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HomeMy WebLinkAbout026809 RES - 05/30/2006RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH SHUTTERS MANAGEMENT, LTD., PROVIDING FOR TERMPORARY PROPERTY TAX ABATEMENT WHEREAS, Texas Tax Code, Chapter 312, authorizes the City of Corpus Christi, Texas `the City ") to enter into Tax Abatement Agreements for projects meeting the guidelines and criteria for granting tax abatement. as amended, duly adopted by the City; and, WHEREAS, the area covered by the attached Agreement is within the Renewal Community and is therefore eligible for tax abatement in accordance with the provisions of the Act NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Council finds and determines that the terms of the proposed agreement and the property subject to the proposed agreement meet the applicable guidelines and criteria, as amended, adopted by the City, and the City further determines that the proposed project is feasible and the proposed temporary abatement of taxes will inure to the long -term benefit of the City. SECTION 2. The execution of the Tax Abatement Agreement Attached hereto in substantial form as Exhibit "A" is hereby authorized and approved. ATTEST: Armando Chapa City Secretary APPROVED: May 23, 2006 Ga W. Smith Assistant City Attorney for City Attorney H: LegDingws\agenda 12006105- 30 \taxabatemenShutters THE OF CORPUS CHRISTI .. di LL < / //4 /i/ H n Garr tt Mayor Corpus Christi, Texas -30�if'- of "` 2006 The above resolution was passed by the following vote: Henry Garrett Brent Chesney Melody Cooper Jerry Garcia Bill Kelly Rex A. Kinnison John E Marez Jesse Noyola Mark Scott H LegDir \gwslagenda 12006 \05- 30\taxabatemenShutters fc,!t3��.19 2 TAX ABATEMENT AGREEMENT THE STATE OF TEXAS COUNTY OF NUECES This Tax Abatement Agreement (hereinafter referred to as the "Agreement ") is made and entered into by and between the CITY OF CORPUS CHRISTI, TEXAS (the "Governmental t_'nit-) and SHUTTERS MANAGEMENT, LTD.. (the "Owner "), the owner of taxable property in the City of Corpus Christi, Texas. 602 Winnebago Street and 922 North Carancahua Street i the "Property "). 1. AUTHORIZATION This Agreement is authorized by the Texas Property Redevelopment and Tax Abatement Act, Texas Tax Code, Chapter 312, as amended (the "Act "), and is subject to the laws of the State of Texas and the charter. ordinances, and orders of the Governmental Unit. 11. DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below: A. 'Base Year Value' means the assessed value of the Improvements on the Property as certified by the Nueces County Appraisal District as of the January 1 preceding the execution of this Agreement plus the agreed upon value of Improvements made after January 1 but before the execution of this Agreement. Improvements' means the buildings or portions thereof and other improvements, including fixed machinery and equipment, used for commercial or industrial purposes on the Property. Construction Phase' means the period during which a material and substantial improvement of the Property occurs which represents a separate and distinct construction operation undertaken for the purpose of erecting the Improvements. The toonstruction Phase ends upon the earliest to occur of the following events: (2) when a certificate of occupancy is issued for the project (if within City limits); or when commercial production of a product or provision of a service is achieved at the facility. or ) when the architect or engineer supervising construction issues a certificate of substantial completion, or some similar instrument, or R:LegDirgws /EcoDev Tax Abate /AttanticCBDRes Page 1 of 1 (4 two (2 year, after the date of this Agreement. €'he determination of the end of the Construction Phase shall be made by the iovernmental t nit. in its sole and absolute discretion. based upon the above criteria and such other: factors as the Governmental Unit may deem relevant. The determination of the end of the Construction Phase by the Governmental Unit shall be onclusive_ and any judicial review of such determination shall be governed by the ,ubstantial ex idence rule D. Abatement' means the temporary or partial exemption from ad valorem taxes of 1:ertain added value to real and personal property in a zone designated for economic development purposes pursuant to the Act E. -Eligible Property' means the buildings, structures, site Improvements, and that office space and certain personal property necessary to the operation and administration of the Facility to be constructed pursuant to this Agreement. A list of the Eligible Property is set torth in the Project Description which is attached hereto as Exhibit "A" and made a part hereof. During the Construction Phase of the Eligible Property, the )caner may make such change orders to the Eligible Property as are reasonably necessary to accomplish its intended use, provided that no such change order may be made which will change the qualification of the project as a "Facility" under the guidelines and Criteria for Granting Tax Abatement approved by the Governmental nit ' Ineligible Property' means land; inventories; supplies; tools; furnishings and other torms of movable personal property; vehicles; vessels; aircraft; housing; hotel accommodations, deferred maintenance investments; property to be rented or leased except as provided in Section 2(e); improvements for the generation or transmission of electrical energ:, not wholly consumed by a New Facility or expansion; any improvements, including those to produce, store or distribute natural gas, fluids or gases, which arc not integral to the operation of the Facility; improvements to real property which have an economic life of less than 15 years; property owned or used by the State of Texas or its political subdivisions or by any organization owned, operated or directed by a political subdivision of the State of Texas; unless any of the above types of property are specifically authorized by the Governmental Unit. • Added Value' means the increase in the assessed value of the Eligible Property as a result of "expansion" or "modernization" of an existing facility or construction of a "new facility " It does not mean or include "deferred maintenance." H. Facility' means a Basic Manufacturing or Service Facility, Regional Distribution Center Facility, Regional Telecommunications /Data Processing Center Facility, Regional Visitor Amusement Facility. Central Business District (CBD) Residential Facility, Renewal Community Facility, or Petrochemical Facility approved by the %governmental l nit as set forth in the Guidelines and Criteria for Granting Tax Abatement adopted by the Governmental Unit. H:LegDir gwsiEcoDeN TaxAbateiAtlanticCBDRes Page 2 of 1 i'he Guidelines and Criteria for Granting Tax Abatement adopted by the Governmental Unit are incorporated as a part of this Agreement. Except as the same may be modified herein, all definitions set forth therein are applicable to this Agreement. 111. PROPERTY the Property is an area within the City of Corpus Christi, Texas, located in whole or in part within the Jurisdiction of the Governmental Unit as is more fully described in Exhibit "B" attached hereto and made a part hereof. Said Property is located within a zone for tax abatement established pursuant to Chapter 312 of the Texas Tax Code. as amended, by the City of Corpus Christi_ Texas. The Nueces County Appraisal District has established the following values for the Property as of the January 1 valuation date prior to the date of execution of this Agreement. \ccount \o. n Personal property n/a Account No. 0719- 0007 -0020 and 0797 -0006 -0070 Land $153,338 Improvements $159,098 The Governmental Unit and the Owner agree that the value of any additions to the Improvements made after January 1 or not otherwise reflected on the above valuation of Improvements is: Additional Improvements: SO Addition of the above amount to the valuation of the Improvements as of the January 1 valuation date prior to the date of execution of this Agreement results in a Base Year Value as follows: Base Year Value $312,436. IV. TERM OF ABATEMENT AND AGREEMENT The (;overnmental Unit agrees to abate the ad valorem taxes on the Eligible Property in accordance with this paragraph and paragraphs V and VI hereof. The Abatement shall be effective with the January 1 valuation date immediately following the date of execution of this agreement. The Abatement shall continue for up to two (2) years during the period of the Construction Phase and for the next five (5) full tax years thereafter, expiring as of December3l of such third tax year. If the period of the Construction Phase exceeds two (2) years, the Facility shall be considered completed for purposes of Abatement. and in no case shall the period of Abatement inclusive of construction and completion exceed seven (7) tax years. The years of Abatement provided herein shall in each instance coincide with the tax year commencing on January 1 and expiring on December 31, and in no event shall the Abatement extend beyond December 31 of the sixth tax year. This Abatement shall also cover as Eligible Property those H:LegDu gws ;EcoDee 1 ax. Abate /AtlanticCB[)Res Page ; o 1 supplemental improvements to the Eligible Property that are added or constructed during the post - construction five (5) -year period of Abatement, in no event. however, shall the total Abatement period for such Eligible Property exceed the maximum seven (7) year Abatement period for the entire project as specified herein. The term of this Agreement shall continue for a period of five (5) years following expiration ,_Jf the abatement period. All terms and conditions imposed upon the Owner shall continue in effect during such period.. and the Owner shall be obligated specifically to continue the minimum employment levels specified herein. An default shall be subject to the provisions of Article VIII hereof. V. TAXABILITY During the period that the Abatement is effective, taxes shall be payable as follows: ( 1 ) The value of the land comprising the Property shall be fully taxable; (2) The Base Year \ clue of existing Improvements comprising the Property shall be fully taxable. (3) The value of Ineligible Property shall be fully taxable; and (4) The Added Value of Eligible Property shall be abated as set forth in Part VI herein. 1. AMOUNT OF ABATEMENT The Abatement provided bv Agreement shall be in accordance with the following schedule: Construction Period (not to exceed 2 years) Year Year Year Year 4 Year Percentage of Abatement 100°0 100% 100% 100°x% 1000 0 100% Note: If this project is designated as a "rehabilitation project" under the Guidelines and Criteria which involves the adaptive reuse of an existing structure or building for a Facility, the project must involve a minimum capital expenditure of $250,000. The rehabilitation project must involve the adaptive reuse of an existing structure or building currently on the property tax rolls so that the Base Year Value associated with the project will include both the value of the land and the existing improvements. The Owner and Owner's landlord specifically disclaim any abatement for improvements to the building, and lt_LegDir gwos:EcoDev "lax Aba(e,AtlanticCBDlte, Page 4of ?? the covenants and obligations hereof shall not be binding upon Owner's landlord. The sole Eligible Property subject to abatement shall be the value of personal property such as furniture and movable equipment installed by Owner which would otherwise be considered Ineligible Property for any other type of abatement category. In no event, however, may the total value of such personal property subject to abatement exceed S 1 million.] At t_hc time of execution of this Agreement, the Owner reasonably estimates and represents to the Governmental s nit that the Added Value comprising permanent Improvements upon completion of the Construction Phase shall be: S J 1500 000 ( "Estimated Added Value "). In the event that upon completion of the Construction Phase the Added Value of permanent Improvements, as determined by said Appraisal District, shall at any time thereafter during the period of Abatement be less than eight -five percent (85 %) of the Estimated Added Value, not due to circumstances beyond the control of Owner, the Owner agrees to pay, as additional taxes hereunder. an amount equal to the then current tax rate of the Governmental Unit applied to the difference between the Added Value from eighty -tive percent (85 %) of the Estimated Added Value, multiplied by 100% minus the net percentage of Abatement provided under this Agreement. For the purposes of this provision, the term "circumstances beyond the control of Owner shall include casualty losses. national economic factors, shutdowns due to governmental regulations, strikes, acts or war: and the like. The formula for calculating such additional tax is outlined as follows Tax Rate! x 1(85% of Est. Added Value - Actual AV) x (100% - Abatement %)] = Additional ax. VII. CONTEMPLATED IMPROVEMENTS The contemplated improvements are set forth in the Project Description attached as Exhibit - -A." During the Construction Phase, the Owner may make such change orders to the project as are reasonably necessary, provided that no such change order may be made which will change the qualification of the project as a "Facility" under the Guidelines for Granting Tax Abatement approved by the Governmental Unit. All improvements shall be completed in accordance with all applicable laws, ordinances, rules or regulations. During the term of this Agreement, use of the Property .ha11 be limited to operation of the Facility described in the Project Description consistent with the general purpose of encouraging development or redevelopment of the zone during the period of this Agreement, VIII. EVENTS OF DEFAULT AND RECAPTURE A. Failure to Commence Operation During Term of Agreement. In the event that the Facility is not completed and does not begin operation by the January 1 following the completion of construction. no abatement shall be given for that tax year, and the full H:LegDir-gws /EcoDev 'Tax Page 5 of l amount of taxes assessed against the property shall be due and payable for that tax year. In the event that the Owner fails to begin operation by the next January 1, then the abatement Agreement shall terminate and all abated taxes during the period of , onstruction shall be recaptured and paid within 60 days of such termination. B. Discontinuance of Operations During Term of Abatement. In the event the Facility is completed and begins operation but subsequently discontinues operations during the term of the Agreement after the completion of construction. for any reason except on a ternporary basis Jue to fire. explosion or other casualty or accident or natural disaster, the Agreement may be ter tttinated by the Governmental Unit, and all taxes previously abated by virtue If the Agreement shall be recaptured and paid within 60 days of such termination. C. Delinquent Taxes. In the event that the Owner allows its ad valorem taxes to become delinquent and fails to timely and properly follow the legal procedures for their protest and /or contest. this Agreement shall terminate and so shall the abatement of the taxes tor the calendar ear of the delinquency. The total taxes assessed without abatement for that calendar year shall be paid within 60 days from the date of termination. Penalty and interest shall riot begin to accrue on the additional amount of taxes due as the result ot recapture under this provision until the first day of the month following such sixty (60) day notice. it which time penalty and interest shall accrue in accord with the laws ot the State of 1. exas. Penalty and interest on the amount of taxes originally levied rased upon the .ybatement shall. of course, begin to accrue as of the date such taxes 'vere due it) accord with the laws of the State of Texas. D. Notice of Default. Should the Governmental Unit determine that the Owner is in default according to the terms and conditions of this Agreement, it shall notify the Owner that if such default is not cured within sixty (60) days from the date of such notice (`Cure Period'). then this Agreement may be terminated. In the event the Owner fails to cure said default during the Cure Period, this Agreement may be terminated and the taxes abated by z irtue }f the Agreement will be recaptured and paid as provided herein. E. Actual Added Value. Should the Nueces County Appraisal District determine that the total level of Added Value during any year of the term of this Agreement after completion of the Construction Phase is lower than the Estimated Added Value such that a over percentage of Abatement is applicable, for each year during which an -abatement has been granted the difference between the tax abated and the tax which should have been abated based upon the actual Added Value shall be determined by the Governmental l nit and paid within 60 days of notification to the Owner of such determination. Penalty and interest shall not begin to accrue upon such sum until the first day of the month following such sixty (60) day notice, at which time penalty and interest shall accrue in accord with the laws of the State of Texas. Reduction in Rollback Tax Rate. If during any year of the period of Abatement any portion of the abated value is added to the current total value of the Governmental Unit but is not treated as new property value- (as defined in Section 26.012 (17) of the H:LegDir gws /EcoDev'1 axAbate /AtlanticCBDRes Page 6o? 1= l exas Tax Code) for the purpose of establishing the "effective maintenance rate" in calculating the 'rollback tax rate' in accord with Section 26.04 (c) (2) of the Texas Tax ( ode and rf the Governmental Unit's budget calculations indicate that a tax rate in excess of the 'rollback tax rate- is required to fund the operations of the Governmental I nit for the succeeding year, then the Governmental Unit shall recapture from the ( owner a tax in an amount equal to the lesser of the following: ( fhe amount of the taxes abated for that year by the Governmental Unit with respect to the Property. (?] The amount obtained by subtracting the rollback tax rate computed without the abated property value being treated as new property value from the rollback tax rate computed with the abated property value being treated as new property value and multiplying the difference by the total assessed value of the Governmental 1 !nit. If the Governmental t 'nit has granted an abatement of taxes to more than one taxpayer, then the amount of the recapture calculated in accord with subparagraph (2) above shall be prorated on the basis the value of the abatement with respect to each taxpayer. This event shall not constitute a `default" under this Agreement, and the sixty (60) day Cure Period provided above shall not apply. Such recaptured taxes must be paid within thirty (30) days after notice thereof has been given to the Owner. Penalty and interest shall not begin to accrue upon such sum until the first day of the month following such thirty (30) day notice, at which time penalty, and interest shall accrue in accord with the laws of the State of Texas. G. (. ontinuation of Wax Lien. The amount of tax abated each year under the terms of this Agreement shall be secured by a first and prior tax lien which shall continue in existence from year to year until such time as this Agreement between the ( iovernmentai Unit and Owner is fully performed by Owner, or until all taxes, whether assessed or recaptured. are paid in fail. In the event of any default by Owner. the governing body of the Governmental Unit reserves the right to terminate or modify this Agreement. Owner shall be afforded written notice of such default and the opportunity to cure as provided above. If Owner believes such action was improper. Owner may file an appeal in Nueces County district court within sixty (60) days after .written notice of the action by the Governmental l init. Owner shall remit to the Governmental _nit_ within such 60 -day period_ any additional or recaptured taxes levied pursuant to the )ayment provisions ;)f Texas Tax ('ode 42.08. If the final determination of the appeal increases Owner*, tax liability abo% e the amount paid. Owner shall remit the additional tax pursuant to 1 ax Code 42,42. If the final determination of the appeal decreases Owner's tax liability, the Governmental Unit shall refund the Owner the difference between the amount of tax paid and the amount of tax for which Owner is liable pursuant to Tax Code § 42.43. FI:LegDir'gws'EcoDex T axAbate /At]antieCBDRes Page ' or 1 IX. ADMINISTRATION Inspections. The Owner shall allow employees and /or representatives of the Governmental E:nit to have access to the Property during the term of this Agreement to inspect the Facility to determine compliance with the terms and conditions of this Agreement. All inspections will be made only after the giving of twenty -tbur (24) hours prior notice and will only be conducted in such manner as to not unreasonably interfere with the construction and /or operation of the Facility All inspections will be made with one or more representatives of the Owner and in Accordance with Owner's •safety standards. Appraisals. The Chief Appraiser of the Nueces County Appraisal District shall annually determine Li) the taxable alue of the real and personal property comprising the Property taking nto consideration the Abatement provided by this Agreement, and (ii) the full taxable value without Abatement of the real and personal property comprising the Property. The Chief Appraiser shall record both the abated taxable value and the full taxable value in the appraisal records. The full taxable v alue figure listed in the appraisal records shall be used to compute the amount of abated taxes that are required to be recaptured and paid in the event this Agreement is Terminated in a manner that results in recapture. Each year the Owner shall furnish the Chief \ppraiser with such information outlined in Chapter 22, Texas Tax Code, as amended, as may be necessary for the administration of the Agreement specified herein. Annual Reports Owner shall certify to the governing body of the Governmental Unit on or before April 1 each year that the Owner is in compliance with each applicable term of this Agreement. Additionally. during the initial four years of the term of property tax abatement, Owner shall provide to the Governmental Unit an annual report covering those items listed on Schedule 1 attached hereto in order to document the efforts of the Owner to acquire goods and services on a local basis. Such annual report shall be prepared on a calendar year basis and shall he submitted to the Governmental Unit no later than ninety (90) days following the end of each such calendar year. The annual report shall be accompanied by an audit letter prepared by an independent accounting film which has reviewed the report. 'Buy Local' Provision. The Owner additionally agrees to give preference and priority to local manufacturers. suppliers, contractors and labor. except where not reasonably possible to do so without added expense substantial inconvenience. or sacrifice in operating efficiency. In any such exception cases involving purchases over 510,000.00 a justification for such purchase shall be included in the annual report. The Owner further acknowledges that it is a legal and moral )bligation of persons receiving property tax abatements to favor local manufacturers, suppliers, .: ontractors and labor. all other factors being equal. For the purposes of this provision, the term local" is used to describe manufacturers. suppliers, contractors and labor shall include firms, businesses. and persons vv ho reside In or maintain an office in either Nueces County or San Fatricio County. In the event of a breach of the buy local provision, the percentage of abatement shall be proportionately :-educed by the amount the disqualified contract bears to the total ;. onstruction cost for the project. R:LegDir gws EcoDev 1 a Abate /AtlanticC'BDRes Page 8ot;; X. ASSIGNMENT The Owner may assign this Agreement to any one or more corporation(s), 50% or more of the outstanding voting securities of which are owned, directly or indirectly, by one of the ()wners. or any partnership(s) or limited partnership(s) in which an Owner, or a subsidiary of an Owner. is a general partner. The Owner may assign this Agreement to any other new owner or essee of the Facility with the prior written consent of the Governmental Unit, which consent shall n4.4 he unreasonably, withheld Any assignment shall provide that the assignee shall Irrevocably and unconditionally assume all the duties and obligations of the assignor and become the Owner upon the same terms and conditions as set out in this Agreement. In the event more than one entity is Owner hereunder, the obligations of said entities shall be joint and several. Any assignment of this Agreement shall he to an entity that will provide substantially the same improvements to the Property, except to the extent such improvements have been completed. No assignment shall he appro.edif the Owner or any assignee is indebted to the Governmental Unit ror ad x <tlorem taxes or other obligations Xl. NOTICES An notice required to be given under the provisions of this Agreement shall be in writing and shall be duly served when it shall have been deposited, with the proper postage prepaid thereon. and duly registered or certified. return receipt requested. with the United States Postal Service. addressed to the Governmental Emit or Owner at the following addresses. If mailed, any notice or communication ,hall be deemed to be received three days after the date of deposit in the United States Mail. .Unless =otherwise provided in this Agreement, all notices shall be delivered to the following addresses: To the Governmental Unit: CITY OF CORPUS CHRISTI, TEXAS 1201 Leopard Street P. 0. Box 9277 Corpus Christi, Texas 78469 Attn City Manager To the Owner: SHUTTERS MANAGEMENT. LTD. P. O. Box 8 324 Corpus Christi, Texas 78468 Either party may designate a different address by giving the other party ten days' written notice. This Agreement has been executed by parties in multiple originals or counterparts, each having full force and effect. Executed this day of , 2006. H:LegDir gws/EcoDek fax Abate /AtlanticCBDRes Page 9 o ±, IT, (JOVERNMENTAL ('NI ATTES ( ITY ()F CORPUS CHRISTI, TEXAS By: By: Armando Chapa. Cite Secretary George Noe, City Manager APPROVED AS TO FORM: B y: d Gary ' . Smith, Assistant City Attorney for Mary Kay Fischer. City Attorney OWNER: SHUTTERS MANAGEMENT, LTD. By: H: LegDir. gws /EcoDev "1 ax Aba to /Atlantic CBDRes Page 10 of 11 Mark Adame President SCHEDI LF I Bu v Local' Annual Reports fhe following information shall be reported to the Governmental Unit on a calendar -year basis during the first four years of the tax abatement program: Dollar amount spent for materials* (local). Dollar amount spent for materials (total). Dollar amount spent for labor ** (local). t. Dollar amount spent for labor ** (total). Number of jobs created in the construction project (local). Number of lobs created in the construction project (total). Number of lobs created on a permanent basis (local). Number of jobs created on a permanent basis (total). * 'Materials' is defined to include all materials used in excavation, site improvement, demolition, concrete, structural steel. tire proofing, piping, electrical, instruments, paintings and scaffolding, insulation, temporary construction facilities, supplies, equipment rental in construction, small tools and consumables. This term does not include major items of machinery and equipment not readily- available locally. ** `Labor is defined to include all labor in connection with the excavation, site improvement, demolition, concrete construction. structural steel, fire proofing, equipment placement, piping, electrical. instruments, painting and scaffolding, insulation, construction services, craft benefits, payroll burdens, and related labor expenses. This term does not include engineering services in connection with the project design The term "local" as used to describe manufacturers, suppliers, contractors and labor shall include firms, businesses, and persons who reside in or maintain an office in either Nueces County or San Patricuo Count. H: LegDir: gws 'EcoDev'TaxAbateiAtlanticCBDRes Page 11 t 17, Exhibit A Corpus Christi Project Plan \iay 23 2006 phis project will involve the adaptive reuse of an existing downtown building and convert the building into private residences. The site is currently vacant. Permanent improvements S 11,187,564 Estimated capital S 11,187,564 i- l:LegDir gws /EcoDex TaxAbate /AtlanticCBDRes Page 12 11 EXHIBIT ' B' 1..01 7 (less portion to right -of -way), Bluff Subdivision and Lots 7 and 8, Block 6, Bluff Subdivision, City of Corpus Christi, Nueces County. Texas, and being known as 602 Winnebago Street and 922 North Carancahua Street. Corpus Christi, Texas. 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