HomeMy WebLinkAbout031926 RES - 11/12/2019 Resolution authorizing Amendment No. 1 to Chapter 380 Economic
Development Agreement between the City of Corpus Christi, Texas
voestalpine Texas LLC, and the Port of Corpus Christi Authority of
Nueces County, Texas, relating to the development of property.
WHEREAS, the City of Corpus Christi ("City") entered into a Chapter 380 agreement with
voestalpine Texas LLC ("voestalpine") and the Port of Corpus Christi Authority (the "Port")
on April 23, 2013;
WHEREAS, the Parties wish to add additional terms to the Chapter 380 agreement under
Chapter 212 of the Texas Local Government Code and wish to make additional changes
to the agreement related to changes in state law; and
WHEREAS, the City finds that it is in the best interest of the City to enter into the
amendment with voestalpine and the Port to make these necessary changes to the
Chapter 380 agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
CORPUS CHRISTI, TEXAS:
SECTION 1. That the findings of the City Council and its actions approving this
Resolution taken at the council meeting are hereby approved and adopted.
SECTION 2. That the City Manager, or designee, is authorized to execute Amendment
No. 1 to Chapter 380 Economic Development Agreement between the City of
Corpus Christi, Texas voestalpine Texas LLC, and the Port of Corpus Christi
Authority of Nueces County, Texas. A copy of said agreement is attached hereto.
031926 SCANNED
PASSED AND APPROVED on the l2:1- day of ,4,41/6„,,k0,2019:
Joe McCombs
Roland Barrera /-e
Rudy Garza / -e-
Paulette M. Guajardo " l q
Gil Hernandez ,
Michael Hunter
Ben Molina 9'
Everett Roy / j &
Greg Smith / jam
ATTEST: CITY OF CORPUS CHRISTI
fgkCeiLe/N 1—FtkpAU--
Re ecca Huerta Jo- IcComb
City Secretary M:
03192e 2
AMENDMENT NO. 1 TO CHAPTER 380 ECONOMIC DEVELOPMENT
INCENTIVE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI,
TEXAS, voestalpine Texas LLC, and THE PORT OF CORPUS CHRISTI
AUTHORITY OF NUECES COUNTY, TEXAS.
THIS AMENDMENT NO. 1 TO CHAPTER 380 ECONOMIC DEVELOPMENT
INCENTIVE AGREEMENT, dated as of , 2019 (this "Amendment
No. 1") entered into between and among the city of Corpus Christi, Texas a home
rule city (the "City"), voestalpine Texas LLC, a Delaware limited liability company
(the "Company"), and Port of Corpus Christi Authority of Nueces County, Texas, a
political subdivision of the State of Texas (the "Port") and amends that Chapter
380 Economic Development Incentive Agreement dated April 23, 2013 between
and among the Company, the City and the Port (as amended, the "Agreement").
Capitalized terms used herein and not specifically defined shall have the meaning
in the Agreement.
Whereas, the Agreement is governed by both Chapter 380 of the Texas Local
Government Code and Section 212.172 of the Texas Local Government Code;
Whereas, the City annexed the entire Property on May 21, 2019, and to resolve
any outstanding disagreements regarding such annexation, the City and the
Company desire by this Amendment No. 1 to provide a process for the City to
disannex the portion of the Property described in Amendment No. 1 -
Attachment 1;
Whereas, the Company agrees to enter into an Industrial District Agreement or
similar agreement after the termination of the Term of the Agreement;
Whereas, the City and the Company agree that additional changes are needed to
the Agreement as a result of the foregoing; and
Whereas, the Port is a party to this Amendment No. 1 only for the purposes stated
in Section 4.2 of the Agreement;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1) Section 4.2 of Article IV of the Agreement is hereby amended and restated
in its entirety to read as follows:
"4.2 Annexation by City; Industrial District Agreement Requirement:
(A) The City (i) shall disannex all of the Property that was not
included in the City limits prior to the May 21, 2019 annexation (the "De-annexation
Tract") no later than December 31, 2019 and (ii) shall not, in the interim period
before disannexation, enforce any regulations, zoning ordinances and other
requirements of the City related to or affecting the De-annexation Tract. The De-
annexation Tract is depicted in the attached Amendment No. 1 -Attachment 1.
:B1272124.12}
(B) If, after the disannexation required by Section 4.2(A) is complete, the City,
at any time during the Term, attempts again to annex all or any portion of the De-
annexation Tract, then, subject only to Section 4.2(H) below, Company and the
City shall enter into an Industrial District Agreement (which must contain terms and
provisions comparable in all material respects to the most favorable terms and
provisions contained in any Industrial District Agreement then in effect to which the
City is a party at such time) or into a separate agreement ("Development
Agreement") that will give each Party the same rights, benefits and responsibilities
as this Agreement, including, by way of example and not by limitation, an
agreement under Section 212.172 of the Texas Local Government Code, rather
than allow any portion of the De-annexation Tract to be annexed by the City. The
City hereby covenants and agrees to send written notification of the proposed
annexation of all or any portion of the De-annexation Tract during the Term of this
Agreement to the Company by certified mail, return receipt requested, in addition
to any notice required to be sent to the Port or the then-owner of the De-annexation
Tract, of its determination to annex the De-annexation Tract, within the notice
period required by statute for notice to "property owners" being annexed. The
Company will notify the City within 20 days of its receipt of the first notification of
the proposed annexation of its desire to enter into an Industrial District Agreement
in accordance with this provision. If the Company requests that the Project be
placed in an industrial district pursuant to this paragraph and enters into an
Industrial District Agreement with the City, then the Port will execute or consent to
the resulting Industrial District Agreement as the owner of the land covered by the
resulting Industrial District Agreement pursuant to Section 42.044 of the Texas
Local Government Code, if it owns such land at that time. If the Company enters
into a Development Agreement with the City pursuant to this paragraph, then the
Port will execute or consent to such Development Agreement as the owner of the
land covered by such Development Agreement, if it owns such land at that time;
provided, however, that (1) the Port will not be responsible for making any
payments to the City under such Development Agreement, and (2) if the Company
fails to make the payments to the City required under such Development
Agreement, the City shall be entitled to have a lien on the Company's leasehold
estate, but not on the Port's land covered by such Development Agreement.
(C) If, under any circumstance, the Company is a party to an Industrial
District Agreement with the City related to the De-annexation Tract effective during
the Term of this Agreement, any payments made under the terms of an Industrial
District Agreement shall be reimbursed in accordance with Section 5.1 herein as
though such payments were City Tax. In no event shall the foregoing release the
Company from paying the amounts of any Agreed Upon Payments which come
due under the terms of Section 5.4, and such amounts paid by Company under
Section 5.4 shall not be a Reimbursement Amount.
(D) Prior to the expiration of the Term or earlier termination of this
Agreement, subject only to Section 4.2(H) below, the City and the Company shall
enter into an Industrial District Agreement provided by the City with respect to any
portion of the De-annexation Tract for which the Company has not already entered
:B12272124 12;
into an Industrial District Agreement. The Port will execute or consent to the
resulting Industrial District Agreement between the City and the Company as the
landowner of the land covered by the resulting Industrial District Agreement
pursuant to Section 42.044 of the Texas Local Government Code, if it owns such
land at that time. The Industrial District Agreement with the City (a) must contain
terms and provisions comparable in all material respects to the most favorable
terms and provisions contained in any Industrial District Agreement then in effect
to which the City is a party; and (b) must be effective on the earlier of (i) the
termination of this Agreement, or (ii) January 1, 2034.
(E) Notwithstanding the foregoing provisions of Section 4.2(D), the City
and the Company may, in lieu of entering into an Industrial District Agreement
under such provisions, enter into a Development Agreement, so long as such
agreement is approved and executed prior to the effective date of the expiration or
earlier termination of this Agreement. If the Company enters into a Development
Agreement with the City pursuant to this paragraph, then the Port will execute or
consent to such Development Agreement as the owner of the land covered by
such Development Agreement, if it owns such land at that time; provided, however,
that (1) the Port will not be responsible for making any payments to the City under
such Development Agreement, and (2) if the Company fails to make the payments
to the City required under such Development Agreement, the City shall be entitled
to have a lien on the Company's leasehold estate, but not on the Port's land
covered by such Development Agreement.
(F) If the Company refuses to enter into the Industrial District Agreement
provided by the City in accordance with Section 4.2(D) within one hundred and
twenty (120) days after the Company receives the Industrial District Agreement,
the Company and the Port will be deemed to have made a petition for annexation
of all of the De-annexation Tract in accordance with Chapter 43 of the Texas Local
Government Code, or its successor, and any such deemed petition by the
Company shall also be binding on any other owner of the De-annexation Tract at
such time. Payment of any fees under Section 5.4 of this Agreement will not
invalidate or revoke the petition for annexation if the Company does not sign the
Industrial District Agreement, as herein provided. The City may collect the required
payment in accordance with this Agreement and proceed with annexation should
the Company not sign the Industrial District Agreement, but in no event shall the
Company be liable (financially or otherwise) for any breach or failure to perform by
the Port under the terms of this Agreement, nor shall the Port be liable (financially
or otherwise) for any breach or failure to perform by the Company under the terms
of this Agreement.
(G) The agreement of the Company to enter into an Industrial District
Agreement or other similar agreement in accordance with this Section 4.2 is
hereby consented to by the Port and shall be a continuing obligation of the owner
of the De-annexation Tract as long as this Agreement is in effect, and such
obligation will be a covenant running with the land. As provided in Section 6.8 of
this Agreement, the Company shall not be liable for the refusal of its successors,
grantees, trustees, or assigns which have been approved in writing by the City to
:B1272124 12
comply with the requirement under this Section 4.2 to enter into an Industrial
District Agreement, including the provisions of Section 5.4.
(H) Notwithstanding the foregoing, if during the Term the City notifies the
Company in writing that there is a bill before the Texas Legislature that would, in
the sole but reasonable opinion of the City, prohibit the annexation of an area within
the City's industrial districts, then upon the Company's receipt of such notice, the
obligation of the City under Section 4.2(B) and elsewhere in this Section 4.2 to
enter into an Industrial District Agreement shall be suspended and/or terminated,
as applicable, and the City and the Company shall commence negotiating in good
faith an alternative to an industrial district agreement that will give each Party the
same rights, benefits and responsibilities as intended by this Agreement
("Alternate Agreement"), prior to such pending legislation, to the fullest extent
lawfully permissible. If the Company enters into an Alternate Agreement with the
City pursuant to this paragraph, then the Port will execute or consent to such
Alternate Agreement as the owner of the land covered by such Alternate
Agreement, if it owns such land at that time; provided, however, that (1) the Port
will not be responsible for making any payments to the City under such Alternate
Agreement, and (2) if the Company fails to make the payments to the City required
under such Alternate Agreement, the City may claim to have a lien on the
Company's leasehold estate, but shall not be entitled to a lien on the Port's land
covered by such Alternate Agreement. Unless the City and the Company can
reach mutual agreement on an Alternate Agreement prior to such pending
legislation becoming effective, the City may at any time after delivery of written
notice under this Section 4.2(H) proceed with annexation, but any annexation by
the City under this Section 4.2(H) in advance of pending legislation shall not relieve
the City of its good faith obligations, which shall survive annexation under this
Section 4.2(H), and should the pending legislation not pass and go into effect
during the Term of this Agreement, the City shall once again disannex the portion
of the De-annexed Tract annexed under this Section 4.2(H), and the provisions of
this Section 4.2 shall continue to apply to the re-disannexed portion of the De-
annexed Tract."
2) Article IV of the Agreement is further amended to add the following Section
4.2.1 between Sections 4.2 and 4.3:
"4.2.1 Annexation by Another Entity. If any attempt to annex any portion of the
Project or Property is made by another municipality, or if the incorporation of any
new municipality should attempt to include within its limits the Project or Property,
the City shall seek a temporary and permanent injunction against the annexation
or incorporation, with the cooperation of the Company, and shall take any other
legal action necessary or advisable under the circumstances. The cost of the legal
action shall be borne equally by the Parties hereto; provided, however, the fees of
any special legal counsel shall be paid by the Party retaining same. The Company
agrees to provide City with prompt notice of any such attempted annexation
received by the Company in writing."
;8127212412}
3) Article V of the Agreement is amended to add the following Section 5.4 at the
end of such Article V:
"5.4 Additional Payment Requirement.
(A) In addition to any other Agreed Upon Payments, if the Company refuses
to enter into the Industrial District Agreement provided by the City in accordance
with Section 4.2(D), then within one hundred and twenty (120) days after the
expiration or earlier termination of this Agreement, the Company will make an
additional payment to the City in an amount equal to the following, whichever is
applicable:
(i) if the expiration or earlier termination of this Agreement occurs on
or after January 1, 2029, an aggregate amount equal to the sum of one
hundred percent (100%) of the Agreed Upon Payments for each of the
ten (10) calendar tax years immediately preceding the calendar tax year
that includes the date of the expiration or earlier termination of this
Agreement; or
(ii) if the expiration or earlier termination of this Agreement occurs
before January 1, 2029, an aggregate amount equal to the sum of one
hundred percent (100%) of the Agreed Upon Payments for each
calendar tax year from and including the calendar tax year 2019
through and including the calendar tax year that includes the date of
the expiration or earlier termination of this Agreement, with such
payment being due on the later of (a) one hundred and twenty (120)
days after the expiration or earlier termination of this Agreement or (b)
if the taxable value of the extraterritorial jurisdiction land and/or the
portion of the Project (excluding personal property and inventory)
located on the extraterritorial jurisdiction land for the calendar tax year
that includes the date of the expiration or earlier termination of this
Agreement has not been determined by the relevant appraisal district
within ninety (90) days following the expiration or earlier termination of
this Agreement, ninety (90) days after such taxable values of the
extraterritorial jurisdiction land and/or the portion of the Project
(excluding personal property and inventory) located on the
extraterritorial jurisdiction land have been determined by the relevant
appraisal district."
(B) The obligations contained in this Section 5.4 shall survive the expiration or
earlier termination of this Agreement until paid in full, and for the avoidance of any
doubt, in no event shall the Company be liable (financially or otherwise) for any
breach or failure to perform by the Port (or any other party as expressly provided
in Section 6.8) under the terms of this Agreement."
:B1272124 12:
4) Article VI of the Agreement is amended to add the following to the end of
Section 6.8 of the Agreement:
"Notwithstanding the provisions of this Section 6.8, should the City consent in
writing to any requested assignment by the Company, then in such event the
Company shall be released from its obligations under Section 5.4, and shall not be
liable for any failure or refusal of its successors, grantees, trustees, or assigns to
comply with the requirement under Section 5.2(D)to enter into an Industrial District
Agreement, including for any resulting liability under Section 5.4."
5)Amendment No. 1 - Attachment 1 attached to this Amendment is deemed to be
attached to the Agreement as "Amendment No. 1 - Attachment 1."
6) The City will file a copy of this Amendment No. 1 with San Patricio County.
7) All other terms and conditions of the previously executed Agreement between
the Parties which are not inconsistent herewith shall continue in full force and
effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
B12272124 12:
EXECUTED IN DUPLICATE ORIGINALS effective as of this day of August,
2019, by the authorized representative of the Parties.
City of Corpus Christi
Peter Zanoni
City Manager
Date:
Attest:
Rebecca Huerta
City Secretary
Approved as to Legal Form on of , 20 .
Aimee Alcorn-Reed, Assistant City Attorney
STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on the day of
, 2019, by Peter Zanoni, City Manager, on behalf of City of
Corpus Christi.
Notary Public, State of Texas
My commission expires:
;B127212412}
voestalpine Texas LLC
By:
Title:
Date:
ATTEST:
By:
Title:
Date:
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of
2019, by , as
, on behalf of voestalpine Texas LLC.
Notary Public, State of Texas
My commission expires:
61272124.12_;
Port of Corpus Christi Authority of Nueces County, Texas
By:
Title:
Date:
ATTEST:
By:
Title:
Date:
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of
2019, by , as
, on behalf of Port of Corpus Christi Authority of Nueces
County, Texas.
Notary Public, State of Texas
My commission expires:
:B1272124 12}
Amendment No. 1 —Attachment 1
#4. -. .,:,.;;._ 1,1•!.. -
,i
-
,,..,„ ,., .,. .-.„... .....„00.
Ato, '''' . `-- -...A, ' 44Pliteet, -
..,.. .. ,- ''''.: .ilas -;:.,,. L,
-- 0_ - *-4,....- ,.. 17:' 2
` Fl- r-' •*, z''''''.0 4 —•...41:'44' . ' '' s' t, "'",) t ,
Iii- Ar -- i . kt: . ' • 4' .. - - '• — - ,= -,
.'
_ • --- -; ,,,...‘ ,, -- A. , _, =-- .
•
l , .,
i'.
c. ii 4/ - „ 1 i P. -,,
. __
.4. i •
.
. .
! _ ,
Portland r I
. !
\ i
„ \
Legend „..---
i -----
Anticipated Dis-
Annexation Areas
---1 Corpus Christi City
,.....
• '-**'--.'--
.\••..
•'.
N.
,...*
Parcel Lines .-•
,'
--”.
{B1272124.12}