of disposing of the Collateral.
I. ADDITIONAL PROVISIONS REGARDING CERTIFICATES OF DEPOSIT
AND SIMILAR COLLATERAL. The following provisions shall apply to certificates of
deposit and similar property included within the Collateral:
1. Collection of Deposits: Debtor agrees that Secured Party may, at any time
(whether before or after default) and in its sole discretion, surrender for payment and obtain
- lit
payment of any portion of the Collateral, whether such have matured or the exemise of
Secured Party's rights results in loss of interest or principal or other penalty on such deposits,
and, in connection therewith, cause payment to be made directly to Secured Party.
2. Notice to Third Party Issuer: With regard to any certificates of deposit or
similar Collateral for which Secured Party is not the issuer, Debtor agrees to notify the issuer
or obligor of the interests hereby granted to Secured Party and to obtain from such issuer or
obligor acknowledgement of the interests in favor of Secured Party and the issuer's or
obligor's agreement to waive in favor of Secured Party any and all fights of set-off or similar
rights or remedies to which such issuer or obligor may be entitled, and, in connection
therewith, to execute and canse the issuer or obligor to execute, any and all acknowledgments,
waivers and other agreements in such form and upon such terms as Secured Party may request.
3. Proceeds: Any and all replacement or renewal certificates, instruments, or other
benefits or proceeds related to the Collateral that are received by Debtor shall be held by
Debtor in trust for Secured Party and immediately delivered to Secured Party to be held as pa~t
of the Collateral.
4. No Duty: Secured Party shall never be liable for its failure to give notice to
Debtor of default in the payment of or upon the Collateral. Secured Party shall have no duty to
fix or preserve rights against prior parties to the Collateral and shall never be liable for its
failure to nsc diligence to collect any amount'payable in respect to the Collateral, but shall be
liable only to account to Debtor for what it may actually collect or receive thereon. Without
limiting the foregoing, it s specifically understood and agreed that Secured Party shall have no
responsibility for ascertaining any maturities or similar matters relating to any of the Collateral
or for informing Debtor with respect to any of such matters (irrespective of whether Secured
Party actually has, or may be deemed, to have, knowledge thereof).
J. EVENTS OF DEFAULT. Debtor shall be in default hereunder upon the
happening of any of the following events or conditions: (i) non-payment when due (whether by
acceleration of maturity or otherwise) of any payment of principal, interest or other amount
due on any Obligation by Debtor after receiving written notice thereof by Secured Party; (ii)
the occurrence of any event which under the terms of any evidence of indebtedness, indenture,
loan agreement, security agreement or, similar instnunent permits the acceleration of maturity
of any obligation of Debtor (whether to Secured Party or to others); (iii) any representation or
warranty made by Debtor to Secured Party in connection with this Agreement, the Collateral
or the Obligations, or in any statements or certificates, proves incorrect in any material respect
as of the date of the making or the issuance thereof; (iv) default occurs in the observance or
performance of, or ff Debtor fails to furnish adequate evidence of performance of, any
pro.vision of this Agreement or of any note, assignment, transfer, other agreement, document
or instrument delivered by Debtor to Secured Party in connection with this Agreement, the
Collateral or the Obligations; (v) death, dissolution, liquidation, termination of existence,
insolvency, business failure or winding-up of Debtor or any maker, endorser, guarantor, surety
or other party liable in any capacity for any of the Obligations; (vi) the commission of an act of
bankruptcy by, or the application for appointment of a receiver or any other legal custodian for
- 12-
any part of the property of, assignment for the benefit of creditors by, or the commencement of
any proceedings under any bankruptcy, arrangement, reorganization, insolvency or similar
laws for the relief of debtors by or against, the Debtor or any maker, endorser, guarantor,
surety or other party primarily or secondarily liable for any of the Obligations: or (vii) the
filing of any levy, attachment, execution, garnishment or other process against the Debtor or
any of the Collateral or any maker, endorser, gnamntor, surety or other party liable in any
capacity for any of the Obligations.
K. REMEDIES. Upon the occurrence of an event of default, or if Secured Party
deems payment of the Obligations to be insecure, Secured Party, at its option, shall be entitled
to exercise any one or more of the following remedies (all of which are cumulative):
1. Declare Obligations Due: Secured Party, at its option, may declare the
Obligations or any pan thereof mediately due and payable, without demand, notice of
intention to accelerate, notice of acceleration, notice of non-payment, presentment, protest,
notice of dishonor, or any other notice whatsoever, all of which are hereby waived by Debtor
and any maker, endorser, guarantor, surety or other party liable in any capacity for any of the
Obligations.
2. Remedies: Secured Party shall have all of the rights and remedies provided for
in this Agreement and in any other agreements executed by Debtor, the rights and remedies Of
the Uniform Commemial Code of Texas, and any and all of the rights and remedies at law and
in equity, all of which shall be deemed cumulative. Without limiting the foregoing, Debtor
agrees that Secured Party shall have the right to: (a) require Debtor to assemble the Colhteral
and make it available to Secured Party at a place designated by Secured Party that is
reasonably convenient to both parties, which Debtor agrees to do; (b) peaceably take
possession of the Collateral and remove same, with or without judicial process; (c) without
removal, render equipment included within the Collateral unusable, and dispose of the
Collateral on the Debtor's premises; (d) sell, lease or otherwise dispose of the Collateral, at
one or more locations, by public or private proceedings for cash or credit, without assumption
of credit risk; and/or (e) whether before or after default, collect and receipt for, compound,
compromise, and settle, and give releases, discharges and acquittances with respect to, any and
all amounts owed by any person or entity with respect to the Collateral. Unless the Collateral
is perishable or threatens to decline speedily in value or is of a type customarily sold on a
recognized market, Secured Party will send Debtor reasonable notice of the time and piace of
any public sale or of the time after which any private sale or other disposition will be made.
Any requirement of reasonable notice to Debtor shall be met if such notice is mailed, postage
prepaid, to Debtor at the address of Debtor designated at the beginning of this Agreement, at
least five (5) days before the day of any public sale or at least five (5) days before the time
after which any private sale or other disposition will be made.
3. Expenses: Debtor shall be liable for and agrees to pay the reasonable expenses
incurred by Secured Party in enforcing its rights and remedies, in retaking, holding, testing,
repairing, improving, selling, leasing or disposing of the Collateral, or like expenses,
including, without limitation, attorneys' fees and legal expenses incurred by Secured Party.
These expenses, together with interest thereon from date incurred until paid by Debtor at the
maximum contract rate allowed under applicable laws, which Debtor agrees to pay, shall
constitute additional Obligations and shall be secured by and entitled to the benefits of this
Agreement.
4. Proceeds, Surplus, Deficiencies: Proceeds received by Secured Par~y from
disposition of the Collateral shall be applied toward Secured Party's expenses and other
Obligations in such order or manner as Secured Party may elect. Debtor Shall be entitled to any
surplus if one results after lawful application of the proceeds. Debtor shall remain liable for
any deficiency.
5. Remedies Cumulative: The rights and remedies of Secured Party are cumulative
and the exercise of any one or more of the rights or remedies shall not be deemed an election
of rights or remedies or a waiver of any other right or remedy. Secured Party may remedy any
default and may waive any default without waiving the default remedied or without waiving
any other prior or subsequent default.
L. OTHER AGREEMENTS.
1. Savings Chnse: Notwithstanding any provision to the contrary herein, or in any
of the documents evidencing the Obligations or otherwise relating thereto, no such prevision
shall require the payment or permit the collection of interest in excess of the maximum
permitted by applicable usury laws. If any such excessive interest is so provided for, then in
such event (i) the provisions of this paragraph shall govern and control; (ii) neither the Debtor
nor his heirs, legal representatives, successors or assigns or any other party liable for the
payment thereof, shall be obligated to pay the amount of such interest to the extent that is in
excess of the maximum amount permitted by law; (iii) any such excess interest that may have
been collected shall be, at the option of the holder of the instrument evidencing the
Obligations, either applied as a credit against the then unpaid principal amount thereof or
refunded to the maker thereof; and (iv) the effective rate of interest shall be automatically
reduced to the maximum lawful rate under applicable usury laws as now or hereafter construed
by the courts having jurisdiction.
2. Joint and Several Responsib'flit-y: If this Security Agreement is executed by more
than one Debtor, the obligations of all such Debtors shall be joint and several.
3. Waivers: Debtor and any maker, endorser, guarantor, surety or other party
liable in any capacity respecting the Obligations hereby waive demand, notice of intention to
accelerate, notice of acceleration, notice of non-payment, presentment, protest, notice of
dishonor and any other similar notice whatsoever.
4. Severability: Any provision hereof found to be invalid by courts having
jurisdiction shall be invalid only with respect to such provision (and then only to the extent
necessary to avoid such invalidity). The offending provision shall be modified to the maximum
extent possible to confer upon Secured Party the benefits intended thereby. Such prevision ~
modified and the remaining provisions hereof shall be construed and enforced to the same
effect as if such
offending provision (or portion thereof) had not been contained herein, to the maximum extent
possible.
5. Use of Copies: Any carbon, photographic or other reproduction of any financing
statement signed by Debtor is sufficient as a f'mancing statement for all purposes, including
without limitation, filing in any state as may be permitted by the provisions of the Uniform
Commercial Code of such state.
6. Relationship to Other Agreemeats: This Security Agreement and the security
interests (and pledges and assignments as applicable) herein granted are in addition to (and not
in substitution, novation or discharge of) any and all prior or contemporaneous security
agreements, security interests, pledges, assignments, liens, rights, titles or other interests in
favor of Secured Party or assigned to Secured Party by others in connection with the
Obligations. All lights and remedies of Secured Party in all such agreements are cumulative,
but in the event of actual conflict in terms and conditions, the terms and conditions of the latest
security agreement shall govern and control.
7. Notices: Any notice or demand given by Secured Party to Debtor in connection
with this Agreement, the Collateral or the Obligations, shall be deemed given and effective
upon deposit in the United States mail, postage prepaid, addressed to Debtor at the address of
Debtor designated at the beginning of this Agreement. Actual notice to Debtor shah always be
effective no matter how given or received.
8. Headings and Goader: Paragraph headings in this Agreement are for
convenience only and shall be given no meaning or significance in interpreting this Agreement.
All words used herein shall be construed to be of such gender or number as the circumstances
require.
9. Am~dments: Neither this Agreement nor any of its provisions may be changed,
amended, modified, waived or discharged orally, but only by an instrument in writing signed
by the party against whom enforcement of the change, amendment, modification, waiver or
discharge is sought.
10. Contlm~ing ~ment: The security interest (and pledges and assignments as
applicable) hereby granted and all of the terms and provisions in this Agreement shall be
deemed a continuing agreement and shall continue in full force and effect until terminated in
writing. Any such revocation or termination shall only be effective if explicitly confirmed in a
signed writing issued by Secured Party to such effect and shall in no way impair or affect any
transactions entered into or rights created or Obligations incurred or arising prior to such
revocation or termination, as to which this Agreement shall be fully operative until same are
repaid and discharged in full. Unless otherwise required by applicable law Secured Party shall
be under no obligation to issue a termination statement or similar documents unless Debtor
requests same in writing and, provided further, that all Obligations have been repaid and
discharged in full and there are no commi~ents to make advances, incur any Obligations or
otherwise give value.
11. Binding Effect: The provisions of this Security Agreement shall be binding upon
the heirs, personal representatives, successors and assigns of Debtor and the rights, powers and
remedies of Secured Party hereunder shall inure to the benefit of the successors and assigns of
Secured Party.
12. Governing Law: This Security Agreement shall be governed by the law of the
State of Texas and applicable federal law.
HXECUTED this
day of ,200
By:.
Joe Swinbank
By:
Donald Poarch
SUBSCRIBED AND SWORN TO BEFORE ME by the said $oe Swinbank, on the
day of ,2~__, to certify which wimess my hand and seal of office.
Notary Public, State of Texas
SUBSCRIBED AND SWORN TO BEFORE ME by the said Donald Poarch, on the
day of ,200__, to certify which wimess my hand and seal of office.
Notary Public, State of Texas
TEXAS STATE BANK ACKNOWLEDGEMENT
Texas State Bank hereby acknowledges and recognizes that The City of Port Arthur
Section 4A Economic Development Corporation .C'PAEDC') holds a first priority lieu agaimt
Certificate of Deposit Number , iu the name of Joe Swinbank and
Donald Poarch to secure Triangle Waste Properties LP CTriangle') performance of the
Economic Incentive Contract and Loan Agreement between Triangle and PAEDC dated
,2007.
TEXAS STATE BANK
By
Its
Date
SUBSCRIBED AND SWORN TO BEFORE ME on the
,2007, to certify which witness my hand and seal of office.
day of
Notary Public, State of Texas
EXHIBIT "E"
UCC=I
5117/07
UCC FINANCING STATEMENT
~-~t~ ofl%rt Arthm' Section 4A Economic Deyelopment ~
Co~.
4173 39th S~eet
Po~Ar~ur, T~s ~642
,,~.O-Box/9129 I~ ~ ~m ~ ~u~ ~
' oe~~~e]opment Core.
-- ~4!73 39th Street Port At*that TX 7~77r~42 SA
Texas State Bank Certificate of Degosit 3To.
UCC FINANCING STATEMENT
[-~' of Port Arfhur --
ty Section 4A Economic Development
4173 3~
Po~ ~thur, T~S
.,, · X 1~129 Houston
Texas S~e Ba~ C~fifinte of Depodt No.
CERTfFICATION REGARDING LOBBYING
For Contracts, Grants, Loam, 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 gram, 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 ali sub-awards at all tiers (including subcontracts,
sub-grants, and contracts under grams, 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.
Triage Waste openies, ia',
A Texas Limited Pannership.
By: Triangle Waste Solution.s, LLC
Its General Panner,
A Texas Limited Liability Company
By:.
Joe Swinbank, President
5/17/07
EXI-IIflIT "G'
SPECIAL WARRANTY DEED
5/17/07
STATE OF TEX~ §
§ KNOW ALI , MEN BY THESE PRF~ENTS:
COUNTY OF JE~I-~EESON §
~at ~ ~ of Por~ A~hur Section 4A Economic D~velo~ment Co~omtk,n, a Tex~ not-~r-profl~
~omtion, bere~er called "Gr~r." whe~er o~ or more, in comideration of jobs ~ described in
· at ce~n E~nomie ~cen6ve Conwact ~d ~ Ag~e~nt. ~pmved by Ci~ of Port A~ur, Tex~
Resolution No. , ~d o~er good ~d v~uable comidera6on, to Grater ~ ~d p~d by
Tri~le Wrote ~oveaies LP a Texas l~ited p~me~p, here~er ~led r~e, whe~er one or
more, the re~ipt of w~ is hereby ac~owl~g~, h~ G~D, SOLD ~d CO~E~D, and by
·ese presents does GRANT, SELL ~d CO~EY unto Gr~tee. all ~at ~ prope~ situated in ~e
Coun~ of Jefferson, State of Texas, described m follows, to-wit:
Ten (10) acres in Jefferson Counw, Texas ~ere~er referred to m the "ProperS'), See
aaa~ent for ~gal Pro~rty description.
~s ~nvey~ is rome ~bj~t to ~e following:
(1) e~ements ~d rights-of-way appe~ing of r~ord ~ ~e offi~ of ~e Co~ Clerk of
Jefferson Count, Texas;
(2) ~e right of Grater and its design.s to use ~d m~n sto~ wa~r s~-ou~, which
extend a ~w feet from ~e S~ Bus.ess P~k D~ve right, f-way, ~ se~e m
eo~t ~e Pro~ay dr~nage sys~m ~ t~ drayage syst~ of ~e Po~ ~
~nomic Development Co~omtion Bus.ess P~k;
(3) ~1 cove~, rest~ctiom, ~d ~1 ~nditiom ~ ex~ptions, ~se~afions ~d
conveymces of ~nerals ~d/or royalties, off ~d gm ~d/or m~er~ le~es. ~ecti~
· e ~ve describ~ ProperS, of ~cord ~ ~e O~ce of the Co~ Clerk of Je~rson
Co~, Texas, to the extent ~ey ~e st~ ~ effect ~ rela~ ~ ~e above desc~bed
ProperS;
(4) ~es on ~e above d~crib~ Prope~ for 2~ ~d ~bseq~t ye~ not yet ~e ~d
payable;
(5)
all zoning laws, regulations and ordinances of municipal and other governmental
authorities, if any, but only to the extem that they are still in effect, relating to the above
described property; and
(O
the following additional covenants and restrictions which nm with the land:
a. Construction of a cOvered concrete pad of at least 100'x I00' for metal processing;
b. Crews on site will operate according to procedures, rules and regulations of TCEQ;
c. The capture of rainwater and any process water used at the site will be disposed of
in accordance with all applicable roles and regulations of TCEQ;
d. Design, build and operate so that scrap is not visible to any member of the public
standing at ground level on a public way;
Screen property lines from view with an eight (8) foot concrete dltwall with
landscaping on the outside to provide extra protection and help contain dust, noise,
and odors;
f. Metal will be contained in proper storage containers when not being processed;
g. Metal containing radioactive sources will not be recycled or permitted on the
Property in the Park;
h. All roll off containers kept on the Property will be for non hazardous material and
all repairs to these containers will be done at a different location as to insure this
area does not become a repair area; and
i. Store all equipment, tracks, roll off containers, etc., either behind the buildings or
inside of the plant, so as not to be visible from South Business Park Drive.
Grantor has executed and delivered this Special Warranty Deed and has granted, bargained, sold, and
cOnveyed the Property to Grantee, and Grantee has received and accepted this Special Warranty Deed and
has purchased, received, and, accepted the Property, ON AN AS-IS, WHERE IS BASIS, WITH ALL
FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EXPRESS OR 1MPIJI~D, WRITTEN OR ORAL, IT BEING THE INTENTION OF GRANTOR AND
GRANTEE TO EXPRESSLY REVOKE, RELEASE, NEGATE, AND EXCLUDE ALL
REPRB. SENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY AND
ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRAN~ AS TO (i) TI-~ CONDITION
OF THE PROPERTY OR ANy ASPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY
AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES RELATED TO
SUITABILITy FOR HABITATION, MERCHANTABILITY, OR FITNESs FOR A PARTICULAR
USE OR PURt~SE; (ii) THE NATURE OR QUALITY OF CONSTRULTION, STRUCTURAL
DESIGN OR ENGINEERING OF ANY IMPROVEMENTS WHICH ARE PART OF THE PROPERTY
OR WHICH SERVE THE PROPERTY (the "IMPROVEMENTS"); (iii) THE QUALITY OF THE
LABOR OR MATERIAL INCLUDED IN THE IMPROVEMENTS; (iv) THE SOIL CONDITIONS,
DRAINAGE, TOPOGRAPHICAL FEATURES OR OTHER CONDITIONS WHICH AFi4~CT THE
PROPERTY; (v) THE AREA, SIZE, SI-IAPE, CONFIGURATION, LOCATION, CAPACITY, USE,
DEVELOPMENT POTENTIAL, PURPOSE OR OTHER CHARACTERISTIC CONCERNING OR
RELATING TO THE PROPERTY; (v) ANY FEATURES OR CONDITIONS AT OR WHICH AFFECT
THE PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE, USE, DEVELOPMENTAL
POTENTIAL, CASH FLOW, OR OTHERWISE; (vi) ALL EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR
PROMISE OR BY ANY DESCRIPTION OF THE PROPERTy; (vii) ANy ENVIRONMENTAL,
GEOLOGICAL, METEOROLOGICAL, STRUCTURAL OR OTHER CONDITION OR HAZARD OR
THE ABSENCE THEKEOF HERETOFORE, NOW, OR HEREAvr~R AFFEL'rlNG IN ANY
MANNER ANY OF THE PROPERTY; AND (viii) ALL OTI-IER EXPRESS OR IMPLIED
WARRANTIF_S AND REPRESENTATIONS BY GRANTOR WHATSOEVER, EXCEF'I' SOLELY
THE SPECIAL WARRANTY OF TITLE EXPRESSLY SET FORTH IN THIS DEED CONVEYING
THE PROPERTY TO GRANTEE.
TO HAVE AND TO HOLD, thc 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 rifle 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 them are more than one (1) person, or when Grantor or Grantee or
both of them are a corporation, partnership, trustee, administrator, executor, or personal representative,
this Deed shall read as though pertinent verbs, nouns, and pronouns are changed correspondiagly, 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 or partnership, references to "heirs,
executors, administrators, and personal representative~" 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.
K~-~o"rF.D this the.. dayof ,200~.
GRANTOR:
City of Port Arthur Section 4A
Economic Development Corporal/un,
a Texas Corporation
By:_
Richard Wycoff, President
By:
Keith Daws St,, Secretary
GRANTEE:
Triengle Waste Properties, LP,
A Texas Limited Parmership.
By: Triangle Waste Solutions, LLC
Its General Partner,
A Texas Limited Liability Company
By:
Joe Swinbank, President
STATE OF TEXAS
5/17/07
COUNTY OF JEFFERSON
This imtrument was acknowledged before me on the day of , 21210 , by
Richard Wycoff, President of the City of Port Arthur Section 4A Economic Development Corporation,
a Texas not-for-profit corporation, on behalf of such corporation.
STATE OF TEXAS
COUNTY OF JEFFERSON
Notary Public, State of Texas
This instrumem was acknowledged before me on the day of ,200 , by
Keith Daws Sr., Secretary of the City of Port Arthur Section ~A Economic Development Corpora"--fion,
a Texas not-for-profit corporation, on behalf of such corporation.
STATE OF TEXAS
COUNTY OF JEFFERSON
Notary Public, St,ate of Texas
BI~ORE ME, THE IJNDF. llSIONED Notary Public, on this day personally appeared
Joseph W. Swiubank, President of Triangle Waste Solutions, LLC, a Texas limited liability
company and General Partner of Triangle Waste Properties, LP, a Texas limited partnership
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 such entities, for the
purposes and consideration therein expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF Ol~lCE, this the day of
,200~.
GRANTEE'S MAILING ADDRESS:
cio Poarch/Swinbank LLC
1041 Conrad Sauer Road
Houston, Texas 77043
Notary Public, State of Texas
ATTACHMENT
DESCRIPTION OF A
10.00 ACRE TRACT OUT OF LOT 2
OF THE
PORT ARTHUR ECONOMIC DEVELOPMENT CORPORATION BUSINESS PARK
PORT ARTHUR, TEXAS
APRIL 16, 2007
That certain 10.00 acre tract out of Lot 2 of the Port Arthur Economic Development
Corporation Business Park, a plat recorded in Clerk's File #2005044721 of the Official Real
Property Records of Jefferson County, Texas; said 10.00 acre tract being more particularly
described by metes and bounds as follows:
(Note: the concrete monuments found in the center line of South Business Park Drive were used
for the basis of bearings)
COMMENCING at a concrete monument found in the center line of the intersection of
Jade Avenue and South Business Park Drive;
THENCE South 35032'26'' West, a distance of 64.52 feet to a ½" iron rod set for the
southeast comer ora turn of a turn out on Jade Avenue and being the POINT OF BEGINNING;
THENCE South (called South) along the west line of Jade Avenue and the east line of
Lot 2, a distance of 342.63 feet (called 342.63 feet) to a ½" iron rod sc{ for the northeast comer
of Reserve C and being an angle point in the east line of the said 10.00 acre tract;
THENCE West (called West) along the north line of Reserve C, a distance of 150.00
feet (called 150.00 feet) to a ¼" iron rod set for the northwest comer of said Reserve C and being
an interior comer of the east line of the sa/d 10.00 acre tract;
THENCE South (called South) along the west line of Reserve C, a distance of 150.00 feet
to a ½" iron rod set for the southwest comer of said Reserve C and being and angle point on the
east line of the said 10.00 acre tract;
THENCE East (called East) along the south line Reserve C, a distance of 150.00 feet
(called 150.00 feet) to a ¼" set for the southeast comer of said Reserve C and a point on the east
line of said Lot 2, a point on the west line of Jade Avenue, and an angle point in the east line of
the said 10.00 acre tract;
THENCE South (called South) along the east line of LOt 2 being the west line of Jade
Avenue, a distance of 40.00 feet (called 40.00 feet) to a ½' iron rod set for the southeast comer
of Lot 2 and the southeast corner of the said 10.00 acre tract;
THENCE West (called West) along thc south line or'aid Lot 2, a distance of 836.72 feet
to a ½" iron rod set for the southwest comer of the said 10.00 acre tract;
Lot 2 the South Business Park Drive; said iron rod being the northwest
comer of the said 10.00 acre tract;
THENCE East (called East) along the north line of said Lot 2 and the south line of the
South Business Park Drive, a distance of 821.72 feet to a ½" iron rod set for the northwest comer
of the turn out at the intersection of Jade Avenue with the south line of South Business Park
Drive;
THENCE South 45o00'00'' East (called South 45o00'00'' East) along the said turn out, a
distance of 21.21 feet (called 21.21 feet) to the POINT OF BEGINNING and containing 10.00
acres of land, more or less.
Prepared by
Faust Engineering and Surveying, Inc.
Richard F. Faust, P.E.
Registered Professional Land Surveyor No. 4782
5/17/07
Special Addendum To Economic Incentive Contract and Loan Agreement
Between The City Of Port Arthur Section 4A Economic Development Corporation and
Triangle Waste Properties LP
Notwithstanding anything to the contrary set forth in the Economic Incentive Contract
And Loan Agreement (the "Contract") between The City of Port Arthur Section 4A Economic
Development Corporation ~ and Triangle Waste Properties LP ~ to
which this Special Addendum is attached, the parties hereto agree that the following provisions
shall supercede and control over any other provisions of the Contract.
1. The PAEDC has good and indefeasible fee simple title to the 10 aero parcel located in
the Park to be conveyed to Triangle (.the "ProperS') free and clear of all liens,
restrictions and other maters and encumbrances except for the restrictions specifically
referenced in the Contract and of record in Jefferson County.
2. Effective upon delivery of the Deed conveying title to the Property from the PAEDC
to Triangle, the PAEDC agrees that it will have no (and waives any) claims or
interests whatsoever (including, without limitation, any implied vendor's liens) in and
to the Property except for a second deed of trust to be granted by Triangle in favor of
PAEDC covering the Property as security for the Contract.
3. Upon the full performance by Triangle of its obligations under the Contract, the
PAEDC agrees to release and relinquish all security interests, assignments and other
rights and interests it may have in and to any collateral securing Triangle's
obligations under the Contract, and upon written request will deliver a UCC-1
Termination Statement and such other evidence of such reasonably requested by
Triangle. In addition, if at any time Triangle pays to the PAEDC the sum of Tbree
Hundred Seventy Four Thousand and No/100 Dollars ($374,000.00) less any
"credits" (as such term is used and defined in the Contract) then earned, the PAEDC
agrees that Triangle shall be released form any further obligations under the Contract,
and the PAEDC agrees to release and relinquish all security interests, assignments
and other rights and interests it may have in and to any collateral securing Triangle's
obligations under the Contract and its second lien deed of trust, and upon written
request will deliver a UCC-1 Termination Settlement and release of such second lien
deed of trust and such other evidence of such release as may be rcasonably requested
by Triangle.
Triangle will not forfeit any "credits" (as such term is used and defined in the
Contract) by failing to issue a required report in a timely manner unless Triangle fails
to so issue such report within five (5) days at~er it receives a written notice form the
PAEDC that it has failed to so issue such report.
PAEDC represents to Triangle that the Property has legal and unencumbered access
to and from a street, which PAEDC will dedicate or baa dedicated to the City for use
as a public street.
Triangle intends to use the Property for the following purposes:
a. Operation of a truck/vehicle repair, maintenance and storage facility but only
trucks and vehicles owned, controlled or used by Triangle;
b. Operation of a repair and storage facility for portable buildings;
e. Operation ora recycling center (pursuant to a TCEQ permit for a Type 5 facility)
provided, ..however, regardless of whether a Type 5 permit allows for recycling of
a broader category of items or wastes, only the following types of items and
wastes may be sorted and recycled by Triangle on the Propert3c.
1. Construction-demolition waste (waste resulting fi'om construction or
demolition projects, including all materials that are directly or indirectly the
by-producls of construction work or that result fi.om the demolition of
buildings and other structures, including, but not limited to paper, cartons,
gypsum board, wood, excelsior, rubber and plastics).
2. Class 3 industrial solid waste (inert and essentially insoluble industrial solid
waste, including materials such as concrete rubble, rock, brick, glass, dirt, and
certain plastics and rubber, etc., that are not readily decomposable as defined
in 30 TAC §335.507).
provided, however, in no event will any of the following items or wastes be sorted
or recycled on the Property:
Household garbage;
· Putrescible waste;
Special waste from health-care-related facilities;
· Wastes fi.om commercial or industrial waste water treatment plants; air
pollution control facilities; and tanks, drums, or containers used for
shipping or storing any material that has been listed as a hazardouz
constituent in 40 code of Federal Regulatinns (40 CFR), Part 261,
Appendix VIII but has not been listed as a commercial chemical product
in 40 CFR, §261.33(0 or (f);
·SLaughterhouse wastes;
Dead animals;
· Pesticides (insecticide, herbicide, fungicide, or mdenticide) containers in
accordance with 30 TAC §330.136Co)(5);
· Discarded materials COntaining asbestos;
· Incinerator ash;
Soil contarrfinated by petroleum products, crude oils, or chemicals;
5/17/'2007
· Hazardous wasteS;
Polychlorinated biphenyls (PCB) waste;
· Radioactive waste;
Unknown chemical or containerized waste;
· Class 1 non-hazardous industrial waste;
Class 2 non-hazardous industrial waste; and
Regulated Asbestos Containing MateriaLs (RACM).
In addition, Triangle's recycling activities shall consist of transporting such items
and wastes to the Property, spreading out such items and wastes on the floor of
the recycling center, sorting and removing recyclable items therefrom and hauling
the remainder of such items or wastes to an appropriate landfill;
d. Use of an administrative building or buildings; and
e. Any uses wlfich are reasonably incidental to any of the foregoing uses.
The PAEDC approves of such uses and agrees that same comply with the covenants
and restrictions set forth or referenced in the Contract.
6 This includes hazardou~ industrial waste, as defined by 30 Texas Administrative Code ("TAC") §335.1(60) (in
accordance with RCRA of 1976 and 40 Code of Federal Regulations ("CFR") Part 261); h~zardous substances, as
defined by 30 TAC §335.1(61) (as designated under CERCI~, 40 Code of Federal Regulations Part 302);
hmardous waste, as defined by 30 TAC §335.1 (62) (in accordance with the federal Solid Waste Disposal Act, as
amended by RCRA. 42 United States Code §§6901 et seq., as amended) and as detemined by the procedures in 30
TAC §335.504; hazardous waste constituent, as defined by 30 TAC §335.1(63) (listed in 40 CFR Part 261, Subpart
D or in Table 1 of 40 CFR §261.24); and as further defined by new or revised federal or state regulations concerning
hazardous substances and waste, promulgated at, er execution of this contract.
EX "It" ~ 5/17/2007
DESCRIPTION OF A
10.00 ACRE TRACT OUT OFLOT 2
OF THE
PORT ARTHUR F~CONOMIC DEV~LOPIVI~NT CORPORATION BUSINESS PARK
PORT ARTHUR, TEXAS
APRIL 16, 2007
That certain 10.00 acre tract out of Lot 2 of the Port Arthur Economic Development
Corporation Business Park, a plat recorded in Clerk's File ~2005044721 of the Official Real
Property Records of Jefferson County, Texas; said 10.00 acre tract being more particularly
described by metes and bounds as follows:
(Note: the concrete monuments found in the center line of South Business Park Drive were used
for the basis of bearings)
COMMENCING at a concrete monument found in the center line of the intersection of
Jade Avenue and South Business Park Drive;
THENCE South 35o32'26'' West, a distance of 64.52 feet to a ½" iron rod set for the
southeast comer ora turn of a turn out on Jade Avenue and being the POINT OF BEGINNING;
THENCE South (called South) along the west line of Jade Avenue and the east line of
Lot 2, a distance of 342.63 feet (called 342.63 feet) to a ½" iron rod set for the northeast comer
of Reserve C and being an angle point in the east line of the said I0.00 acre tract;
THENCE West (called West) along the north line of Reserve C, a distance of 150.00
feet (called 150.00 feet) to a ¼" fi'on rod set for the northwest comer of said Reserve C and being
an interior comer of the east line of the said 10.00 acre tract;
THENCE South (called South) along the west line of Reserve C, a distance of 150.00 feet
to a ½" fi.on rod set for the southwest comer of said Reserve C and being and angle point on the
east line of the said 10.00 acre tract;
THENCE East (called East) along the south line Reserve C, a distance of 150.00 feet
(called 150.00 feet) to a ½" set for the southeast comer of said Reserve C and a point on the east
line of said Lot 2, a point on the west line of Jade Avenue, and an angle point in the east line of
the said 10.00 acre tract;
THENCE South (called South) along the east line of Lot 2 being the west line of Jade
Avenue, a distance of 40.00 feet (called 40.00 feet) to a ½' iron rod set for the southeast comer
of Lot 2 and the southeast comer of the said 10.00 acre tract;
THENCE West (called West) along the south line of said Lot 2, a distance of 836.72 feet
to a ½" iron rod set for the southwest comer of the said 10.00 acre tract;
5/17/07
THENCE North, a distance of 547.63 feet to a ½" iron rod set on the noah line of said
Lot 2 and the south line of the South Business Park Drive; said iron rod being the northwest
comer of the said 10.00 acre tract;
THENCE East (called East) along the north line of said Lot 2 and the south line of the
South Business Park Drive, a distance of 821.72 feet to a W' iron rod set for the northwest comer
of the turn out at the intersection of Jade Avenue with the south line of South Business Park
Drive;
THENCE South 45000'00'' East (called South 45000'00'' East) along the said turn out, a
distance of 21.21 feet (called 21.21 feet) to the POINT OF BEGINNING and containing 10.00
acres of land, more or less.
Prepared by
Faust Engineering and Surveying, Inc.
Richard F. Faust, P.E.
Registered Professional Land Surveyor No. 4782
Ex"l" 2 J/17/2007
EXHIBIT "J"
$/17/~7
Date:
Grantors:
Grantors' Mailing Address
(including county):
Trustee;
Trustee's Ma/ling Address
(including county):
Beneficiary:
Beneficiary's Mailing Address
(including county):
N. ote
Date:
Amount:
Maker:
Payee:
DEED OF TRUST
., 2007
Triangle Waste Properties LP
1041 Conrad Sauer Road
Houston, TX 77043
ATTN: Joe Swinbank
(Harris County)
GUY N. GOODSON
Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
(Jefferson County)
PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
4173 39t~ Sheet
Port Arthur, Texas 77642
(Jefferson County)
Date Grantor breaches that certain Economic Incentive
Contract and Loan Agreement dated ,
2007.
$
The sum of Beneficiary's cash grant to Grantee minus credit
earned, pursuant to that certain Economio Incentive Contract and
Loan Agreement dated ,2007 (not to exceed
$374,000).
Triangle Waste Properties LP
PAEDC (Beneficiary)
Final Maturity Date:
Three (3) years after Grantor breaches that certain Economic
Incentive Contract and Loan Agreement dated
2007.
See Attachment for legal description.
The Property covered by tlfis Instrument includes the Land and the following items,
whether now owned or hereafter acquired, all of which, including replacements and additions
thereto, shall be deemed to be and remain part of the Property covered by this Instrument, and all
rights, hereditamants and appurtenances pertaining thereto, ail 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 ftxtures now or hereafter delivered to and intended to be
installed in or on the Land or the Improvements;
(e) all plans and specifications for the Improvements and for any future development of
or construction on the Land;
(0 all Grantor's rights (but not Grantor's obligations) under any contracts relating to the
Land or the Improvements;
(g) all deposits (including tenant security deposits), funds, instruments, notes or chattel
paper arising fi:om or by virtue of any transactions related to the Land or the
Improvements;
(h) all Grantor's rights (but not Grantor's obligations) under any documents, contract
rights, accounts, commitments, construction contracts (and all payment and
performance bonds, statutory or otherwise, issued by any surety in conuection with
any such construction contracts, and the proceeds of such bonds), architectural
contracts and engineering contracts arising fi'om or by virtue of any transactions
related to the Land or the Improvements;
(i) all permits, licenses, fi:anchises, certificates, and other rights and privileges now
owned or held or hereat~er obtained in connection with the Land and the
Improvements;
O) all development rights, utility commitments, water and wastewater taps, capital
improvement project contracts, utility construction agreements with any
governmental authority, including municipal utility districts, or with any utility
companies (and all refunds and reimbursements thereunder) relating to the Land or
the Improvements;
(k) all proceeds arising fi:om or by virtue of the sale, lease or other disposition of the
Land or the Improvements;
(1) all proceeds (including premium refunds) of each policy of insurance relating to the
Land and the Improvements;
(m) all proceeds fi.om the taking of any of the Land or the Improvements or any rights
appurtenant thereto by right of eminent domain or by private or other purchase in lieu
thereof; including change of grade of streets, curb cuts or other rights of access, for
any public or quasi-public use under any law;
(n) all right, title, and interest of Grantor in and to all streets, roads, public places,
easements, and rights-of-way, existing or proposed, public or private, adjacent to or
used in connection with, belonging or pertaining to the Land;
(o) all of the Leases, rents, royalties, bonuses, issues, profits, revenues, or other benefits
of the Land or the Improvements, including without limitation cash or securities
deposited pursuant to leases to secure performance by the tenants of their obligations
thereunder (subject to the Assignment of Rents made in Article V below); and
(p) other interest of every kind and character that Grantor now has or at any time
hereat~er 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 tho Land, as the same may be amended
fi'om time to time, including Grantor's rights, title, and interests thereunder as
declarant or developer, if applicable.
Senior (prior) Lien (including recording information): Deed of Trnst, dated ,
2007, and recorded at , for the benefit of Texas State Bank, which
Deed of Trust shall be senior in priority to this Deed of Trust up to the amount of $4,000,000.00
of indebtedness (the "Senior Deed of Trust").
Other Exceptions to Conveyance and Warranty:
This conveyance is made expressly SUBJECT TO any and all restrictions, covenants,
conditions, easements, r/ght-o f-ways, and mineral and/or royalty reservations of record, if
any, affecting this Property and the Senior Deed of Trnst up to $4,000,000.00 of
indebtedness.
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 amount of indebtedness on the Note which relates to
Beneficiaries cash grants to Grantor (not to exceed $500,000) plus all interest attributable to such
indebtedness according to its terms, this deed of trust shall have no further effect, and
Beneficiary shall release it at Grantor's expense.
Grantor's Obligations Grantor agrees to:
1. keep the property in good repair and condition;
2. pay all taxes and assessments on the property when due and by January 31 of the
year immediately following, furnishing Beneficiary copies of tax receipts showing
that all such taxes and assessments have been paid;
3. preserve the lien's priority as it is established in this deed of trust but subject to
the Senior Deed of Trust up to $4,000,000.00 of indebtedness;
5/17/2007
4. maintain, in a form reasonably acceptable to Beneficiary, an insurance policy that
a. covers all improvements for their full insurable value as determined when the
policy is issued and renewed, unless Beneficiary approves a smaller amount in
writing;
b. contains an 80% coinsurance clause;
c. provides fire and extended coverage, including windstorm coverage;
d. protects Beneficiary with a standard mortgage clause;
e. provides flood insurance at any time the property is in a flood hazard area; and
f. contains such other coverage as Beneficiary may reasonably require;
5. comply at all times with the requirements of the 80% coinsurance clause;
6. deliver the insurance policy to Beneficiary and deliver renewals to Beneficiary at
least ten days before expiration;
7. keep any buildings occupied as required by the insurance policy;, and
8. provide the Beneficiary herein copies of all notices, financial statements, reports
and other information provided to the senior lien holder;
9. punctually pay or cause to be paid the principal and interest to become due in
respect of the senior debt according to the terms thereof,;
10. perform all of its obligations under the senior lender documents;
11. immediately report to Beneficiary in writing any default by Grantor under the
senior lien;
12. immediately report to Beneficiary in writing any tax, judgment, materialmen's or
mechanic's lien on the Property;
13. in the event the Beneficiary herein reasonably deems itself reasonably insecure,
because the value of the Property is close to equaling the total amount of
indebtedness secured or represented by this Deed of Trust and the Senior Deed of
Trust, upon notice thereof to Grantor, provide the Beneficiary with (or cause the
Beneficiary to be provided with) such additional collateral as may reasonably
secure the Beneficiary's position, subject to the rights and restrictions imposed by
the senior lien holder; and
14. arrange for senior lien holder to provide notice ofdefuult to Beneficiary.
Grantor shall not, without the prior written consent of Beneficiary,
1. materially alter any of the terms and conditions of the senior debt or increase the
maximum indebtedness $4,000,000.00 available to Grantor under the senior
lender documents; or
2. further encumber the Property except for the Senior Deed of Trust.
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 senior (prior) liens,
Beneficiary is subrogated to all of the rights and liens of the holders of any debt
so paid;
3. Subject to the provisions of the Covenants end Restrictions recorded in the Real
Property Records of Jefferson County, Texas, and the Senior Deed of Trust which
shall control and supercede anything herein contained to the contrary, Beneficiary
Ex "J' 5 5/17/2007
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 Note or Deed of Trnst in which case insurance proceeds may be applied
to educe Grantor s obhgat~on under Note or Deed ofTrnst;
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 f~om 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.
If Grantor defaults on the note or fails to perform any of Grantor's obligations or
if default occurs on the senior lien note or Senior Deed of Trust, and the default
continues alter 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; and
b. Request Trustee to reconvey property to Beneficiary following a non-judicial
foreclosure as required by law by a proper recorded warranty deed.
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 of part of the property to the highest bidder for cash with a
general warranty binding Grantor subject to prior liens and other exceptions to
conveyance and warranty; and
3. From the proceeds of the sale, pay in this order:
a. Expenses of foreclosure;
b. To Beneficiary, the full amount of principle, interest, attorney's fees, and
other charges due and unpaid;
c. Any amount required by law to be paid before payment to Grantor; and
d. To Grantor, any balance.
General Provisions
1. If any of the property is reconveyed under this deed of trust following a non-
judicial foreclosure as required by law, 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 tree.
3. Proceeding under tlfis deed of trust, filing suit or pursuing any other remedy will
not constitute an election of remedies.
4. This lien shall remain superior to liens later created even if the time of payment of
all or part of the note is extended or part of the property is released.
5. If any portion of thc note cannot be lawfully secured by this deed of trust,
payments shall be applied first to discharge that portion.
6 5/17/2007
10.
11.
12.
13.
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. A~cer 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.
Grantor assigns to Beneficiary absolutely, not only as collateral, ail present and
future rent and other income and receipts from the property. Leases are not
assigned. Grantor warrants the va~idity and enforceability of the assignment.
Grantor may as Benefieiary's licensee collect rent and other income and receipts
as long as Grantor is not in default under the note or this deed of trust. Grantor
will apply all rent and other income and receipts to payment of the note and
performance of this deed of trust, but if the rent and other income and receipts
exceed the amount due under the note and deed of trust, Grantor may retain the
excess. If Grantor defaults in payment of the note of performance of this deed of
trust, Beneficiary may terminate Grantor's license to collect and then as Grantor's
agent may rent the property if it is vacant and collect all rent and other income
and receipts. Beneficiary neither has not assumes any obligations as lessor or
landlord with respect to any occupant of the property. Beneficiary may exercise
Beneficiary's rights and remedies under this paragraph without taking possession
of the property. Beneficiary shall apply all rent and other income and receipts
collected under this paragraph first to expenses incurred in exercising
Beneficiary's rights and remedies and then to Grantor's obligations under the note
and this deed of trust in the order determined by Beneficiary. Beneficiary is not
required to act rudder this paragraph, and acting under this paragraph does not
waive any of Beneficiary's other fights or remedies. If Grantor becomes a
voluntary or involuntary bankrupt, Beneflciary's filing a proof of claim in
bankruptcy will be tantamount to the appointment of a receiver under Texas law.
Interest on the debt secured by this deed of trnst shall not exceed the maximum
amount of nonusurions 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 prineipai 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, iftha principal of the debt has been paid,
refunded. This provision overrides other provisions in this and all other
instruments concerning the debt.
When the context requires, singular nouns and pronouns include the plural.
The term note includes all sums secured by this deed of trust.
This deed of trust shall bind, insure to the benefit o~ and be exercised by
successors in interest of all parties.
If Grantor and Maker are not the same person, the term Grantor shall in¢inde
Maker.
If all or any part of the Property is sold, conveyed, leased for a period longer than
three (3) years, leased with the option to purchase, or otherwise sold (including
14.
15.
contract for deed), without the prior written consent of Beneficiary, then
Beneficiary may at its option declare the outstanding balance of the Note(s), plns
accrued interest to be irmnediately due and payable. The creation ora subordinate
lien, any sale thereunder, any deed under threat or order of condemnation, any
conveyance solely between Makers, the passage of title by reason of the death of
a Maker or by operation of law shall not be construed as a sale or conveyeance of
the Property.
THIS DEED OF TRUST IS GRANTED IN CONJUNCTION WITH THAT
CERTAIN ECONOMIC INCENTIVE CONTRACT AND LOAN AGREEMENT
DATED j 2007.
Notwithstanding any provision herein to the COntrary, any and all covenants,
warranties, grants, liens, assignments (including assignments of rents or leases),
security interests, transfers and conveyances set forth herein, and all other terms
and provisions hereof and all rights and benefits of Beneficiary hereunder are
expressly subject to, inferior and subordinate to (a) all covenants, warranties,
grants, liens, assigtxrnents (including assignments of rents or leases), security
interests, transfers and conveyances created under and pursuant to, and all terms
and provisions o~ that certain Deed of Trust, effective as of
2007 Covering the Property, executed by Beneficiary to '
Trustee for the benefit of Texas State Bank and other loan documents executed in
connection therewith (together with any and all extensions, renewals,
modifications, substitutions and/or amendments thereof) securing that certain
promissory note of even date therewith in the principal amount of $
executed by Grantor and payable to the order of Texas State Bank, and any
extensions, renewals, modifications, substitutions and/or amendments thereof up
to but not to exceed an indebtedness of $4,000,000.00 in favor of Texas State
Bank.
SIGNED AND AGREED TO on the
day of ,200.~.
TRIANGLE WASTE PROPERTIES LP,
a Texas limited partnership
By: Triangle Waste Solutions, LLC
its General Partner,
a Texas limited Habilit~ company
By:
Joseph B. Swinbank, President
Ex "J" 8 5/17/2007
STATE OF §
§
COUNTY OF §
BEFORE ME, THE UNDERSIGNED Notary Public, on t.his day personally appeared
Joseph W. Swinbanlc, President of Triangle Waste Solutions, LLC, a Texas limited liability
company and General Partner of Triangle Waste Prope~es, LP, a Texas limited partnership
known to me to be the person whose name is subscribed to the foregoing instnunent, and
acknowledged to me that he/she executed the same as the act and deed of such entities, for the
purposes and consideration therein expressed, and the Capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the
day of
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
Guy N. Goodson
Germer Gertz, L.L.P.
P.O. Box 4915
Beaumont, Texas 77704
ATTACHMENT
DESCRIPTION OF A
10.00 ACRE TRACT OUT OF LOT 2
OF THE
PORT ARTHUR ECONOMIC DEVELOPMENT CORPORATION BUSINESS PARK
PORT ARTHUR, TEXAS
APRIL 16, 2007
That certain I0.00 acre tract out of Lot 2 of the Po~ A~thur Economic Development
Corporation Business Park, a plat recorded in Clerk's File #2005044721 of the Official Real
Property Records of Jefferson County, Texas; said 10.00 acre tract being more particularly
described by metes and bounds as follows:
(Note: the concrete monuments found in the center line of South Business Park Drive were used
for the basis of bearings)
COMMENCING at a concrete monument found in the center line of the intersection of
Jade Avenue and South Business Park Drive;
THENCE South 35032'26'' West, a distance of 64.52 feet to a ¼" iron rod set for the
southeast corner of a turn ora turn out on Jade Avenue and being the POINT OF BEGINNING;
THENCE South (called South) along the west line of Jade Avenue and the east line of
Lot 2, a distance of 342.63 feet (called 342.63 feet) to a ½" iron rod set for the northeast corner
of Reserve C and being an angle point in the east line of the said 10.00 acre tract;
THENCE West (called West) along the north line of Reserve C, a distance of 150.00
feet (called 150.00 feet) to a ½tron rod set for the northwest corner ofsa~d Reserve C and being
an interior corner of the east line of the said 10.00 acre tract;
THENCE South (called South) along the west line of Reserve C, a distance of 150.00 feet
to a ½" iron rod set for the southwest corner of said Reserve C and being and angle point on the
east line of the said 10.00 acre tract;
THENCE East (called East) along the south line Reserve C, a distance of 150.00 feet
(called 150.00 fee0 to a ¼" set for the southeast corner of said Reserve C and a point on the east
line of said Lot 2, a point on the west line of Jade Avenue, and an angle point in the east line of
the said 10.00 acre tract;
THENCE South (called Soutlo along the east line of Lot 2 being the west line of Jade
Avenue, a distance of 40.00 feet (called 40.00 feet) to a ½" iron rod set for the southeast corner
of Lot 2 and the southeast corner of the said 10.00 acre tract;
5/17/2007
THENCE West (called West) along the south line of said Lot 2, a distance of 836.72 feet
to a ½" iron rod set tbr the southwest corner of the said 10.00 acre tract;
THENCE North, a distance of 547.63 feet to a ½" iron rod set on the north line of said
Lot 2 and the south line of the South Business Park Drive; said iron rod being the northwest
comer of the said 10.00 acre tract;
THENCE East (called East) along the north line of said Lot 2 and the south line of the
South Business Park Drive, a distance o f 821.72 feet to a 'A" iron rod set for the noffiawest comer
of the turn out at the intersection of lade Avenue with the south line of South Business Park
Drive;
THENCE South 45000'00'' East (called South 45o00'00'' East) along the said turn out, a
distance of 21.21 feet (called 21.21 feet) to the POINT OF BEGINNING and containing 10.00
acres of land, more or less.
Prepared by
Faust Engineering and Surveying, Inc.
Richard F. Faust, P.E.
Registered Professional Land Surveyor No. 4782
F.~ "J" 11 5/17/'2007
EXHIBIT "B"
Bullet Points for
Second Lien Deed of Trust
(Being Prepared and will be submitted
to City Council)
z.pr14122