HomeMy WebLinkAboutC2008-149 - 4/15/2008 - Approved
INCENTIVE AGREEMENT
By and Between
CITY OF CORPUS CHRISTI, TEXAS
and
BARNEY M. DAMS, LP
2008-149
M2008-101
04/15/08
Barney M. Davis, LP INDEXED
INCENTIVE AGREEMENT
This Agreement ("Agreement") is made and entered into as of_, 2008 (the "Effective
Date"), by and between the City of Corpus Christi, Texas, ahome-rule municipal corporation
("City"), and Barney M. Davis, LP, Texas limited partnerships (collectively, "Developer").
RECITALS
WHEREAS, the Developer desires to redevelop and operate the electrical generating
facilities commonly known as the Nueces Bay Power Plant located within the Industrial District
No. 1 in Nueces County, Texas and the Barney M. Davis Power Plant located in Flour Bluff
within the city limits of Corpus Christi, Texas (the "Proiect" as more particularly defined below);
and
WHEREAS, the Developer and City will enter into an Incentive Agreement and have
entered into an Industrial District Agreement for the Nueces Bay Power Plant; and
WHEREAS, the City has established a program in accordance with Article III,
Section 52-a of the Texas Constitution and Chapter 380 of the Texas Local Government Code
("Charoter 380") under which the City has the authority to make loans or grants of public funds
for the purposes of promoting local economic development and stimulating business and
commercial activity within the City; and
WHEREAS, the City has concluded and hereby finds that this Agreement promotes
economic development in the City of Corpus Christi and, as such, meets the requirements under
Chapter 380 and the City's established economic development program, and, further, is in the
best interests of the City and Developer; and
WHEREAS, the City recognizes the positive economic impact that the investment of
$849,157,000 in the Project will bring to the City through development and diversification ofthe
economy, reduction of unemployment and underemployment through the retention of existing
jobs and the production ofnew jobs, and the attraction ofnew businesses; and
WHEREAS, the Developer will directly finance, design and construct the Project as
described in this Agreement; and
WHEREAS, in consideration of the acquisition, redevelopment and operation of the
Project, and additional jobs located at the Project, the City agrees to use such funds in order to
pay to the Developer the amount of the City Commitment (as defined herein) directly in the
amount described in Article IV ofthis Agreement; and
WHEREAS, consistent with Article III, Section 52-a of the Texas Constitution, Chapter
380 and other law, City and the Developer as contemplated in this Agreement agree to work
together to cause the public purposes of developing and diversifying the economy of the state,
reducing unemployment or underemployment in the state, and developing or expanding
transportation or commerce in the state; and
WHEREAS, to ensure that the benefits the City provides under this Agreement are
utilized in a manner consistent with Article III, Section 52-a of the Texas Constitution, Chapter
380 and other law, the Developer has agreed to comply with certain conditions for receiving
those benefits, including performance measures relating to job creation, Project operations, and
the hiring of local and disadvantaged businesses for the construction of the Project; and
WHEREAS, the City and the Developer desire to enter into this Agreement for their
mutual benefit;
NOW, THEREFORE:
AGREEMENT
For and in consideration of the foregoing recitals and of the mutual promises, obligations,
wvenants and benefits herein contained, City and the Developer contract and agree as follows:
ARTICLE I
GENERAL TERMS
Section 1.01 Incorporation of Recitals. The recitals to this Agreement are hereby
incorporated for all purposes.
Section 1.02 Definitions and Terms. The terms "Agreement " "Cha t~80 " "Gifu."
"Developer." "Effective Date," and "Project" shall have the above meanings, and the following
terms have the following meanings:
"City Commitment" is defined in Article IV.
"Com lep tion" shall mean the date the Developer has completed renovations,
improvements and redevelopment of the Nueces Bay Power Plant with a minimum investment of
private equity and/or financing of not less than $470,000,000 and the Barney M. Davis Power
Plant with a minimum investment of private equity and/or financing of not less than
$416,000,000 within 36 months of the Effective Date, and the commencement of full operations
at the power plant.
"Fiscal Year" shall mean the twelve consecutive month period designated by the City as
its fiscal year. As of the date of this Agreement, the City's fiscal yeaz commences on August 1
and ends on the next succeeding July 31.
"Full Operation" shall mean the operation of both power plants supplying electricity
generated for sale.
"Parties" or "Party" shall mean the City and the Developer, the parties to this Agreement.
"Project" shall mean the redevelopment ofthe electric generation facilities at the Barney
M. Davis power plant.
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"Pr_perty" shall mean the Improvements and Personal Property as described herein and
as constructed by the Developer upon Completion.
"Land" shall mean the land on which the Project will be built, as described in Exhibit B
attached hereto.
"Reimbursement Account" shall mean the special fund created by the City as described
in section 4.01 (A) ofthis Agreement.
"Useful Life" shall mean the period of time during which the Barney Davis Power Plant
will operate for its intended purpose, not less than twenty-five (25) years.
Section 1.03 Singular and Plural. Words used herein in the singular, where the context
so permits, also include the plural and vice versa. The definitions of words in the singulaz herein
also apply to such words when used in the plural where the context so permits and vice versa.
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations of the Cif. The City hereby represents to the Developer
that as ofthe date hereof
(A) The City is a duly created and existing municipal corporation and home rule
municipality of the State of Texas under the laws of the State of Texas and is duly qualified and
authorized to carry on the governmental functions and operations as contemplated by this
Agreement.
(B) The City has the power, authority and legal right under the laws of the State of
Texas and the City Charter to enter into and perform this Agreement and the execution, delivery
and performance hereof (i) will not, to the best of its knowledge, violate any applicable
judgment, order, law or regulation, and (ii) do not constitute a default under any agreement or
instrument to which the City is a party or by which the City or its assets may be bound or
affected.
(C) This Agreement has been duly authorized, executed and delivered by the City
and, constitutes a legal, valid and binding obligation of the City, enforceable in accordance with
its terms except to the extent that (i) the enforceability of such instruments may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws of general application
in effect from time to time relating to or affecting the enforcement of creditors' rights and
(ii) certain equitable remedies including specific performance may be unavailable.
(D) The execution, delivery and performance of this Agreement by the City do not
require the consent or approval of any person which has not been obtained.
Section 2.02 Representations of the Developer. The Developer hereby represents to the
City that as ofthe date hereof
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(A) The Developer is duly authorized and existing and in good standing under the
laws of the State of Texas, and is qualified to do business in the State of Texas.
(B) The Developer has the power, authority and legal right to enter into and perform
its obligations set forth in this Agreement, and the execution, delivery and performance hereof,
(i) have been duly authorized, and will not, to the best of its knowledge, violate any judgment,
order, law or regulation applicable to the Developer, and (ii) do not constitute a default under any
agreement or instrument to which the Developer is a party or by which the Developer or its
assets may be bound or affected.
(C) This Agreement has been duly authorized, executed and delivered and constitutes
a legal, valid and binding obligation of the Developer, enforceable in acwrdance with its terms
except to the extent that (i) the enforceability of such instruments may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general application in effect
from time to time relating to or affecting the enforcement of creditors' rights and (ii) certain
equitable remedies including specific performance may be unavailable.
ARTICLE III
DEVELOPER PERFORMANCE REQUIREMENTS
Section 3.01 Proiect.
(A) The Developer agrees to redevelop and reconstruct the Project as described herein
to accomplish Completion of the Project within 36 months from the Effective Date, and the
continued operation of the power plant for the Useful Life of the power plant. The Developer
shall pay all engineering, planning, acwunting, architectural, legal fees and expenses, survey,
testing, laboratory costs, license fees, advertising and other bidding costs, amounts due under
construction contracts, costs of labor and material, insurance premiums, and other costs and
expenses incurred in connection with the construction of such Property which costs as set forth
in Exhibit A attached hereto are estimated to approximate $416,000,000. The Developer shall
provide evidence, satisfactory to the City, of expenditures of private equity and/or financing for
the Improvements to the Project in the amounts required for Completion. The City shall not be
responsible for any of such costs out of its current revenues or other sources, except in
accordance with the reimbursement to the Developer for the costs of the Improvements through
the City Commitment as provided in this Agreement.
(B) The Developer agrees to assist the City, if so requested by the City, in the
preparation of any documentation necessary for the preparation and approval of any of the
documents or actions required by the City to perform any of the obligations under this
Agreement. The Developer further shall prepare or cause to be prepared any preliminary
architectural or engineering plans and fmancial data and projections reasonably requested by the
City in order to assist the City in carrying out the purposes of this Agreement. The Developer
agrees to proceed in good faith towards the redevelopment of the Project. Upon Completion of
the Project and during the term of this Agreement, the Developer shall maintain the property,
improvements and premises in a commercially reasonable manner, comparable to the
maintenance of similar electrical generating facilities; operate the Project; and shall timely pay
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all ad valorem taxes assessed against the Property subject to exercise by Developer of its legal
rights to contest, protest or appeal such taxes.
Section 3.02 Job Creation. The Developer's receipt of the City Commitment is subject
to the following performance requirement (the "Jobs R uirement"): the Developer agrees to
construct the Project and assure that at the Bamey M. Davis Power Plant at least twenty-five (25)
full time jobs will be retained and at least ten (10) new full time jobs will be created, with an
average annual salary of $75,000 and a gross payroll of $2,200,000 by the end of calendar yeaz
2010, which jobs will be made available principally to local residents residing within the City.
As used herein, the term "jobs" shall mean full-time equivalent positions providing a regulaz
work schedule of at least 35 hours per week. Upon the request of the City, or its designee, the
Developer shall submit documentation as reasonably necessary to evidence satisfaction that the
Developer has met the Jobs Requirement.
Section 3.03 Operational Requirements.
(A) The Developer's receipt of the City Commitment is subject to the following
commitment (the "O~ational Requirement"): the Developer agrees to maintain the Project as
an electrical generation facility for the duration of the period during which the City Commitment
is paid; any default in such obligation shall result in the forfeiture of the right to receive
reimbursement for any ofthe City Commitment.
(B) The Developer's failure to complete the Project within 36 months from the
Effective Date shall be a default hereunder and the Developer shall forfeit the right to receive
reimbursement.
Section 3.04 Utilization of Local Contractors and Su liers. In all of its procurements,
including, but not limited to, procurements of supplies, materials, equipment, service contracts,
wnstruction wntracts, and professional services contracts, the Developer shall use reasonable
efforts to procure same from businesses located within Nueces and San Patricio Counties unless
same are not reasonably and wmpetitively available within said area. The Company shall make
reasonable efforts to determine local availability and competitiveness of other supplies,
materials, equipment, service, construction, and professional service contracts, but shall not be
required to maintain records regazding this requirement other than those normally kept in its
usual course ofbusiness.
Section 3.05 Use of City as water supplier. Company acknowledges that the City
provides a regional water system that is critical to the well-being and economic growth of the
entire area and that it is important for each customer to continue to use the system as its principal
source of water. Company agrees to provide six months written notice of any intent or action to
purchase more than ten percent (10%) of its total water needs from any source other than the City.
Section 3.06 Monitoring by the City. Monitoring to determine the Developer's
compliance with the terms of this Agreement for compliance purposes will be done by the City no
less than twice per year during the period of construction, and on an annual basis after Completion.
During the monitoring process, the City will make maximum use of any State and Federal
submissions for the determination of contract compliance. Monitoring may be accomplished by
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City personnel or other persons designated by the City. The Developer agrees to reasonably
cooperate with the City in such monitoring process.
ARTICLE IV
PROJECT FINANCING AND FUNDING
Section 4.01 Proiect Financing for the Barney M Davis Power Plant.
(A) The City hereby covenants and agrees upon the Effective Date of this Agreement
to create a special fund (the "Reimbursement Account") for the benefit of the Developer for the
purpose of paying the City Commitment related to the Barney M. Davis Power Plant. The City
shall fund the Reimbursement Account through the term of this Agreement from the difference
between the ad valorem tax payments received from Developer for the Barney M. Davis Power
Plant and the in-lieu of tax amount calculated acwrding to Section 4.02(E) (the "C
Commitment"), the City shall annually fund the City Commitment from the funds deposited in
the Reimbursement Account pursuant to this Agreement and the amount thereof shall be paid by
the City to the Developer pursuant to the terms ofthis Agreement.
(B) The Reimbursement Account shall always remain unencumbered by the City and
segregated from all other funds of the City. Such funds aze held in trust by the City for the
Developer to be used subject to and solely in accordance with the terms hereof as long as
Developer is in compliance with this Agreement. The City agrees that it will pay to the
Developer the City Commitment in the form of annual cash payments within ninety (90) days
after Developer notifies the City that it has paid the ad valorem taxes related to the Barney M.
Davis Power Plant each year, which payments shall be made by the City from the
Reimbursement Account.
Section 4.02 City Commitment.
(A) Pursuant to its authority under Chapter 380, the City hereby agrees to pay the City
Commitment to the Developer. It is intended by the parties that the City Commitment will be
paid by the City solely out of the Reimbursement Account. The annual amount of the City
Commitment is set forth in Section 4.02(E). Payments to the Developer of the City Commitment
will commence upon Completion and will continue through the Term of this Agreement. The
City agrees that it will pay the City Commitment during the Term of this Agreement (solely from
the Reimbursement Account), if the Project is Completed and the power plants are maintained in
full operation. Such payments aze not subject to any reduction, whether offset or otherwise,
except pursuant to Section 3.03 hereof.
(B) The Parties agree that the City Commitment will be limited solely to the funds
deposited into the Reimbursement Account pursuant to this Agreement.
(C) The City shall determine the amount of the City Commitment annually. The City
hereby agrees to deposit from the ad valorem tax payment of Developer related to the Barney M.
Davis Power Plant an amount equal to the annual City Commitment into the Reimbursement
Account in accordance with Section 4.01 (A) ofthis Agreement, and hereby pledges such fund to
the payment of the City Commitment as provided herein. The City Commitment shall be
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remitted to the Developer ninety (90) days after Developer notifies the City that it has paid the ad
valorem taxes related to the Barney M. Davis Power Plant each year.
(D) The City shall maintain complete books and records showing deposits to and
disbursements from the Reimbursement Account, which books and records shall be deemed
complete if kept in accordance with generally accepted accounting principles as applied to Texas
municipalities. Such books and records shall be available for examination by the duly authorized
officers or agents of the Developer during normal business hours upon request made not less
than five business days prior to the date of such examination. The City shall maintain such
books and records throughout the Term of this Agreement and store the same for four years
thereafter.
(E) The City Commitment shall be determined as follows:
(1) For the purposes ofthis Section 4.02(E), the following words shall be defined
as set forth herein:
"Improvements" shall have the meaning set forth in Texas Tax Code,
Section 1.04(3).
"Personal Property" shall have the meaning set forth in Texas Tax Code,
Section 1.04(4).
(2) Each year during the term hereof; the City Commitment shall be the difference
between (i) the total ad valorem taxes assessed on the Land and Property of the
Barney Davis Power Plant and paid by the Developer, as described in Exhibit B
and (ii) the in-lieu of tax amount determined as follows:
A.1. An amount in-lieu of taxes on said Land (excluding Property located
thereon) equal to one hundred percent (100%) ofthe amount of ad
valorem taxes based upon the market value ofthe Land.
2. With respect to any new land acquired by Developer after the
Effective Date and used in conjunction with the Barney Davis
Power Plant, the use of which relates directly to the primary use of
the originally owned tract, the new land shall be included in
Developer's Land known as said Land, and shall be considered in
calculating the in-lieu of tax payment on said Land as of January 1
of the first yeaz following the date which the new land is acquired
by Developer. In addition, Developer shall provide City a revised
Exhibit "B" that includes a complete description ofthe new land
and a listing by Nueces County Appraisal District ("NCAD")
account number of the newly acquired land.
B.1. An amount in-lieu of taxes on Property located on the Land on the
Effective Date equal to one hundred percent (100%) ofthe amount of ad
valorem taxes which would otherwise be payable to City by Developer.
2. On or before July 31 of each yeaz or upon final determination of
Property values by NCAD, whichever is later, during the term of
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this Agreement, Developer shall provide to City's Department of
Financial Services a written statement ofits opinion ofthe market
value sworn to by an official of Developer authorized to do the
same.
C. For new Property added after the Effective Date, in-lieu of the
percentages of the amount of ad valorem taxes as calculated in paragraph
B., the in-lieu of tax payment shall be based on the percentage shown in
the chart below based on the yeaz of use. Payments under this provision
will not exceed sixty percent (60%) of the amount of ad valorem taxes that
would otherwise be payable to City by Developer. The first yeaz of use
for purposes of this new Property payment shall be deemed to begin on the
first day of January next following the date when the new Property is
placed in use. This provision shall apply to construction of new
Improvements, Personal Property or facilities and to the expansion of
existing Improvements, Personal Property or facilities on said Land. To
qualify as new Improvements, Personal Property or facilities, the value of
all new Improvements, Personal Property or facilities in any single yeaz
must exceed a cumulative value of at least $3,000,000.00. New
Improvements, Personal Property or facilities not included within
paragraph C. shall be deemed to be included within the provisions of
paragraph B.
Chazt
yrofuse % yrofuse % yrofuse % yrofuse
1st yr 6% 4U' yr 26% 7"' yr 50% 10`x' yr 60%
2nd yr 12% Ss' yr 34% 8a' yr 58% 11`~ yr 60%
3rd yr 19% 6a' yr 42% 9`" yr 60% 12a' or more yr60%
D.1. If in any yeaz, the total in-lieu tax value of Land and Property under
pazagraphs A. through C. is not at least an annual increase of 3% over the
previous year, the value of the oldest new Property that has not been
captured under paragraph C that is needed to meet the minimum required
increase in value shall be added to the total in-lieu value of Land and
Property for that yeaz only. Payments under this provision will not exceed
one hundred percent (100%) ofthe ad valorem taxes on the Land and
Property existing on the Effective Date, based on the current appraised
value of the Land and the existing property, and sixty percent (60%) of the
ad valorem taxes that would be payable to City by Developer for Property
constructed after the Effective Date.
2. However, if in any year, the total in-lieu tax value of Land and
Property is more than 6% higher than the previous yeaz, the
increase in in-lieu tax values for that year shall be capped at 6%.
E. At the Developer's option, the Developer may pay to the City an
additional amount for City fire protection equal to fifteen percent (15%) of
the amount which would be payable on 100% of assessed value of
Improvements located in said land notwithstanding the provisions of
paragraph B. Developer agrees to use commercially reasonable efforts to
equip the Project with equipment, and to provide training to its employees,
reasonably appropriate to address emergencies or industrial disasters
occurring at the Project.
F. The present ratio of ad valorem tax assessment used by City is one
hundred percent (100%) ofthe fair market value of Land and Property.
Any change in the ratio used by City shall be reflected in any subsequent
computations hereunder. This Agreement and the method of deternuning
and fixing the amount of in-lieu oftaxes payments hereunder shall be
subject to all provisions of law relating to determination of market value
and taxation, including, but not limited to, laws relating to rendition,
assessment, equalization and appeal.
G. In determining the Developer's in-lieu of tax amount required under
this Agreement, the calculation shall be made utilizing the fair market
value of all Land and Property determined by NCAD or its successor
under provisions of the Texas Property Tax Code. The Company shall
timely provide information and reports required under Texas law, rules,
and regulations to NCAD or its designee, so that the appraisal process can
be completed in accordance with all applicable state laws. Upon written
request each yeaz by the City's Department of Financial Services, the
Company will provide the City with the certified fair mazket value
assessment for use in calculation and preparation ofthe annual in-lieu tax
amount. The calculation shall be made without reference to the exemption
for pollution control property in Section 11.31, Texas Property Tax Code,
and Article VIII, Section 1-1, Texas Constitution, as same presently exist
or may be hereafter amended, using the fair market value of pollution
control equipment certified by NCAD. In addition, all the amounts shall
be calculated without reference to any new tax exemption or any increase
in an existing tax exemption enacted after January I, 1995.
H. If Developer elects to protest the valuation set on any of its properties
by Nueces County Appraisal District (NCAD) for any year or years during
the term hereof, it is agreed that nothing in this Agreement shall preclude
the protest and Developer shall have the right to take all legal steps desired
by it to reduce the same, except with regard to the exemptions in
paragraph G. Notwithstanding any protest by Developer, Developer
agrees to pay to City an initial tax payment, on or before the date
hereinabove provided, of at least the amount of the taxes on said Land and
Property which would be due by Developer to City hereunder on the basis
of renditions filed by Developer with City's Department of Financial
Services for that year in accordance with pazagraph B.2 or on the basis of
the assessment thereof for the last preceding yeaz, whichever is higher.
When the valuation on the Land or Property has been finally determined,
either as the result of final judgment of a wurt of competent jurisdiction or
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as the result ofother final settlement ofthe controversy, then within thirty
(30) days thereafter Developer shall make to City any additional payment
due based on the final valuation. If as a result of final judgment of a wurt
of competent jurisdiction, or as the result of other final settlement ofthe
controversy, the valuation of Developer's Land or Property is established
as an amount less than the amount used to compute the initial tax payment
for that year by Developer, then within thirty (30) days thereafter City
shall make to Developer any payment due based on the difference between
the initial payment and that which is computed based on the final
settlement.
I. The parties agree that, if, during the term of this Agreement, the
Industrial District Agreement terms are renegotiated, the terms as
renegotiated shall be applied to this Section 4.02 for the purposes of
calculating the in-lieu oftax amount used to determine the annual City
Commitment.
Section 4.03. The City agrees that it will nominate Developer and its Nueces Bay WLE
project to the Department of Tourism and Economic Development, Office ofthe Governor, State
ofTexas, as a 2009 Renewal Community Project. Further, the City agrees to allocate $2,100,000
in 2009 Commercial Revitalization Deduction benefits through its allocation of Renewal
Community funds.
Section 4.04. To the extent permitted by law, the parties agree that, for so long as the
Property is used for the purposes of operating an electrical generation facility, the purpose of this
Agreement is to treat the Land or Property related to the Barney M. Davis Power Plant as Land
or Property not within the wrporate limits of the City and to that end, Developer will expect and
request no services from the City, except services for which contract is made under this
Agreement or services provided by separate payment by the Developer, such as water, gas, storm
water, or wastewater, City shall provide no services except as similar services are provided to
industries within Industrial District No. 1, and City shall not require permitting or apply other
regulations in a manner other than is done for industries within Industrial District No. 1, and the
Developer shall comply with all applicable federal and state, statutes, laws, rules and regulations.
ARTICLE V
ADDITIONAL DUTIES AND RESPONSIBILITIES
Section 5.01 Amendment of Agreement. Upon the request of the Developer, the City
may agree to amend this Agreement to provide for any reasonable changes necessary to carry
forth the intent of this Agreement. The City's consent to an amendment of this Agreement will
not be unreasonably withheld.
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ARTICLE VI
TERM OF THE AGREEMENT AND OTHER OBLIGATIONS
Section 6.01 Term and Termination. This Agreement shall have a term (the "Term")
beginning on the Effective Date hereof and continuing coextensive with the term and
continuation of Industrial District Agreements for industries within Industrial District No. 1.
ARTICLE VII
DEFAULT
Section 7.01 Default.
(A) If the City does not perform its obligations hereunder in substantial compliance
with this Agreement and, if such default remains uncured for a period of 60 days after notice
thereof shall have been given, in addition to the other rights under the law or given the Developer
under this Agreement, the Developer may enforce specific performance of this Agreement, seek
a writ of mandamus to perform obligations under this Agreement.
(B) If the Developer does not perform its obligations hereunder in substantial
compliance with this Agreement, and, if such default remains uncured for a period of 60 days
after notice thereof shall have been given or such longer period as is reasonably necessary to cure
default if such default cannot be cured within 60 days not withstanding Developer's reasonable
efforts to effectuate a cure, the City may temunate this Agreement and City may recover funds
previously paid to Developer under this Agreement in an amount proportionate to the uncured
default.
(C) Notwithstanding anything in this Agreement which is or may appear to be to the
contrary, if the performance of any covenant or obligation to be performed hereunder by either
Party is delayed as a result of circumstances which are beyond the reasonable control of such
Party (which circumstances may include, without limitation, pending or threatened litigation,
acts of God, waz, acts of civil disobedience, fire or other casualty, shortage of materials, adverse
weather conditions (such as, by way of illustration and not limitation, severe rain storms or
below freezing temperatures, hurricane or tornados) labor action, strikes or similar acts) the time
for such performance shall be extended by the amount of time of such delay. The Party claiming
delay of performance as a result of any of the foregoing "force majeure" events shall deliver
written notice of the wmmencement of any such delay resulting from such force majeure event
not later than seven days after the claiming Party becomes aware of the same, and if the claiming
Party fails to so notify the other Pazty of the occurrence of a force majeure event causing such
delay, the claiming Party shall not be entitled to avail itself of the provisions for the extension of
performance contained in this Section.
(D) Should Developer fail to achieve Full Operation of the Barney Davis Power Plant
within 36 months from the Effective Date, this Agreement shall terminate without obligation of
City to provide reimbursement to the Developer.
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ARTICLE VIII
GENERAL
Section 8.01 Severabilitv. If any provision of this Agreement is held to be invalid or
unenforceable by any court of competent jurisdiction for any reason, such provision shall be
fully severable, and the remainder of this Agreement shall remain in full force and effect. This
Agreement shall be construed and enforced as if such invalid or unenforceable provision had
never comprised a part of this Agreement.
Section 8.02 Indemnification. The Developer agrees to indemnify, defend and hold the
City and its respective council members, board members, officers, employees and agents,
harmless from any actions, suits, liens, claims, damages, expenses, losses and liabilities
(including reasonable attorneys' fees and expenses) arising from any grossly negligent act or
omission on the part of the Developer to the extent the Developer is held liable for such act or
omission pursuant to a final, unappealable order of a court with jurisdiction over Developer or
the Property.
Section 8.03 Notice. Any notice or other communication required or permitted to be
given pursuant to this Agreement shall be given to the other Party at the following address:
Ifto the Developer: Barney M Davis, LP
2705 Bee Caves Road #340
Austin, TX 78746
ATTN: Barbara Clemenhagen
If to the City: City of Corpus Christi
1201 Leopard Street (78401)
P. O. Box 9277
Corpus Christi, Texas 78469
ATTN: City Manager
w/ a copy to: City of Corpus Christi
1201 Leopard Street (78401)
P. O. Box 9277
Corpus Christi, Texas 78469
ATTN: City Attorney
Any such notice or communication shall be deemed given on the date so delivered or so
deposited in the mail, unless otherwise provided herein. Either Party may change the above
address by sending written notice of such change to the other Party in the manner provided
above. With the consent ofthe receiving Party, notice may be given by facsimile transmission or
electronic mail.
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Section 8.04 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if such amendment or waiver is in writing and is signed by the City and the
Developer.
Section 8.05 Successors and Assiens. Except as provided in Article IV, no party shall
have the right to assign its rights under this Agreement or any interest herein, without the prior
written consent of the other Party except the Developer may assign its rights and responsibilities
hereunder to any related, affiliated or subsidiary entity to which substantially all of its assets,
liabilities and its rights to proceed with development of the Project aze transferred. Such written
consent shall not be unreasonably withheld, if Developer is seeking City consent to assign, City
Council shall consider such consent to assign within thirty (30) days of such written consent. If
such consent is not received by the Party seeking consent within sixty (60) days of their request
for consent, the assignment will be deemed approved. Notwithstanding the foregoing, the City
hereby consents to Developer's assignment to a lending institution of all of the Developer's
rights hereunder as security for repayment of one or more loans to finance the construction or
ownership of the Project or construction of the Improvements. The Developer shall give written
notice of its assignment of its rights hereunder to the other Parties within five business days of
the occurrence of such assignment. The foregoing notwithstanding, any assignment of the
Developer's rights under this Agreement shall not release the Developer from its obligations
under Section 4.01(C) hereof.
Section 8.06 Exhibits: Titles of Articles. Sections and Subsections. The exhibits
attached to this Agreement aze incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein, except that in the event of any conflict between any of
the provisions of such exhibits and the provisions of this Agreement, the provisions of this
Agreement shall prevail. All titles or headings are only for the convenience of the Parties and
shall not be construed to have any effect or meaning as to the agreement between the Parties
hereto. Any reference herein to a Section or Subsection shall be considered a reference to such
Section or Subsection of this Agreement unless otherwise stated. Any reference herein to an
exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise
stated.
Section 8.07 Construction. This Agreement is a contract made under and shall be
construed in accordance with and governed by the laws of the United States of America and the
State of Texas, excluding conflicts of laws, as such laws aze now in effect. Venue for any action
azising under this Agreement shall lie in the state district courts ofNueces County, Texas.
Section 8.08 Entire Agreement. This written Agreement represents the final agreement
between the Parties and may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the Parties. There are no unwritten oral agreements between the
Parties.
Section 8.09 Ap royal by the Parties. Whenever this Agreement requires or permits
approval or consent to be hereafter given by either Party, the Parties agree that such approval or
consent shall not be unreasonably withheld or delayed.
_[EXECUTION PAGES FOLLOW]
13
IN WITN WHERE ~ the Parties hereto have caused this instrument to be duly
executed asofthe .r ayof__'V/,2008.
Barney M. Davis, LP
Topaz Power Grou
its General Partner
~.~b arm l.S~<rnenV~0.~e.~ J~
CITY OF CORPUS CHRISTI, TEXAS
A Home-rule municipal corporation
By:
George Noe, City Manager
ATTEST:
Armando Chapa, City Secretary
APPROVED as to Form: May 7, 2008
R. Ja eir~i g
First~Assi€tant City Ate iey
for City Attorney
~~~~,~, AUTMORILt~
lIT QOUIICIL.~~ ~$ ~g
sEGterARr b .
A Texas limited partnership
Attachment A
Barney M. Davis, LP
Barney M. Davis, LP
Separated Fixed Price
Tax Exempt Labor -New Construction $ 83,438,465
Taxable Repair/Remodel Labor $ 2,028,594
Tax Exempt Services Resold to Owner $ 22,245,788
Taxable Services Resold To Owner $ 699,244
Tax Exempt Permanent Equipment and Materials $ 249,709,274
Tax Exempt Repair/Remodel Materials $ 2,920,810
Taxable Permanent Equipment and Materials $ 54,356,923
Taxable Repair/Remodel Materials $ 625,901
TOTAL $ 416,025,000
* Note: The taxability descriptions above refer to sales tax, not property tax.
~~~_~~_ :RY SFIZVICE_S
cn,•,ineering ~} $urveYtnF
ABP TERAB CENTRAL CODtPANY
(F/R/A CENTRAL POWER AND LIGHT CODIPANY)
BARNEY N. DAMS POKER PLANT 82T8
NDECES COUNT7(, TBYAS
1990,795 ACRE BOUNDARY BURVEY
EXHIBIT B
BEING a 1990.795 acre CYact of land lying in the "Rincon de Corpus
Christi" Grant to Ramon de Ynojosa, abstract 411, Nueeea County, Texas,
being all of Lot 1, Block 1 of the Barney M. Davis subdivision as
reccrded in volume 37, page 86, Map ReCOrde of Nueces County, Texas, a21
of a 1999.96 acre tract of land a9 described in volume 1386, page 202,
Deed Records o£ Nueces County, Texas, and all of a 95 foot x 250 foot
tract of land as described i.n volume 1532, page 568, Deed Records of
Nueces County, ?exas, same also being described as a 1996.146 acre tract
of land save and except a 5.351 acre tract of land, same al :;o being
described by a drawing (101194 06-BOUNDARY2, BOUNDARy2 6 BOUNDARY3.DWG,
dated May 23, 2004) attached hereto as Exhibit A-2 and made a part hereof
and being more particularly described as follows:
199fi.146 Acres
86GIhZiING at an °X" in a 2"x 2" brass plate found set in concrete marking
the southwest corner of the aforementioned Loe 1 and the se:;thwest corner
of the herein described 1996.146 arse tract;
TilENCB along the northwest line of the aforementioned Lot ]., N28°13'51"E,
passing an •'X" in a 2^x 2" brass plate found set in C_ncrete at a
distance of 2000.29 feet, a total distance of 2708.98 felt iRecord -
N28°34'35"E 2710'] to a 5/e" iron rod found in the southeast r:10re1irte
of Cayo del Oso Bay marking a northerly corner of the said Lot 1 and a
northerly corner of the herein described 1996.146 acre tract;
TEENCE along the north line of the aforementioned Lot 1 and the said
southeast shoreline of the aforementioned Cayo del Oso Bay the following
ten (10) courses:
N88°33'26"E a distance of 218.19 feet (Record - N88°33.29"E 218.28')
to a 5/8" iron rod found;
S76°15'22"E a distance of 580.78 feet (Record " 876.15'27"E 580.72')
[o a 5/e" iron rod found;
580°94'48"E a distance Of 156.82 feet (Record - 880°44'27"E 156.83')
CO a 5/s" iron rod found;
Page 1 OP 6
2278.fnd
}111 Alagic D:ir<. San Antotuo,'1'ezaz'n329- 'fel 1111-581-t 111 Fax: 210-i81-
5s~i
ASP TB]G8 CENTRAL COMPANY
(P/R/A CENTRAL POKER AND LIQHT COMPANY)
BARNEY N. OAVIa POKER PLANT SITS
N11EC$S COUNTY, TE]tA8
1990.795 ACRE BOIAPDARY SUAVBY
N85°21'56"E a distance of 261.90 feet (Record - N85°22'18"E 261.90')
to an angle point;
N67°28'37"E a distance of 266.27 feet (Record - N67°30'56"E 266
16')
to a 5/8" iron rod found; .
N75°36'26"E a distance of 325.41 feet (Record - N75°35'D4"E 325
39')
to a 5/e^ iron rod found; .
N44°35.45"E a distance of 355.32 feet (Record - N44°36'07"E 355
33')
to a 5/e" iron rod found; .
N70'47'25"E a distance of 759.93 feet (Record - N70°96'15"E 759
94')
to a 5/8" iron rod found; .
N57°46'36"E a distance of 106.42 feet. (Record - N57°50'25~'E 106
43')
to a 5/8" iron rod found; .
N70°40'10"E a distance of 109.74 feet (Record - N30°33'57"E 109
72')
to a 5/6" iron rod found marking .
a northerly corner of the
aforementioned Lot 1 and a northerly corner of the herein described
1996.146 acre tract;
TNENCE leaving the said southeast shoreline of the aforementioned Cayo
del Oso Bay, along the northeast line of the aforementioned Lot 1 and the
southwest line of Sections 3e and 51 of the Flour Bluff 6 Encinal Farm
and Garden Tracts Subdivision as recorded in volume A, Pages 41-43, Map
Records of Nuecea County, Texas, 561°25'53"E (Record - 561°25'25"E),
passing a 5/6^ iron rod found marking a common corner of Lots 29 and 30
of the said Section 38 at a distance of 1321.68 feet, also passing a 5/8"
ircn rod found marking a common corner oL Lots 28 and 29 of the said
Sec=ion 38 at a distance of 1981.94 feet, also passing a 5/6° iron rod
found marking a common corner of the said 6ections 38 and 51 at a
distance of a621.91 feet, also passing a 5/8" iron rod found marking a
common corner of Lots 27 and 28 of the said Section 51 at a distance of
7921.79 Peet, and also passing a 1-1/2" iron pipe found marking a common
corner of Lots 26 and 27 of the said Section 51 at a distance of 8585.59
feel, a total distance of 9856.77 feet to a 1/2" iron rod set with
plastic cap stamped °CDS/MUERY S.A. TX. ^ for the west Corner of the
aforementioned 45 foot x 250 foot tract and an interior corner of the
herein described 1996.146 acre tract, from which an "X^ in a 2"x 2" brass
plzte found set in concrete in the said northeast line of the said Lot
1 and near the centerline of Waldron Road bears 561°25'53^E a distance
of ?3.56 feet;
Page 2 OP
2278-End
Mev 23. 2i
TeL 2]D-561-1111
ABP TE1[AS CRNTRAL COMPANY
(P/K/A CENTRAL PON$R AND LIG7rI COMPANYI
BARNEy M. DAMS POWER PLANT SITE
NIIECE3 CODWTY, TEKA3
1990.795 ACR$ ROlR9DARY BURVEY
THSNCa leaving the said northeast line of the aforementioned Lot 1 and
the said southwest line of the aforementioned Section 51, along the
northwest line of the aforementioned 45 foot x 250 foot tract,
N2S°34'07"E a distance of 250.00 Peet (Record - N29°E 250') to a 1/2"
iron rod net with plastic cap stamped "COS/MIJERY S.A. TX." for the north
corner of the said 45 foot x 250 feoC tract and the moat easterly north
corner of the herein described 1996.146 acre tract;
TE$NC$ along the northeast line of the aforementioned 45 foot x 250 foot
tract, S61°25'53"E a distance of 45.00 feet (Record - S61°E 45') to e
1/2" iron rod set with plastic cap stamped "CD6/MUERY S.A. TX." in the
said centerline of the aforementioned Waldron Road and the common line
of the aforementioned section si and Section 52 of the aforementioned
Flour Bluff & 8ncinal Farm and Garden Tracts Subdivision for the east
corner cf the said 95 foot x 250 foot tract and an east corner of the
i:erein described 1996.146 acre tract;
T$ENCE along the southeast line of Che aforementioned 45 foot x 250 foot
tract, the said centerline of [he aforementioned Waldron Road and the
said common line of the aforementioned Sections 51 and 52, S28°34'07"W
a diatanCe Of 250.00 feet (Record - S29°W 250')tO 8 2/2" iron rod Bet
with plas tie cap stamped "COS/MUERY S.A. TX.^ in the said northeast line
of the aforementioned Lot 1 Lor the south corner of [he said 45 foot x
250 foot tract, the south corner of the said Section 51, the west corner
of the said Section 52 and an interior corner of the herein described
1996.146 acre tract;
TRBNCR along the said northeast line of-tha aforementioned Lot 1 and the
southwest line of the aforemert Toned Section 52, S61°25'53"E a distance
of 5859.66 feet (Record - 561°25'25"E) to a 1/a" iron rod set with
plastic cap stamped "CDS/MUERY s.A. TX." in the west shoreline of the
Laguna Madre for an east corner of the said Lot 1 and an east corner of
the herein described 1996.146 acre tract;
TRENCB along the east line oP the aforementioned Lot 1 and the said west
shoreline of the aforementioned Laguna Madre the following thirty (30)
courses:
S19°24.50"W a distance of 671.18 feet to as angle Point;
S26°32'33"W a distance of 265.93 feet to an angle point;
S14°56'14"W a diatanCe Of 403.11 feet CO an angle point;
S13°36'02"W a distance of 193.87 feet to an angle point;
513°95'10"E a distance of 316.42 feet to an angle point;
Page 3 OF 6
2278.fad
NaY 23. 2004
11
A$P TE%AB CBNTRAL COMPANY
(P/R/A CENTRAL PO11ER AND LIOAT COMPANY)
SARNBY M. DAV29 PDWBR PLANT SITE
NUBC88 CODNTY" TSZA9
1990.795 ACRB BODNDAAY BtIRVRY
S02°04'42"E a distance of 221.07 feet to an angle point;
S10°59'21"W a distance of 64.71 feet to an angle point;
S2o°12'27"W a distance of 201.45 test to an angle point;
S12°36'17"W a distance of 206.66 feet to an angle point;
S12°l9'o3"E a distance of 178.45 feet to an angle point;
S03°54'05"E a distance of 437.22 feet to an angle point;
S08°34'24"W a distance of 68.55 feet to an angle point;
SOa°29'42"W a distance of 128.97 feet to an angle point;
S07°05'50"E a distance of 257.88 feet to an angle point;
SO1°13'14"E a distance of 05.52 feet to an angle point;
914°23'47"E a distance of 64.99 feet to an angle point;
S26°59'03"E a distance of 70.41 feet to an angle point;
926°42'33"S a distance of 213.09 feet to an angle point;
522°25'59"fi a distance of 236.59 feet to an angle point;
S18°15'40"E a distance of 117.76 feet to an angle point;
923°28'17"E a distance of 215.69 feet to an angle point;
541°04'50"E a distance of 200.42 feet to an angle point;
S36°39'53"E a distance of 89.16 feet to an angle point;
935°34'39"E a distance of SB.48 feet [o an angle point;
547°33'00"E a distance of 234.91 feet to an angle point;
559°02'00"E a distance Of 886.57 feet to an angle point;
S53°03'30"E a distance of 259.09 feet to an angle point;
536°22'49"E a distance of 110.08 feet to an angle point;
S15°30'38"E a distance of 337,21 feet to an angle point;
Page 4 OP 6
a27a.fad
ABP T8XA8 CENTRAL COMPANY
(P/R/A CSNTnzr. POWBR AND LIORT COMPANY)
BARNEY M. DAMS POW88 PLANT eITB
NU8C88 COC87TY, T$XAS
1990.795 ACRE BOUNDARY SORVSY
502°06'54^W a distance of 167.84 feet to a 1/2" iron rod set with
plastic cap stamped "CDS/MUSRY S.A. Tx." for the moat southerly
corner of the said Lot 1 and the moat southerly corner of the herein
described 1996.146 acre tract;
THENCE along the southwest line of the aforementioned Lot 1, N61°25'53"W,
passing a 1/2" iron rod net with plastic cap stamped "CDs/MVERY S.A. TX."
at a distance of 4131.91 feet, a total distance of 22131.91 feet (Record
- N61°25'25"W 22080') to the PLACE OP B8OINNING COn[dining 1996.146 aCree
of land.
8AV8 AND BXCSPT 5.351 ACR88
BEINa a 5.351 acre tract of land lying in the "Rincon de Corpus
Christi" Grant to Raman de Ynoj dsa, abstract 411, xueces County,
Texas, being a portion of Lot 1, Block 1 of the Barney M. Davis
Subdivision as retarded in volume 37, page 06, Map Records of Nueces
County, Texas, a portion of a 1999.96 acre Crac[ of land as
described in volume 1386, page 202, Deed Records of Nueces County,
Texas, same also being described by a drawing (101144 06-SOUNDARYl,
BOt1NDARY2 s 8OUNDARY3.DWG, dated MaY 23, 2004) attached hereto as
Exhibit A-2 and made a part hereof and being more particularly
described as follows:
COMMENCING at an "X" in a 2"x 2" brass plate found se[ in concrete
marking Che southwest corner of the aforementioned Lot 1;
TMBNCB along the southwest line of the aforementioned Lo[ 1,
Sfil•25'S3"E a distance of 13918.61 feet (Record - 561°25'25"E) to
a point;
TNSNCE leaving the said southwest line of Che aforementioned Lot 1,
N2B°34'22"$ a distance of 1481.24 feet to a 2/2" iron rod set with
plastic cap stamped "CDS/MUERY S.A. TX." for the PLACE OF BSOINNINO
and iris west corner of the herein described 5.351 acre tract;
TM81lC$ N28°34'22"S a distance of 450.00 Eeet to a 1/2'• iron rod set
with plastic cap stamped "CDS/MUERY S.A. Tx.° for the north corner
of the herein described 5.351 acre tract;
THBNCE 561°25'38"8 a distance of 516.00 feet to a 1/2" iron rod set
with plastic cap stamped ^CDS/Mt7ERY S.A. TX." for the most northerly
east corner of the herein described 5.351 acre tract;
THENCE 528°34'22"W d dis[dnce of 253.58 feet to a 1/2" ixon rod set
with plastic cap stamped "CDS/MUERY S.A. TX." for an Interior corner
of Che herein described 5.352 acre tract;
Page 5 OP 6
2278.fnd
ASP TEYAS CENTRAL COMPANY
(F/X/A CENTRAL POWER AND LIGHT COMPANY)
HARNEY M. DAMS PONSR PLANT SITE
NDECSS COLTNTY, TSXAH
1990.795 ACRE BODNDARY SDRVEY
THENCE 561°25'38"E a distance of 19.00 feet to a 1/2" iron rod set
with plastic cap stamped "CDS/MUERY S.A. TX." for the moat southerly
east corner of the herein described 5.351 acre tract;
TNENCS 528°34'22"W a distance of 96.83 feet to a 1/2" iron Tod set
with plastic cap stamped "CDS/MUERY g,p, TX ." for the most easterly
south corner of the herein described 5.351 acre tract;
TN$NCS N61.25'38"W a distance of 19.00 feet to a 1/2" iron rod Set
with plastic cap stamped "CDS/MUERY S.A. TX.^ for an interior comer
of the herein described 5.351 acre tract;
THENCE 928°34'22"W a distance of 149.59 feet to a 1/2" iron rod set
with plastic cap stamped "CDS/MUERY S.A. TX.° for the moat westerly
south corner of the t;erein described 5.351 acre tract;
THENCE N61°2$'38"W a distance of 516.00 feet to tha PLACE GP
eEGINMING containing 5.351 acres of land.
The bearing basis for this survey is Grid North, Texas State Plane
Coordinate system, South Zone, NAO 1983.
TH8 STATE OP TERAS Y
Y RNOWN TO ALL MEN eY TRE9E PRE8BNT8:
COONTY OF H88AR Y
1, John T. Kubala, a Re
certify that the above
obtained by as on the
supervision in December,
Date Z~~ day of~
~istered Professional Land Surveyor, do hereby
Field notes were prepared using infozmation
ground survey made under my direction and
~2l0~01, May, 2003 and May, 2004.
~4 2004, A.D.
l/°°n~~ a
Registered Professional Land Surveyor
No. 9505 - State of Texas
Pegs 6 OF 6
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tlP.HNCY M. DAVIS $I;BDIVI$ION
LOT'J, 6_OCK 1
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VOLUh1E 37, 1=Af.•F SF,
MAF REC01?US, NUFC%S CUUNI'
1599 91i ACRES
VCLUME 1355, PAGE 292
YID RECURUS OF NL'F.^.ES :.CUNtt -\
1990.795 ACRE BOUNDARY SURVEY ~
~--~ AEP TEXAS CENTRAL COMPANY ~
fs`JvN~ (F/K/A CENTRAL POWER AND LIGHT COMPANY)
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RAMON DE YNOJOSA, ABSTRACT - 411
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1990.795 ACRE BOUNDARY SURVEY
AEP TEXAS CENTRAL COMPANY
(F/K/A CENTRAL POWER ,4ND LIGHT COMPANY}
BARNEY M. DAVIS POWER PLANT SITE
RINCON DE CORPUS CHRISTI GRANT TO
RAMON DE YNOJOSA, ABSTRACT - 411
NUECES COUNTY, TEXA
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BARNEY M. DAVIS SUBDMSION
LOT i, BLOCK 1
VOLUME 37, ?AGE 86
MAP RECORDS, NUECES COUNTY
1999.96 ACRES
VOLUME 1386, PAGE 202
DEED RECORDS OF NUECES CGUNTY
1996.146 ACRES
5.351 ACRE
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Exhibit C
Project Description
Topaz Power Group proposes to undertake a major capital redevelopment project on the
site of the existing Barney M. Davis Power Station along Laguna Madre in Flour Bluff
over atwo-year period between 2008 and 2010. The power plant is currently owned and
operated by Topaz Power Group, which is an Austin, Texas-based limited liability
company owned by a subsidiary of Carlyle/Riverstone Global Energy and Power Fund
III, L.P.
The redeveloped Barney M. Davis units can be expected to carry a total 1,014-megawatt
(MW) capacity, which represents a net increase of 317 MW over the capacity of the
current units. This project will provide electric power to the ERCOT power grid serving
areas outside the local region, will result in significant direct and indirect local
investment and job creation and will provide long teen electric reliability for the entire
Nueces County region.
The redeveloped Barney M. Davis units shall continue to be gas-fired power generation
units.