Odessa Development Corporation

PUBLIC NOTICE ODESSA DEVELOPMENT CORPORATION BOARD OF DIRECTORS MEETING In accordance with the Open Meetings Act, Chapter 551 of the Government Code of Texas, notice is hereby given to all interested persons that the Odessa Development Corporation (“ODC”) will meet on Monday, January 29, 2024 at 2:00 p.m. in the Council Chambers, fifth floor, City Hall, 411 W. 8 th St., Odessa, Texas for the following purpose: See attached agenda This Notice is being posted on the south door of City Hall and on the bulletin board of the first floor of City Hall, Odessa, Texas, on the City of Odessa’s website www.odessa-tx.gov, and on the Odessa Development Corporation’s website www.odessatex.com, this the ______ day of January, 2024 at __________ ___.m., said time being more than seventy-two hours (72) prior to the time at which the subject meeting will be convened and called to order. The meeting is available to all persons regardless of disability. Individuals with disabilities who require special assistance should contact the City Secretary's Office at 432-335-3276, or 411 West 8th Street, First Floor, Odessa, Texas, during normal business hours at least twenty-four hours (24) in advance of the meeting. Norma Aguilar-Grimaldo, TRMC, CMC City Secretary  ODC Special Meeting Agenda January 29, 2024 2:00 p.m. Odessa City Hall, 5th Floor Council Chambers 1. Call to Order 2. Invocation and Pledge of Allegiance 3. Discuss and consider Economic Development Agreement for Project Ironman. Closed Session 4. The Board may recess into Executive Session in compliance with Section 551.001 et. seq. Texas Government Code in accordance with: a. Section 551.071. Consultation with Attorney. b. Section 551.072. Deliberation regarding real property: the purchase, exchange, lease or value of real property. c. Section 551.087. Deliberation regarding Economic Development negotiations. • Project Crossbow 5. Reconvene into Regular Session and take any necessary action as a result of the closed session. 6. Citizens comments on non-agenda items 7. Adjourn .................................................................................................................. Kris Crow COURTESY RULES Thank you for your presence. The ODC Board appreciates your interest in Odessa City Government. PLEASE SILENCE OR TURN OFF ALL MOBILE DEVICES. If you wish to address the ODC Board, obtain a speaker card just inside the Council Chambers, complete the information requested on the card, and deliver to the Assistant ODC Secretary before the meeting or as soon as you can. Speakers will be heard as the individual item(s) in which they have registered an interest come before the ODC Board. Remarks will be limited to three (3) minutes per speaker. PLEASE GIVE YOUR NAME FOR THE RECORD. Delay or interruption of the proceedings will not be tolerated. STATE OF TEXAS § § COUNTY OF MIDLAND § PERFORMANCE AGREEMENT This PERFORMANCE AGREEMENT by and between the ODESSA DEVELOPMENT CORPORATION, a Texas non-profit corporation (hereinafter referred to as the “ODC”); and WALKAMIN TRADING COMPANY, INC., a Texas corporation (hereinafter referred to as “Developer”), is made and executed on the following recitals, terms and conditions. WHEREAS, ODC is an economic development corporation operating pursuant to Chapter 504 of the Texas Local Government Code, as amended (also referred to as the “Act”), and the Texas Non-Profit Corporation Act, as codified in the Texas Business Organizations Code, as amended; and WHEREAS, Section 501.101 of the Texas Local Government Code, in pertinent part, defines the term “project” to mean “land, buildings, equipment, facilities, expenditures, targeted infrastructure, and improvements that are: (1) for the creation or retention of primary jobs; and (2) found by the board of directors to be required or suitable for the development, retention, or expansion of: (A) manufacturing and industrial facilities; (B) research and development facilities; (C) military facilities, including closed or realigned military bases; . . . (F) recycling facilities; . . . (I) distribution centers; (J) small warehouse facilities capable of serving as decentralized storage and distribution centers; (K) primary job training facilities for use by institutions of higher education; or (L) regional or national corporate headquarters facilities”; and WHEREAS, Section 501.103 of the Texas Local Government Code, in pertinent part, defines the term “project” to mean “expenditures that are found by the board of directors to be required or suitable for infrastructure necessary to promote or develop new or expanded business enterprises, limited to: (1) streets and roads, rail spurs, water and sewer utilities, electric utilities, or gas utilities, drainage, site improvements, and related improvements; (2) telecommunications and Internet improvements . . .”; and WHEREAS, Section 501.158 of the Texas Local Government Code prohibits the provision of a direct incentive unless ODC enters into an Agreement with Developer providing at a minimum a schedule of additional payroll or jobs to be created or retained by ODC’s investment; a schedule of capital investments to be made as consideration for any direct incentives provided by ODC to Developer; and a provision specifying the terms and conditions upon which repayment must be made should Developer fail to meet the agreed to performance requirements specified in this Agreement; and WHEREAS, Developer plans to construct or cause to be constructed necessary infrastructure improvements for a proposed light industrial park, consisting of extension of Faudree Road, and related sewer and water improvement from Yukon Road north to the industrial park, generally located on an approximately 75.749-acre tract of land in Section 40, Block 41, T- Page 1 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. 1-S T.&P. RR. Co. Survey, Abstract No. 476, and Section 41, Block 41, T-1-S T.&P. RR. Co. Survey, Abstract No. 66 in Ector County, Texas, as further described in Exhibit A of this Agreement, which is attached hereto and is incorporated herein for all purposes (hereinafter referred to as the “Property”); and WHEREAS, Developer has been approved for financial assistance from ODC in the amount of Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00), on a reimbursement basis as provided in this Agreement, for the construction of infrastructure improvements for a proposed light industrial park, consisting of extension of Faudree Road, and related sewer and water improvement from Yukon Road north to the industrial park, as further described in Exhibit B of this Agreement (hereinafter referred to as the “Qualified Expenditures”); and WHEREAS, ODC’s Board of Directors have determined the financial assistance to be provided to Developer pursuant to this Agreement for the Qualified Expenditures to be made to the Property is consistent with and meets the definition of “project” as that term is defined in Sections 501.101 and 501.103 of the Texas Local Government Code; and the definition of “cost” as that term is defined by Section 501.152 of the Texas Local Government Code; and WHEREAS, Developer agrees and understands that Section 501.073(a) of the Texas Local Government Code requires the City Council of the City of Odessa, Texas, to approve all programs and expenditures of ODC, and accordingly this Agreement is not effective until City Council has approved this project at a City Council meeting. NOW, THEREFORE, for and in consideration of the agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ODC and Developer agree as follows: SECTION 1. FINDINGS INCORPORATED. The foregoing recitals are hereby incorporated into the body of this Agreement and shall be considered part of the mutual covenants, consideration and promises that bind the parties. SECTION 2. TERM. This Agreement shall be effective as of the Effective Date, as defined herein, and shall continue thereafter until December 31, 2028, unless terminated sooner under the provisions hereof. SECTION 3. DEFINITIONS. The following words shall have the following meanings when used in this Agreement. (a) Act. The word “Act” means Chapters 501 to 505 of the Texas Local Government Code, as amended. Page 2 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. (b) Agreement. The word “Agreement” means this Performance Agreement, together with all exhibits and schedules attached to this Performance Agreement from time to time, if any. (c) City. The word “City” means the City of Odessa, Texas, a Texas home-rule municipality, who is a third-party and not a direct party to this Agreement. The City’s approval of this Agreement is required by the Act. (d) Developer. The word “Developer” means Walkamin Trading Company, Inc., a Texas corporation, its successors and assigns, whose address for the purposes of this Agreement is P.O. Box 10649, Midland, Texas 79702. (e) Effective Date. The words “Effective Date” mean the date of the latter to execute this Agreement by and between Developer and ODC. (f) Event of Default. The words “Event of Default” mean and include any of the Events of Default set forth below in the section entitled “Events of Default.” (g) ODC. The term “ODC” means the Odessa Development Corporation, a Texas non-profit corporation, its successors and assigns, whose corporate address for the purposes of this Agreement is 411 West 8th Street, P.O. Box 4398, Odessa, Texas 79760. (h) ODC Compliance Committee. The term “ODC Compliance Committee” means the committee appointed by ODC’s board of directors to review agreements and ensure compliance with said agreements. (i) Party or Parties. ODC and Developer are each a “Party” and are collectively referred to as the “Parties.” (j) Property. The word “Property” means an approximately 75.749-acre tract of land in Section 40, Block 41, T-1-S T.&P. RR. Co. Survey, Abstract No. 476, and Section 41, Block 41, T-1-S T.&P. RR. Co. Survey, Abstract No. 66 in Ector County, Texas, as further described in Exhibit A of this Agreement, which is attached hereto and is incorporated herein for all purposes. (k) Qualified Expenditures. The words “Qualified Expenditures” mean those expenditures consisting of the construction of the following: infrastructure improvements for a proposed light industrial park, consisting of extension of Faudree Road, and related sewer and water improvement from Yukon Road north to the industrial park, as further described in Exhibit B of this Agreement, which is attached hereto and incorporated herein for all purposes, and those expenses which otherwise meet the definition of “project” as that term is defined by Section 501.101 and 501.103 of the Act, and the definition of “cost” as that term is defined by Section 501.152 of the Act. Page 3 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  (l) Term. The word “Term” means the term of this Agreement as specified in Section 2 of this Agreement. SECTION 4. AFFIRMATIVE COVENANTS OF DEVELOPER. Developer covenants and agrees with ODC that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Qualified Expenditures. Developer covenants and agrees to submit to ODC paid invoices, paid receipts, or other paid documentation in a form acceptable to ODC for the Qualified Expenditures made to the Property or for the benefit of the Property in a minimum amount of Eight Million Five Hundred Thousand and No/100 Dollars ($8,500,000.00) by December 31, 2028. Developer covenants and agrees the Qualified Expenditures shall meet or exceed all City and State requirements, including the Texas Department of Transportation’s (“TxDOT”) requirements for oversizing width and size requirements for said Qualified Expenditures. Developer covenants and agrees to commence construction of the Qualified Expenditures by July 1, 2024. Further, Developer covenants and agrees to complete construction of the Qualified Expenditures by December 31, 2028. (1) Performance Bond. Developer covenants and agrees before beginning the work, shall execute to the City a performance bond solely for the protection of the City, in the amount provided in this Section 4(a) of the Agreement; and conditioned on the faithful performance of the work in accordance with the plans, specifications, submitted to the City or ODC. Said performance bond shall comply with the requirements of Chapter 2253 of the Texas Government Code, as amended. (2) Payment Bond. Developer covenants and agrees before beginning the work, shall execute to the City a payment bond solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the Developer or a subcontractor to supply public work, labor or material, and in the amount provided in this Section 4(a) of the Agreement. Said payment bond shall comply with the requirements of Chapter 2253 of the Texas Government Code, as amended. (b) Performance. Developer agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between Developer and ODC. SECTION 5. AFFIRMATIVE COVENANTS OF ODC. ODC covenants and agrees with Developer that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Reimbursement for Qualified Expenditures. ODC covenants and agrees to submit reimbursement for Qualified Expenditures made by Developer to the Property or for the benefit of the Property consistent with Section 4(a) of this Agreement, in an amount not to Page 4 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  exceed Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00). Consistent with Sections 4(a) and 5(b) of this Agreement, once ODC’s board of directors has verified compliance with the Agreement said amount shall be paid within sixty (60) days of receipt of said paid invoices, paid receipts, or other paid documentation in a form acceptable to ODC consistent with Section 4(a) of this Agreement. In the event Developer does not fulfill the requirements set forth in Section 4(a) of this Agreement, said payments required by this Section 5(a) of this Agreement may be prorated or adjusted based on factors including, but not limited to, Qualified Expenditures made, and other factors deemed by ODC, in its sole discretion, to be relevant to Developer’s performance pursuant to this Agreement. (b) Payments. Developer acknowledges that ODC must complete its compliance monitoring procedures prior to making a payment. (1) Developer agrees that ODC shall only be required to pay funds from moneys currently collected and budgeted by means of the economic development sales tax; and in the event that there are not sufficient funds for purposes of this Agreement, then the funding for this Agreement will not be offset or charged against any other funds of ODC or the City. (2) Developer shall timely submit a written request for payment including a signed W- 9 tax identification form for the current year and all of the required documentation set forth in Section 4 of this Agreement. The payment request and documentation should be directed to the ODC Treasurer, 411 W. 8th Street - 2nd Floor, P. O. Box 4398, Odessa, Texas 79760, or emailed to fimanagement@odessa-tx.gov . (3) Developer understands that any delay in submitting the required reporting documents could result in a delay in the evaluation of Developer’s compliance documents and/or issuance of payment. (4) Developer understands that any discrepancies or notable findings in the completed compliance monitoring report must be reviewed by the ODC Compliance Committee prior to review by ODC’s board of directors. (5) ODC shall make payment within thirty (30) days of completing verification of compliance under this Agreement and otherwise consistent with Section 5(a) of this Agreement. (c) Performance. ODC agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between Developer and ODC. Page 5 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. SECTION 6. CESSATION OF ADVANCES. If ODC has made any commitment to make any financial assistance to Developer, whether under this Agreement or under any other agreement, ODC shall have no obligation to advance or disburse financial assistance if: (i) Developer becomes insolvent, files a petition in bankruptcy or similar proceedings, or is adjudged bankrupt; or (ii) an Event of Default occurs. SECTION 7. EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: (a) General Event of Default. Failure of Developer or ODC to comply with or to perform any term, obligation, covenant or condition contained in this Agreement is an Event of Default. (b) False Statements. Any warranty, representation, or statement made or furnished to ODC by or on behalf of Developer under this Agreement that is knowingly false or misleading in any material respect, either now or at the time made or furnished is an Event of Default. (c) Insolvency. Developer’s insolvency, appointment of receiver for any part of Developer’s property, any assignment for the benefit of creditors of Developer, any type of creditor workout for Developer, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Developer is an Event of Default. (d) Ad Valorem Taxes. Developer allows its ad valorem taxes owed to the City of Odessa, Texas, to become delinquent and fails to timely and properly follow the legal procedures for protest and/or contest of such taxes and to cure such failure within thirty (30) days after written notice thereof from ODC and/or Midland Central Appraisal District is an Event of Default. SECTION 8. EFFECT OF AN EVENT OF DEFAULT. In the event of default under Section 7 of this Agreement, the non-defaulting party shall give written notice to the other party of any default, and the defaulting party shall have thirty (30) days to cure said default. Should said default remain uncured as of the last day of the applicable cure period, and the non-defaulting party is not otherwise in default, the non-defaulting party shall have the right to immediately terminate this Agreement, enforce specific performance as appropriate, or maintain a cause of action for damages caused by the event(s) of default. SECTION 9. INDEMNIFICATION. TO THE EXTENT ALLOWED BY LAW, EACH PARTY AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OTHER (AND ITS OFFICERS, AGENTS, AND EMPLOYEES) FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR INJURIES (INCLUDING DEATH), PROPERTY DAMAGES (INCLUDING LOSS OF USE), AND ANY OTHER LOSSES, DEMAND, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND Page 6 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. EXPENSES, IN ANY WAY ARISING OUT OF, RELATED TO OR RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT, OR CAUSED BY ITS NEGLIGENT ACTS OR OMISSIONS (OR THOSE OF ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR ANY OTHER THIRD PARTIES FOR WHOM IT IS LEGALLY RESPONSIBLE) IN CONNECTION WITH PERFORMING THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES WHETHER IN TORT OR CONTRACT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. SECTION 10. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: (a) Amendments. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by authorized representatives of the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Midland County, Texas. Venue for any action arising under this Agreement shall lie in the state district courts of Midland County, Texas. (c) Assignment. This Agreement may not be assigned without the express written consent of the other party, such consent to not be unreasonably withheld. (d) Binding Obligation. This Agreement shall become a binding obligation on the signatories upon execution by all signatories hereto. Developer warrants and represents that the individual or individuals executing this Agreement on behalf of Developer has full authority to execute this Agreement and bind Developer to the same. ODC warrants and represents that the individual executing this Agreement on its behalf has full authority to execute this Agreement and bind it to the same. (e) Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of the Agreement. (f) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (g) Force Majeure. Neither party will be responsible to the other for damages, loss, injury, or delay caused by conditions that are beyond the reasonable control, and without the misconduct or negligence, of that party. Such conditions, each a “Force Majeure Event” Page 7 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  include, but are not limited to acts of God; acts of government agencies; strikes; labor disputes or any other forced shut-down; unforeseen materials, supplies, or equipment shortages; fire; explosions or other casualties; vandalism; riots; acts of war or terrorism; declared pandemic. (1) Notification Obligations. In the event a Party claims a Force Majeure Event hereunder, such Party shall promptly, but in no event more than thirty (30) days after it knows or should have known of the occurrence of the Force Majeure Event, give the other Party written notice describing the details of the occurrence and the anticipated length of delay due to the Force Majeure Event. (2) Duty to Mitigate. The Parties shall use their reasonable efforts to mitigate the effects of such Force Majeure Event and to cooperate to develop and implement a plan of remedial and reasonable alternative measures to remove the Force Majeure Event; provided, further, that the Party not claiming a Force Majeure Event shall not be required to expend any amount of money in connection with such Force Majeure Event. (3) Delay Caused by Force Majeure Event. To the extent provided in this section, neither Party shall be responsible or liable for or deemed in breach of this Agreement because of any failure or delay in complying with its obligations under or pursuant to this Agreement to the extent such failure has been caused, or contributed to, by one or more Force Majeure Events or its effects or by any combination thereof. (4) Performance Not Excused. The consideration shall not be excused because of a Force Majeure Event. In addition, a Party shall not be excused under this Article from timely performance of its obligations hereunder to the extent that the claimed Force Majeure Event was caused by any intentional acts, errors, omissions, or for any breach or default of this Agreement by such Party. Furthermore, no suspension of performance or extension of time shall relieve the Party benefiting therefrom from any liability for any breach of the obligations that were suspended or failure to comply with the time period that was extended to the extent such breach or failure occurred prior to the occurrence of the applicable Force Majeure Event. (h) Governmental Immunity. The City is a political subdivision of the State of Texas. The Parties acknowledge and agree that nothing in this Agreement shall be construed as a waiver by the City of any rights or defenses of governmental immunity, which it may have had, now has, or will have with respect to all matters arising out of this Agreement. (i) Legal Relationships. No term or provision of this Agreement or act of Developer in the performance of this Agreement shall be construed as making Developer, or its employees, the agent, servant, employee, or contractor of ODC or the City. The City’s approval of this Agreement is required by the ODC articles of incorporation, bylaws, and the Act. The City is a third-party beneficiary and not a direct party to this Agreement. Page 8 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. (j) Nondiscrimination. Developer agrees that as to all of the programs and activities arising out of this Agreement, it shall comply fully with all Civil Rights Acts and specifically will not discriminate against any person on the basis of race, color, national origin, sex, age, religion, or by reason of being disabled. (k) No Third-Party Beneficiaries. Nothing within this Agreement shall be deemed to waive, modify, or alter any legal or equitable defense available to any party or the City, nor to create any legal or equitable right or claim on behalf of any third party. (l) Notices. Any notice or other communication required or permitted by this Agreement (hereinafter referred to as the “Notice”) is effective when in writing and (i) personally delivered either by facsimile (with electronic information and a mailed copy to follow) or by hand or (ii) three (3) days after notice is deposited with the U.S. Postal Service, postage prepaid, certified with return receipt requested, and addressed as follows: if to ODC: Odessa Development Corporation 411 West 8th Street P.O. Box 4398 Odessa, Texas 79760 Attn: Norma Aguilar-Grimaldo, Secretary Telephone: (432) 335-3276 if to Developer: Walkamin Trading Company, Inc. P.O. Box 10649 Midland, Texas 79702 Attn: Larry J. Bell, President Telephone: (m) Opportunity to Review. Developer hereby acknowledges that Developer has had adequate opportunity to review these terms and conditions and to reflect upon and consider the terms and conditions of this Agreement, and that Developer has had the opportunity to consult with counsel of Developer’s own choosing regarding such terms. Developer further acknowledges that Developer fully understands the terms of this Agreement and has voluntarily executed this Agreement. (n) Representation. Developer represents that no ODC board member, City officer, employee, or agent has been compensated in any way with respect to this Agreement and its consideration. In no event will Developer pay a fee to or in any other manner compensate any ODC board member, City officer, employee, or agent in connection with the approval of this Agreement. A breach under this provision shall result in automatic termination of this Agreement. (o) Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render Page 9 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. (p) Time is of the Essence. Time is of the essence in the performance of this Agreement. (q) Undocumented Workers. Developer certifies that Developer does not and will not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas Government Code, as amended. If during the Term of this Agreement, Developer is convicted of a violation under 8 U.S.C. § 1324a(f), Developer shall repay the amount of the public subsidy provided under this Agreement plus interest, at the rate of eight percent (8%), not later than the 120th day after the date ODC notifies Developer of the violation. [The Remainder of this Page Intentionally Left Blank] Page 10 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. THE PARTIES ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS PERFORMANCE AGREEMENT, AND THE PARTIES AGREE TO ITS TERMS. THIS PERFORMANCE AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE DATE AS DEFINED HEREIN. ODC: ODESSA DEVELOPMENT CORPORATION, a Texas non-profit corporation By: Kriston Crow, President Date Signed: ATTEST: Norma Aguilar-Grimaldo, Secretary FOR APPROVAL ONLY: CITY OF ODESSA By: John Beckmeyer, City Manager Date Signed: APPROVED AS TO FORM: Daniel C. Jones, City Attorney STATE OF TEXAS § § COUNTY OF ECTOR § This instrument was acknowledged before me on the day of , 2024, by Kriston Crow, President of the Odessa Development Corporation, a Texas non-profit corporation, on behalf of said Texas non-profit corporation. Notary Public, State of Texas Page 11 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  DEVELOPER: WALKAMIN TRADING COMPANY, INC., a Texas corporation, By: Larry J. Bell, President Date Signed: STATE OF TEXAS § § COUNTY OF ECTOR § This instrument was acknowledged before me on the day of , 2024, by Larry J. Bell, President of the Walkamin Trading Company, Inc., a Texas corporation, on behalf of said Texas corporation. Notary Public, State of Texas Page 12 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Exhibit A [Legal Description and/or Depiction of the Property] Page 13 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Page 14 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Page 15 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Page 16 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Exhibit B [Qualified Expenditures] Pavement / Roadway • Asphalt Paving • 4300 linear feet of paving for roadway • 5 lanes curb and gutter • 6,036 linear feet of construction of 6’ curb and gutter • 80 feet of right-of-way • Construction of 4 driveways • 12 manholes • 3,936 S.Y. for construction of 10’ sidewalks • 12,200 linear feet of material, equipment and labor for placement of Street Light Conduit Water • 300 linear feet of 6” Water Line • 4,445 linear feet of 24” Water Line • 20 linear feet of 12” Water Line • Installation of seven 6” Gate Valve and Box w/Concrete • Installation of one 12” Gate Valve and Box w/Concrete • Installation of four 18” Gate Valve and Box w/Concrete • Installation of 4 Standard Fire Hydrant Assembly with 6” Gate Valve and Valve Box w/concrete Sewer • 120 L.F. SDR-35 6” Sewer Line • 6,158 L.F. SDR-12” Sewer Line (8 – 10’ Deep) • 6,157 L.F. Trench Safety Protection • Installation of seventeen 48” Standard City of Odessa Manholes Page 17 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. STATE OF TEXAS § § COUNTY OF MIDLAND § PERFORMANCE AGREEMENT This PERFORMANCE AGREEMENT by and between the ODESSA DEVELOPMENT CORPORATION, a Texas non-profit corporation (hereinafter referred to as the “ODC”); and WALKAMIN TRADING COMPANY, INC., a Texas corporation (hereinafter referred to as “Developer”), is made and executed on the following recitals, terms and conditions. WHEREAS, ODC is an economic development corporation operating pursuant to Chapter 504 of the Texas Local Government Code, as amended (also referred to as the “Act”), and the Texas Non-Profit Corporation Act, as codified in the Texas Business Organizations Code, as amended; and WHEREAS, Section 501.101 of the Texas Local Government Code, in pertinent part, defines the term “project” to mean “land, buildings, equipment, facilities, expenditures, targeted infrastructure, and improvements that are: (1) for the creation or retention of primary jobs; and (2) found by the board of directors to be required or suitable for the development, retention, or expansion of: (A) manufacturing and industrial facilities; (B) research and development facilities; (C) military facilities, including closed or realigned military bases; . . . (F) recycling facilities; . . . (I) distribution centers; (J) small warehouse facilities capable of serving as decentralized storage and distribution centers; (K) primary job training facilities for use by institutions of higher education; or (L) regional or national corporate headquarters facilities”; and WHEREAS, Section 501.103 of the Texas Local Government Code, in pertinent part, defines the term “project” to mean “expenditures that are found by the board of directors to be required or suitable for infrastructure necessary to promote or develop new or expanded business enterprises, limited to: (1) streets and roads, rail spurs, water and sewer utilities, electric utilities, or gas utilities, drainage, site improvements, and related improvements; (2) telecommunications and Internet improvements . . .”; and WHEREAS, Section 501.158 of the Texas Local Government Code prohibits the provision of a direct incentive unless ODC enters into an Agreement with Developer providing at a minimum a schedule of additional payroll or jobs to be created or retained by ODC’s investment; a schedule of capital investments to be made as consideration for any direct incentives provided by ODC to Developer; and a provision specifying the terms and conditions upon which repayment must be made should Developer fail to meet the agreed to performance requirements specified in this Agreement; and WHEREAS, Developer plans to construct or cause to be constructed necessary infrastructure improvements for a proposed light industrial park, consisting of extension of Faudree Road, and related sewer and water improvement from Yukon Road north to the industrial park, generally located on an approximately 75.749-acre tract of land in Section 40, Block 41, T- Page 1 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. 1-S T.&P. RR. Co. Survey, Abstract No. 476, and Section 41, Block 41, T-1-S T.&P. RR. Co. Survey, Abstract No. 66 in Ector County, Texas, as further described in Exhibit A of this Agreement, which is attached hereto and is incorporated herein for all purposes (hereinafter referred to as the “Property”); and WHEREAS, Developer has been approved for financial assistance from ODC in the amount of Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00), on a reimbursement basis as provided in this Agreement, for the construction of infrastructure improvements for a proposed light industrial park, consisting of extension of Faudree Road, and related sewer and water improvement from Yukon Road north to the industrial park, as further described depicted in Exhibit B of this Agreement (hereinafter referred to as the “Qualified Expenditures”); and WHEREAS, ODC’s Board of Directors have determined the financial assistance to be provided to Developer pursuant to this Agreement for the Qualified Expenditures to be made to the Property is consistent with and meets the definition of “project” as that term is defined in Sections 501.101 and 501.103 of the Texas Local Government Code; and the definition of “cost” as that term is defined by Section 501.152 of the Texas Local Government Code; and WHEREAS, Developer agrees and understands that Section 501.073(a) of the Texas Local Government Code requires the City Council of the City of Odessa, Texas, to approve all programs and expenditures of ODC, and accordingly this Agreement is not effective until City Council has approved this project at a City Council meeting. NOW, THEREFORE, for and in consideration of the agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ODC and Developer agree as follows: SECTION 1. FINDINGS INCORPORATED. The foregoing recitals are hereby incorporated into the body of this Agreement and shall be considered part of the mutual covenants, consideration and promises that bind the parties. SECTION 2. TERM. This Agreement shall be effective as of the Effective Date, as defined herein, and shall continue thereafter until December 31, 2028, unless terminated sooner under the provisions hereof. SECTION 3. DEFINITIONS. The following words shall have the following meanings when used in this Agreement. (a) Act. The word “Act” means Chapters 501 to 505 of the Texas Local Government Code, as amended. Page 2 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. (b) Agreement. The word “Agreement” means this Performance Agreement, together with all exhibits and schedules attached to this Performance Agreement from time to time, if any. (c) City. The word “City” means the City of Odessa, Texas, a Texas home-rule municipality, who is a third-party and not a direct party to this Agreement. The City’s approval of this Agreement is required by the Act. (d) Developer. The word “Developer” means Walkamin Trading Company, Inc., a Texas corporation, its successors and assigns, whose address for the purposes of this Agreement is P.O. Box 10649, Midland, Texas 79702. (e) Effective Date. The words “Effective Date” mean the date of the latter to execute this Agreement by and between Developer and ODC. (f) Event of Default. The words “Event of Default” mean and include any of the Events of Default set forth below in the section entitled “Events of Default.” (g) ODC. The term “ODC” means the Odessa Development Corporation, a Texas non-profit corporation, its successors and assigns, whose corporate address for the purposes of this Agreement is 411 West 8th Street, P.O. Box 4398, Odessa, Texas 79760. (h) ODC Compliance Committee. The term “ODC Compliance Committee” means the committee appointed by ODC’s board of directors to review agreements and ensure compliance with said agreements. (i) Party or Parties. ODC and Developer are each a “Party” and are collectively referred to as the “Parties.” (j) Property. The word “Property” means an approximately 75.749-acre tract of land in Section 40, Block 41, T-1-S T.&P. RR. Co. Survey, Abstract No. 476, and Section 41, Block 41, T-1-S T.&P. RR. Co. Survey, Abstract No. 66 in Ector County, Texas, as further described in Exhibit A of this Agreement, which is attached hereto and is incorporated herein for all purposes. (k) Qualified Expenditures. The words “Qualified Expenditures” mean those expenditures consisting of the construction of the following: infrastructure improvements for a proposed light industrial park, consisting of extension of Faudree Road, and related sewer and water improvement from Yukon Road north to the industrial park, as further described as depicted in Exhibit B of this Agreement, which is attached hereto and incorporated herein for all purposes, and those expenses which otherwise meet the definition of “project” as that term is defined by Section 501.101 and 501.103 of the Act, and the definition of “cost” as that term is defined by Section 501.152 of the Act. Page 3 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  (l) Term. The word “Term” means the term of this Agreement as specified in Section 2 of this Agreement. SECTION 4. AFFIRMATIVE COVENANTS OF DEVELOPER. Developer covenants and agrees with ODC that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Qualified Expenditures. Developer covenants and agrees to submit to ODC paid invoices, paid receipts, or other paid documentation in a form acceptable to ODC for the Qualified Expenditures made to the Property or for the benefit of the Property in a minimum amount of Eight Million Five Hundred Thousand and No/100 Dollars ($8,500,000.00) by December 31, 2028. Developer covenants and agrees the Qualified Expenditures shall meet or exceed all City and State requirements, including the Texas Department of Transportation’s (“TxDOT”) requirements for oversizing width and size requirements for said Qualified Expenditures. Developer covenants and agrees to commence construction of the Qualified Expenditures by July 1 , 2024. Further, Developer Formatted: Font: Bold covenants and agrees to complete construction of the Qualified Expenditures by December 31, 2028. (1) Performance Bond. Developer covenants and agrees before beginning the work, shall execute to the City a performance bond solely for the protection of the City, in the amount provided in this Section 4(a) of the Agreement; and conditioned on the faithful performance of the work in accordance with the plans, specifications, submitted to the City or ODC. Said performance bond shall comply with the requirements of Chapter 2253 of the Texas Government Code, as amended. (2) Payment Bond. Developer covenants and agrees before beginning the work, shall execute to the City a payment bond solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the Developer or a subcontractor to supply public work, labor or material, and in the amount provided in this Section 4(a) of the Agreement. Said payment bond shall comply with the requirements of Chapter 2253 of the Texas Government Code, as amended. (b) Performance. Developer agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between Developer and ODC. SECTION 5. AFFIRMATIVE COVENANTS OF ODC. ODC covenants and agrees with Developer that, while this Agreement is in effect, it shall comply with the following terms and conditions: (a) Reimbursement for Qualified Expenditures. ODC covenants and agrees to submit reimbursement for Qualified Expenditures made by Developer to the Property or for the Page 4 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  benefit of the Property consistent with Section 4(a) of this Agreement, in an amount not to exceed Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00). Consistent with Sections 4(a) and 5(b) of this Agreement, once ODC’s board of directors has verified compliance with the Agreement said amount shall be paid within sixty (60) days of receipt of said paid invoices, paid receipts, or other paid documentation in a form acceptable to ODC consistent with Section 4(a) of this Agreement. In the event Developer does not fulfill the requirements set forth in Section 4(a) of this Agreement, said payments required by this Section 5(a) of this Agreement may be prorated or adjusted based on factors including, but not limited to, Qualified Expenditures made, and other factors deemed by ODC, in its sole discretion, to be relevant to Developer’s performance pursuant to this Agreement. (b) Payments. Developer acknowledges that ODC must complete its compliance monitoring procedures prior to making a payment. (1) Developer agrees that ODC shall only be required to pay funds from moneys currently collected and budgeted by means of the economic development sales tax; and in the event that there are not sufficient funds for purposes of this Agreement, then the funding for this Agreement will not be offset or charged against any other funds of ODC or the City. (2) Developer shall timely submit a written request for payment including a signed W- 9 tax identification form for the current year and all of the required documentation set forth in Section 4 of this Agreement. The payment request and documentation should be directed to the ODC Treasurer, 411 W. 8th Street - 2nd Floor, P. O. Box 4398, Odessa, Texas 79760, or emailed to fimanagement@odessa-tx.gov . (3) Developer understands that any delay in submitting the required reporting documents could result in a delay in the evaluation of Developer’s compliance documents and/or issuance of payment. (4) Developer understands that any discrepancies or notable findings in the completed compliance monitoring report must be reviewed by the ODC Compliance Committee prior to review by ODC’s board of directors. (5) ODC shall make payment within thirty (30) days of completing verification of compliance under this Agreement and otherwise consistent with Section 5(a) of this Agreement. (c) Performance. ODC agrees to perform and comply with all terms, conditions, and provisions set forth in this Agreement and in all other instruments and agreements between Developer and ODC. Page 5 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. SECTION 6. CESSATION OF ADVANCES. If ODC has made any commitment to make any financial assistance to Developer, whether under this Agreement or under any other agreement, ODC shall have no obligation to advance or disburse financial assistance if: (i) Developer becomes insolvent, files a petition in bankruptcy or similar proceedings, or is adjudged bankrupt; or (ii) an Event of Default occurs. SECTION 7. EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: (a) General Event of Default. Failure of Developer or ODC to comply with or to perform any term, obligation, covenant or condition contained in this Agreement is an Event of Default. (b) False Statements. Any warranty, representation, or statement made or furnished to ODC by or on behalf of Developer under this Agreement that is knowingly false or misleading in any material respect, either now or at the time made or furnished is an Event of Default. (c) Insolvency. Developer’s insolvency, appointment of receiver for any part of Developer’s property, any assignment for the benefit of creditors of Developer, any type of creditor workout for Developer, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Developer is an Event of Default. (d) Ad Valorem Taxes. Developer allows its ad valorem taxes owed to the City of Odessa, Texas, to become delinquent and fails to timely and properly follow the legal procedures for protest and/or contest of such taxes and to cure such failure within thirty (30) days after written notice thereof from ODC and/or Midland Central Appraisal District is an Event of Default. SECTION 8. EFFECT OF AN EVENT OF DEFAULT. In the event of default under Section 7 of this Agreement, the non-defaulting party shall give written notice to the other party of any default, and the defaulting party shall have thirty (30) days to cure said default. Should said default remain uncured as of the last day of the applicable cure period, and the non-defaulting party is not otherwise in default, the non-defaulting party shall have the right to immediately terminate this Agreement, enforce specific performance as appropriate, or maintain a cause of action for damages caused by the event(s) of default. SECTION 9. INDEMNIFICATION. TO THE EXTENT ALLOWED BY LAW, EACH PARTY AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OTHER (AND ITS OFFICERS, AGENTS, AND EMPLOYEES) FROM AND AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR INJURIES (INCLUDING DEATH), PROPERTY DAMAGES (INCLUDING LOSS OF USE), AND ANY OTHER LOSSES, DEMAND, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND Page 6 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. EXPENSES, IN ANY WAY ARISING OUT OF, RELATED TO OR RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT, OR CAUSED BY ITS NEGLIGENT ACTS OR OMISSIONS (OR THOSE OF ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR ANY OTHER THIRD PARTIES FOR WHOM IT IS LEGALLY RESPONSIBLE) IN CONNECTION WITH PERFORMING THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES WHETHER IN TORT OR CONTRACT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. SECTION 10. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement: (a) Amendments. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by authorized representatives of the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Midland County, Texas. Venue for any action arising under this Agreement shall lie in the state district courts of Midland County, Texas. (c) Assignment. This Agreement may not be assigned without the express written consent of the other party, such consent to not be unreasonably withheld. (d) Binding Obligation. This Agreement shall become a binding obligation on the signatories upon execution by all signatories hereto. Developer warrants and represents that the individual or individuals executing this Agreement on behalf of Developer has full authority to execute this Agreement and bind Developer to the same. ODC warrants and represents that the individual executing this Agreement on its behalf has full authority to execute this Agreement and bind it to the same. (e) Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of the Agreement. (f) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (g) Force Majeure. Neither party will be responsible to the other for damages, loss, injury, or delay caused by conditions that are beyond the reasonable control, and without the misconduct or negligence, of that party. Such conditions, each a “Force Majeure Event” Page 7 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  include, but are not limited to acts of God; acts of government agencies; strikes; labor disputes or any other forced shut-down; unforeseen materials, supplies, or equipment shortages; fire; explosions or other casualties; vandalism; riots; acts of war or terrorism; declared pandemic. (1) Notification Obligations. In the event a Party claims a Force Majeure Event hereunder, such Party shall promptly, but in no event more than thirty (30) days after it knows or should have known of the occurrence of the Force Majeure Event, give the other Party written notice describing the details of the occurrence and the anticipated length of delay due to the Force Majeure Event. (2) Duty to Mitigate. The Parties shall use their reasonable efforts to mitigate the effects of such Force Majeure Event and to cooperate to develop and implement a plan of remedial and reasonable alternative measures to remove the Force Majeure Event; provided, further, that the Party not claiming a Force Majeure Event shall not be required to expend any amount of money in connection with such Force Majeure Event. (3) Delay Caused by Force Majeure Event. To the extent provided in this section, neither Party shall be responsible or liable for or deemed in breach of this Agreement because of any failure or delay in complying with its obligations under or pursuant to this Agreement to the extent such failure has been caused, or contributed to, by one or more Force Majeure Events or its effects or by any combination thereof. (4) Performance Not Excused. The consideration shall not be excused because of a Force Majeure Event. In addition, a Party shall not be excused under this Article from timely performance of its obligations hereunder to the extent that the claimed Force Majeure Event was caused by any intentional acts, errors, omissions, or for any breach or default of this Agreement by such Party. Furthermore, no suspension of performance or extension of time shall relieve the Party benefiting therefrom from any liability for any breach of the obligations that were suspended or failure to comply with the time period that was extended to the extent such breach or failure occurred prior to the occurrence of the applicable Force Majeure Event. (h) Governmental Immunity. The City is a political subdivision of the State of Texas. The Parties acknowledge and agree that nothing in this Agreement shall be construed as a waiver by the City of any rights or defenses of governmental immunity, which it may have had, now has, or will have with respect to all matters arising out of this Agreement. (i) Legal Relationships. No term or provision of this Agreement or act of Developer in the performance of this Agreement shall be construed as making Developer, or its employees, the agent, servant, employee, or contractor of ODC or the City. The City’s approval of this Agreement is required by the ODC articles of incorporation, bylaws, and the Act. The City is a third-party beneficiary and not a direct party to this Agreement. Page 8 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. (j) Nondiscrimination. Developer agrees that as to all of the programs and activities arising out of this Agreement, it shall comply fully with all Civil Rights Acts and specifically will not discriminate against any person on the basis of race, color, national origin, sex, age, religion, or by reason of being disabled. (k) No Third-Party Beneficiaries. Nothing within this Agreement shall be deemed to waive, modify, or alter any legal or equitable defense available to any party or the City, nor to create any legal or equitable right or claim on behalf of any third party. (l) Notices. Any notice or other communication required or permitted by this Agreement (hereinafter referred to as the “Notice”) is effective when in writing and (i) personally delivered either by facsimile (with electronic information and a mailed copy to follow) or by hand or (ii) three (3) days after notice is deposited with the U.S. Postal Service, postage prepaid, certified with return receipt requested, and addressed as follows: if to ODC: Odessa Development Corporation 411 West 8th Street P.O. Box 4398 Odessa, Texas 79760 Attn: Norma Aguilar-Grimaldo, Secretary Telephone: (432) 335-3276 if to Developer: Walkamin Trading Company, Inc. P.O. Box 10649 Midland, Texas 79702 Attn: Larry J. Bell, President Telephone: (m) Opportunity to Review. Developer hereby acknowledges that Developer has had adequate opportunity to review these terms and conditions and to reflect upon and consider the terms and conditions of this Agreement, and that Developer has had the opportunity to consult with counsel of Developer’s own choosing regarding such terms. Developer further acknowledges that Developer fully understands the terms of this Agreement and has voluntarily executed this Agreement. (n) Representation. Developer represents that no ODC board member, City officer, employee, or agent has been compensated in any way with respect to this Agreement and its consideration. In no event will Developer pay a fee to or in any other manner compensate any ODC board member, City officer, employee, or agent in connection with the approval of this Agreement. A breach under this provision shall result in automatic termination of this Agreement. (o) Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render Page 9 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. (p) Time is of the Essence. Time is of the essence in the performance of this Agreement. (q) Undocumented Workers. Developer certifies that Developer does not and will not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas Government Code, as amended. If during the Term of this Agreement, Developer is convicted of a violation under 8 U.S.C. § 1324a(f), Developer shall repay the amount of the public subsidy provided under this Agreement plus interest, at the rate of eight percent (8%), not later than the 120th day after the date ODC notifies Developer of the violation. [The Remainder of this Page Intentionally Left Blank] Page 10 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc. THE PARTIES ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS PERFORMANCE AGREEMENT, AND THE PARTIES AGREE TO ITS TERMS. THIS PERFORMANCE AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE DATE AS DEFINED HEREIN. ODC: ODESSA DEVELOPMENT CORPORATION, a Texas non-profit corporation By: Kriston Crow, President Date Signed: ATTEST: Norma Aguilar-Grimaldo, Secretary FOR APPROVAL ONLY: CITY OF ODESSA By: John Beckmeyer, City Manager Date Signed: APPROVED AS TO FORM: Daniel C. Jones, City Attorney STATE OF TEXAS § § COUNTY OF ECTOR § This instrument was acknowledged before me on the day of , 2024, by Kriston Crow, President of the Odessa Development Corporation, a Texas non-profit corporation, on behalf of said Texas non-profit corporation. Notary Public, State of Texas Page 11 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  DEVELOPER: WALKAMIN TRADING COMPANY, INC., a Texas corporation, By: Larry J. Bell, President Date Signed: STATE OF TEXAS § § COUNTY OF ECTOR § This instrument was acknowledged before me on the day of , 2024, by Larry J. Bell, President of the Walkamin Trading Company, Inc., a Texas corporation, on behalf of said Texas corporation. Notary Public, State of Texas Page 12 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Exhibit A [Legal Description and/or Depiction of the Property] Page 13 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Page 14 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Page 15 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Page 16 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.  Exhibit B [Qualified Expenditures] Pavement / Roadway • Asphalt Paving • 4300 linear feet of paving for roadway • 5 lanes curb and gutter • 6,036 linear feet of construction of 6’ curb and gutter • 80 feet of right-of-wayROW • Construction of 4 driveways • 12 manholes • 3,936 S.Y. for construction of 10’ sidewalks • 12,200 linear feet ofL.F. material, equipment and labor for placement of Street Light Conduit Water • 300 linear feet of L.F. for 6”’ Water Line • 4,445 linear feet of L.F. for 24”’ Water Line • 20 linear feet of L.F. for 12”’ Water Line • Installation of seven 6”’ Gate Valve and Box w/Concrete • Installation of one 12”’ Gate Valve and Box w/Concrete • Installation of four 18”’ Gate Valve and Box w/Concrete • Installation of 4 Standard Fire Hydrant Assembly with 6”’ Gate Valve and Valve Box w/concrete Sewer • 120 L.F. SDR-35 6”’ Sewer Line • 6,158 L.F. SDR-12”’ Sewer Line (8 – 10’ Deep) • 6,157 L.F. Trench Safety Protection • Installation of seventeen 48” Standard City of Odessa Manholes Formatted: Justified Page 17 of 17 Performance Agreement Odessa Development Corporation – Walkamin Trading Company, Inc.