035-24 (PerformanceAgreementDesiFreshFoodsLLC) Resolution
DESI FRESH FOODS, LLC,
WHEREAS, DESI FRESH FOODS, LLC, has made known its intent to locate its operation by
making new real property and machinery and tools improvements; and create jobs,
BE IT RESOLVED,that the Board of Supervisors for the County of Frederick, Virginia,does
hereby approve a General Fund Supplemental Appropriation and an Economic Development Authority
Supplemental Appropriation in the amount of$150,000.00 for a Local Economic Development Incentive
Grant as stated in the Performance Agreement to assist in the location for DESI FRESH FOODS, LLC, in
Frederick County, Virginia.
BE IT RESOLVED,that the Board of Supervisors for the County of Frederick, Virginia, does
hereby approve and appropriate the payment of$150,000.00 to the Economic Development Authority of
Frederick County, Virginia from the Commonwealth Opportunity Fund to assist in expanding the
operation for DESI FRESH FOODS, LLC 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 County Administrator to execute the Performance Agreement on its behalf:
Upon motion duly made by Vice Chairman Slaughter, seconded by Supervisor Lockridge, and on the
votes hereafter recorded,
ADOPTED, this I 1 day of December 2024
Josh E. Ludwig Aye Heather H. Lockridge Aye
Judith McCann-Slaughter Aye Robert W. Wells Aye
John F. Jewell Aye Robert T. Liero Aye
Blaine P. Duan Aye
A COPY TESTE:
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Michael L. Bollhoefe
Clerk, Board of Su rvisors
Res. No. 035-24
n
k
Fre erlc VA
ECONOMIC DEVELOPMENT AUTHORITY
DATE: December 4, 2024
TO: Frederick County Board of Supervisors
FROM: Patrick Barker, CEcD
Executive Director P
CC: Michael Bollhoefer
County Administrator
RE: Performance Agreement for DESI FRESH FOODS, LLC
Attached please find a resolution and performance agreements (State and County)for the location of
DESI FRESH FOODS, LLC. As you might recall, DESI FRESH FOODS, LLC will locate its operation in
Frederick County. They will make a capital expenditure by or on behalf of the Company of approximately
$13,000,000, of which approximately$3,000,000 will be invested in machinery and tools, approximately
$10,000,000 will be invested in the expansion, improvement, and up-fit of an existing building.
All parties' legal counsels (VEDP, County, EDA and DESI FRESH FOODS, LLC) have reviewed and approved
the performance agreement.
Thank you for your support of this project. I am available if you have any questions or comments on the
materials for this project.
Attachment:
• Performance Agreements
• BOS Resolution
YOUR MOVE.OUR COMMITMENT.
45 E.Boscawen St.Winchester,VA 22601 0 540-665-0973 0 YesFrederickVA.com
LOCAL ECONOMIC DEVELOPMENT INCENTIVE GRANT
PERFORMANCE AGREEMENT
This PERFORMANCE AGREEMENT (the "Agreement") made and entered this 1 lth
day of December, 2024, by and among the COUNTY OF FREDERICK, VIRGINIA (the
"Locality"), DESI FRESH FOODS, LLC, a Delaware limited liability company authorized to
transact business in the Commonwealth (the "Company") and a political subdivision of the
Commonwealth, and the ECONOMIC DEVELOPMENT AUTHORITY OF THE COUNTY
OF FREDERICK,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$150,000 (the "LEDIG") for the purpose of inducing the Company to acquire
an existing facility and to equip,improve, and operate a new manufacturing facility in the Locality
(the"Facility"),thereby making a significant Capital Investment, and creating and Maintaining a
significant number of New Jobs, as such capitalized terms are hereinafter defined;
WHEREAS, the Locality is willing to provide the funds to the Authority with the
expectation that the Authority will provide the funds to or for the use of the Company, provided
that the Company meets certain criteria relating to Capital Investment and New Jobs;
WHEREAS, the Locality, the Authority and the Company, desire to set forth their
understanding and agreement as to the payout of the LEDIG Grant, the use of the LEDIG Grant
proceeds, and the obligations of the Company regarding Capital Investment and New Jobs;
WHEREAS,the construction, equipping and operation of the Facility will entail a capital
expenditure by or on behalf of the Company of approximately $13,000,000, of which
approximately $3,000,000 will be invested in machinery and tools, approximately $10,000,000
will be invested in the expansion,improvement, and up-fit of an existing building for the Facility;
which results in a net increase in the assessed taxable value of the facility.
WHEREAS, the construction, equipping and operation of the Facility will further entail
the creation and Maintenance of 56 New Jobs at the Facility; and
WHEREAS, the stimulation of the additional tax revenue and economic activity to be
generated by the Capital Investment and New Jobs constitutes a valid public purpose for the
expenditure of public funds and is the animating purpose for the LEDIG Grant:
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 covenant and agree as
follows.
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Section 1. Definitions.
For the purposes of this Agreement, the following terms shall have the following
definitions:
"Capital Investment" means a capital expenditure by or on behalf of the Company in
taxable real property,taxable tangible personal property, or both, at the Facility. The purchase or
lease of machinery and tools or furniture, fixtures, and business personal property, including
under an operating lease, and expected building construction and up-fit by or on behalf of the
Company will qualify as Capital Investment. The Capital Investment must be in addition to the
capital improvements at the Facility as of January 1, 2024.
"Capital Investment Target"means that the Company has made or caused to be made and
retained Capital Investments of at least$13,000,000.
"Maintain" means that the New Jobs will continue without interruption from the date of
creation through the date that the level of achievement of the New Jobs Target is being tested,
including the Performance Date. Positions for the New Jobs will be treated as Maintained during
periods in which such positions are not filled due to (i) temporary reductions in the Company's
employment levels (so long as there is active recruitment for open positions), (ii) strikes, and(iii)
other temporary work stoppages.
"New Job" means new permanent full-time employment of an indefinite duration at the
Facility for which the standard fringe benefits are provided by the Company for the employee,
and for which the Company pays an average annual wage of at least $61,815. Average annual
wage means the average annual salary of full-time positions at the Facility determined by dividing
total payroll (of a type included in W-2 compensation) provided to full-time positions at the
Facility by the number of full-time positions at the Facility. Each New 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, or(ii) 1,680 hours
per year.
"New Jobs Target" means that the Company has created and Maintained at least 56 New
Jobs.
,,Performance Date" means June 30, 2027. If the Locality deems that good faith and
reasonable efforts have been made and are being made by the Company to achieve the Targets,
on or before the Performance Date the Locality may request an extension of the Performance Date
by up to 15 months. Any extension of the Performance Date shall require the prior approval of
the Company and the Locality. 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.
"Performance Report" means a report to be filed by the Company in accordance with
Section 5. The "Final Performance Report" is to be filed within 15 days after the Performance
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Date. As noted in Section 5, the Locality and the Authority may each request a Performance
Report at other dates prior to the Performance Date.
"Targets" means the Capital Investment Target and the New Jobs Target, all to be
achieved as of the Performance Date.
"Virginia Code" means the Code of Virginia of 1950, as amended.
Section 2. Targets; Statutory Criteria.
(a) Targets: The Company will construct, equip and operate the Facility, and achieve
the Targets.
(b) Encouragement to Offer New Jobs to Residents of the Commonwealth: The
Locality and the Authority hereby strongly encourage the Company to ensure that at least 30% of
the New Jobs are offered to "Residents" of the Commonwealth, as defined in Virginia Code
Section 58.1-302. In pertinent part,that definition includes natural persons domiciled in Virginia
or natural persons who, for an aggregate of more than 183 days of the year,maintained a place of
abode within the Commonwealth, whether domiciled in the Commonwealth or not.
(c) Prevailing Wage; Unemployment and Poverty Rates: The average annual wage of
the New Jobs of at least$61,815 is more than the prevailing average annual wage in the Locality
of $57,956. The Locality is not a high-unemployment locality, with an unemployment rate for
2022, which is the last year for which such data is available, of 2.4% as compared to the 2022
statewide unemployment rate of 2.9%. The Locality is not a high-poverty locality,with a poverty
rate for 2022, which is the last year for which such data is available, of 7.2% as compared to the
2022 statewide poverty rate of 10.6%.
(d) Support Locality's Economic Development Efforts: Recognizing that it is in the
best interest of all parties for the Locality to achieve sustained economic growth, the parties will
periodically engage with one another to advise on economic development strategies and initiatives
for the Locality, such as promoting the attributes of the Locality as place to do business, or
highlighting important industry trends and/or business development opportunities that the the
Locality may wish to pursue. Such engagement would include the Company's participation in
occasional business retention and expansion visits from the Authority's personnel, as deemed
appropriate based on the project parameters and nature of the incentives provided to the Company.
(e) Compliance with Environmental Laws: The Company covenants to (i) comply in
all material respects with any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws") with respect to its
operations at the Facility, (ii)receive all material permits, licenses or other approvals required of
the Company under applicable Environmental Laws to conduct its business at the Facility, and
(iii) remain in compliance with all material terms and conditions of any such permit, license or
approval. If the Company fails to comply with this covenant, and fails to rectify the
noncompliance within 30 days of notice from the Authority, Authority shall have the option to
terminate this Agreement in accordance with Section 7.
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Section 3. Disbursement of LEDIG Grant.
(a) General Provisions: The disbursement of the LEDIG Grant proceeds to the
Company will serve as an inducement to the Company to achieve the Targets.
The LEDIG Grant is to be allocated as 50% ($75,000) for the Company's Capital
Investment Target, and 50% ($75,000) for the Company's New Jobs Target.
The statutory minimum requirements for a LEDIG Grant in the Locality require that the
Company (1) make or cause to be made and retained a Capital Investment of at least$5,000,000
and (2) create and Maintain at least 50 New Jobs (the"Statutory Minimum Requirements").
(b) Disbursement of the LEDIG Grant: As an inducement to Company to achieve the
Targets at the Facility and provided that Company is not in default under the terms of this
Agreement, the Locality will disburse $150,000 of LEDIG proceeds through the Authority to
Company in two installments as follows:
(i) An installment of$75,000 will be paid by the Locality to the Authority and by the
Authority to Company on or before June 30, 2026.
(i) An installment of$75,000 will be paid by the Locality to the Authority and by the
Authority to Company within sixty(60)days after the Performance Date,provided
that the Final Performance Report is timely filed and is deemed acceptable to the
Authority and the Locality,in the sole and absolute discretion of the Authority and
the Locality
(ii) The Final Performance Report shall provide evidence of the achievement of the
Targets by the Company.
(iii) Within 15 days after the Performance Date, the Company will deliver the Final
Performance Report. Through this report, the Company will provide notice and
evidence satisfactory to the Locality and the Authority of the amount of the Capital
Investment made or caused to be made and retrain, and the number of New Jobs
created and Maintained, by the Company as of the Performance Date. The Final
Performance Report will be subject to verification by the Locality and the
Authority..
(c) Upon such verification, the amount of LEDIG Grant proceeds to be disbursed to
the Company, if any, shall be determined as follows:
(i) If Statutory Minimum Requirements Not Met: If, as of the Performance
Date, the Company has not achieved both of the Statutory Minimum
Requirements, the Company will not receive any of the proceeds of the LEDIG
Grant.
(ii) If Targets Met: If, as of the Performance Date,the Company has achieved
the Capital Investment Target and the New Jobs Target,the Company will receive
all $150,000 of the proceeds of the LEDIG Grant.
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Desi Fresh Foods LEDIG Performance Agreement FINAL
(iii) If Statutory Minimum Requirements Met, but Targets Not Met: If, as of the
Performance Date, the Company has achieved both of the Statutory Minimum
Requirements, but has not achieved the full Capital Investment Target and the full
New Jobs Target, the Company will qualify for a reduced disbursement of the LEDIG
Grant,reflecting a proportional amount of the Target or Targets for which
there is a shortfall. For example, if as of the Performance Date, only $11,700,000
of the Capital Investment has been retained(reflecting achievement of 90% of the Capital
Investment Target), and only 50 New Jobs have been created and Maintained
(reflecting achievement of 89%of the New Jobs Target),the Company
will receive $54,000 (reflecting 90% of the $60,000 of the LEDIG Grant allocated
to the Capital Investment Target),plus $80,100 (reflecting 89% of the $90,000 of
the LEDIG Grant allocated to the New Jobs Target),for a total of$134,100. These
amounts reflect the percentages of the shortfall from the Capital Investment Target
and the New Jobs Target, each such shortfall multiplied by the portion of the
LEDIG Grant proceeds available to the Company allocated to that Target.
(iv) Within 30 days after verification and approval of the Final Performance Report by
the Authority and the Locality, if any amount of the LEDIG Grant proceeds are available for
disbursement to the Company, as determined in accordance with the foregoing calculations, the
Locality will disburse that amount to the Authority. Within 30 days after receipt of such amount,
the Authority will disburse such LEDIG Grant proceeds to the Company.
(d) Use of the LEDIG Grant Proceeds: The Company will use the LEDIG Grant
proceeds to pay or reimburse the cost of building upfits as permitted by Section 2.2-115(D) of the
Virginia Code.
Section 4. Break-Even Point; State and Local Incentives.
(a) Local-Level Incentives: The Locality and the Authority expect to provide the
following incentives, as matching grants or otherwise, for the Facility by the Performance Date:
Category of Incentive: Total Amount
Local Economic Development Incentive Grant $150,000
If, by the Performance Date, the total value of all Local-Level Incentives disbursed or provided,
or committed to be disbursed or provided, by the Locality to the Company is less than the
$150,000 LEDIG Grant local match requirement,the Locality,subject to appropriation,will make
an additional grant to the Authority. The Authority shall disburse said funds to the Company, so
long as the Company has met its Targets.
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Section 5. Company Reporting.
(a) Performance Reporting: Commencing on June 30, 2025 and continuing on June
30, 2026 and June 30, 2027, the Company shall provide, at the Company's expense, in the form
attached hereto as Exhibit A, detailed Performance Reports satisfactory to the Locality and the
Authority of the Company's progress on the Targets. Such Performance Reports shall set forth
the amount of the Capital Investment made as of the date of each report. Such Performance
Reports shall also include an affirmative statement signed by an authorized Company officer or
director that the information provided in the report is true and correct, and certifies that status of
its efforts to achieve the Targets. The Company shall provide such other reports on the progress
of achievement of the Targets at such other times as the Locality or the Authority may reasonably
require.
(b) Final Performance Report: The Company shall provide, at the Company's
expense, in the form attached hereto as Exhibit B, a detailed Final Performance Report
satisfactory to the Locality and the Authority of the Company's achievement of the Targets as of
the Performance Date. This Final Performance Report shall be filed within 90 days after the
Performance Date.
Should the Company be unable to file the Final Performance Report within the 15-days
after the Performance Date as called for in Section 3(b), above, the Company may request a 60-
day delay in filing the Final Performance Report. Should the Company not file the Final
Performance Report within the 60-day delay extension nor request a filing delay including
payment of the required fee in the sum $3,000.00 to the Authority, or if the Company requests a
filing delay but does not file the Final Performance Report prior to the new filing deadline, the
Authority will withhold any LEDIG Grant payment that might otherwise be due and all rights of
the Company under this Agreement will automatically terminate.
Section 6. Verification of Targets.
(a) Verification of Capital Investment: The Company hereby authorizes the
Locality, including the Locality's Commissioner of the Revenue and Treasurer, to release to the
Authority the Company's real estate tax, business personal property tax and machinery and tools
tax information. Such information shall be marked and considered confidential and proprietary
and shall be used by the Authority solely for verifying satisfaction of the Capital Investment
Target. If the Locality, the Office of the Commissioner of the Revenue or the Office of the
Treasurer should require additional documentation or consents from the Company to access such
information, the Company shall promptly provide, at the Company's expense, such additional
documentation or consents as the Locality may request. In accordance with Virginia Code Section
58.1-3122.3,The Authority is entitled to receive the Company's real estate tax,business personal
property tax and machinery and tools tax information from the Locality's Commissioner of the
Revenue.
(b) Verification of New Jobs and Wages: The Company must submit a copy of its
four most recent Employer's Quarterly Tax Reports(Form FC-20)with the Virginia Employment
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Commission with the Final Performance Report. The forms shall be marked and considered
confidential and proprietary and shall be used by the Authority solely for verifying satisfaction of
the New Jobs Target.
The Company agrees that it will report to the Virginia Employment Commission with
respect to its employees at a facility-level, rather than at the company-level.
(c) Additional Documentation: In addition to the verification data described above,
in the sole discretion of the Locality and the Authority, the Locality and the Authority may each
require such other documentation or audits as may be required to properly verify the Capital
Investment or New Jobs.
Section 7. Possible Termination of this Agreement and Redeployment of LEDIG Grant
Proceeds. If the Locality and the Authority shall determine at any time prior to the Performance
Date that the Company is unable or unwilling to meet and Maintain its Targets by and through
the Performance Date, and if the Locality and the Authority shall have promptly notified the
Company of such determination, this Agreement will be terminated, no further disbursements of
the LEDIG Grant proceeds will be made to the Company, and the amount not disbursed will be
returned to the Locality. Such a determination will be based on such circumstances as a filing by
or on behalf of the Company under the U.S. Bankruptcy Code, the liquidation of the Company,
an abandonment of the Facility by the Company, a failure to comply with the covenant provided
in Section 2(d), or other similar significant event that demonstrates that the Company will be
unable or is unwilling to satisfy the Targets for the LEDIG Grant as determined by the Locality
or the Authority in their sole discretion.
Section 8. Notices. Formal notices and communications between the parties shall be given
either by (i)personal service, (ii) delivery by a reputable document delivery service that provides
a receipt showing date and time of delivery, (iii) mailing utilizing a certified or first class mail
postage prepaid service of the United States Postal Service that provides a receipt showing date
and time of delivery, or(iv) delivery by electronic mail (email)with transmittal confirmation and
confirmation of delivery, addressed as noted below. Notices and communications personally
delivered or delivered by document delivery service shall be deemed effective upon receipt.
Notices and communications mailed shall be deemed effective on the second business day
following deposit in the United States mail. Notices and communications delivered by email shall
be deemed effective the next business day,not less than 24 hours,following the date of transmittal
and confirmation of delivery to the intended recipient. Such written notices and communications
shall be addressed to:
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Desi Fresh Foods LEDIG Performance Agreement FINAL
if to the Company, to: with a copy to:
Desi Fresh Foods LLC Desi Fresh Foods LLC
205 McGhee Road 205 McGhee Road
Winchester, Virginia 22603 Winchester, Virginia 22603
Email: llaporta@desifreshfoods.com Email: fmuys@desifreshfoods.com
Attention: Larry LaPorta Attention: Frank Muys
if to the Locality,to: with a copy to:
County of Frederick, Virginia County of Frederick, Virginia
107 North Kent Street 107 North Kent Street, 3rd Floor
Winchester, Virginia 22601 Winchester, Virginia 22601
Facsimile: 540-667-0370 Facsimile: 540-667-0370
Email: rmichael.bollhoefer@fcva.us Email: austin.cano@fcva.us
Attention: County Administrator Attention: Interim County Attorney
if to the Authority, to: with a copy to:
Economic Development Authority of the Economic Development Authority of the
County of Frederick, Virginia. County of Frederick, Virginia
45 East Boscawen Street, Suite 2 118 S Braddock Street
Winchester, Virginia 22601 Winchester, Virginia 22601
Facsimile: 540-722-0604 Facsimile:
Email: pbarker@yesfrederickva.com Email: mbryan@michaelbryanlaw.com
Attention: Executive Director Attention: Counsel
Each party may change the address for service of notice upon it by a notice in writing to the other
parties hereto.
Section 9. Miscellaneous.
(a) Entire Agreement;Amendments: This Agreement constitutes the entire agreement
among the parties hereto as to the LEDIG Grant 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 at the sole discretion of the Locality
or the Authority.
(b) Governing Law; Venue: This Agreement is made,and is intended to be performed,
in the Commonwealth and shall be construed and enforced by the laws of the Commonwealth.
Jurisdiction and venue for any litigation arising out of or involving this Agreement shall lie in the
Circuit Court of the County of Frederick, and such litigation shall be brought only in such court.
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Desi Fresh Foods LEDIG Performance Agreement FINAL
(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 enforceability, validity and legality 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) Attorney's Fees: Attorney's fees shall be paid by the party incurring such fees.
(f) Time: Time is of the essence as to all matters set forth in this Performance
Agreement.
(g) Force Majeure: Notwithstanding the foregoing provisions of this Agreement, if
the Company does not achieve a Target or take any action required under this Agreement because
of an "Event of Force Majeure" (as defined below), the time for achieving the applicable Target
or taking such action will be extended day-for-day by the delay in meeting the applicable Target
or taking such action caused by the Event of Force Majeure. "Event of Force Majeure" means
without limitation, any of the following: acts of God; strikes, lockouts or other industrial
disturbances; act of public enemies; orders of any kind of the government of the United States of
America or of the Commonwealth or any of their respective departments, agencies, political
subdivisions or officials, or any civil or military authority; insurrections; riots; epidemics;
pandemics; landslides; lightning; earthquakes; fires; hurricanes; tornadoes; storms; floods;
washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions;
breakage or accident to machinery, transmission pipes or canals not caused by the Company;
partial or entire failure of utilities; or any other cause or event not reasonably within the control
of the Company.
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Desi Fresh Foods LEDIG Performance Agreement FINAL
IN WITNESS WHEREOF, the parties hereto have executed this Performance
Agreement as of the date first written above.
COUNTY OF FREDERICK,VIRGINIA
By:
Name: Josh Ludwig
Title: Chair, Board of Supervisors of
the County of Frederick, Virginia
Date:
ECONOMIC DEVELOPMENT AUTHORITY
OF THE COUNTY OF FREDERICK,
VIRGINIA
By:
Name: Richard J. Till
Title: Chair, Economic Development
Authority of the County of Frederick, Virginia
Date:
DESI FRESH FOODS,LLC
By:
Name:
Title:
Date:
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Exhibit A: Performance Report Form
Exhibit B: Final Performance Report Form
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Exhibit A
PERFORMANCE REPORT
LOCAL ECONOMIC DEVELOPMENT INCENTIVE GRANT FUND
PROJECT SUMMARY:
Pro'ect
Location
Amount of Grant
Performance Reporting Period
Performance Date
PROJECT PERFORMANCE:
Performance Measurement Target As of % Complete
New Jobs over baseline
Confidence level target will be High Moderate Low
reached by Performance Date shown ❑ ❑ ❑
above(check one)
Capital Investment(provide
breakdown below)'
Confidence level target will be High Moderate Low
reached by Performance Date shown ❑ ❑ ❑
above check one
Average Annual Wage
Confidence level target will be High Moderate Low
reached by Performance Date shown ❑ ❑ ❑
above(check one)
Standard Fringe Benefits Yes No
check one ❑ ❑
'Data will be verified with locality records.
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Capital Investment Breakdown Amount
Land $
Land Improvements
New Construction or Expansion
Renovation or Building Up-fit
Production Machinery and Tools
Furniture, Fixtures and Equipment
Other
Total $
COMMENTS:
Discuss project status, including the current level of new jobs and capital investment, progress
on targets, changes or likely changes in project's nature that may impact achievement of targets,
and other information relevant to project performance. If the project is not on track to meet
targets,please provide an explanation.
TO BE CERTIFIED BY AN OFFICER OF THE COMPANY:
I certify that I have examined this report and to the best of my knowledge and belief, it is true,
correct, and complete.
Company:
Submitted By:
Signature of Official
Name:
Print Name
Title:
Date:
Please return to:
Patrick Barker, Executive Director, Frederick County Economic Development Authority,
540.665.0973, pbarker@yesfrederickva.com
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Desi Fresh Foods LEDIG Performance Agreement FINAL
Exhibit B
FINAL PERFORMANCE REPORT
LOCAL ECONOMIC DEVELOPMENT INCENTIVE GRANT FUND
PROJECT SUMMARY:
Pro'ect
Location
Amount of Grant
Performance Date
PROJECT PERFORMANCE
Performance Measurement Target As of % Complete
20
New Jobs over_ baseline)2
Capital Investment(provide
breakdown below)'
Average Annual Wage
Standard Fringe Benefits
2 Attach the company's four most recent Quarterly Tax Reports(Form FC-20)filed with the Virginia Employment
Commission.
s Data will be verified using records from the Commissioner of the Revenue and invoices.
Capital Investment Breakdown Amount
Land $
Land Improvements
New Construction or Expansion
Renovation or Building Up-fit
Production Machinery and Tools
Furniture, Fixtures and Equipment
Other
Total $
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Desi Fresh Foods LEDIG Performance Agreement FINAL
COMMENTS:
Discuss Project status or the importance of the Project to the locality and region.
TO BE CERTIFIED BY AN OFFICER OF THE COMPANY:
I certify that I have examined this report and to the best of my knowledge and belief, it is true,
correct, and complete.
Company:
Submitted By:
Signature of Official
Name:
Print Name
Title:
Date:
Please return to:
Patrick Barker, Executive Director, Frederick County Economic Development Authority,
540.665.0973, pbarker@yesfrederickva.com
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Desi Fresh Foods LEDIG Performance Agreement FINAL
COMMONWEALTH'S DEVELOPMENT OPPORTUNITY FUND
PERFORMANCE AGREEMENT
This PERFORMANCE AGREEMENT (the "Agreement") made and entered this 23rd
day of October, 2024, by and among the COUNTY OF FREDERICK, VIRGINIA (the
"Locality"), a political subdivision of the Commonwealth of Virginia (the "Commonwealth"),
DESI FRESH FOODS, LLC, a Delaware limited liability company authorized to transact
business in the Commonwealth (the "Company"), the VIRGINIA ECONOMIC
DEVELOPMENT PARTNERSHIP AUTHORITY ("VEDP"), a political subdivision of the
Commonwealth, and the ECONOMIC DEVELOPMENT AUTHORITY OF THE COUNTY
OF FREDERICK,VIRGINIA(the"Authority"), a political subdivision of the Commonwealth.
WITNESSETH:
WHEREAS, the Locality has been awarded a grant of and expects to receive $150,000
(the "COF Grant") from the Commonwealth's Development Opportunity Fund (the "Fund")
through VEDP for the purpose of inducing the Company to acquire an existing facility and to
equip,improve, and operate a new manufacturing facility in the Locality (the"Facility"), thereby
making a significant Capital Investment, and creating and Maintaining a significant number of
New Jobs, as such capitalized terms are hereinafter defined;
WHEREAS, the Locality is willing to provide the funds to the Authority with the
expectation that the Authority will provide the funds to or for the use of the Company, provided
that the Company meets certain criteria relating to Capital Investment and New Jobs;
WHEREAS,the Locality,the Authority,the Company, and VEDP desire to set forth their
understanding and agreement as to the payout of the COF Grant, the use of the COF Grant
proceeds, and the obligations of the Company regarding Capital Investment and New Jobs;
WHEREAS,the construction, equipping and operation of the Facility will entail a capital
expenditure by or on behalf of the Company of approximately $13,000,000, of which
approximately $3,000,000 will be invested in machinery and tools, approximately $10,000,000
will be invested in the expansion,improvement, and up-fit of an existing building at the Facility;
WHEREAS, the construction, equipping and operation of the Facility will further entail
the creation and Maintenance of 56 New Jobs at the Facility; and
WHEREAS, the stimulation of the additional tax revenue and economic activity to be
generated by the Capital Investment and New Jobs constitutes a valid public purpose for the
expenditure of public funds and is the animating purpose for the COF Grant:
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
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Desi Fresh Foods COF Performance Agreement FINAL
receipt and sufficiency of which are hereby acknowledged, the parties covenant and agree as
follows.
Section 1. Definitions.
For the purposes of this Agreement, the following terms shall have the following
definitions:
"Capital Investment" means a capital expenditure by or on behalf of the Company in
taxable real property,taxable tangible personal property, or both, at the Facility. The purchase or
lease of machinery and tools or furniture, fixtures, and business personal property, including
under an operating lease, and expected building construction and up-fit by or on behalf of the
Company will qualify as Capital Investment. The Capital Investment must be in addition to the
capital improvements at the Facility as of January 1, 2024.
"Capital Investment Target"means that the Company has made or caused to be made and
retained Capital Investments of at least$13,000,000.
"Fund" means the Commonwealth's Development Opportunity Fund.
"Maintain" means that the New Jobs will continue without interruption from the date of
creation through the date that the level of achievement of the New Jobs Target is being tested,
including the Performance Date. Positions for the New Jobs will be treated as Maintained during
periods in which such positions are not filled due to (i) temporary reductions in the Company's
employment levels (so long as there is active recruitment for open positions), (ii) strikes, and(iii)
other temporary work stoppages.
"New Job" means new permanent full-time employment of an indefinite duration at the
Facility for which the standard fringe benefits are provided by the Company for the employee,
and for which the Company pays an average annual wage of at least $61,815. Average annual
wage means the average annual salary of full-time positions at the Facility determined by dividing
total payroll (of a type included in W-2 compensation) provided to full-time positions at the
Facility by the number of full-time positions at the Facility. Each New 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,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 New Jobs.
"New Jobs Target" means that the Company has created and Maintained at least 56 New
Jobs.
"Performance Date" means June 30, 2027. If the Locality, in consultation with VEDP,
deems that good faith and reasonable efforts have been made and are being made by the Company
to achieve the Targets, on or before the Performance Date the Locality may request an extension
of the Performance Date by up to 15 months. Any extension of the Performance Date shall require
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Desi Fresh Foods COF Performance Agreement FINAL
the prior approval of the Company and the Board of Directors of VEDP (the "Board"). If the
Performance Date is extended, the Locality shall send written notice of the extension to the
Authority, the Company and VEDP and the date to which the Performance Date has been
extended shall be the "Performance Date" for the purposes of this Agreement.
"Performance Report" means a report to be filed by the Company in accordance with
Section 5. The "Final Performance Report" is to be filed within 90 days after the Performance
Date. As noted in Section 5, the Locality, the Authority and VEDP may each request a
Performance Report at other dates prior to the Performance Date.
"Targets" means the Capital Investment Target and the New Jobs Target, all to be
achieved as of the Performance Date.
"Virginia Code" means the Code of Virginia of 1950, as amended.
Section 2. Targets; Statutory Criteria.
(a) Targets: The Company will construct, equip and operate the Facility, and achieve
the Targets.
(b) Encouragement to Offer New Jobs to Residents of the Commonwealth: The
Locality,the Authority, and VEDP hereby strongly encourage the Company to ensure that at least
30% of the New Jobs are offered to "Residents" of the Commonwealth, as defined in Virginia
Code Section 58.1-302. In pertinent part, that definition includes natural persons domiciled in
Virginia or natural persons who, for an aggregate of more than 183 days of the year, maintained
a place of abode within the Commonwealth,whether domiciled in the Commonwealth or not.
(c) Prevailing Wage; Unemployment and Poverty Rates: The average annual wage of
the New Jobs of at least$61,815 is more than the prevailing average annual wage in the Locality
of $57,956. The Locality is not a high-unemployment locality, with an unemployment rate for
2022, which is the last year for which such data is available, of 2.4% as compared to the 2022
statewide unemployment rate of 2.9%. The Locality is not a high-poverty locality,with a poverty
rate for 2022, which is the last year for which such data is available, of 7.2% as compared to the
2022 statewide poverty rate of 10.6%.
(d) Disclosure of Political Contributions: The Company acknowledges that the name
of the Company will be shared by VEDP with the Governor of Virginia, and any campaign
committee or political action committee associated with the Governor. The Company
acknowledges that within 18 months of the date of this Agreement, the Governor, his campaign
committee, and his political action committee will submit to the Virginia Conflict of Interest and
Ethics Advisory Council a report listing any contribution, gift, or other item with a value greater
than $100 provided by the Company to the Governor, his campaign committee, or his political
action committee, respectively, during the period from the date of the Company's application for
the COF Grant through the one-year period immediately after the date of this Agreement.
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Desi Fresh Foods COF Performance Agreement FINAL
(e) Support for Virginia's and Locality's Economic Development Efforts:
Recognizing that it is in the best interest of all parties for the Commonwealth and the Locality to
achieve sustained economic growth, the parties will periodically engage with one another to
advise on economic development strategies and initiatives for the Commonwealth and the
Locality, such as promoting the attributes of the Commonwealth and the Locality as places to do
business, or highlighting important industry trends and/or business development opportunities
that the Commonwealth or the Locality may wish to pursue. Such engagement would include the
Company's participation in occasional business retention and expansion visits from VEDP
personnel, as deemed appropriate based on the project parameters and nature of the incentives
provided to the Company.
(f) Compliance with Environmental Laws: The Company covenants to (i) comply in
all material respects with any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws") with respect to its
operations at the Facility, (ii)receive all material permits, licenses or other approvals required of
the Company under applicable Environmental Laws to conduct its business at the Facility, and
(iii) remain in compliance with all material terms and conditions of any such permit, license or
approval. If the Company fails to comply with this covenant, and fails to rectify the
noncompliance within 30 days of notice from VEDP, VEDP shall have the option to terminate
this Agreement in accordance with Section 7.
Section 3. Disbursement of COF Grant.
(a) General Provisions:The disbursement of the COF Grant proceeds to the Company
will serve as an inducement to the Company to achieve the Targets.
The COF Grant is to be allocated as 40%($60,000)for the Company's Capital Investment
Target, and 60% ($90,000) for the Company's New Jobs Target.
The statutory minimum requirements for a COF Grant in the Locality require that the
Company (1) make or cause to be made and retained a Capital Investment of at least$5,000,000
and (2) create and Maintain at least 50 New Jobs (the"Statutory Minimum Requirements").
The COF Grant proceeds shall be retained in the Fund until needed for disbursement or
the COF Grant is withdrawn in accordance with the terms of this Agreement.
(b) Disbursement of the COF Grant: Within 90 days after the Performance Date,the
Company will deliver the Final Performance Report. Through this report, the Company will
provide notice and evidence satisfactory to the Locality, the Authority and VEDP of the amount
of Capital Investments made or caused to be made and retained, and the number of New Jobs
created and Maintained, by the Company as of the Performance Date. The Final Performance
Report will be subject to verification by the Locality and VEDP.
Upon such verification, the amount of the COF Grant proceeds to be disbursed to the
Company, if any, shall be determined as follows:
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Desi Fresh Foods COF Performance Agreement FINAL
(i) If Statutory Minimum Requirements Not Met: If, as of the Performance
Date, the Company has not achieved both of the Statutory Minimum
Requirements, the Company will not receive any of the proceeds of the COF
Grant.
(ii) If Targets Met: If, as of the Performance Date,the Company has achieved
the Capital Investment Target and the New Jobs Target,the Company will receive
all $150,000 of the proceeds of the COF Grant.
(iii) If Statutory Minimum Requirements Met, but Targets Not Met: If, as of the
Performance Date, the Company has achieved both of the Statutory Minimum
Requirements, but has not achieved the full Capital Investment Target and the full
New Jobs Target,the Company will qualify for a reduced disbursement of the COF
Grant,reflecting a proportional amount of the Target or Targets for which there is
a shortfall. For example, if as of the Performance Date, only $11,700,000 of the
Capital Investment has been retained (reflecting achievement of 90% of the
Capital Investment Target), and only 50 New Jobs have been created and
Maintained(reflecting achievement of 89%of the New Jobs Target),the Company
will receive $54,000 (reflecting 90% of the $60,000 of the COF Grant allocated to
the Capital Investment Target),plus $ 80,100 (reflecting 89% of the $90,000 of
the COF Grant allocated to the New Jobs Target), for a total of$ 134,100. These
amounts reflect the percentages of the shortfall from the Capital Investment Target
and the New Jobs Target, each such shortfall multiplied by the portion of the COF
Grant proceeds available to the Company allocated to that Target.
Within 30 days after verification of the Final Performance Report, if any amount of COF
Grant proceeds are available for disbursement to the Company, as determined in accordance with
the foregoing calculations, VEDP will disburse that amount to the Locality. Within 30 days after
receipt of such amount, the Locality will disburse such COF Grant proceeds to the Authority.
Within 30 days after receipt of such amount,the Authority will disburse such COF Grant proceeds
to the Company.
If any amount of COF Grant proceeds has not been earned by the Company, the amount
not disbursed will be retained in the Fund and will be available for other economic development
proj ects.
(c) Use of the COF Grant Proceeds: The Company will use the COF Grant proceeds
to pay or reimburse the cost of building upfits as permitted by Section 2.2-115(D) of the Virginia
Code.
Section 4. Break-Even Point; State and Local Incentives.
(a) State-Level Incentives: VEDP has estimated that the Commonwealth 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 New Jobs at the Facility with the
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Desi Fresh Foods COF Performance Agreement FINAL
Commonwealth's expenditures on discretionary incentives, including but not limited to the COF
Grant. With regard to the Facility,the Commonwealth expects to provide discretionary incentives
in the following amounts:
Category of Incentive: Total Amount
COF Grant $150,000
VEDP Talent Accelerator Program ("VTAP") (Approximate $218,000
Value)
Agriculture and Forestry Industries Incentive Grant("AFIG") $150,000
The proceeds of the COF Grant shall be used for the purposes described in Section 3(c).
The VTAP represents the value to the Company of workforce development services expected to
be provided by VEDP to the Company for recruitment and training.
(b) Local-Level Incentives: The Locality and the Authority expect to provide the
following incentives, as matching grants or otherwise, for the Facility:
Category of Incentive: Total Amount
Local Economic Development Incentive Grant $150,000
If, by the Performance Date, the total value of all Local-Level Incentives disbursed or provided,
or committed to be disbursed or provided, by the Locality to the Company is less than the
$150,000 COF Grant local match requirement, the Locality, subject to appropriation, will make
an additional grant to the Company of the difference promptly after Performance Date, so long as
the Company has met its Targets.
C) Other Incentives: This Agreement relates solely to the COF Grant.
Section 5. Company Reporting.
(a) Performance Reporting: The Company shall provide, at the Company's expense,
in the form attached hereto as Exhibit A, detailed Performance Reports satisfactory to the
Locality, the Authority and VEDP of the Company's progress on the Targets. The Performance
Reports are due by each December 1, commencing December 1, 2024,reflecting the Company's
progress toward the Targets as of the prior June 30. Further, the Company shall provide such
Performance Reports at such other times as the Locality, the Authority or VEDP may require.
(b) Final Performance Report: The Company shall provide, at the Company's
expense, in the form attached hereto as Exhibit B, a detailed Final Performance Report
satisfactory to the Locality, the Authority and VEDP of the Company's achievement of the
Targets as of the Performance Date. This Final Performance Report shall be filed within 90 days
after the Performance Date.
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Desi Fresh Foods COF Performance Agreement FINAL
Should the Company be unable to file the Final Performance Report within the 90-day
timeframe, the Company may request a 60-day delay in Filing the Final Performance Report.
VEDP will require a $3,000 fee, payable to VEDP, to process the request for the filing delay.
Should the Company not file the Final Performance Report within the 90-day window nor request
a filing delay (including payment of the required fee), or if the Company requests a filing delay
but does not file the Final Performance Report prior to the new filing deadline, VEDP will
withhold any COF Grant payment that might otherwise be due and all rights of the Company
under this Agreement will automatically terminate.
Section 6. Verification of Targets.
(a) Verification of Capital Investment: The Company hereby authorizes the
Locality, including the Locality's Commissioner of the Revenue and Treasurer, to release to
VEDP the Company's real estate tax,business personal property tax and machinery and tools tax
information. Such information shall be marked and considered confidential and proprietary and
shall be used by VEDP solely for verifying satisfaction of the Capital Investment Target. If the
Locality, the Office of the Commissioner of the Revenue or the Office of the Treasurer should
require additional documentation or consents from the Company to access such information, the
Company shall promptly provide, at the Company's expense, such additional documentation or
consents as the Locality or VEDP may request. In accordance with Virginia Code Section 58.1-
3122.3,VEDP is entitled to receive the Company's real estate tax,business personal property tax
and machinery and tools tax information from the Locality's Commissioner of the Revenue.
(b) Verification of New Jobs and Wages: The Company must submit a copy of its
four most recent Employer's Quarterly Tax Reports(Form FC-20)with the Virginia Employment
Commission with the Final Performance Report. The forms shall be marked and considered
confidential and proprietary and shall be used by VEDP solely for verifying satisfaction of the
New Jobs Target. In accordance with Virginia Code Section 60.2-114, VEDP is entitled to
receive the Company's employment level and wage information from the Virginia Employment
Commission.
The Company agrees that it will report to the Virginia Employment Commission with
respect to its employees at a facility-level, rather than at the company-level.
(c) Additional Documentation: In addition to the verification data described above,
in the sole discretion of the Locality,the Authority or VEDP,the Locality,the Authority or VEDP,
may each require such other documentation or audits as may be required to properly verify the
Capital Investment or New Jobs.
Section 7. Possible Termination of this Agreement and Redeployment of COF Grant
Proceeds. If the Locality, the Authority or VEDP shall determine at any time prior to the
Performance Date that the Company is unable or unwilling to meet and Maintain its Targets by
and through the Performance Date, and if the Locality, the Authority or VEDP shall have
promptly notified the Company of such determination, this Agreement will be terminated, no
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Desi Fresh Foods COF Performance Agreement FINAL
further disbursements of the COF Grant proceeds will be made to the Company, and the amount
not disbursed will be retained in the Fund and made available for other economic development
projects. Such a determination will be based on such circumstances as a filing by or on behalf of
the Company under the U.S. Bankruptcy Code, the liquidation of the Company, an abandonment
of the Facility by the Company, a failure to comply with the covenant provided in Section 2(f),
or other similar significant event that demonstrates that the Company will be unable or is
unwilling to satisfy the Targets for the COF Grant, as determined by the Locality, the Authority,
or VEDP in their sole discretion.
Section 8. Notices. Formal notices and communications between the parties shall be given
either by (i)personal service, (ii) delivery by a reputable document delivery service that provides
a receipt showing date and time of delivery, (iii) mailing utilizing a certified or first class mail
postage prepaid service of the United States Postal Service that provides a receipt showing date
and time of delivery, or(iv) delivery by electronic mail (email)with transmittal confirmation and
confirmation of delivery, addressed as noted below. Notices and communications personally
delivered or delivered by document delivery service shall be deemed effective upon receipt.
Notices and communications mailed shall be deemed effective on the second business day
following deposit in the United States mail. Notices and communications delivered by email shall
be deemed effective the next business day,not less than 24 hours, following the date of transmittal
and confirmation of delivery to the intended recipient. Such written notices and communications
shall be addressed to:
if to the Company, to: with a copy to:
Desi Fresh Foods LLC Desi Fresh Foods LLC
205 McGhee Road 205 McGhee Road
Winchester, Virginia 22603 Winchester, Virginia 22603
Email: llaporta@desifreshfoods.com Email: fmuys@desifreshfoods.com
Attention: Larry LaPorta Attention: Frank Muys
if to the Locality,to: with a copy to:
The County of Frederick, Virginia The County of Frederick, Virginia
107 North Kent Street 107 North Kent Street, 3rd Floor
Winchester, Virginia 22601 Winchester, Virginia 22601
Facsimile: 540-667-0370 Facsimile: 540-667-0370
Email: rmichael.bollhoefer@fcva.us Email: rwillia@fcva.us
Attention: County Administrator Attention: County Attorney
if to the Authority, to: with a copy to:
Economic Development Authority of the Economic Development Authority of the
County of Frederick, Virginia County of Frederick, Virginia
45 East Boscawen Street, Suite 2 118 S. Braddock Street
Winchester, Virginia 22601 Winchester,Virginia 22601
Facsimile: 540-722-0604 Email: mbryan@michaelbryanlaw.com
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Desi Fresh Foods COF Performance Agreement FINAL
Email: pbarker@yesfrederickva.com Attention: Counsel
Attention: Executive Director
if to VEDP,to: with a copy to:
Virginia Economic Development Partnership Virginia Economic Development Partnership
One James Center, Suite 900 One James Center, Suite 900
901 East Cary Street 901 East Cary Street
Richmond,Virginia 23219 Richmond, Virginia 23219
Email: ceo@vedp.org Email: generalcounsel@vedp.org
Attention: President and CEO Attention: General Counsel
Each party may change the address for service of notice upon it by a notice in writing to the other
parties hereto.
Section 9. Miscellaneous.
(a) Entire Agreement;Amendments: This Agreement constitutes the entire agreement
among the parties hereto as to the COF Grant 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, the Authority, and VEDP, which consent may be withheld at the sole discretion of the
Locality,the Authority, or VEDP.
(b) Governing Law; Venue: This Agreement is made,and is intended to be performed,
in the Commonwealth and shall be construed and enforced by the laws of the Commonwealth.
Jurisdiction and venue for any litigation arising out of or involving this Agreement shall lie in the
Circuit Court of the City of Richmond, and such 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 enforceability, validity and legality 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) Attorney's Fees: Attorney's fees shall be paid by the party incurring such fees.
(f) Time: Time is of the essence as to all matters set forth in this Performance
Agreement.
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Desi Fresh Foods COF Performance Agreement FINAL
(g) Force Majeure: Notwithstanding the foregoing provisions of this Agreement, if
the Company does not achieve a Target or take any action required under this Agreement because
of an "Event of Force Majeure" (as defined below), the time for achieving the applicable Target
or taking such action will be extended day-for-day by the delay in meeting the applicable Target
or taking such action caused by the Event of Force Majeure. "Event of Force Majeure" means
without limitation, any of the following: acts of God; strikes, lockouts or other industrial
disturbances; act of public enemies; orders of any kind of the government of the United States of
America or of the Commonwealth or any of their respective departments, agencies, political
subdivisions or officials, or any civil or military authority; insurrections; riots; epidemics;
pandemics; landslides; lightning; earthquakes; fires; hurricanes; tornadoes; storms; floods;
washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions;
breakage or accident to machinery, transmission pipes or canals not caused by the Company;
partial or entire failure of utilities; or any other cause or event not reasonably within the control
of the Company.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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Desi Fresh Foods COF Performance Agreement FINAL
IN WITNESS WHEREOF, the parties hereto have executed this Performance
Agreement as of the date first written above.
COUNTY OF FREDERICK,VIRGINIA
By:
Name: Josh Ludwig
Title: Chair, Board of Supervisors of
the County of Frederick, Virginia
Date:
ECONOMIC DEVELOPMENT AUTHORITY
OF THE COUNTY OF FREDERICK,
VIRGINIA
By:
Name: Richard J. Till
Title: Chair, Economic Development
Authority of the County of Frederick,
Virginia
Date:
DESI FRESH FOODS,LLC
By:
Name: Larry LaPorta
Title: CEO
Date:
VIRGINIA ECONOMIC
DEVELOPMENT PARTNERSHIP
AUTHORITY
By:
Name:
Title:
Date:
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Desi Fresh Foods COF Performance Agreement FINAL
Exhibit A: Performance Report Form
Exhibit B: Final Performance Report Form
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Desi Fresh Foods COF Performance Agreement FINAL
Exhibit A
PERFORMANCE REPORT
COMMONWEALTH'S DEVELOPMENT OPPORTUNITY FUND
PROJECT SUMMARY:
Pro'ect
Location
Amount of Grant
Performance Reporting Period
Performance Date
PROJECT PERFORMANCE:
Performance Measurement Target As of % Complete
New Jobs over baseline
Confidence level target will be High Moderate Low
reached by Performance Date shown ❑ ❑ ❑
above(check one)
Capital Investment(provide
breakdown below)'
Confidence level target will be High Moderate Low
reached by Performance Date shown ❑ ❑ ❑
above check one
Average Annual Wage
Confidence level target will be High Moderate Low
reached by Performance Date shown ❑ ❑ ❑
above(check one)
Standard Fringe Benefits Yes No
check one ❑ ❑
'Data will be verified with locality records.
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Desi Fresh Foods COF Performance Agreement FINAL
Capital Investment Breakdown Amount
Land $
Land Improvements
New Construction or Expansion
Renovation or Building Up-fit
Production Machinery and Tools
Furniture, Fixtures and Equipment
Other
Total $
COMMENTS:
Discuss project status, including the current level of new jobs and capital investment, progress
on targets, changes or likely changes in project's nature that may impact achievement of targets,
and other information relevant to project performance. If the project is not on track to meet
targets,please provide an explanation.
TO BE CERTIFIED BY AN OFFICER OF THE COMPANY:
I certify that I have examined this report and to the best of my knowledge and belief, it is true,
correct, and complete.
Company:
Submitted By:
Signature of Official
Name:
Print Name
Title:
Date:
Please return to:
Kim Ellett, Director of Compliance, Virginia Economic Development Partnership,
804.545.5618, kellett@vedp.org
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Desi Fresh Foods COF Performance Agreement FINAL
Exhibit B
FINAL PERFORMANCE REPORT
COMMONWEALTH'S DEVELOPMENT OPPORTUNITY FUND
PROJECT SUMMARY:
Pro'ect
Location
Amount of Grant
Performance Date
PROJECT PERFORMANCE:'
Performance Measurement Target As of % Complete
20
New Jobs over_ baseline)'
Capital Investment(provide
breakdown below)'
Average Annual Wage
Standard Fringe Benefits
'Final,actual performance will be reported on VEDP's public reporting website.
2 Attach the company's four most recent Quarterly Tax Reports(Form FC-20)filed with the Virginia Employment
Commission.
3 Data will be verified using records from the Commissioner of the Revenue and invoices.
Capital Investment Breakdown Amount
Land $
Land Improvements
New Construction or Expansion
Renovation or Building Up-fit
Production Machinery and Tools
Furniture, Fixtures and Equipment
Other
Total $
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Desi Fresh Foods COF Performance Agreement FINAL
LOCAL MATCH:
Goal
Actual
COMMENTS:
Discuss Project status or the importance of the Project to the locality and region.
TO BE CERTIFIED BY AN OFFICER OF THE COMPANY:
I certify that I have examined this report and to the best of my knowledge and belief, it is true,
correct, and complete.
Company:
Submitted By:
Signature of Official
Name:
Print Name
Title:
Date:
Please return to:
Kim Ellett, Director of Compliance,Virginia Economic Development Partnership,
804.545.5618, kellettkvedp.org
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Desi Fresh Foods COF Performance Agreement FINAL