HomeMy WebLinkAboutAgenda - 06-16-20; 8-e - Approval of Two Contracts Associated with the State of North Carolina’s “Building Reuse Grant” Incentive to ABB, Inc.
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 16, 2020
Action Agenda
Item No. 8-e
SUBJECT: Approval of Two Contracts Associated with the State of North Carolina’s
“Building Reuse Grant” Incentive to ABB, Inc.
DEPARTMENT: Economic Development
Manager’s Office
Attorney’s Office
ATTACHMENT(S):
1. July 23, 2019 Agenda Abstract
Related to ABB, Inc.
2. Orange County’s Contract with the
State of North Carolina for the “Rural
Economic Development Grant
Agreement Building Reuse Program”
incentive for ABB, Inc.
3. Orange County Contract with ABB,
Inc. and Affiliate Firm Industrial
Connections & Solutions, LLC
INFORMATION CONTACT:
Steve Brantley, Director, Economic
Development Department, (919) 245-
2326
Travis Myren, Deputy County Manager
(919) 245-2308
PURPOSE: To approve and authorize the Chair to sign two contracts, on behalf of Orange
County, related to the State of North Carolina’s “Building Reuse Grant” incentive awarded on
July 10, 2019 to ABB, Inc., a local manufacturing industry. This State incentive requires Orange
County’s participation as part of the “pass through” process for $500,000 in North Carolina
Department of Commerce funds to transfer from the State to the County, and then to ABB, Inc.
BACKGROUND: When the Board of Commissioners approved the County’s performance-
based incentive agreement ABB on July 23, 2019, it was not requested at that time that the
Board allow the Chair to sign any additional documentation required as part of any State
incentives. Once the County’s required role to serve as a “grant administrator” in the State
incentive to ABB became evident, the following two contracts became relevant:
(1) North Carolina Department of Commerce’s “Rural Economic Development Grant
Agreement Building Reuse Program” contract with Orange County (Attachment 2)
(2) Orange County’s supplemental contract with ABB, Inc. and it’s affiliate firm Industrial
Connection & Solutions, LLC (Attachment 3)
The State’s “Rural Division Building Reuse Grant” was awarded to ABB, Inc. by the North
Carolina Department of Commerce on July 10, 2019, at the maximum $500,000 level. The
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program supports the renovation or expansion of vacant buildings, or other facilities occupied by
a company having operated for at least 12 months.
The State requires this program to be administered by a local municipal government, and
requires that the local government temporarily hold a Deed of Trust on the building. As the
private industry incurs actual construction costs associated with structural improvements made
to the existing building, and creates new employment, it can request the State grant. The
State’s funds are first passed through the local government (being the grant administrator)
before the funds reach the company. Under the program’s guidelines, this structure poses a
potential financial obligation on the local government (Orange County) in the event the private
corporate entity (ABB, Inc.) does not perform as expected.
The Building Reuse Grant eventually converts to a forgivable loan once the Company meets all
investment and job creation requirements, and the repayment obligation to the State ends.
Through negotiations intended to remove Orange County’s potential financial risk, an agreement
was reached in late 2019 and into early 2020 between the County, ABB and the North Carolina
Department of Commerce. This agreement, as outlined in the two contracts (Attachments 2 & 3
requiring the BOCC Chair’s signatures) outlines ABB’s decision to delay its request for State
funds until after all investment and new job creation criteria had been met. This strategy
enables the State grant to convert to a forgivable loan, and Orange County will then receive and
transfer the State funds to ABB, Inc. without any potential financial risk.
FINANCIAL IMPACT: There is no financial obligation or cost to the County by participating with
ABB, Inc. and the North Carolina Department of Commerce in the State’s “Rural Economic
Development Grant Agreement Building Reuse Program”
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY
The creation and preservation of infrastructure, policies, programs and funding necessary
for residents to provide shelter, food, clothing and medical care for themselves and their
dependents.
ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal
impact associated with this item.
RECOMMENDATION(S): The Manager recommends that the Board approve the contract
between Orange County, ABB, Inc. and its affiliate Industrial Connections & Solutions LLC, and
the contract between Orange County and the North Carolina Department of Commerce, subject
to final review by the County Attorney, and authorize the Chair to sign both contracts on behalf
of the County. The two contracts allow the County to facilitate the State of North Carolina’s pass
through of $500,000 “Rural Division Building Reuse Grant” (forgivable loan) funds to ABB, Inc.
with no potential financial risk to the County.
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Attachment 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: July 23, 2019
Action Agenda
Item No. 1
SUBJECT: Public Hearing and Decision Regarding an Economic Development Recruitment
Incentive for ABB, Inc.
DEPARTMENT: Economic Development
Department, Manager’s Office,
Attorney’s Office
ATTACHMENT(S):
A. Performance Agreement between
Orange County & ABB, Inc.
B. Powerpoint Brief Summary
C. ABB, Inc. Detailed Project Overview
D. Public Hearing Notice
E. Orange County News Release
INFORMATION CONTACT:
Steve Brantley, Economic Development
Director, (919) 245-2326
Travis Myren, Deputy County Manager,
(919) 245-2308
PURPOSE: To:
1) Conduct a public hearing on the issuance of a performance-based economic
development incentive by the County to a private company; and
2) Consider approval of a proposed five-year performance-based incentive agreement, with
claw-back provisions, for the recruitment of ABB, Inc.’s manufacturing facility expansion
in Orange County.
BACKGROUND: Local and state government in North Carolina have the goal to promote
economic development by encouraging the location of new businesses and the expansion of
existing businesses. This activity serves to diversify the local tax base, increase employment
opportunities and introduce desired job skills and related benefits to a community for the benefit
of its residents. The Local Government Act, North Carolina General Statute (NCGS) 158-7.1
outlines the requirements of public hearings, and NCGS 158-7.1(a) specifically addresses the
requirement that economic development appropriations “must be determined by the governing
body of the city or county to increase the population, taxable property, agriculture industries,
employment, industrial output, or business prospects of the city or county”. This public hearing
has been scheduled in compliance.
Project Description:
ABB, Inc., with an existing 400,000 square foot manufacturing facility located in western Orange
County, plans to invest $39.9 million to update the existing manufacturing facility and expand
the Company’s total facility size by an additional 200,000 square feet. ABB also plans to add
403 new jobs over the next 5 years of operation at this facility. These jobs will include
production, maintenance, office, and management staff and have an average salary of $70,789
per year.
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The ABB, Inc. plant in Orange County ranks as the County’s largest private employer, with
nearly 600 current associates, who hold the highest average salaried manufacturing jobs in the
County. The original plant was acquired in June 2018 from General Electric’s Industrial
Solutions division.
Under ABB’s new management, in mid-2019, the Company hired the Deloitte U.S. site selection
consulting firm to assist in the evaluation of ABB expanding operations either at the Company’s
competing Senatobia, Mississippi location or at the Orange County, NC plant. This competitive
site search, code named “Project Clear Blue Sky”, evaluated consolidating operations into one
U.S. hub for the manufacturing, engineering, & related electrical products of ABB’s “Distribution
Services” line. As part of the location evaluation, ABB considered financial inducement
proposals from the State of North Carolina, Orange County and the City of Mebane.
The proposed incentive will be performance-based with respect to the County’s annual
verification of ABB’s targeted increases in (1) employment, wages & benefits, and, (2) new
taxable real & personal property value over the next five years, as the Company expands its
Mebane presence. Incentives would only be paid following confirmation of the Company’s
required annual growth measures.
Basis to Calculate the Value of Orange County Performance-Based Incentives:
(1) INVESTMENT – ABB will increase property valuation by at least $24,300,000 in real
property and at least $15,600,000 in personal property, to total $39,900,000 over 5 years
as detailed in the table below. If these real and personal property valuation targets are
not achieved, the proposed annual incentive payment will be reduced proportionally.
Investment 2019 2020 2021 Total
Real Property $5,000,000 $16,600,000 $2,700,000 $24,300,000
Personal
Property
$200,000 $10,200,000 $5,200,000 $15,600,000
Total $5,200,000 $26,800,000 $7,900,000 $39,900,000
(2) EMPLOYMENT - ABB will add net new employment consistent with the job growth chart
below. If annual job targets are not achieved, the annual incentive payment will be
reduced by $500 per full time equivalent employee not hired. By year #5, the Company
will create 403 new positions with an average salary of $70,789 per year.
Employment Projections
1st Year
2020
2nd Year
2021
3rd Year
2022
4th Year
2023
5th Year
2024
New Full Time
Jobs 104 274 8 8 9
The proposed inducement payment will be in the form of a performance-based grant paid over a
five (5) year period at an amount equal to 75% of ABB’s projected net increase in real &
personal property tax valuation. This specific formula represents the County’s current incentive
policy that has been offered in the past to other industrial and commercial prospects. It ensures
that annual tax revenues from this project’s additional investment, net of annual incentive
payments, remain positive in all years of the incentive agreement.
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A company representative has been invited to attend tonight’s meeting and will be available for
comment and questions.
Orange County Revenue Projections (5 Years)
1st Year
2020
2nd Year
2021
3rd Year
2022
4th Year
2023
5th Year
2024 TOTAL
New Property
Tax
Revenues
$45,131 $277,554 $337,110 $324,489 $312,679 $1,296,963
Incentive
Payments -$33,848 -$208,166 -$252,832 -$243,367 -$234,509 -$972,722
Annual Net
Revenues $11,283 $69,289 $84,277 $81,122 $78,170 $324,241
Orange County Revenue Projections
(10 Years)
New Property Tax
Revenues
$2,706,336
Incentive Payments -$972,722
Annual Net Revenues $1,733,614
Additional Partners’ Participation:
The State of North Carolina’s “Economic Investment Committee” approved the following State
incentives for ABB, Inc. at the North Carolina Department of Commerce’s July 10th meeting.
Immediately following this event, a public announcement was held at the State Capitol Building
in Raleigh, which was led by North Carolina Governor Roy Cooper, and attended by
representatives from ABB, Inc., Orange County and the City of Mebane. The public
announcement addressed ABB’s decision to expand the Company’s existing facility located in
Orange County, instead of the competing location in Mississippi, subject to approval of local
government incentives.
State of North Carolina – Incentives
Sales Tax Exemption on Machinery & Equipment $1,053,000
Jobs Development Investment Grant $4,369,500
Rural Division Building Reuse Grant *(forgivable loan) $500,000
N.C. Community College System’s Customized Training $644,800
*Note Regarding the State of N.C.’s “Rural Division Building Reuse Grant”:
Orange County will have a managerial role as the “grant administrator” for the State of North
Carolina’s “Rural Division Building Reuse Grant” offer to ABB, Inc. This program is intended to
support the renovation or expansion of vacant buildings, or buildings occupied by a company
operating in North Carolina for at least 12 months. The program, which must be administered
by a local government entity, requires the local government to hold a Deed of Trust on the
building. This can create a potential financial obligation on the local government in the event the
Company does not perform as expected. As ABB incurs actual costs associated with the facility
improvements it plans to make to the existing building, and creates new employment, the
$500,000 State grant will be passed through the County to the Company. The grant is in the
form of a forgivable loan that is satisfied once ABB fulfills all investment and employment
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requirements. To eliminate any financial risk for the County, the pass-through funds will not be
requested from the State until the Company meets all investment and employment criteria and
satisfies any other program requirements.
City of Mebane
ABB’s existing facility is currently located within the City of Mebane’s Extraterritorial Jurisdiction
(ETJ). The Company has agreed to annexation and the City of Mebane will consider the
following additional incentives at the August 5, 2019 City Council meeting and public hearing.
City of Mebane Incentives
Performance Based Incentive $997,500
Waiver of Development Fees $150,000
FINANCIAL IMPACT: The attached Performance Agreement between Orange County and
ABB, Inc. outlines a total financial impact of up to $972,722 payable in five (5) annual
installments. Actual annual payments will be based on the Company’s investments that create
new property tax value of at least $24,300,000 in Real Property, and at least $15,600,000 in
new Personal Property, totaling a combined $39,900,000 in new taxable value. Annual
incentive payments by the County will be paid from net new property tax revenues generated by
ABB, Inc. and from available Article 46 funds.
The Company will create at least Four Hundred Three (403) full-time jobs with an average
annual salary of $70,789 per year at the Mebane facility. Other economic benefit multipliers to
the County include enhanced job skills for those employees through advanced technical training
to be provided by the Orange County campus of Durham Technical Community College.
Construction employment for the new 200,000 square foot facility, and renovations to the
existing 400,000 square foot facility, will also create many additional skilled trade jobs.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY
The creation and preservation of infrastructure, policies, programs and funding necessary
for residents to provide shelter, food, clothing and medical care for themselves and their
dependents.
RECOMMENDATION(S): The Manager recommends that the Board:
(1) Conduct the Public Hearing and receive public comments;
(2) Close the Public Hearing; and
(3) Approve the five-year performance-based economic development incentive agreement
between Orange County and the Company, ABB, Inc., subject to final review by the
County Attorney, and authorize the Chair to sign the agreement on behalf of the County.
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May 4, 2020
The Honorable Penny Rich
Chair
Orange County
PO Box 8181
Hillsborough, NC 27278-8181
Re: Contract Agreement for Grant Number 2020-025-3201-2587; Your Signature and Reply is Requested
Project Title: “ABB, Inc/Project Clear Blue Sky” – Revision #3
Dear Chair Rich:
Enclosed for your review and signature is a complete set of contract documents required to finalize the grant award
from the North Carolina Rural Infrastructure Authority. Below is a description of the documents enclosed along with
an explanation of the signatures required for each document.
Execute these documents, scan a quality copy and return to my attention at rgpreports@nccommerce.com. If you
have any questions or if I can be of any assistance, please contact me at (919) 814-4671 or
nichole.gross@nccommerce.com .
Sincerely,
Nichole M. Gross
Grant Manager
Enclosure
Document: Document Description: Signed By:
Grant
Agreement
Contract: Outlines the terms of Grant Agreement between the Department of
Commerce and the Unit of Local Government.
Highest Elected Official -
Unit of Local Government
Exhibit A Scope of Services: Outlines the scope of the renovation/construction project. No Signature Required
Exhibit B Payment Schedule: Outlines the process for the Unit of Local Government to request
reimbursements from Department of Commerce.
No Signature Required
Exhibit C Reporting Schedule: Outlines the schedule of reports that are due from the Unit of
Local Government to the Department of Commerce and when they are due.
No Signature Required
Exhibit D Closeout/Job Requirements: Outlines the process for the Unit of Local Government to
report the creation and maintenance of jobs to the Department of Commerce.
No Signature Required
Exhibit E Legally Binding Commitment (LBC): Outlines terms and conditions of the Loan. Highest Elected Official -
Unit of Local Government
and Legal Property Owner
listed on the Deed.
Exhibit F Promissory Note: Defines the repayment terms of the Loan in the event of default. Legal Property Owner listed
on the Deed.
Exhibit G Limited Waiver of Confidentiality: Contains employment information reported to the
Department of Commerce’s Division of Employment Security.
Each Business involved in
the project.
Exhibit H Deed of Trust Documentation Highest Elected Official –
Unit of Local Government
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 1
The North Carolina Department of Commerce (“Commerce”), an agency of the State of
North Carolina (“State”), enters into this Rural Economic Development Grant Agreement
(“Grant Agreement”) with Orange County (the “Governmental Unit” and, together with
Commerce, the “Parties”).
WHEREAS, the North Carolina General Assembly (“General Assembly”) has
determined that it is the policy of the State to stimulate economic activity and to create new jobs
for citizens of the State by providing matching grants or loans to specific local governmental
units so as to productively reuse certain buildings and properties or expand rural health care
facilities subject to the requirements of N.C.G.S. §§143B-472.127 and .128; and
WHEREAS, under N.C.G.S. §143B-472.128, the General Assembly created the North
Carolina Rural Infrastructure Authority (“Rural Authority”) to review applications for and,
where appropriate, authorize such matching grants or loans, and, under N.C.G.S. §§143B-
472.126 and .127, the General Assembly authorized Commerce to administer such grants or
loans; and
WHEREAS, pursuant to N.C.G.S. §§143B-472.127 and .128, and based on the terms,
conditions and representations in this Grant Agreement’s Exhibits A (Scope of Project), Exhibit
B (Payment Schedule), Exhibit C (Reporting Schedule), Exhibit D (Closeout Schedule/Job
Requirements), Exhibit E (LBC), Exhibit F (Promissory Note) and Exhibit G (Waiver of
Confidentiality (“Waiver”)), the Rural Authority has approved a grant (the “Grant”) to the
Governmental Unit; and
WHEREAS, without limitation, the Rural Authority awarded the Grant: (1) based on the
application filed by the Governmental Unit and any subsequent materials supporting the
application that have been approved of by Commerce in writing, all of which are incorporated by
reference herein; (2) based on the representation in the application that Industrial Connections
& Solutions, LLC (the “Owner”) owns certain real property located at:
6801 Industrial Drive
Mebane, NC 27302
in Orange County, North Carolina (the “Property”); (3) based on Commerce’s Grant
requirements and guidelines, which are incorporated herein and which may be amended,
modified or supplemented and applied accordingly to this Grant Agreement by Commerce in its
sole discretion; and for (4) the creation and retention of certain jobs in the course of completing
certain renovations/construction work at the Property (altogether, the “Project,” as summarized
in Exhibit A to this Grant Agreement).
NOW, THEREFORE, in consideration of the mutual promises and such other valuable
consideration as set out herein, the Parties mutually agree to the following terms and conditions:
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 2
1. Scope of Program/Agreements to be Executed.
(a). As conditions of the Grant Agreement:
i. The highest elected official of the Governmental Unit shall execute two originals
of this Grant Agreement in its exact form (unless Commerce approves of a
change to its terms in writing) and shall return one of them to Commerce;
ii. The Governmental Unit shall ensure that its highest elected official and a duly
authorized representative of the Owner execute two originals of the Rural
Economic Development Loan Agreement and Legally Binding Commitment
(“LBC”) in its exact form (unless Commerce approves of a change to its terms in
writing) and shall return one such original to Commerce with the one executed
original of the Grant Agreement;
iii. The Governmental Unit shall ensure with the Owner that every individual or
entity that has any ownership interest in the real property which is the subject of
the Project executes two originals of the Promissory Note attached as Exhibit F
in its exact form and shall return one such original to Commerce with the one
executed originals of the Grant Agreement; and
iv. Exhibit A refers to the entity (or entities, as applicable) required to create and
maintain certain full-time new jobs (“New Jobs”) to complete the Project as the
“Company,” the “Employer” and the “Business” (together and hereinafter, the
“Business”). The Governmental Unit shall ensure that an authorized
representative of each Business executes a Waiver of Confidentiality (“Waiver”),
attached as Exhibit G, and shall return the original of any such Waiver to
Commerce with the executed originals of the Grant Agreement. The
Governmental Unit shall also ensure that any additional Business which
becomes involved in the Project after the Grant Agreement is finalized executes
a Waiver upon its involvement, the original of which the Governmental Unit
shall promptly forward to Commerce.
(b). The Governmental Unit shall provide Commerce with any information obtained
pursuant to the LBC and allow Commerce to execute any rights of the Governmental
Unit under the LBC, including the Governmental Unit’s rights of access, review or
monitoring and Commerce’s rights as a third-party beneficiary thereunder.
(c). The Governmental Unit shall exercise all of its rights and duties under the LBC in a
prudent and timely manner to ensure the use of the Grant funds for the intended
purposes and objectives and to preserve the rights of Commerce in this Grant
Agreement and the LBC.
(d). The LBC specifies how many New Jobs the Business must create and maintain in the
performance of the Project and, if the Business fails to do so, those Grant funds that
the Owner must repay to the Governmental Unit for return to Commerce or else repay
directly to Commerce, upon request and as directed. If such New Jobs are not created
or maintained, then the Governmental Unit shall return to Commerce any Grant funds
it has not already disbursed to the Owner, make a timely demand for repayment from
the Owner and, if such repayment is not forthcoming, initiate and fully litigate legal
proceedings against the Owner to recover such repayment.
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 3
(e). Without limitation, failure by the Governmental Unit to timely demand repayment
from and, if necessary, initiate and fully litigate such legal proceedings against the
Owner may affect the future consideration of the Governmental Unit for grant
programs administered by Commerce. Further, and without limitation, if the
Governmental Unit fails to timely initiate legal proceedings against the Owner for
such repayment and Commerce elects to do so instead, the Governmental Unit is
responsible and agrees to reimburse Commerce for all litigation costs and reasonable
attorneys’ fees that Commerce incurs in pursuing repayment.
2. Changes in the Project or Other Conditions.
(a). A “Project Change” is any material alteration, addition, deletion or expansion of the
Project, including (without limitation) material changes to construction or
rehabilitation, the terms or conditions of the loan under the LBC (“Loan”), the
required number of New Jobs, the matching investment in the Project, any cessation
of business by the Owner or any Business and any filing of bankruptcy by the
Governmental Unit, the Owner or any Business. There shall be no Project Changes
unless expressly approved of by Commerce in a separate, prior written agreement
stating, if applicable, the costs and schedule for completing the Project Change.
Notwithstanding the foregoing and wherever referred to in this Grant Agreement,
“cessation of business,” “ceasing to do business” and “ceases to do business” shall
not include (1) ceasing operations to maintain, service or upgrade real or personal
property of the Owner, (2) seasonal shutdowns of operations as long as such cessation
do not exceed a total of four (4) weeks in any calendar year (excluding time
attributable to an event of force majeure as described below) and (3) under the
circumstances of for the period of time described in Paragraph 17 below.
(b). Additionally, the Governmental Unit shall immediately notify Commerce of any
change in conditions or local law, or any other event, which may significantly affect
its ability to oversee, administer or perform this Grant Agreement, the LBC or the
Project. In its sole and unreviewable discretion, Commerce may deem such a change
in conditions, local law or other event to constitute a Project Change.
3. Term of Grant Agreement. The effective period of this Grant Agreement shall commence
on 10/17/2019 (“Effective Date”) and shall terminate on 12/31/2022 unless terminated on
an earlier date under the terms of this Grant Agreement (either one of which dates shall
constitute the “Termination Date”) or unless extended for an express term in writing by the
Governmental Unit.
4. Funding. The Rural Authority grants to the Governmental Unit an amount not to exceed
$500,000.00 for expenditures directly relating to the Project. The Governmental Unit
hereby represents and warrants that all Grant funds shall be utilized exclusively for the
purpose of the Project and consistent with all applicable laws, rules, regulations and
requirements, and that the Governmental Unit shall not make or approve of any improper
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 4
expenditure of Grant funds (including Loan funds). Administrative expenses of the
Governmental Unit are not eligible for Grant funding and any such use of Grant funds will
violate this Grant Agreement.
5. Independent Status of the Governmental Unit.
(a). The Governmental Unit is an entity independent from the Rural Authority and
Commerce. The Grant Agreement, the LBC, the Project and any actions taken
pursuant to them shall not be deemed to create a partnership or joint venture between
or among Commerce, the Rural Authority, the Governmental Unit or any third party
(including, without limitation, the Owner or any Business). Nor shall the Grant
Agreement, the LBC or the Project be construed to make the Governmental Unit
(including its employees, agents, members or officials) or any third party (including,
without limitation, the Owner or any Business) employees, agents, members or
officials of Commerce or the Rural Authority. Neither the Governmental Unit nor
any third party (including, without limitation, the Owner or any Business) shall have
the ability to bind Commerce or the Rural Authority to any agreement for payment of
goods or services or represent to any person that they have such ability.
(b). The Governmental Unit shall be responsible for payment of all of its expenses,
including rent, office expenses and all forms of compensation to employees. The
Governmental Unit shall provide worker's compensation insurance to the extent
required for its operations and shall accept full responsibility for payments of
unemployment tax or compensation, social security, income taxes, and any other
charges, taxes or payroll deductions required by law in connection with its operations,
for itself and its employees who are performing work pursuant to this Grant
Agreement. All expenses incurred by the Governmental Unit are its sole
responsibility, and neither Commerce nor the Rural Authority shall be liable for the
payment of any obligations incurred in the performance of the Project.
6. Method of Payment. Commerce shall pay the Grant funds to the Governmental Unit in
accordance with the Payment Schedule attached hereto as Exhibit B after receipt of written
requests for payment from the Governmental Unit certifying that the conditions for such
payment under this Grant Agreement have been met and that the Governmental Unit is
entitled to receive the amount so requested and any other documentation that may be
required by Commerce.
7. Obligation of Funds. The Governmental Unit shall not obligate Grant funds prior to the
Effective Date or subsequent to the Termination Date of this Grant Agreement. All
obligations outstanding as of the Termination Date shall be liquidated within thirty days.
8. Project Records.
(a). The Governmental Unit shall maintain full, accurate and verifiable financial records,
supporting documents and all other pertinent data for the Project in such a manner as
to clearly identify and document the expenditure of the State funds provided under
this Grant Agreement separate from accounts for other awards, monetary
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 5
contributions or other revenue sources for this Project.
(b). The Governmental Unit shall retain all financial records, supporting documents and
all other pertinent records related to the Project for a period of five (5) years from the
Termination Date. In the event such records are audited, all Project records shall be
retained beyond the five-year period until the audit is concluded and any and all audit
findings have been resolved.
9. Monitoring, Reports and Auditing.
(a). The Governmental Unit agrees to ensure compliance and provide its assistance with
such monitoring and auditing requirements as the State may request, including
following the Termination Date of this Grant Agreement. Additionally, the
Governmental Unit shall regularly monitor all performance under Grant-supported
activities, including activities performed by the Owner and any Business, to ensure
that time schedules are being met, New Jobs are being created and maintained and
other performance goals are being achieved.
(b). The Governmental Unit shall furnish Commerce detailed written progress reports
according to the time periods specified in Exhibit C or as otherwise requested by
Commerce. Such reports should describe the progress made by the Governmental
Unit, the Owner and any Business toward achieving the purpose(s) of the Project,
including specifically the goals of New Job creation and maintenance. Such
descriptions should include the successes and problems encountered during the
reporting period. Failure to submit a required report by the scheduled submission
date will result in the withholding of any forthcoming payment until Commerce is in
receipt of the delinquent report and the report meets with Commerce’s approval, in
Commerce’s sole discretion.
(c). The Governmental Unit acknowledges and agrees that, with regard to the Grant
funds, it will be subject to the audit and reporting requirements prescribed by N.C.G.S
§159-34, Local Government Finance Act - Annual Independent Audit; rules and
regulations. Such audit and reporting requirements may vary depending upon the
amount and source of Grant funding received by the Governmental Unit and are
subject to change from time to time.
(d). Within thirty (30) days after the Termination Date, the Governmental Unit shall
submit a final report to Commerce describing the activities and accomplishments of
the Project. The final report shall include a review of performance and activities over
the entire Project period. In the final report, the Governmental Unit should describe
the Project, how it was implemented, to what degree the established Project
objectives were met and the difficulties encountered, what the Project changed and its
cost.
(e). The Governmental Unit grants the State and any of its related agencies, commissions
or departments (including, without limitation, Commerce, the North Carolina State
Auditor and the North Carolina Office of State Budget and Management) and any of
their authorized representatives, at all reasonable times and as often as necessary
(including after the Termination Date), access to and the right to inspect, copy,
monitor, and examine all of the books, papers, records and other documents relating
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 6
to the Grant Agreement, the LBC or the Project. Likewise, the Governmental Unit
shall ensure that the Owner and any Business provide the same access. In addition,
the Governmental Unit agrees to comply at any time, including after the Termination
Date, with any requests by the State (including, without limitation, the Rural
Authority or Commerce) for other financial and organizational materials to permit the
State to comply with its fiscal monitoring responsibilities or to evaluate the short- and
long-range impact of its programs.
10. Termination; Availability of Funds.
(a). If the Governmental Unit fails to fulfill in a timely and proper manner its obligations
or violates any of the covenants or stipulations under this Agreement, if the Owner
fails to fulfill in a timely and proper manner its obligations or violates any of its
covenants or stipulations under the LBC or if any Business fails to fulfill those
requirements applicable to it in the LBC, the Governmental Unit agrees that
Commerce has the right to terminate this Grant Agreement and/or the LBC by giving,
as applicable, the Governmental Unit or the Governmental Unit and the Owner
written notice specifying the Termination Date, which Commerce may determine in
its sole discretion. Upon such termination, Commerce shall have no responsibility to
make additional Grant payments. Upon such termination, the Governmental Unit
shall not expend any Grant funds (including Loan funds) without Commerce’s
express written authorization and shall return all unspent Grant funds to Commerce
upon demand.
(b). The obligations of the Rural Authority and/or Commerce to pay any amounts under
this Grant Agreement are contingent upon the availability and continuation of funds
for such purpose. If funds for the Grant (and therefore the Loan) become unavailable,
the Governmental Unit agrees that Commerce has the right to terminate this Grant
Agreement and/or the LBC by giving written notice specifying the Termination Date,
which Commerce shall determine in its sole discretion. Upon such termination, the
State shall have no responsibility to make additional Grant payments. Further, upon
such termination, the Governmental Unit shall not expend any Grant funds (including
Loan funds) without Commerce’s express written authorization and shall return all
unspent Grant funds to Commerce upon demand.
11. Liabilities and Loss. The Governmental Unit hereby agrees to release, indemnify and hold
harmless the State (including, without limitation, the Rural Authority and Commerce), and
their respective members, officers, directors, employees, agents and attorneys (together, the
"Indemnified Parties"), from any claims of third parties (including, without limitation, the
Owner and the Business) arising out of any act or omission of the Governmental Unit or
any third party (including, without limitation, the Owner and the Business) in connection
with the performance of this Grant Agreement, the LBC or the Project, and for all losses
arising from their implementation. Without limiting the foregoing, the Governmental Unit
hereby releases the Indemnified Parties from, and agrees that such Indemnified Parties are
not liable for, and agrees to indemnify and hold harmless the Indemnified Parties against,
any and all liability or loss, cost or expense, including, without limitation, reasonable
13
Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 7
attorneys’ fees, fines, penalties and civil judgments, resulting from or arising out of or in
connection with or pertaining to, any loss or damage to property or any injury to or death of
any person occurring in connection with the Project, or resulting from any defect in the
fixtures, machinery, equipment or other property used in connection with the Project or
arising out of, pertaining to, or having any connection with, the Project or the financing
thereof (whether arising out of acts, omissions, or negligence of the Governmental Unit or
of any third party (including, without limitation, the Owner and the Business), or of any of
their agents, contractors, servants, employees, licensees, lessees, or assignees), including
any claims and losses accruing to or resulting from any and all subcontractors, material
men, laborers and any other person, firm or corporation furnishing or supplying work,
services, materials or supplies in connection with the Project.
12. Governmental Unit Representations and Warranties. The Governmental Unit hereby
represents and warrants that:
(a). The execution and delivery of this Grant Agreement have been duly authorized by all
necessary Governmental Unit action and are not in contravention of law or in
contravention of the provisions of any indenture agreement or undertaking to which
the Governmental Unit is a party or by which it is bound.
(b). There is no action, suit proceeding, or investigation at law or in equity or before any
court, public board or body pending, or to the knowledge of the Governmental Unit,
threatened against or affecting it, the Owner or the Business, that could or might
adversely affect the Project or any of the transactions contemplated by this Grant
Agreement or the validity or enforceability of this Grant Agreement or the abilities of
the Governmental Unit or the Owner to discharge their obligations under this Grant
Agreement. If it is subsequently found that an action, suit, proceeding, or
investigation did or could threaten or affect the development of the Project, the
Governmental Unit shall be liable to Commerce for repayment of the entire amount of
the Grant and this Grant Agreement may be terminated by Commerce effective upon
notice.
(c). No consent or approval is necessary from any governmental authority as a condition
to the execution and delivery of this Grant Agreement by the Governmental Unit or
the performance of any of its obligations hereunder, or all such requisite
governmental consents or approvals have been obtained. The Governmental Unit
shall provide Commerce with evidence of the existence of any such necessary
consents or approvals at the time of the execution of this Grant Agreement.
(d). The Governmental Unit is solvent.
(e). A cash match grant, loan or other funding (“Cash Match”) equal to the amount of the
Loan shall have been unconditionally committed to the Project. The Governmental
Unit shall have procured and contributed at least five percent (5%) of this Cash
Match, but no part of this 5% contribution can have derived, either directly or
indirectly, from any other State or federal source. All Cash Match funds shall be
utilized exclusively for the purpose of the Project, and there shall be no improper
expenditures of Cash Match funds. All Cash Match funds shall be expended prior to
or simultaneously with and at the same rate as the Owner’s expenditure of Loan
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 8
funds.
(f). Upon the Governmental Unit’s reasonable inquiry of and receipt of supporting
evidence from the Owner, both the Owner and any Business are duly authorized to do
business under North Carolina law and are not delinquent on any federal, state or
local taxes, licenses or fees.
13. Cessation/Termination, Bankruptcy, Dissolution or Insolvency.
(a). Under the LBC, the Owner agrees at all times to preserve its legal existence, except
that it may merge or consolidate with or into, or sell all or substantially all of its
assets to, any entity that expressly undertakes, assumes for itself and agrees in writing
to be bound by all of the obligations and undertakings of the Owner contained in the
LBC. If the Owner so merges, consolidates or sells its assets without such an
undertaking being provided, it agrees in the LBC to repay to the Governmental Unit
or Commerce, upon request and as directed, all unspent Loan funds. Further, a
merger, consolidation or sale without such an undertaking shall constitute a material
default under the LBC, and the Governmental Unit or Commerce may terminate the
LBC upon written notice to the Owner and hold the Owner liable for any other
repayment provided for under the LBC.
(b). Other than as provided for in Paragraph 13(a) above, if the Owner or any Business
ceases to do business or becomes the subject of any bankruptcy, dissolution or
insolvency proceeding prior to the Termination Date, it shall be the sole responsibility
of the Governmental Unit to (i) immediately notify Commerce and (ii) pursue any
claim for Grant funds owed the State by the Owner or Business, including in any
legal proceeding, to obtain the maximum payment allowed by law. To the extent the
Governmental Unit fails to pursue repayment of the Grant funds in such a proceeding
and obtain the maximum payment allowed by law, and without limitation, the
Governmental Unit shall be liable to Commerce for all amounts that should have been
awarded to the Unit in the proceeding if it had taken the necessary action
(notwithstanding whether such amounts would have actually been paid by the Owner
or Business). Alternatively, without limitation, if the Governmental Unit fails to
pursue repayment of the Grant funds in such a proceeding and Commerce elects to do
so instead, the Governmental Unit is responsible and agrees to reimburse Commerce
for all legal costs and reasonable attorneys’ fees that Commerce incurs in pursuing
repayment.
(c). If the Governmental Unit fails to provide Commerce notice of the Owner or any
Business ceasing to do business or becoming the subject of any bankruptcy,
dissolution or insolvency proceeding prior to the Termination Date, it shall constitute
a material default under this Grant Agreement. If there is such a cessation or such a
proceeding, Commerce may terminate the Grant Agreement upon written notice to
the Governmental Unit. If there is such a cessation or such a proceeding, the
Governmental Unit agrees that Commerce has the right to terminate this Grant
Agreement and/or the LBC by giving, as applicable, the Governmental Unit or the
Governmental Unit and the Owner written notice specifying the Termination Date,
which Commerce may determine in its sole discretion. Upon such termination, the
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 9
Governmental Unit, the Owner and any Business shall not expend any Grant or Loan
funds without Commerce’s express written authorization and shall return all unspent
Grant or Loan funds to Commerce upon demand and if permissible under applicable
bankruptcy, dissolution or insolvency law.
14. Additional Repayment Requirements and Remedies.
(a). The repayment requirements and remedies addressed in this Paragraph 14 are in
addition to those repayment requirements and other remedies set forth elsewhere in
this Grant Agreement, including the requirements to repay unspent Grant funds. No
remedy conferred or reserved by or to the State is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy provided for in this Grant
Agreement, or now or hereinafter existing at law, in equity, or by statute, and any
such right or power may be exercised from time to time and as often as may be
deemed expedient.
(b). If there is a breach of any of the requirements, covenants or agreements in this Grant
Agreement or the LBC, or if there are any representations or warranties which are
untrue as to a material fact in this Grant Agreement, the LBC or in relation to the
LBC or the Project (including the performance thereof), the Governmental Unit
agrees that Commerce has the sole discretion to require repayment from the
Governmental Unit of an amount of Grant funds to be determined in Commerce’s
sole discretion but not to exceed the amount of Grant funds the Governmental Unit
has already received under this Grant Agreement. Such requirements, covenants or
agreements include but are not limited to Paragraphs 1, 2(a), 4, 10(a), 12 and 13 of
this Grant Agreement and include but are not limited to the creation and retention of
the New Jobs and the retention of the Baseline Number of jobs under the LBC.
15. No Waiver by the State. Failure of the State (including, without limitation, the Rural
Authority and Commerce) at any time to require performance of any term or provision of
this Grant Agreement or the LBC shall in no manner affect the rights of the State at a later
date to enforce the same or to enforce any future compliance with or performance of any of
the terms or provisions hereof. No waiver of the State of any condition or the breach of any
term, provision or representation contained in this Grant Agreement or the LBC, whether
by conduct or otherwise, in any one or more instances, shall be deemed to be or construed
as a further or continuing waiver of any such condition or of the breach of that or any other
term, provision or representation.
16. Waiver of Objections to Timeliness of Legal Action. The Governmental Unit knowingly
waives any objections it has or may have to timeliness of any legal action (including any
administrative petition or civil action) by the State (including, without limitation, the Rural
Authority or Commerce) to enforce its rights under this Grant Agreement. This waiver
includes any objections the Governmental Unit may possess based on the statutes of
limitations or repose and the doctrines of estoppel or laches.
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 10
17. Force Majeure. If (a) during the term of this Grant the real or personal property located on
or constituting the Property suffers damage or destruction caused by acts of God, fires,
floods, storms, insurrection, riots, acts of the public enemy, national catastrophe, or similar
unexpected events, (b) such damage or destruction was not principally caused by the
negligence, willful misconduct or violation of applicable law by the Owner, (c) the Owner
uses reasonable efforts to repair, or to work around, such damage or destruction reasonably
promptly, and (d) as a direct result of such damage or destruction the Owner cannot satisfy
the requirements and obligations of Sections 3 of the LBC as and when the LBC requires,
then the Owner will be entitled to an extension of time not to exceed sixty (60) days to
satisfy the requirements and obligations of Section 3 of the LBC; provided that the
Governmental Unit in its sole discretion with respect to the obligations it is owed by the
Owner, may elect to extend that sixty day period to give the Owner additional time to
satisfy those requirements.
18. Special Provisions and Conditions.
(a). Non-discrimination. The Governmental Unit agrees not to discriminate by reason of
age, race, religion, color, sex, national origin or disability related to the activities of
this Grant Agreement.
(b). Conflict of Interest. The Governmental Unit shall adopt and keep on file, along with
the executed copies of this Grant Agreement, a copy of its policy and any ordinance
or resolution it has adopted addressing conflicts of interest that may arise involving
the members of the Governmental Unit’s governing body and/or any of its employees
or officers involved in the Grant, the LBC or the Project. Such policy, ordinance or
resolution shall address situations in which any of these individuals may directly or
indirectly benefit, other than through receipt of their normal compensation in their
capacities as the Governmental Unit’s employees, officers or members of its
governing body, from the Grant, the LBC or Project, and shall include actions to be
taken by the Unit or the individual, or both, to avoid conflicts of interest and the
appearance of impropriety. Additionally, the Governmental Unit certifies that, as of
the date it executes this Grant Agreement, no such individuals have such a conflict of
interest or will directly or indirectly benefit, except in the capacities described above,
from the Grant, LBC or Project. Throughout the duration of this Grant Agreement,
the LBC and the Project, the Governmental Unit has the duty to promptly inform
Commerce of any such conflict of interest or direct or indirect benefit of which it
becomes aware.
(c). Compliance with Laws. The Governmental Unit shall at all times observe and
comply with all laws, regulations, codes, rules, ordinances and other requirements
(together, “Laws”) of the state, federal and local governments which may in any
manner affect the performance of the Grant Agreement, the LBC or the Project.
(d). Non-Assignability. The Governmental Unit shall not assign or transfer any interest in
the Agreement without the prior written consent of Commerce; provided, however,
that claims for money due to Governmental Unit from Commerce under this
Agreement may be assigned to any commercial bank or other financial institution
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 11
without such approval.
(e). Personnel. The Governmental Unit represents that it has, or will secure at its own
expense, all personnel required to monitor, carry out and perform the scope of
services of this Agreement. Such employees shall not be employees of Commerce.
Such personnel shall be fully qualified and shall be authorized under state and local
law to perform such services.
19. Notice. All notices required or permitted to be delivered hereunder and all communications
in respect hereof shall be in writing and shall be deemed given when personally delivered
or when deposited in the United States mails, certified, return receipt requested, first class,
postage prepaid and addressed as follows:
If to the Rural Authority or Commerce: Attn: Hazel Edmond
Program Manager
North Carolina Department of Commerce
Rural Economic Development Division
301 North Wilmington Street
4346 Mail Service Center
Raleigh, North Carolina 27699-4346
If to the Governmental Unit: Attn: The Honorable Penny Rich
Chair
Orange County
PO Box 8181
Hillsborough, NC 27278-8181
or addressed to such other address or to the attention of such other individual as Commerce
or the Governmental Unit shall have specified in a notice delivered pursuant to this
subsection.
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 12
20. Entire Agreement. This Grant Agreement supersedes all prior agreements between or
among the Rural Authority and/or Commerce and the Governmental Unit with regard to the
Project and expresses their entire understanding with respect to the transactions
contemplated herein, and shall not be amended, modified or altered except pursuant to a
writing signed by both Commerce and the Governmental Unit.
21. Execution. This Grant Agreement may be executed in one or more counterparts, each of
which, when executed, shall be deemed an original, and such counterparts, together, shall
constitute one and the same Grant Agreement which shall be sufficiently evidenced by one
of such original counterparts.
22. Construction. This Grant Agreement shall be construed and governed by the laws of the
State of North Carolina.
23. Severability. Each provision of this Grant Agreement is intended to be severable and, if
any provision of this Agreement is held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect or impair any other
provision of this Grant Agreement, but this Grant Agreement shall be construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
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Rural Economic Development Grant Agreement, Private Owner
BUILDING REUSE PROGRAM – Revision #3 2020-025-3201-2587
Grant Agreement - 13
24. Acceptance. If the Governmental Unit agrees to the Grant conditions as stated, please
return the executed documents specified in Paragraph 1(a). This Grant may be withdrawn
if Commerce has not received such documents within thirty (30) days from the date of the
cover letter from Commerce to the Governmental accompanying this Grant Agreement and
its Exhibits.
IN WITNESSETH WHEREOF, the parties hereto have executed this Grant Agreement as of the
date first above written.
Orange County
Signature: [SEAL]
Printed Name:
Title:
Date:
North Carolina Department of Commerce
Signature:
[SEAL]
Printed Name: Kenny Flowers
Title: Assistant Secretary for Rural Economic Development
Date: 5/4/2020
20
BUILDING REUSE PROGRAM - Existing Business Building
Orange County
ABB, Inc/Project Clear Blue Sky – Revision #3
2020-025-3201-2587
EXHIBIT A
SCOPE OF PROJECT
Summary: The project will support the expansion of a building located at 6801 Industrial Drive in Mebane. The building was
constructed in 1971. ABB, Inc. and Industrial Connections & Solutions , LLC are companies that specializes in the
electrification business offering a wide-range of products, digital solutions and services, from substation to socket, enabling
safe and sustainable electrification. This project received a JDIG award.
EXHIBIT B
PAYMENT SCHEDULE
Eligible Expenditures:
Vacant Building Category: within the existing building footprint
Existing Business Building Category: within the existing building and/or additions
Rural Health Care Category: within the existing building, additions and/or new construction
Eligible costs under all funding categories include, but are not limited to: materials and labor to install HVAC, electrical,
plumbing, fire alarm/suppression systems, roofing, flooring, carpentry, drywall, paint, etc. This is not an exhaustive list;
grantees should contact the Rural Development Division for questions about whether a specific expense is eligible under the
program.
The following costs are specifically prohibited under the program and may not be submitted for reimbursement or the
matching funds requirement: building purchase, architectural costs, engineering costs, permit fees, surveys, legal fees,
machinery & equipment, telephone hardware and software, computer hardware and software, furnishings, paving, f encing,
kitchen equipment, refrigeration equipment, etc. This is not an exhaustive list; grantees should contact the Rural Development
Division for questions about whether a specific expense is eligible under the program.
Any company in which any project partner has an ownership or management interest in may act as a contractor for the
renovation project only if the company holds a valid NC General Contractors license. The relationship must have been
disclosed to the Rural Development Division and a copy of the company’s license must have been included in the application.
Licensed contracting companies owned or operated by any project partner that are used in the renovation project will be
required to submit original invoices from the provider for all labor, materials, services and subcontracted work plus proof that
those invoices have been paid in full.
Reimbursement Requirements:
The Department of Commerce will reimburse 50% of eligible expenditures up to the total grant amount upon receipt of the
following:
1. A completed financial request form,
2. Evidence that the 5% local government match has been satisfied (first payment request),
3. Copies of eligible project invoices that support the request amount,
4. Evidence that the invoices submitted for reimbursement have been paid-in-full. Evidence may include copies cleared
checks, wire transfer or ACH receipts, and/or credit card receipts. Invoices paid with cash and those not paid in full will
not be reimbursed, and
5. Satisfaction of reporting requirements according to Exhibit C below.
Eligible expenditures may not be incurred prior to the effective date or subsequent to the termination date of the grant.
Payments are subject to the availability of funds.
21
BUILDING REUSE PROGRAM - Existing Business Building
Orange County
ABB, Inc/Project Clear Blue Sky – Revision #3
2020-025-3201-2587
EXHIBIT C
REPORTING SCHEDULE
Progress reports are due on January 15th and July 15th for each year that the grant remains open. The final report and job verification
documentation are due at the time of project completion or no later than 30 days afte r the grant end-date, whichever is sooner. The
reporting schedule remains in effect for the duration of the grant including time extensions.
Failure to submit progress reports as required:
1. Will result in non-payment of payment requests,
2. Can result in the immediate termination of the grant,
3. Can result in the demand for immediate repayment of any funds paid by The Department of Commerce, and
4. Will negatively impact the grantee’s eligibility for future Commerce grants.
EXHIBIT D
JOB VERIFICATION AND CLOSE OUT REQUIREMENTS
Building Reuse and Rural Health Care loans are eligible for forgiveness once the creation and maintenance of the full-time
jobs committed for the project, as well as, all reporting requirements are approved by Commerce. Below are the requ irements
and procedure for approval.
Job Verification
To be considered eligible, a full-time job must be filled with one employee who works at least 35 hours per week and is paid
at least minimum wage. Part-time, full-time equivalents, or contract/consulting positions are not eligible.
Grantees should submit the following as evidence of job creation and maintenance:
1. Job Certification Form—both the grantee and the participating business are required to complete respective sections of
this form that attests to the creation of the number of jobs full-time jobs committed to receive the grant. The form must
be signed by the authorized representatives of the local government grantee and the participating business.
2. NCUI 101 Forms—The grantee should submit copies of each company’s Employer’s Quarterly Tax and Wage Report
(NCUI 101 forms) that have been submitted to the North Carolina Employment Security Commission according to the
requirements below.
• NCUI 101 Forms should be submitted to Commerce.
• The forms must include the appropriate number of quarters to show that the company maintained the required
employment level for six-consecutive months.
• The employment level reported must meet or exceed the baseline number of employees reported at the time of the
application plus the number of new, full-time jobs committed for the grant.
• The jobs created and the baseline must be maintained concurrently during the same six -month period.
• If the NCUI 101 forms include employees from other locations in North Carolina, the na mes of the employees
working in the grant funded project facility should be highlighted, and a multi-site report should be provided.
• If the NCUI 101 forms include both full and part -time employees an “f” should be written next to the name of each
full-time employee and a “p” should be written next to the name of each part-time employee.
3. Final Report—the grantee must submit the Final Report Form that describes the activities and outcomes of the project.
4. Photos—the grantee must submit digital photos that show a variety of views of the completed project.
All forms, including reporting and request for payment, can be found on the Commerce website at http://www.nccommerce.com/rgp
. Email completed forms and reports to rgpreports@nccommerce.com .
22
Rural Economic Development Loan Agreement and
Legally Binding Commitment, Private Owner
BUILDING REUSE PROGRAM – Revision #3
EXHIBIT E
2020-025-3201-2587
Legally Binding Commitment - 1
Orange County (the “Governmental Unit”) enters into this Loan Agreement and Legally
Binding Commitment (the “LBC,” including the “Loan,” defined below with Industrial
Connections & Solutions, LLC (the “Owner” and, together with the Governmental Unit, the
“Parties”).
WHEREAS, pursuant to N.C.G.S. §§143B-472.127 and .128, the North Carolina Rural
Infrastructure Authority (the “Rural Authority”) of the State of North Carolina (“State”) has
awarded a grant (the “Grant”) to the Governmental Unit, and the North Carolina Department of
Commerce (“Commerce”), an agency of the State, will administer the Grant; and
WHEREAS, the Grant is memorialized in an agreement (the “Grant Agreement”)
between Commerce and the Governmental Unit, and the Grant Agreement includes Exhibit A
(Scope of Project), Exhibit B (Payment Schedule), Exhibit C (Reporting Schedule), Exhibit D
(Closeout Schedule/Job Requirements), Exhibit E (this LBC, which incorporates by reference the
Grant Agreement and its other Exhibits), Exhibit F (Promissory Note) and Exhibit G (Waiver of
Confidentiality (“Waiver”)); and
WHEREAS, without limitation, the Rural Authority awarded the Grant: (1) based on the
application filed by the Governmental Unit and any subsequent materials supporting the
application that have been approved of by Commerce in writing, all of which are incorporated
into the Grant Agreement by reference; (2) based on the representation in the application that the
Owner owns certain real property located at:
6801 Industrial Drive
Mebane, NC 27302
in Orange County, North Carolina (the “Property”); (3) based on Commerce’s Grant
requirements and guidelines, which are incorporated herein and which may be amended,
modified or supplemented and applied accordingly to the Grant Agreement and this LBC by
Commerce in its sole discretion; and for (4) the creation and retention of certain jobs in the
course of completing certain renovations/construction work at the Property (altogether, the
“Project,” as summarized in Exhibit A to this Grant Agreement); and
WHEREAS, the Governmental Unit and the Owner are required to enter into this LBC as
a condition of the Governmental Unit loaning the Grant funds to the Owner.
NOW, THEREFORE, in consideration of the mutual promises and such other valuable
consideration set out herein, the Parties mutually agree to the following terms and conditions:
1. Third-Party Beneficiary. The Parties agree that the State (including, without limitation,
Commerce and the Rural Authority) is an intended third-party beneficiary of this LBC
(including the Loan) and may, at its option, enforce the terms of this LBC or appear as a
party in any litigation concerning the LBC.
23
Rural Economic Development Loan Agreement and
Legally Binding Commitment, Private Owner
BUILDING REUSE PROGRAM – Revision #3
EXHIBIT E
2020-025-3201-2587
Legally Binding Commitment - 2
2. Loan.
(a) The Governmental Unit hereby loans to the Owner the sum of $500,000.00 (the
“Loan”), which consists entirely of State Grant funds, to fund the Project. Exhibit A
to the Grant Agreement refers to the entity (or entities, as applicable) required to
create and maintain certain full-time new jobs, as defined in Paragraph 3(a), to
complete the Project under this LBC as the “Company,” the “Employer” and the
“Business” (together and hereinafter, the “Business”). The Owner specifically
acknowledges that: it must repay the Loan in accordance with the terms of this LBC if
the Business does not create and maintain the new jobs required by Paragraph 3(a)
below; and as evidence of its obligation to repay the Loan, the Owner has executed
the Promissory Note, Exhibit F to the Grant Agreement, which the Owner represents,
acknowledges and agrees has been signed by every individual or entity that has any
ownership interest in the Property and is fully binding on the Owner.
(b). As conditions of receiving the Loan:
i. The highest elected official of the Governmental Unit and a duly authorized
representative of the Owner shall execute two originals of the LBC in its exact
form (unless Commerce approves of a change to its terms in writing), and the
Governmental Unit shall return one such original to Commerce;
ii. Every individual or entity that has any ownership interest in the Property shall
execute two originals of the Promissory Note in its exact form, and the
Governmental Unit shall return one such original to Commerce; and
iii. The Owner and the Governmental Unit shall ensure that an authorized
representative of each Business executes a Waiver, Exhibit G to the Grant
Agreement, and the Governmental Unit shall forward the original of any such
Waiver to Commerce.
(c). The Owner hereby represents and warrants that all Loan funds shall be utilized
exclusively for the purpose of the Project and that it shall not make or approve of any
improper expenditures of Loan funds.
3. New Job Creation, Maintenance of New Jobs and Baseline Number of Jobs and
Verification.
(a). New Job Creation and Maintenance of New Jobs and Baseline Number of Jobs. A
“New Job” shall mean a full-time job (consisting of at least 35 hours per week of
employment and eligibility for all benefits generally available for full-time employees
of the Business) which is with the Business, is located in North Carolina, has a wage
at least equal to the minimum wage, is created and maintained by the Business in
order to complete the Project and is over and above the 1,222 full-time jobs in North
Carolina (“Baseline Number”) that the Business reported having at the time of the
application for the Project. The Owner agrees that the Business shall be required to
create and maintain in existence for six (6) consecutive months 378 New Jobs prior to
the Termination Date, unless this term is extended pursuant to Paragraph 5. Separate
and apart from these New Jobs, the Owner agrees that the Business shall be required
to maintain in existence its Baseline Number of jobs for as long as it takes the
Business to create and maintain its required number of New Jobs.
(b). Verification. When the New Jobs required by Paragraph 3(a) have been created and
maintained for six (6) consecutive months, the Owner shall notify the Governmental
24
Rural Economic Development Loan Agreement and
Legally Binding Commitment, Private Owner
BUILDING REUSE PROGRAM – Revision #3
EXHIBIT E
2020-025-3201-2587
Legally Binding Commitment - 3
Unit so that it and/or Commerce can verify their creation and maintenance, as well as
the maintenance of the Baseline Number of jobs and the satisfaction of all other
conditions and terms of this LBC and the Project. The Owner shall cause any
Business to provide to the Governmental Unit and Commerce, or their respective
designees, full and complete access to all records of the Business necessary to verify
the number and types of jobs created and maintained, the wages paid to employees
and all other conditions and terms of this LBC and the Project. Failure of any
Business to provide such access upon request shall constitute a material default by the
Owner under the terms of this LBC and, in the sole discretion of the Governmental
Unit and/or Commerce, may subject the Owner to repayment in an amount calculated
under Paragraph 13 below.
4. Changes in the Project or Other Conditions.
(a). A “Project Change” is any material alteration, addition, deletion or expansion of the
Project, including (without limitation) material changes to construction or
rehabilitation, the terms or conditions of the loan under the LBC, the required number
of New Jobs, the matching investment in the Project, any cessation of business by the
Owner or any Business and any filing of bankruptcy by the Owner or any Business.
There shall be no Project Changes unless expressly approved of by Commerce and
the Governmental Unit in a separate, prior written agreement stating, if applicable, the
costs and schedule for completing the Project Change.
(b). Additionally, the Owner shall immediately notify the Governmental Unit of any
change in conditions or local law, or any other event, which may significantly affect
the ability of it or any Business to perform the LBC or the Project. In their sole
discretion, the Governmental Unit or Commerce may deem such a change in
conditions, local law or other event to constitute a Project Change.
5. Term of LBC. The effective period of this LBC shall commence 10/17/2019 (“Effective
Date”) and shall terminate 12/31/2022 unless terminated on an earlier date under the terms
of this LBC (either one of which dates shall constitute the “Termination Date”) or unless
extended for an express term in writing by the Governmental Unit.
6. Independent Status of the Governmental Unit.
(a). The State (including, without limitation, the Rural Authority and Commerce) and the
Governmental Unit are independent entities from one another and from the Owner
and any third party (including, without limitation, any Business). The Grant
Agreement, the LBC, the Project and any actions taken pursuant to them shall not be
deemed to create a partnership or joint venture between the State and the
Governmental Unit or between or among either of them and the Owner or any third
party (including, without limitation, any Business). Nor shall the Grant Agreement,
the LBC or the Project be construed to make any employees, agents or members of
the Owner or any third party (including, without limitation, any Business) into
employees, agents, members or officials of the Governmental Unit or the State or to
make employees, agents, members or officials of the Governmental Unit into
employees, agents, members or officials of the State. Neither the Owner nor any third
party (including, without limitation, any Business) shall have the ability to bind the
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Governmental Unit or the State to any agreement for payment of goods or services or
represent to any person that they have such ability. Nor shall the Governmental Unit
have the ability to bind the State to any agreement for payment of goods or services
or represent to any person that it has such ability.
(b). The Owner and any third party (including, without limitation, any Business) shall be
responsible for payment of all their expenses, including rent, office expenses and all
forms of compensation to their employees. The Owner and any third parties
(including, without limitation, any Business) shall provide worker's compensation
insurance to the extent required for their operations and shall accept full responsibility
for payments of unemployment tax or compensation, social security, income taxes,
and any other charges, taxes or payroll deductions required by law in connection with
their operations, for themselves and their employees who are performing work
pursuant to this LBC or the Project. All expenses incurred by the Owner or any third
party (including, without limitation, any Business) are their sole responsibilities, and
neither the Governmental Unit nor the State (including, without limitation, Commerce
and the Rural Authority) shall be liable for the payment of any obligations incurred in
the performance of the Project.
7. Project Records.
(a). The Owner shall maintain and cause any Business to maintain full, accurate and
verifiable financial records, supporting documents and all other pertinent data for the
Project in such a manner as to clearly identify and document the expenditure of the
State funds provided under this LBC separate from accounts for other awards,
monetary contributions or other revenue sources for this Project.
(b). The Owner shall retain and cause any Business to retain all financial records,
supporting documents and all other pertinent records related to this LBC, the Loan
and the Project for a period of five (5) years from the Termination Date. In the event
such records are audited, all such records shall be retained beyond the five-year
period until the audit is concluded and any and all audit findings have been resolved.
8. Monitoring, Reports and Auditing. The Owner agrees to generate and to cause any
Business to generate such reports regarding the LBC or the Project as may be requested by
the Governmental Unit or the State (including, without limitation, the Rural Authority or
Commerce) in such form as they may request, including after the Termination Date. The
Owner further grants and shall cause any Business to grant the Governmental Unit or the
State (including any of its agencies, commissions or departments such as Commerce, the
North Carolina State Auditor and the North Carolina Office of State Budget and
Management) and any of their authorized representatives, at all reasonable times and as
often as necessary (including after the Termination Date), access to and the right to inspect,
copy, monitor and examine all of the books, papers, records and other documents relating
to the LBC or the Project. In addition, the Owner agrees to comply and to cause any
Business to comply at any time, including after the Termination Date, with any requests by
the State (including, without limitation, the Rural Authority or Commerce) for other
financial and organizational materials to permit the State to comply with its fiscal
monitoring responsibilities or to evaluate the short- and long-range impact of its programs.
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9. Termination; Availability of Funds.
(a). If the Owner fails to fulfill in a timely and proper manner its obligations or violates
any of its covenants or stipulations under the LBC or if any Business fails to fulfill
those requirements applicable to it in the LBC, the Owner agrees that the
Governmental Unit or Commerce has the right to terminate the LBC by giving the
Owner written notice specifying the Termination Date, which shall be determined by
the Governmental Unit or Commerce in their sole discretion. Upon such termination,
neither the State nor the Governmental Unit shall have any responsibility to make
Loan payments. Further, upon such termination, the Owner shall not expend any
Loan funds without the express written authorization of the Governmental Unit and
Commerce and shall return all unspent Loan funds to either the Governmental Unit or
Commerce, upon request and as directed.
(b). If the Governmental Unit fails to fulfill in a timely and proper manner its obligations
or violates any of the covenants or stipulations under its Grant Agreement with
Commerce, the Owner agrees that Commerce has the right to terminate its Grant
Agreement with the Governmental Unit and/or terminate this LBC by giving, as
applicable, the Governmental Unit or the Governmental Unit and the Owner written
notice specifying the Termination Date, which Commerce may determine in its sole
discretion. Upon such termination, neither the State nor the Governmental Unit shall
have any responsibility to make Loan payments. Further, upon such termination, the
Owner shall not expend any Loan funds without the express written authorization of
the Governmental Unit and Commerce and shall return all unspent Loan funds to
either the Governmental Unit or Commerce, upon request and as directed.
(c). The obligations of the Rural Authority and/or Commerce to pay any Grant funds to
the Governmental Unit and for the Governmental Unit to pay any Loan amounts to
the Owner under this LBC are contingent upon the availability and continuation of
funds for such purpose. If funds for the Grant and therefore the Loan become
unavailable, the Owner agrees that either Commerce or the Governmental Unit has
the right to terminate this LBC by giving written notice specifying the Termination
Date, which either the Governmental Unit or Commerce may determine in their sole
discretion. Upon such termination, neither the State nor the Governmental Unit shall
have any responsibility to make Loan payments. Further, upon such termination, the
Owner shall not expend any Loan funds without the express written authorization of
the Governmental Unit and Commerce and shall return all unspent Loan funds to the
Governmental Unit or Commerce, upon demand and as directed.
10. Liabilities and Loss. The Owner hereby agrees to release, indemnify and hold harmless the
Governmental Unit and the State (including the Rural Authority and Commerce), and their
respective members, officers, directors, employees, agents and attorneys (hereinafter
collectively referred to as "Indemnified Parties"), from any claims of third parties
(including, without limitation, any Business) arising out of any act or omission of the
Owner or any third party (including, without limitation, any Business) in connection with
the performance of this LBC or the Project, and for all losses arising from implementation
of this LBC or the Project. Without limiting the foregoing, the Owner hereby releases the
Indemnified Parties from, and agrees that such Indemnified Parties are not liable for, and
agrees to indemnify and hold harmless the Indemnified Parties against, any and all liability
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or loss, cost or expense, including, without limitation, reasonable attorneys’ fees, fines,
penalties and civil judgments, resulting from or arising out of or in connection with or
pertaining to, any loss or damage to property or any injury to or death of any person
occurring in connection with the Project, or resulting from any defect in the fixtures,
machinery, equipment or other property used in connection with the Project or arising out
of, pertaining to, or having any connection with, the Project or the financing thereof
(whether or not arising out of acts, omissions or negligence of the Owner or of any third
party (including, without limitation, any Business), or of any of their agents, contractors,
servants, employees, licensees, lessees, or assignees), including any claims and losses
accruing to or resulting from any and all subcontractors, material men, laborers and any
other person, firm or corporation furnishing or supplying work, services, materials or
supplies in connection with the Project.
11. Owner Representations and Warranties. The Owner hereby represents and warrants that:
(a). The Owner and every Business are duly authorized to do business under North
Carolina law and are not delinquent on any federal, state or local taxes, licenses or
fees.
(b). This LBC has been entered into and executed on behalf of the Owner by an individual
with full actual and apparent authority to bind the Owner to the terms hereto, and the
execution and delivery of this LBC have been duly authorized by all necessary action,
and are not in contravention of law nor in contravention of any certificate of
authority, bylaws or other applicable organizational documents of the Owner, nor are
they in contravention of the provisions of any indenture, agreement or undertaking to
which the Owner is a party or by which it is bound.
(c). The Promissory Note has been executed by every individual or entity that has any
ownership interest in the Property and is fully binding on the Owner.
(d). There is no action, suit, proceeding or investigation at law or in equity before any
court, public board or body pending, or, to the Owner’s knowledge, threatened
against or affecting the Owner, that could or might adversely affect the Project, the
creation of the New Jobs or any of the transactions contemplated by this LBC, or the
validity or enforceability of this LBC or the Owner’s ability to discharge its
obligations under this LBC.
(e). Upon the Owner’s reasonable inquiry of any Business, there is no action, suit,
proceeding or investigation at law or in equity before any court, public board or body
pending, threatened against or affecting any Business that could or might adversely
affect the Project, the creation of the Jobs or any of the transactions contemplated by
this LBC or the validity or enforceability of this LBC or the ability of any Business to
create the Jobs specified herein.
(f). No consent or approval is necessary from any governmental authority as a condition
to the execution and delivery of this LBC by the Owner or the performance of any of
its obligations hereunder, or else all such requisite governmental consents or
approvals have been obtained. The Owner shall provide the Governmental Unit or
Commerce with evidence of the existence of any such necessary consents or
approvals at the time of the execution of this LBC.
(g). The Owner is solvent and has inquired of and received reasonable evidence from any
Business of the solvency of that Business.
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(h). A cash match grant, loan or other funding (“Cash Match”) equal to the amount of the
Loan shall have been unconditionally committed to the Project. The Governmental
Unit shall have procured and contributed at least five percent (5%) of this Cash
Match, but no part of this 5% contribution can have derived, either directly or
indirectly, from any other State or federal source. The Owner hereby represents and
warrants that all Cash Match funds shall be utilized exclusively for the purpose of the
Project and that it shall not make or approve of improper expenditures of Cash Match
funds. The Owner shall expend all Cash Match funds prior to or simultaneously with
and at the same rate as its expenditure of Loan funds.
12. Cessation/Termination, Bankruptcy, Dissolution or Insolvency.
(a). The Owner shall at all times preserve its legal existence, except that it may merge or
consolidate with or into or sell all or substantially all of its assets to any entity that
expressly undertakes, assumes for itself and agrees in writing to be bound by all of
the obligations and undertakings of the Owner contained in this LBC. If the Owner
so merges, consolidates or sells its assets without such an undertaking being provided,
it agrees to repay to the Governmental Unit or Commerce, upon request and as
directed, all unspent Loan funds. Further, any merger, consolidation or sale without
such an undertaking shall constitute a material default under this LBC, and the
Governmental Unit or Commerce may terminate the LBC upon written notice to the
Owner and hold the Owner liable for any other repayment provided for under this
LBC.
(b). Other than as provided for in Paragraph 12(a), if the Owner or any Business ceases to
do business or becomes the subject of any bankruptcy, dissolution or insolvency
proceeding prior to the Termination Date, the Owner shall give the Governmental
Unit immediate notice of the event, shall not expend any Loan funds without the
express written authorization of the Governmental Unit and shall return all unspent
Loan funds to the Governmental Unit or Commerce, upon demand and as directed
and if permissible under applicable bankruptcy, dissolution or insolvency law.
(c). If the Owner fails to provide the Governmental Unit notice of the Owner or any
Business ceasing to do business or becoming the subject of any bankruptcy,
dissolution or insolvency proceeding prior to the Termination Date, it shall constitute
a material default under this LBC. If there is such a cessation or such a proceeding,
the Governmental Unit or Commerce may terminate the LBC upon written notice to
the Owner. Upon such termination, the Owner shall not expend any Loan funds
without the express written authorization of the Governmental Unit and shall return
all unspent Loan funds to the Governmental Unit or Commerce upon demand and as
directed and if permissible under applicable bankruptcy, dissolution or insolvency
law.
d). Notwithstanding the foregoing and wherever referred to in this LBC, “ceases to do
business” shall not include (1) ceasing operations to maintain, service or upgrade real or
personal property of the Owner, (2) season shutdowns of operations as long as such
cessation does not exceed a total of four (4) weeks in any calendar year (excluding time
attributable to an event of force majeure as described below) and (3) under the
circumstances for the period of time described in Paragraph 22 below.
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13. Additional Repayment Requirements and Remedies.
(a). The repayment requirements and remedies addressed in this Paragraph 13 are in
addition to those repayment requirements and other remedies set forth elsewhere in
this LBC, including the requirements to repay unspent Loan funds. No remedy
conferred or reserved by or to the State or the Governmental Unit is intended to be
exclusive of any other available remedy or remedies, but each and every such remedy
shall be cumulative and shall be in addition to every other remedy provided for in this
LBC, or now or hereinafter existing at law, in equity, or by statute, and any such right
or power may be exercised from time to time and as often as may be deemed
expedient.
(b). The Owner acknowledges that the Grant by the Rural Authority and the Loan by the
Governmental Unit are predicated upon the creation and maintenance of the New
Jobs and maintenance of the Baseline Number of jobs required by Paragraph 3(a) and
that failure to create and/or maintain them will constitute a material default of this
LBC.
i. If the Business fails to create and maintain such New Jobs, then the Owner shall
repay to the Governmental Unit or Commerce, as directed, an amount equal to
the product of (i) $1,322.75 (the amount of Loan funds divided by the number
of New Jobs required to be created in Paragraph 3(a) and (ii) the number of
New Jobs required to be created in Paragraph 3(a), minus the number of New
Jobs actually created, above the Baseline Number reported, that have been in
existence for six (6) consecutive months.
ii. Additionally, in the event that the Business fails to maintain its Baseline
Number of jobs as required under Paragraph 3(a), the Business shall lose credit
for any qualifying New Jobs under this LBC by the same number of jobs that
the Baseline Number is short. For example, if the Baseline Number of jobs falls
short by three (3) jobs as of the date the Business has created and maintained all
required New Jobs, the number of New Jobs deemed created and maintained
shall be reduced by three (3). The amount the Business must repay shall then
be calculated in accordance with Paragraph 13(b)i.
iii. Either Commerce or the Governmental Unit shall notify the Owner in writing of
the amount to be repaid and direct the Owner whether to repay such amount to
the Governmental Unit for return to Commerce or repay the amount directly to
Commerce. All such amounts shall be due immediately upon demand by the
Governmental Unit or Commerce. If not paid within thirty (30) days following
demand, the unpaid amount due hereunder and under the Promissory Note shall
bear interest at the rate of 10% per annum after demand until paid. Upon
default in such payment, the Governmental Unit or Commerce may employ an
attorney to enforce their respective rights and remedies, and the Owner hereby
agrees to pay the legal costs and reasonable attorneys’ fees of the Governmental
Unit and Commerce plus all other reasonable expenses incurred by such party
in exercising any of its rights and remedies upon such defaults.
(c). If there is a breach of any of the requirements, covenants or agreements in this LBC
(including, without limitation, a failure to repay the amount required under Paragraph
13(b) within the time required), or if there are any representations or warranties which
are untrue as to a material fact in this LBC or in relation to the LBC or the Project
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(including the performance thereof), the Owner agrees that the Governmental Unit or
Commerce may require repayment from the Owner of an amount of Loan funds to be
determined in their sole discretion but not to exceed the amount of Loan funds the
Owner has already received under this LBC. Such requirements, covenants or
agreements include but are not limited to Paragraphs 2, 3, 4, 9, 11 and 12 of this LBC.
14. No Waiver by Governmental Unit or the State. Failure of the Governmental Unit or the
State (including, without limitation, the Rural Authority and Commerce) at any time to
require performance of any term or provision of this LBC shall in no manner affect the
rights of the Governmental Unit or the State at a later date to enforce the same or to enforce
any future compliance with or performance of any of the terms or provisions hereof. No
waiver of the Governmental Unit or the State of any condition or the breach of any term,
provision or representation contained in this LBC, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or continuing waiver
of any such condition or of the breach of that or any other term, provision or representation.
15. Waiver of Objections to Timeliness of Legal Action. The Owner knowingly waives any
objections it has or may have to timeliness of any legal action (including any administrative
petition or civil action) by the Governmental Unit or the State (including Commerce) to
enforce their rights under this LBC. This waiver includes any objections the Owner may
possess based on the statutes of limitations or repose and the doctrines of estoppel or
laches.
16. Special Provisions and Conditions.
(a). Nondiscrimination. The Owner agrees that it will not, and will ensure that the
Business will not, discriminate by reason of age, race, religion, color, sex, national
origin or disability related to the activities of this LBC or the Project.
(b). Compliance with Laws. The Owner shall at all times, and shall cause any Business at
all times to, observe and comply with all laws, regulations, codes, rules, ordinances
and other requirements (together, “Laws”) of the state, federal and local governments
which may in any manner affect the performance of the LBC or the Project.
(c). Non-Assignability. The Owner shall not assign or transfer any interest in the LBC
without the prior written consent of the Governmental Unit and Commerce; provided
however, that claims for money due to the Owner from the Governmental Unit under
this LBC may be assigned to any commercial bank or other financial institution
without such approval.
(d). Personnel. The Owner represents that it and any Business have or will secure at their
own expense all personnel required to monitor, carry out and perform the scope of
services of this LBC and the Project. Such employees shall not be employees of the
State (including, without limitation, the Rural Authority or Commerce) or the
Governmental Unit. Such personnel shall be fully qualified and shall be authorized
under state and local law to perform such services.
17. Notice. All notices required or permitted hereunder and all communications in respect
hereof shall be in writing and shall be deemed given when personally delivered or when
deposited in the United States Mail, certified, return receipt requested, postage prepaid, and
addressed as follows:
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If to the Governmental Unit: Attn:
To the Owner: Attn:
or addressed to such other address or to the attention of such other individual as either party
above shall specify in a notice pursuant to this subsection.
18. Entire Agreement. This LBC supersedes all prior agreements between the Governmental
Unit and the Owner with regard to the Loan and the Project and expresses their entire
understanding with respect to the transactions contemplated herein, and shall not be
amended, modified or altered except pursuant to a writing signed by both Parties.
19. Execution. This LBC may be executed in one or more counterparts, each of which, when
executed, shall be deemed an original, and all such counterparts, together, shall constitute
one and the same LBC which shall be sufficiently evidenced by one of such original
counterparts.
20. Construction. This LBC shall be construed and governed by the laws of the State of North
Carolina.
21. Severability. Each provision of this LBC is intended to be severable and, if any provision
of this LBC is held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect or impair any other provision of this LBC, but
this LBC shall be construed as if such invalid, illegal or unenforceable provision had not
been contained herein.
22. Force Majeure. If (a) during the Grant Term the real or personal property located on or
constituting the Property suffers damage or destruction caused by acts of God, fires, floods,
storms, insurrection, riots, acts of the public enemy, national catastrophe, or similar unexpected
events, (b) such damage or destruction was not principally caused by the negligence, willful
misconduct or violation of applicable law by the Owner, (c) the Owner uses reasonable efforts
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to repair, or to work around, such damage or destruction reasonably promptly, and (d) as a
direct result of such damage or destruction the Owner cannot satisfy the requirements and
obligations of Sections 3 of this Agreement as and when this Agreement requires, then the
Owner will be entitled to an extension of time not to exceed sixty (60) days to satisfy the
requirements and obligations of Section 3 of this Agreement; provided that the Governmental
Unit in its sole discretion with respect to the obligations it is owed by the Owner, may elect to
extend that sixty day period to give the Owner additional time to satisfy those requirements.
IN WITNESS WHEREOF, the parties hereto have executed this LBC as of the date first
above written.
Governmental Unit Name:
Signature: [SEAL]
Printed Name:
Title:
Owner Name:
Signature: [SEAL]
Printed Name:
Title:
Owner Name:
Signature: [SEAL]
Printed Name:
Title:
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Promissory Note, Private Owner
BUILDING REUSE PROGRAM – Revision #3
EXHIBIT F
2020-025-3201-2587
Promissory Note - 1
For VALUE RECEIVED and subject to the terms of and secured by the Rural Economic
Development Loan Agreement and Legally Binding Commitment – Private-Owner Building
Reuse Program, Reference Number 2020-025-3201-2587 (“LBC,” which is incorporated by
reference herein), the undersigned borrower[s] (the “Owner”) jointly and severally promise[s] to
pay to lender Orange County or its assigns (together, the “Governmental Unit”) or to the
intended third-party beneficiary of this Promissory Note, the North Carolina Department of
Commerce (“Commerce”), upon demand and as directed by either the Governmental Unit or
Commerce, an amount of principal loan (“Loan”) funds under the LBC up to and including
$500,000.00 Dollars but which amount shall not exceed the amount of Loan funds the Owner has
actually received under the LBC, plus interest and attorney’s fees as addressed below. Unless
otherwise specified herein, capitalized terms in this Promissory Note shall have the same
meaning as those set forth in the LBC.
The Owner acknowledges and represents that: (i) the undersigned is or are the only
person(s), entity or entities who or that have any ownership interests in the certain real property
located at:
6801 Industrial Drive
Mebane, NC 27302
in Orange County, North Carolina (the “Property”); and (ii) the undersigned shall be jointly and
severally liable for any and all debts secured by this Promissory Note.
The Owner further acknowledges that: (i) in order for the Owner to receive the Loan, the
LBC requires the Owner to complete a “Project”; (ii) in order for the Owner to receive the Loan,
what the LBC identifies as the “Business” must maintain certain jobs and create and maintain
certain other jobs in working with the Owner to complete the Project; (iii) the Loan from the
Governmental Unit to the Owner under the LBC consists entirely of a grant from the State of
North Carolina to the Governmental Unit, subject to certain clawback provisions; (iv) Commerce
is an intended third-party beneficiary to the LBC and to this Promissory Note; and (v) the LBC
specifies those circumstances in which the Governmental Unit or Commerce can terminate the
LBC and require the Owner to repay an amount of Loan funds according to a formula or else in
an amount to be determined in the sole discretion of the Governmental Unit or Commerce but
which amount shall not exceed the amount of Loan funds the Owner has actually received under
the LBC.
Upon default, the Governmental Unit and/or Commerce may employ attorneys to enforce
their rights and remedies under this Promissory Note and the LBC, and the Owner agrees to pay
their reasonable attorneys’ fees, plus all other reasonable expenses they incur in exercising their
rights and remedies upon default. The rights and remedies of the Governmental Unit and
Commerce, as described in this Promissory Note and the LBC, shall be cumulative and may be
pursued singly, successively or together against the Owner (including each of the undersigned),
the Property, or any other funds, property or security held by the Owner for payment or security,
in the sole discretion of the Governmental Unit and Commerce. The failure to exercise any such
right or remedy shall not be a waiver or release of such rights or remedies or the right to exercise
any of them at another time.
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The Owner hereby waives protest, presentment, notice of dishonor and notice of
acceleration and maturity and agrees to remain bound for the payment of principal, interest and
all other sums due under this Promissory Note and the LBC, notwithstanding any change or
changes by way of release, surrender, exchange, modification or substitution of any security for
this Promissory Note, or by way of any extension or extensions of time for the payment of
principal and interest; and the Owner waives all and every kind of notice of such change or
changes and agrees that the same may be made without notice of or consent to any of them.
This Promissory Note may not be amended, changed or altered except in writing
executed by the Owner, the Governmental Unit and Commerce.
If not repaid within 30 days following demand hereunder, the Loan funds demanded by
the Governmental Unit or Commerce under this Promissory Note shall bear interest at the rate of
10% per annum after demand until repaid. If either the Governmental Unit or Commerce
initially demands Loan repayment from the Owner (“First Demand”) in an amount less than the
Loan funds the Owner has actually received under the LBC but, failing to receive repayment
and, in its discretion under the LBC, increases the Loan repayment demand (“Second Demand”)
to the full amount the Owner has received under the LBC, then such interest on the difference
between the First and Second Demands shall begin to accrue as of the date of the Second
Demand.
For example, if under the terms of the LBC, a Business engages in an improper
expenditure of Loan funds, the Governmental Unit has the discretion to require in a First
Demand the partial repayment of Loan funds received by the Owner. Interest will begin to
accrue at 10% per annum on whatever portion of the sum is not repaid as of the 31st day after the
First Demand. Further, if the Owner fails to repay the First Demand in full, the Governmental
Unit retains the discretion under the LBC to terminate the LBC and issue a Second Demand for
the full repayment by the Owner of all Loan funds. Interest will continue accruing at 10% per
annum on the original principal amount still unpaid from the First Demand and, following the
expiration of 30 days from the Second Demand, interest will begin to accrue at 10% per annum
on the additional unpaid principal Loan amount in the Second Demand.
Payment shall be made in lawful money of the United States of America via United
States Mail First Class, Federal Express or UPS to the attention of the person at the address or in
person at the address of the Governmental Unit or Commerce as directed in writing.
This Note shall be governed by, and construed in accordance with, the laws of the State
of North Carolina.
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Promissory Note, Private Owner
BUILDING REUSE PROGRAM – Revision #3
EXHIBIT F
2020-025-3201-2587
Promissory Note - 3
IN WITNESS WHEREOF, the undersigned has (have) caused these presents to be
executed under seal, pursuant to authority duly given, the day and year first above written.
EVERY SIGNATORY BELOW EXPRESSLY REPRESENTS THAT ALL
INDIVUDALS OR ENTITIES WITH ANY OWNERSHIP INTERESTS IN THE PROPERTY
HAVE EXECUTED THIS PROMISSORY NOTE.
Dated as of: , 20
If by Individual:
Signature: [SEAL]
Printed Name:
Dated as of: , 20
If by Entity:
Signature: [SEAL]
Printed Name:
36
Limited Waiver of Confidentiality
Unemployment Tax and Wage Records
BUILDING REUSE PROGRAM – Revision #3
EXHIBIT G
2020-025-3201-2587
Waiver of Confidentiality - 1
Name of Taxpayer
Address:
City: State: Zip: Phone:
NC Unemployment Insurance Acct #: Fed Tax ID #:
I hereby waive any right to confidentiality, as found in N.C.G.S. 96-4 or otherwise, for
the limited purpose of authorizing disclosure of certain information contained in the quarterly
unemployment insurance tax records of the above-named taxpayer (hereinafter, “Company”)
filed with the Division of Employment Security (“DES”) of the North Carolina Department of
Commerce to Orange County (“Governmental Unit”) and to the employees of the Rural
Economic Division of the North Carolina Department of Commerce (“Rural Division”) and
members of the North Carolina Rural Infrastructure Authority (“Rural Authority”) for the limited
purpose of evaluating the issuance of and, in the event of such issuance, administering and
ensuring compliance with, a grant and loan pursuant to N.C.G.S. 143B-472.127 and .128.
I recognize that DES is authorized to provide this information to the public officials of
the Governmental Unit, the Rural Division and the Rural Authority in the performance of their
public duties and that the verification of employment information for the purpose of
administering the grant and loan at issue is within the scope of the public duties of the
Governmental Unit, the Rural Division and the Rural Authority. I hereby authorize DES to
disclose information contained in the Company’s quarterly unemployment insurance tax records
(the NCUI-101 or successor form) to the Governmental Unit, the Rural Division and/or the
Authority for these purposes.
I recognize that unemployment insurance tax information provided in the aggregate to
DES and disclosed to the Governmental Unit, the Rural Division and/or the Authority, and the
Company’s aggregated tax and wage information provided to or otherwise in possession of the
Governmental Unit, the Rural Division and/or the Authority, may be treated as public
information. This waiver is not intended to release the Governmental Unit, the Rural Division
and/or the Authority from any obligation they may have under North Carolina law to maintain
the confidentiality of any and all information which could reveal or permit someone to ascertain
the identity of any individual employee or that employee’s line item unemployment insurance
tax or other tax or wage information.
Signature Chief Financial Officer or Other Authorized Company Official
,
Print Name Title
37
Deed of Trust Documentation
BUILDING REUSE PROGRAM – Revision #3
EXHIBIT H
2020-025-3201-2587
Deed of Trust Documentation - 1
The Department of Commerce strongly encourages, but does not require, the Governmental Unit
secure the funds loaned to the property owner, Industrial Connections & Solutions, LLC, with
a Deed of Trust on the property.
Please check the appropriate box below indicating the intention of the Governmental Unit:
The Governmental Unit will secure the funds with a Deed of Trust listing Orange
County as the beneficiary in the amount of $500,000.00.
Orange County (“Governmental Unit”) has elected NOT to secure with a deed of trust
on the subject property the $500,000.00 in grant funds awarded by the North Carolina
Department of Commerce (“Commerce”) for a building reuse grant. Governmental Unit
acknowledges and agrees that it is liable to the State for any grant funds that must be
repaid under the Grant Agreement or Legally Binding Commitment, including (without
limitation), any required repayments due to the property owner’s failure to create and
maintain jobs, which could include the full amount of the grant. Governmental Unit
acknowledges that its liability to Commerce arises whether or not it is able to collect any
repayment from the property owner under the Legally Binding Commitment, but still
elects not to obtain a deed of trust on the subject property.
Please fill in the box below:
Governmental Unit Name: Orange County_____________________________________
By (Signature): __________________________________________________
Printed Name: __________________________________________________
Title: __________________________________________________
Date: __________________________________________________
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Attachment 3
This Grant Agreement (“Grant Agreement” or “Agreement”) by and between Orange County (the
“County”), a political subdivision of the State of North Carolina, ABB Inc., a Delaware Corporation, and
Industrial Connections & Solutions LLC, a Delaware limited liability company (“Company”), a US
subsidiary of a multinational corporation situated and headquartered in Zurich, Switzerland, with
North American headquarters in Cary, NC, is made and entered into this ____ day of _______, 2020.
WHEREAS, under N.C.G.S. §143B-472.128, the General Assembly created the North Carolina Rural
Infrastructure Authority (“Rural Authority”) to review applications for and, where appropriate, authorize
such matching grants or loans, and, under N.C.G.S. §§143B-472.126 and .127, the General Assembly
authorized the North Carolina Department of Commerce (“Commerce”) to administer such grants or
loans; and
WHEREAS, without limitation, the Rural Authority awarded a $500,000.00 Building Re-use Grant: (1)
based on the application filed by the County and any subsequent materials supporting the application
that have been approved of by Commerce in writing, all of which are incorporated by reference herein;
(2) based on the representation in the application that Company owns certain real property located at:
6801 Industrial Drive
Mebane, NC 27302
in Orange County, North Carolina (the “Property”); (3) based on Commerce’s Grant requirements and
guidelines; and for (4) the upfit and expansion of the Property (altogether, the “Project,” as summarized
in Paragraph 1 to this Grant Agreement); and
WHEREAS the County has agreed to administer the Grant pursuant to the terms of this Grant Agreement
and related grant documents.
NOW, THEREFORE, in consideration of the mutual promises and such other valuable consideration as set
out herein, the Parties mutually agree to the following terms and conditions:
1. Scope of Project/Agreements to be Executed.
(a). The Project will support the expansion of a building located at 6801 Industrial Drive in Mebane.
The building was constructed in 1971. ABB, Inc. is a company that specializes in the electrification
business offering a wide range of products, digital solutions and services, from substation to socket,
enabling safe and sustainable electrification. This project received a JDIG award.
(b). The Company shall immediately notify County of any change in conditions or federal, state, or
local law, or any other event, which may significantly affect its ability to oversee, administer or perform
this Grant Agreement or the Project. Upon such notification County may take such action as it, in its
sole discretion, deems appropriate up to and including termination of this Grant Agreement without
fault or further obligation.
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2. Term of Grant Agreement. The effective period of this Grant Agreement shall commence on
10/17/2019 (“Effective Date”) and shall terminate on 12/31/2022 unless terminated on an earlier date
under the terms of this Grant Agreement (either one of which dates shall constitute the “Termination
Date”) or unless extended for an express term in writing by the County.
3. Funding. The Rural Authority proposes to the County an amount not to exceed $500,000.00 for
expenditures directly relating to the Project. The County shall not make or approve of any expenditure
or disbursal of Grant funds except pursuant to the terms of this Grant Agreement.
4. Method of Payment. County shall pay the Grant fund to Company within 30 days of receipt from
the Rural Authority. . Payment of Grant funds shall not occur until the Job Verification and Close Out
Requirements outlined in Exhibit D of the Rural Economic Development Grant Agreement have been
submitted and approved by the North Carolina Department of Commerce.
5. Obligation of Funds. The County shall not obligate Grant funds prior to the Effective Date or
subsequent to the Termination Date of this Grant Agreement. All obligations outstanding as of the
Termination Date shall be liquidated within thirty days.
6. Project Records.
(a). The Company shall maintain full, accurate and verifiable financial records, supporting
documents and all other pertinent data for the Project in such a manner as to clearly identify and
document the expenditure of the funds provided hereby separate from accounts for other awards,
monetary contributions ,or other revenue sources for this Project.
(b). The Company shall retain all financial records, supporting documents and all other pertinent
records related to the Project for a period of five (5) years from the Termination Date. In the event such
records are audited, all Project records shall be retained beyond the five-year period until the audit is
concluded and any and all audit findings have been resolved.
7. Monitoring, Reports and Auditing.
(a). The Company agrees to ensure compliance and provide its assistance with such monitoring and
auditing requirements as the County or State of North Carolina (“State”), including Commerce, may
request, including after the Termination Date of this Grant Agreement. Additionally, the Company shall
regularly monitor all performance related to Grant-supported activities, including activities performed
by the Company and any agent, contractor or subcontractor, to ensure compliance herewith.
(b). The Company shall furnish the County detailed written progress reports as requested by County.
Such reports should describe the progress made by the Company and any agent, contractor or
subcontractor toward achieving the purpose(s) of the Project. Such descriptions should include the
successes and problems encountered during the reporting period. Failure to submit a requested report
may result in the withholding of any forthcoming payment until County is in receipt of the delinquent
report and the report meets with County’s approval, in County’s sole discretion.
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(c). The Company acknowledges and agrees that, with regard to the Grant funds, it will be subject to
and comply with audit and reporting requirements as required herein.
(d). Within thirty (30) days after the Termination Date, the Company shall submit a final report to
County describing the activities and accomplishments of the Project. The final report shall include a
review of performance and activities over the entire Project period.
(e). The Company grants the County and any of its authorized representatives, at all reasonable
times and as often as necessary (including after the Termination Date), access to and the right to
inspect, copy, monitor, and examine all of the books, papers, records and other documents relating to
the Grant Agreement or the Project. County shall maintain confidentiality with regard to such books,
papers, records, and other documents, except that Company acknowledges same may be released and
provided to the State upon request by the State.
8. Termination; Availability of Funds.
(a). If the Company fails to fulfill in a timely and proper manner its obligations or violates any of the
covenants or stipulations under this Grant Agreement, the Company agrees that County has the right to
terminate this Grant Agreement. Upon such termination, County shall have no responsibility to make
additional Grant payments. Upon such termination, the Company shall not expend any Grant funds
(including Loan funds) without County’s express written authorization and shall return all unspent Grant
funds to County upon demand.
(b). The obligations of the County to pay any amounts under this Grant Agreement are contingent
upon the availability of and disbursal by the State of the Grant funds for the Project. If funds for the
Grant become unavailable, the Company agrees that County has the right to terminate this Grant
Agreement by giving written notice specifying the Termination Date, which County shall determine in its
sole discretion. Upon such termination, the County shall have no responsibility to make additional Grant
payments. Further, upon such termination, the Company shall not expend any Grant funds without
County’s express written authorization and shall return all unspent Grant funds to County upon demand.
9. Indemnification.
(a). The Company hereby agrees to release, indemnify and hold harmless the County and its
respective members, officers, directors, employees, agents, and attorneys (together, the "Indemnified
Parties"), from any claims of third parties in connection with the performance of this Grant Agreement
and for all losses arising from its implementation. Without limiting the foregoing, the Company hereby
releases the Indemnified Parties from, and agrees that such Indemnified Parties are not liable for, and
agrees to indemnify and hold harmless the Indemnified Parties against, any and all liability or loss, cost
or expense, including, without limitation, reasonable attorneys’ fees, fines, penalties and civil
judgments, resulting from or arising out of or in connection with or pertaining to, any loss or damage to
property or any injury to or death of any person occurring in connection with the Project, or resulting
from any defect in the fixtures, machinery, equipment or other property used in connection with the
Project or arising out of, pertaining to, or having any connection with, the Project or the financing
41
thereof (whether arising out of acts, omissions, or negligence of the Company or of any third party
((including, without limitation, the owner of the Property if Company is not the owner)), or of any of
their agents, contractors, servants, employees, licensees, lessees, or assignees), including any claims and
losses accruing to or resulting from any and all subcontractors, material men, laborers and any other
person, firm or corporation furnishing or supplying work, services, materials or supplies in connection
with the Project.
(b). Company further agrees to indemnify and hold the Indemnified Parties harmless from any and
all liability County may incur as a grant administrator, notwithstanding the County may contract the
grant administration to a third party entity
(c). Should Company begin, engage in, or complete construction of the Project and Grant funds are
not disbursed by the State Company agrees County is not at fault for such failure by the State to
disburse funds and releases the Indemnified Parties from any and all liability, costs, and/or damages
incurred by the Company related to the Project.
10. Company Representations and Warranties. The Company hereby represents and warrants that:
(a). The execution and delivery of this Grant Agreement have been duly authorized by all necessary
Company action and are not in contravention of law or in contravention of the provisions of any
indenture agreement or undertaking to which the Company is a party or by which it is bound.
(b). There is no action, suit proceeding, or investigation at law or in equity or before any court,
public board or body pending, or to the knowledge of the Company, threatened against or affecting it
that could or might adversely affect the Project or any of the transactions contemplated by this Grant
Agreement or the validity or enforceability of this Grant Agreement or the abilities of the Company to
discharge its obligations under this Grant Agreement. If it is subsequently found that an action, suit,
proceeding, or investigation did or could threaten or affect the development of the Project, the
Company shall be liable to County for repayment of the entire amount of the Grant and this Grant
Agreement may be terminated by County effective upon notice.
(c). No consent or approval is necessary from any governmental authority as a condition to the
execution and delivery of this Grant Agreement by the Company or the performance of any of its
obligations hereunder, or all such requisite governmental consents or approvals have been obtained.
The Company shall provide County with evidence of the existence of any such necessary consents or
approvals at the time of the execution of this Grant Agreement.
(d). The Company is solvent.
(e). The Company is duly authorized to do business under North Carolina law and is not delinquent
on any federal, state, or local taxes, licenses, or fees.
11. Cessation/Termination, Bankruptcy, Dissolution or Insolvency.
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(a). Company agrees at all times to preserve its legal existence, except that it may merge or
consolidate with or into, or sell all or substantially all of its assets to, any entity that expressly
undertakes, assumes for itself and agrees in writing to be bound by all of the obligations and
undertakings of the Company pursuant to this Grant Agreement. If the Company so merges,
consolidates or sells its assets without such an undertaking being provided, it agrees to repay to the
County or Commerce, upon request and as directed, all unspent Grant funds. Further, a merger,
consolidation or sale without such an undertaking shall constitute a material default hereunder, and the
County may terminate this Grant Agreement upon written notice.
(b). Other than as provided for in Paragraph 11(a) above, if the Company ceases to do business or
becomes the subject of any bankruptcy, dissolution, or insolvency proceeding prior to the Termination
Date, it shall be the sole responsibility of the Company to immediately notify County.
12. Additional Repayment Requirements and Remedies.
(a). The repayment requirements and remedies addressed in this Paragraph 12 are in addition to
those repayment requirements and other remedies set forth elsewhere in this Grant Agreement,
including the requirements to repay unspent Grant funds. No remedy conferred or reserved by or to the
County is intended to be exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy provided for in this Grant
Agreement, or now or hereinafter existing at law, in equity, or by statute, and any such right or power
may be exercised from time to time and as often as may be deemed expedient.
(b). If there is a breach of any of the requirements, covenants or agreements in this Grant
Agreement, or if there are any representations or warranties which are untrue as to a material fact in
this Grant Agreement in relation to the Project (including the performance thereof), the Company
agrees that County has the sole discretion to require repayment from the Company of an amount of
Grant funds to be determined in County’s sole discretion but not to exceed the amount of Grant funds
the Company has already received under this Grant Agreement and that the Company is obligated to
make such payment.
13. No Waiver by the County. Failure of the County at any time to require performance of any term
or provision of this Grant Agreement shall in no manner affect the rights of the County at a later date to
enforce the same or to enforce any future compliance with or performance of any of the terms or
provisions hereof. No waiver of the County of any condition or the breach of any term, provision or
representation contained in this Grant Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be or construed as a further or continuing waiver of any such
condition or of the breach of that or any other term, provision or representation.
14. Waiver of Objections to Timeliness of Legal Action. The Company knowingly waives any
objections it has or may have to timeliness of any legal action (including any administrative petition or
civil action) by the County to enforce its rights under this Grant Agreement. This waiver includes any
objections the Company may possess based on the statutes of limitations or repose and the doctrines of
estoppel or laches.
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15. Force Majeure. If (a) during the term of this Grant the real or personal property located on or
constituting the Property suffers damage or destruction caused by acts of God, fires, floods, storms,
insurrection, riots, acts of a public enemy, national catastrophe, or similar unexpected events, (b) such
damage or destruction was not principally caused by the gross negligence, willful misconduct, or
violation of applicable law by the Company, (c) the Company uses reasonable efforts to repair, or to
work around, such damage or destruction immediately, and (d) as a direct result of such damage or
destruction the Company cannot satisfy the requirements and obligations of this Grant Agreement, then
the Company will not be determined to be in default due to conditions directly caused by the force
majeure.
16. Special Provisions and Conditions.
(a). Non-discrimination. The Company agrees not to discriminate against any person based on age
(as defined in the Orange County Civil Rights Ordinance), race, ethnicity, color, national origin, religion,
creed, sex, gender, gender identity, gender expression, marital status, familial status, source of income,
disability, political affiliation, veteran status, or disabled veteran status related to the activities of this
Grant Agreement.
(b). Compliance with Laws. The Company shall at all times observe and comply with all laws,
regulations, codes, rules, ordinances and other requirements (together, “Laws”) of the state, federal and
local governments which may in any manner affect the performance of the Grant Agreement or the
Project.
(d). Non-Assignability. The Company shall not assign or transfer any interest in the Grant Agreement
without the prior written consent of County, which shall not be unreasonably withheld.
(e). Personnel. The Company represents that it has, or will secure at its own expense, all personnel
required to monitor, carry out and perform the scope of services of this Agreement. Such employees
shall not be employees of County. Such personnel shall be fully qualified and shall be authorized under
state and local law to perform such services.
17. Notice. All notices required or permitted to be delivered pursuant to this Grant Agreement and
all communications in respect thereof shall be in writing and shall be deemed given when personally
delivered or when deposited in the United States mails, certified, return receipt requested, first class,
postage prepaid and addressed as follows:
If to the Company:
Attn: Alan Wells
ABB, Inc.
305 Gregson Avenue
Cary, NC 27511
If to the County:
Attn: Economic Development Director
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Orange County
PO Box 8181
Hillsborough, NC 27278-8181
18. Entire Agreement. This Grant Agreement supplements but is separate from all prior agreements
between or among the Company and the County with regard to the Project and expresses their entire
understanding with respect to the transactions contemplated herein, and shall not be amended,
modified or altered except pursuant to a writing signed by both Company and the County.
19. Execution. This Grant Agreement may be executed in one or more counterparts, each of which,
when executed, shall be deemed an original, and such counterparts, together, shall constitute one and
the same Grant Agreement which shall be sufficiently evidenced by one of such original counterparts.
20. Construction. This Grant Agreement shall be construed and governed by the laws of the State of
North Carolina.
21. Severability. Each provision of this Grant Agreement is intended to be severable and, if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect or impair any other provision of this Grant Agreement, but
this Grant Agreement shall be construed as if such invalid, illegal or unenforceable provision had not
been contained herein.
22. Acceptance. By executing below the Company agrees to be bound by the Grant conditions as
stated.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESSETH WHEREOF, the parties hereto have executed this Grant Agreement as of the date first
above written.
AGREEMENT REVIEWED AND ACCEPTED BY:
__________________________________ _________________________________
President Attest:
ABB Inc.
__________________________________ _________________________________
Sr. VP and GC Attest:
ABB Inc.
__________________________________ _________________________________
President Attest:
Industrial Connections & Solutions LLC.
__________________________________ _________________________________
Sr. VP and GC Attest:
Industrial Connections & Solutions, LLC.
___________________________________ ________________________________
Penny Rich, Chair Attest: Donna Baker
Orange County Board of Commissioners Clerk to the Board
Orange County Commissioners
This instrument has been pre-audited in the manner required by the Local Government Budget and
Fiscal Control Act.
____________________________________
Chief Financial Officer
Approved as to form and legal sufficiency.
____________________________________
Office of the County Attorney
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