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002-12Resolution ON MINERALS (CHEMSTONE) COMPANY D/B /A Carmeuse Lime and Stone WHEREAS, ON MINERALS (CHEMSTONE) COMPANY D/B /A Carmeuse Lime and Stone has made known its intent to expand its operation by making new taxable real estate and machinery and tools investments and retain and create jobs; and WHEREAS, the company meets the policy guidelines of the Frederick County Economic Development Incentives Policy as established by the Winchester - Frederick County Economic Development Commission in 1995; BE IT RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia, does hereby approve and appropriate the payment of $550,000.00 in installments as stated in the executed Performance Agreement to the Industrial Development Authority of Frederick County, Virginia from Frederick County's Unreserved Fund Balance to assist in expanding the operation for ON MINERALS (CHEMSTONE) COMPANY DBIA Carmeuse Lime and Stone in Frederick County, Virginia. BE IT RESOLVED, that said funds are subject to an executed Performance Agreement outlining the required performance criteria. BE IT FURTHER RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia, does authorize the Chairman to execute the Performance Agreement on its behalf. Upon motion duly made by Chris Co 1J ins , seconded by Gene E. Fisher and on the votes hereafter recorded, ADOPTED, this 25` day of July 2012, Richard C. Shickle Aye Ross Spicer Aye Charles S. Dehaven, Jr. Abstained Gary Lofton Aye Gene Fisher Aye Bill Ewing Aye Christopher E. Collins Ay e A COPY TES E: � Jo . Riley, fir. C erk, Board of Supervisors BOS Res. #002 -12 LOCAL ECONOMIC DEVELOPMENT INCENTIVE GRANT PERFORMANCE AGREEMENT This PERFORMANCE AGREEMENT made and entered this 25 day of July 2012 by and among the COUNTY OF FREDERICK, VIRGINIA (the "Locality ") a political subdivision of the Commonwealth of Virginia (the "Commonwealth "), ON MINERALS (CHEMSTONE) COMPANY DB /A CARMEUSE LIME AND STONE (the "Company "), a Delaware corporation, and the INDUSTRIAL DEVELOPMENT AUTHORITY OF FREDERICK COUNTY, VIRGINIA (the "Authority "), a political subdivision of the Commonwealth. WITNESSETH: WHEREAS, the Locality wishes to make a Local Economic Development Incentive Grant in the amount of $550,000 (the "LEDIG ") through the Authority to the Company for the purpose of inducing the Company to construct the Facility (as hereinafter defined), thereby making a significant Capital Investment (as hereinafter defined) and creating and retaining a significant number of new Jobs (as hereinafter defined); WHEREAS, the Locality, the Authority and the Company desire to set forth their understanding and agreement as to the payout of the LEDIG, the use of the proceeds of the LEDIG, the obligations of the Company regarding Capital Investment and Job creation, and the repayment by the Company of all or part of the LEDIG under certain circumstances; WHEREAS, the construction and operation of the Facility will entail a capital expenditure in real estate and machinery and equipment of approximately $49,207,277 and will create 25 Jobs at the Facility; WHEREAS, the stimulation of the additional tax revenue and economic activity to be generated by the Capital Investment and Jobs constitutes a valid public purpose for the expenditure of public funds and is the animating purpose for the LEDIG; and WHEREAS, the LEDIG will increase commerce and will benefit the citizens of the Locality: NOW, THEREFORE, in consideration of the foregoing, the mutual benefits, promises and undertakings of the parties to this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant and agree as follows. Section 1. Disbursement of LEDIG As an inducement to the Company to achieve the Targets (as hereinafter defined) at the Facility and provided that the Company in not in default under the terms of this Performance Agreement, the LEDIG in the amount of $550,000 will be paid by the Locality to the Company through the Authority in five installments. The first installment of $150,000 will be paid by the Carmeuse Lime and Stone Inc. LEDIG Performance Agreement I July 2012 Page 1 of 7 Locality to the Authority and by the Authority to the Company after July 1, 2014 but no later than December 31, 2014. The second installment of $100,000 will be paid by the Locality to the Authority and thereafter by the Authority to the Company after July 1, 2015 but no later than December 31, 2015. The third installment of $100,000 will be paid by the Locality to the Authority and thereafter by the Authority to the Company after July 1, 2016 but no later than December 31, 2016. The fourth installment of $100,000 will be paid by the Locality to the Authority and thereafter by the Authority to the Company after July 1, 2017 but no later than December 31, 2017. The fifth installment of $50,000 will be paid by the Locality to the Authority and thereafter by the Authority to the Company after July 1, 2018 but no later than December 31, 2018, If the Company exceeds their Capital Investment Target, $50,000 will be paid by the Locality to the Authority and by the Authority to the Company after July 1, 2019 but no later than December 31, 2019.. The Company will use the LEDIG proceeds to upgrade public and private utilities at and around the Facility. Section 2. Targets; Definitions The Company will construct and operate the Facility in the Locality, make a Capital Investment of at least $49,207,277 and create and maintain, as hereinafter defined, at least 25 Jobs at the Facility, all as of the Performance Date, as hereinafter defined. The average annual wage of the Jobs of at Ieast $43,673 is higher than the prevailing average annual wage in the Locality of $38,649. For the purposes of this Agreement, the following terms shall have the following definitions: "Capital Investment" means a capital expenditure by the Company in taxable real property, taxable tangible personal property, or both, at the Facility excluding the purchase of land or existing taxable tangible personal property. The Capital Investment must be in addition to the capital improvements at the Company's existing location in Frederick County as of June 1, 2012. The total capital expenditure of $49,207,277 is referred to in this Agreement as the "Capital Investment." "Maintain" means that the current 22 jobs at the Facility as of June 5, 2012 and the New Jobs created pursuant to the LEDIG will continue without interruption from the date of creation through the Performance Date. "Facility" means that certain industrial facility to be constructed by the Company upon the existing property owned and operated by the Company situate in Frederick County, Virginia along 508 Quarry Road as well as all related operating equipment including, without limitation, two vertical lime kilns. "Job" means new permanent full -time employment of an indefinite duration at the Facility for which the standard fringe benefits are paid by the Company for the employee, and for which the Company pays an average annual wage of at least $43,673, including overtime. Each Job must require a minimum of either (i) 35 hours of an employee's time per week for the entire normal year of the Company's operations, which "normal year" must consist of at least 48 weeks, Carmeuse Lime and Stone Inc. LEDIG Performance Agreement I July 2012 Page 2 of 7 or (ii) 1,680 hours per year. Seasonal or temporary positions, positions created when a job function is shifted from an existing location in the Commonwealth, and positions with construction contractors, vendors, suppliers and similar multiplier or spin -off jobs shall not qualify as Jobs. Those jobs existing as of June 5, 2012 will not count as Jobs. "Performance Date" means June 1, 2016. If the Locality, in consultation with the Authority, deems that good faith and reasonable efforts have been made and are being made by the Company to achieve the Targets, the Locality in its sole and absolute discretion may agree to extend the Performance Date by up to 15 months. The Locality shall have no obligation whatsoever to extend the Performance Date. If the Performance Date is extended, the Locality shall send written notice of the extension to the Authority and the Company and the date to which the Performance Date has been extended shall be the "Performance Date" for the purposes of this Agreement. "Targets" means the Company's obligations to matte Capital Investments at the Facility of at least $49,207,277 and to create and maintain at least 25 New Jobs at the Facility, all as of the Performance Date. Section 3. Break -Even Point; Local Incentives The Locality has estimated that it will reach its "break -even point" by the Performance Date. The break -even point compares new revenues realized as a result of the Capital Investment and Jobs at the Facility with the Locality's expenditures on incentives. With regard to the Facility, the Locality will provide incentives in the following amounts: Category of Incentive: Total Amount Local Economic Development Incentive Grant $550,000 The proceeds of the LEDIG Grant shall be used for the purposes described in this Performance Agreement. Section 4. Repayment Obligation (a) (i) For purposes of repayment, the LEDIG is to be allocated as 50% ($275,000) for the Company's Capital Investment Target and 50% ($275,000) for its Jobs Target. If the Company has met at least ninety percent (90 %) of both of the Targets as of the Performance Date, then and thereafter the Company shall no longer be obligated to repay any portion of the LEDIG. (ii) If the Company has not met at least ninety percent (90 %) of both of the Targets, the Company shall repay to the Authority that part of the LEDIG that is proportional to the Target as of the Performance Date or Targets for which there is a shortfall. For example, if on the Performance Date, the Capital Investment is only $24,603,639 and only 12 Jobs have been created, the Company shall repay to the Authority fifty percent (50 %) of the moneys allocated to the Capital Investment Target ($275,000) and fifty percent (50 %) of the moneys allocated to the Jobs Target ($275,000). Whether the Jobs Target has been met will be determined by comparing the anticipated increase in payroll (to -wit: 25 Jobs at an average annual salary of at least $43,673) to Carmeuse Lune and Stone Inc. LEDIG Performance Agreement E July 2012 Page 3 of 7 the actual number of Jobs in effect as of the date of execution of this Performance Agreement and by comparing the actual average annual salary of Jobs reported on at the Performance Date. (b) Determination of Inability to Comply: If the Locality in its sole and absolute discretion shall determine at any time (a "Determination Date ") that the Company is unable or unwilling to meet and maintain its Targets by and through the Performance Date, and if the Locality or the Authority shall have promptly notified the Company of such determination, the Company must repay the entire amount of the LEDTG to the Authority. (c) repayment Dates: Such repayment shall be due from the Company to the Authority within thirty days of the Performance Date or the Determination Date, whichever shall first occur. (a:) Any LEDTG moneys repaid by the Company to the Authority hereunder shall be repaid by the Authority to the Locality within 30 days after request for payment is made by the Locality or the Authority. The Locality and the Authority shall use their best efforts to recover such funds, including legal action for any breach of this Agreement by the Company. (b.) In the event that the Company fails to comply with the repayment obligations set forth in this Section 4, the Locality and the Authority shall be entitled to recover their reasonable attorney's fees and costs incurred in connection with such default by the Company, whether or not such proceedings are instituted to collect such repayment funds. (c.) The Authority shall not have any responsibility whatsoever for the repayment of any sums hereunder to the Locality unless and until said sums have been received by the Authority from the Company. (d.) In the event that the Company fails or refuses to repay any of the LEDIG moneys as called for in this Section 4, such sums shall be assessed interest at the rate of 8.00% annum until repaid in full by the Company. Section 5. Company Reporting The Company shall timely provide, at the Company's expense, written verification reasonably satisfactory to the Locality and the Authority of the Company's progress in achieving the Targets. Such progress reports will be provided annually, starting at December 1, 2012, and at such other times as the Locality and the Authority may reasonably require. Carmeuse Lime and Stone Inc. LEDTG Performance Agreement I July 2012 Page 4 of 7 Section 6. Notices Any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery, facsimile, by depositing the same in the United States Mail, properly addressed, postage prepaid, and registered or certified, with return receipt requested, or overnight delivery service. A notice given by personal delivery or facsimile shall be effective upon delivery and a notice given by registered or certified mail shall be deemed effective on the second day after such deposit. Notice given by overnight delivery service shall be deemed effective on the date of actual delivery. Either party may by notice to the other specify a different address for notice purposes, if to the Company, to: 508 Quarry Lane Clear Brook, VA 22624 Attention: Area Operations Manager with a copy to: Carmeuse Lime & Stone 11 Stanwix St — 21" Floor Pittsburgh, PA 15222 Attention: General Counsel if to the Locality, to: with a copy to: County of Frederick, Virginia County of Frederick, Virginia 107 North Kent St 107 North Kent St Winchester, VA 22601 Winchester, VA 22601 Attention: County Administrator Attention: County Attorney if to the Authority, to: Industrial Development Authority of the County of Frederick, Virginia 107 North Kent St Winchester, VA 22601 Attention: Chair with a copy to: Industrial Development Authority of the County of Frederick, Virginia 107 North Kent St Winchester, VA 22601 Attention: General Counsel Section 7, Miscellaneous (a) Entire Agreement; Amendments: This Agreement constitutes the entire agreement between the parties hereto as to the LEDIG and any other matters set forth herein and may not be amended or modified, except in writing, signed by each of the parties hereto. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Company may not assign its rights and obligations under this Agreement without the prior written consent of the Locality and the Authority, which consent may be withheld by the Locality and/or the Authority. Carmeuse Lime and Stone Inc. LEDIG Performance Agreement I July 2012 Page 5 of 7 (b) Governing Law; Venue: This Agreement is made, and is intended to be performed, in the Commonwealth and shall be construed and enforced in accordance with the laws and judicial decisions of the Commonwealth. Jurisdiction shall lie exclusively in the Circuit Court of the County of Frederick, Virginia and any litigation shall be brought only in such court. (c) Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall be one and the same instrument. (d) Severability: if any provision of this Agreement is determined to be unenforceable, invalid, or illegal, then the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law. (e) Time: Time is of the essence as to all matters set forth in this Performance Agreement. Carmeuse Lime and Stone Inc. LEDIG Performance Agreement I July 2012 Page 6 of 7 IN WITNESS WHEREOF, the parties hereto have executed this Performance Agreement as of the date first written above. COUNTY OF FREDERICK, VIRGINIA By Name: Richard C. Shickle Title: Chair, Board of Supervisors of the County of Frederick, Vir inia Date: - 7 1 - L5 INDUSTRIAL DEVELOPMENT AUTHORITY OF THE COUNTY OF FREDERICK, VIRGINIA M Name: Richard G. Dick Title: Chair, Industrial Development Authority of the County of Frederick, Virginia Date: ON MINERALS (CHEMSTONE) COMPANY LI Name: Title: Date: Carmeuse Lime and Stone Inc. LEDIG Performance Agreement E July 2012 Page 7 of 7 WINCHESTER IUIF FREDERICK COUNTY VIRGINIA EDC DATE: July 18, 2012 TO: Jahn R. Riley, Jr. County Administrator FROM: Patrick Barker, AICP Executive Director RE: Performance Agreement for ON MINERALS (CHEMSTONE) COMPANY D /B /A Carmeuse Lime and STONE Attached for your review and comment are the Performance Agreement and Board of Supervisors resolution for the expansion of ON MINERALS (CHEMSTONE) COMPANY D /B /A Carmeuse Lime and STONE. As you recall, the Board of Supervisors seemed favorable in executive discussion to providing funds from Frederick County Economic Development Incentive Fund to secure this project. ON MINERALS (CHI=MSTONE) COMPANY D /B /A Carmeuse Lime and STONE provides lime and limestone products, and Carmeuse Industrial Sands provides a range of industrial sand products for a variety of commercial and industrial applications. This project will occur at their Clearbrook location. With their capital investment, ON MINERALS (CHEMSTONE) COMPANY D /B /A Carmeuse Lime and STONE install machinery and equipment and retain and create jobs. Frederick County, Virginia, successfully competed with Pennsylvania. I would like to request these items be inserted into the Board of Supervisors' next available meeting. All parties' legal counsels (County, IDA and ON MINERALS (CHEMSTONE) COMPANY D /B /A Carmeuse Lime and STONE) have reviewed and approved the performance agreement. Thanks for your help. I am available if you have any questions or comments on the materials for this project. Attachment: • Performance Agreement • BOS Resolution Your Move. Our Commitment, 45 East Boscawen Street w Winchester; VA 22601 e 540 -665 -0973 & Fax 540 - 722 -0604 A www:winva,com