2011-250 ED - AKG North America, Inc. - One NC Grant - Performance Agreement

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sounding in contract or tort, relating to its validity, construction, interpretation, and enforcement, shall be determined. 6.14 The Parties agree that the State of North Carolina Department of Commerce is a third party beneficiary of this CPA and may, at its option, enforce the terms of this CPA or appear as a party in any litigation concerning it. 6.15 The Company and Related Member Parties shall comply with all applicable federal, state, and local laws and regulations. If the Company or Related Member Parties fail to comply with any law or regulation applicable to it,the Secretary may,in his sole discretion,terminate the Grant and declare that no future Grant disbursement shall be due and payable and/or require the Company to reimburse DOC all or part of any Grant funds previously disbursed following the date of any such violation. The Secretary may determine,in his sole discretion,that where the Company or Related Member Parties is under investigation for an act involving violation of federal, state, local law or regulation, Grant funds be withheld until such time as a determination of culpability or liability is made,and,if the Company or Related Member Parties are determined to be in violation,the Grant may be terminated and the Company may be required to reimburse the DOC for all or part of any Grant funds previously disbursed. If such investigation is not concluded within two (2) years of the Grant End Date,the DOC may terminate the Grant. 6.16 Failure of the Local Government or DOC at any time to require performance of any term or provision of this CPA shall in no manner affect the rights of the Local Government or DOC 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 Local Government or DOC of any condition or the breach of any term,provision or representation contained in this CPA, 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. 6.17 The Company and Related Member Parties are encouraged to utilize the services of North Carolina small businesses and minority, female, and disabled contractors, to offer positions in connection with the Project to North Carolina residents, and to use the North Carolina state ports when reasonable and commercially practicable. 6.18 This Grant award shall terminate and be null and void on August 31 2011 if by that date the Companv has not delivered back to the DOC, two originals of this CPA, duly executed by an authorized officer of each of the Company and Related Member Party,and attested in the manner provided below. This Grant is also subiect to the requirement that the Local Government deliver to the DOC one original each of the LGGA and this CPA duly executed by an authorized official of the Local Government within sixty (60) calendar days following the date on which the DOC sends the LGGA and CPA to the Local Government together with a copy of the agreement with the Company governing the local incentives to be provided for the Proiect. Company Performance Agreement Signature pages follow One NC Company Performance Agreement AKG North America,Inc. Orange County -9-