HomeMy WebLinkAboutC2012-420 - 12/11/2012 - ApprovedTAX ABATEMENT AGREEMENT
This Tax Abatement Agreement ( "Agreement ") is made and entered into by and between the
City of Corpus Christi, Texas ( "City ") and JHPK, LLC dba Saratoga Shores Surgical Center, a
Texas limited liability company ( "Owner "), the owner of taxable property in the City of Corpus
Christi, Texas, located on 6200 Saratoga Blvd, Building 3, Corpus Christi, Nueces County,
Texas ( "Property ").
I. AUTHORIZATION
This Agreement is authorized by the Texas Property Redevelopment and Tax Abatement Act,
Texas Tax Code, Chapter 312, as amended ( "Act "), and is subject to the laws of the State of
Texas and the charter, ordinances, and orders of the City.
II. DEFINITIONS
A. As used in this Agreement, the following terms have the following meanings:
1. "Abatement" means the temporary or partial exemption from ad valorem taxes of
certain added value to real and personal property in a zone designated for economic
development purposes under the Act
2. '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.
3. "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.
(a) The Construction Phase ends upon the earliest to occur of the following
events:
(1) When a certificate of occupancy is issued for the project (if within City
limits).
(2) When commercial production of a product or provision of a service is
achieved at the facility.
(3) When the architect or engineer supervising construction issues a
certificate of substantial completion, or some similar instrument.
(4) Two (2) years after the date of this Agreement
(b) The determination of the end of the Construction Phase is made by the City,
in its sole and absolute discretion, based upon the above criteria and the other
factors as the City may deem relevant.
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JHPK, LLC dba Saratoga Shores
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(c) The determination of the end of the Construction Phase by the City is
conclusive, and any judicial review of the determination is governed by the
substantial evidence rule.
4. "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 under this Agreement. A list of the Eligible Property is set forth
in the Project Description, which is attached to this Agreement as Exhibit A and made a
part of this Agreement. During the Construction Phase of the Eligible Property, the
Owner may make the change orders to the Eligible Property as are reasonably
necessary to accomplish its intended use, provided that no 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 City.
5. "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 City as set forth
in the Guidelines and Criteria for Granting Tax Abatement adopted by the City.
6. "Improvements" means the buildings, portions of buildings, and other improvements,
including fixed machinery and equipment, used for commercial or industrial purposes on
the Property.
7. "Ineligible Property" means land; inventories; supplies; tools; furnishings and other
forms 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); any improvements, including those to produce, store
or distribute natural gas, fluids or gases, which are 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 City.
S. The Guidelines and Criteria for Granting Tax Abatement adopted by the City are
incorporated as a part of this Agreement. Except as the guidelines and criteria are
specifically modified by this Agreement, all definitions in the guidelines and criteria are
applicable to this Agreement.
III. PROPERTY
A. The Property is an area within the City of Corpus Christi, Texas, located in whole or in part
within the jurisdiction of the City, and is more fully described in Exhibit B, which is attached to
this Agreement and made a part of this Agreement. The Property is located within a zone for
tax abatement established under Chapter 312 of the Texas Tax Code, as amended, by the City
of Corpus Christi, Texas.
B. 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.
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Tax Abatement Agreement JHPK LLC 09 14 2012
Account No. 7730 -0000 -0030 (200110762)
Land $201,472
C. The City 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: $0
D. 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: $201,472
IV. TERM OF ABATEMENT AND AGREEMENT
A. The City agrees to abate the ad valorem taxes on the Eligible Property under this Article and
Articles V and VI of this Agreement. The Abatement is effective with the January 1 valuation
date immediately following the date of execution of this Agreement. The Abatement continues
for up to two (2) years during the period of the Construction Phase and for the next six (6) full
tax years after the Construction Phase, expiring as of December 31 of the 2020 tax year. If the
period of the Construction Phase exceeds two (2) years, the Facility is considered completed for
purposes of Abatement, and in no case may the period of Abatement, inclusive of construction
and completion exceed eight (8) tax years. The years of Abatement provided in this Agreement
in each instance coincide with the tax year commencing on January 1 and expiring on
December 31, and in no event may the Abatement extend beyond December 31 of the 2020 tax
year. This Abatement also covers as Eligible Property those supplemental improvements to the
Eligible Property that are added or constructed during the post - construction two (2) year period
of Abatement. In no event, however, may the total Abatement period for the Eligible Property
exceed the maximum six (6) year Abatement period for the entire project as specified in this
Agreement.
B. The term of this Agreement continues for a period of five (5) years following expiration of the
abatement period. All terms and conditions imposed upon the Owner continue in effect during
the period, and the Owner is obligated specifically to continue the minimum employment levels
specified in this Agreement. Any default is subject to the provisions of Article VIII of this
Agreement.
V. TAXABILITY
During the period that the Abatement is effective, taxes are payable as follows:
1. The value of the land comprising the Property is fully taxable.
2. The Base Year Value of existing Improvements comprising the Property is fully
taxable.
3. The value of Ineligible Property is fully taxable.
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Tax Abatement Agreement JHPK LLC 09 14 2012
VI. AMOUNT OF ABATEMENT
A. The Abatement provided by this Agreement is based upon a small business located in a
catalyst area, Texas Enterprise Zone, Owner represents and warrants that this project will add
twelve (12) additional permanent or full -time operating or contract employee and will maintain
the same level of employment for the term of the abatement agreement, the percentage of tax
abated is under the following schedule:
Percentage of Abatement
Construction Period
(not to exceed 2 years)
100%
Year 1
100%
Year 2
100%
Year 3
100%
Year 4
75%
Year 5
50%
Year 6
25%
B. In order to be counted as a permanent job under this Agreement, the job must be a full -time
position providing regular work schedules at least 35 hours per week. For compliance
purposes, the determination date is January 1 of each year commencing with the January 1
following the date of completion of construction. The percentage of abatement provided each
year under this Agreement is based upon the employment information as of January 1 of the
year. As a result, the actual amount of abatement may vary from year to year based upon
employment levels and property valuations.
C. At the time of execution of this Agreement, the Owner states to the City that the minimum
investment comprising permanent Improvements upon completion of the Construction Phase is:
$2,100,000 ( "Minimum Investment "), of which $1,700,000 is eligible for tax abatement.
D. The formula for calculating the additional tax is outlined as follows:
(Tax Rate] x ((85% of Minimum Investment - Actual Minimum Investment ) x (100% -
Abatement %)] = Additional Tax.
VII. CONTEMPLATED IMPROVEMENTS
A. The contemplated improvements are set forth in the Project Description attached as Exhibit
"A." During the Construction Phase, the Owner may make the change orders to the project that
are reasonably necessary, provided that no change order may be made that will change the
qualification of the project as a "Facility" under the Guidelines and Criteria for Granting Tax
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Tax Abatement Agreement JHPK LLC 09 14 2012
Abatement approved by the City. All improvements must be completed under all applicable
laws, ordinances, rules or regulations. During the term of this Agreement, use of the Property is
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.
B. Owner represents and warrants that this project will add twelve (12) permanent or full -time
operating or contract employee and will maintain the same level of employment for the term of
the abatement agreement. Also, Owner represents and warrants the project is not expected to
solely or primarily have the effect of transferring employment from one part of Nueces County to
another.
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 with the minimum number of six (6) permanent jobs
by the January 1 following the completion of construction, no abatement is given for that tax
year, and the full amount of taxes assessed against the property is due and payable for that tax
year. In the event that the Owner fails to begin operation with the minimum number of twelve
(12) permanent jobs by the next January 1, then this Abatement Agreement terminates and all
abated taxes during the period of construction are recaptured and must be paid within 60 days
of the termination.
B. Discontinuance of Operations During Term of Abatement. In the event the Facility is
completed and begins operation with the required minimum number of permanent jobs, but
subsequently discontinues operations or the minimum number of permanent jobs is not
maintained on any January 1 during the term of the Agreement after the completion of
construction, for any reason except on a temporary basis due to fire, explosion, or other
casualty, accident, or natural disaster, the Agreement may be terminated by the City, and all
taxes previously abated by virtue of this Agreement are recaptured and must paid within 60
days of the termination.
C. Delinquent Taxes. In the event that the Owner allows its ad valorem taxes to become
delinquent or fails to timely and properly follow the legal procedures for their protest or contest,
this Agreement terminates and the abatement of the taxes for the calendar year of the
delinquency also terminates. The total taxes assessed without abatement for that calendar year
must be paid within sixty (60) days from the date of termination. Penalty and interest do not
begin to accrue on the additional amount of taxes due as the result of recapture under this
provision until the first day of the month following the sixty (60) day notice, at which time penalty
and interest accrues under the laws of the State of Texas. Penalty and interest on the amount
of taxes originally levied based upon the Abatement begin to accrue as of the date the taxes
were due under the laws of the State of Texas.
D. Notice of Default. Should the City determine that the Owner is in default under the terms
and conditions of this Agreement, City must notify the Owner that if the default is not cured
within sixty (60) days from the date of the notice ( "Cure Period "), then this Agreement may be
terminated. In the event the Owner fails to cure the default during the Cure Period, this
Agreement may be terminated and the taxes abated by virtue of the Agreement will be
recaptured and must be paid as provided in this Agreement.
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E. Actual Investment. Should the Company not reach the investment as stated in Section 6. C.,
the difference between the tax abated on the minimum investment and the tax that should have
been abated based upon the actual investment as determined by the City, and must paid within
60 days of notification to the Owner of the determination. Penalties and interest do not begin to
accrue upon the sum until the first day of the month following the sixty (60) day notice, at which
time penalties and interest accrue under the laws of the State of Texas.
F. Reduction in Rollback Tax Rate.
1. If during any year of the period of Abatement any portion of the abated value is added
to the current total value of the City, but is not treated as "new property value" (as
defined in Section 26.012 (17) of the Texas Tax Code) for the purpose of establishing
the "effective maintenance rate" in calculating the "rollback tax rate" under Section 26.04
(c) (2) of the Texas Tax Code and if the City's budget calculations indicate that a tax rate
in excess of the "rollback tax rate" is required to fund the operations of the City for the
succeeding year, then the City recaptures from the Owner a tax in an amount equal to
the lesser of the following:
(a) The amount of the taxes abated for that year by the City with respect to the
Property.
(b) 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 City.
2. If the City has granted an abatement of taxes to more than one taxpayer, then the
amount of the recapture calculated under subparagraph (b) above is prorated on the
basis of the value of the abatement with respect to each taxpayer.
3. This event does not constitute a "default" under this Agreement, and the sixty (60)
day Cure Period provided above does not apply. The recaptured taxes must be paid
within thirty (30) days after notice of the rollback in tax rate has been given to the Owner.
Penalty and interest do not begin to accrue upon the sum until the first day of the month
following the thirty (30) day notice, at which time penalty and interest accrue under the
laws of the State of Texas.
G. Continuation of Tax Lien.
1. The amount of tax abated each year under the terms of this Agreement is secured by
a first and prior tax lien, which continues in existence from year to year until the time as
this Agreement between the City and Owner is fully performed by Owner, or until all
taxes, whether assessed or recaptured, are paid in full.
H. City Council Reserves Right to Terminate of Modify Agreement. In the event of any default
by Owner, the City Council reserves the right to terminate or modify this Agreement.
I. Owner's right to appeal.
1. Owner must be afforded written notice of the default and the opportunity to cure as
provided above.
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Z If Owner believes the 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 City.
3. Owner shall remit to the City, within the 60 -day period, any additional or recaptured
taxes levied under the payment provisions of Texas Tax Code § 42.08.
4. If the final determination of the appeal increases Owner's tax liability above the
amount paid, Owner shall remit the additional tax under Tax Code § 42.42.
5. If the final determination of the appeal decreases Owner's tax liability, the City will
refund the Owner the difference between the amount of tax paid and the amount of tax
for which Owner is liable under Tax Code § 42.43.
IX. ADMINISTRATION
A. Inspections. The Owner shall allow employees and/or representatives of the City 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 -four (24) hours prior notice, and conducted in the manner as to not
unreasonably interfere with the construction or operation of the Facility. All inspections must be
made with one or more representatives of the Owner and under Owner's safety standards.
B. Appraisals.
1. The Chief Appraiser of the Nueces County Appraisal District annually determines:
(a) The taxable value of the real and personal property comprising the Property
taking into consideration the Abatement provided by this Agreement.
(b) The full taxable value without Abatement of the real and personal property
comprising the Property.
2. The Chief Appraiser records both the abated taxable value and the full taxable value
in the appraisal records.
3. Each year the Owner shall furnish the Chief Appraiser with the information outlined in
Chapter 22, Texas Tax Code, as amended, as may be necessary for the administration
of the Agreement specified in this Agreement.
C. Annual Reports.
1. Owner shall certify to the governing body of the City on or before April 1 each year
that the Owner is in compliance with each applicable term of this Agreement.
2. Additionally, during the initial four years of the term of property tax abatement, Owner
shall provide to the City an annual report covering those items listed on Schedule I
attached to this Agreement in order to document the efforts of the Owner to acquire
goods and services on a local basis.
3. The annual report is prepared on a calendar year basis and is submitted to the City
no later than ninety (90) days following the end of each the calendar year.
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Tax Abatement Agreement JHPK LLC 09 14 2012
4. Submit to the NNueces County Appraisal' District an Application for Property Tax
Abatement Exemption (Texas Comptroller of Public Accounts Property Tax Form 50
116). A copy must be forwarded to the City.
D. Utilization of Local Contractors and Suppliers. Owner agrees to exercise reasonable efforts
in utilizing local contractors and suppliers in the construction of the Project,. except where not
reasonably possible to do so without added expense, substantial inconvenience., or sacrifice in
operating efficiency in the normal course of business, with a goal of 50% of the total dollar
amount of all construction contracts and supply agreements. For the purposes of this section,
the term "local as used to describe manufacturers, suppliers, contractors, and labor includes
firms, businesses, and persons who reside in or maintain an office within a 50 mile radius of
Nueces County. Owner agrees, during the construction of the Project and for four years after
Completion, to maintain written records documenting the efforts of Owner to comply with the
Local Requirement, and to provide an annual report to the City Manager or designee, from
which the City Manager or designee shall determine if Owner is in compliance with this
requirement. Failure to substantially comply with this requirement, in the sole determination of
the City Manager or: designee, shall be a default hereunder:
E. Utilization of Disadvantaged Business Enterprises ( "DBE'). Owner agrees to exercise
reasonable efforts in utilizing contractors and suppliers that are determined to be disadvantaged
business enter
prises, including minority business enterprises women -owned business
enterprises and historically - underutilized business enterprises. In order to qualify as a business
enterprise under this provision, the firm must be certified by the City, the Regional
Transportation Authority or another governmental entity in the jurisdiction of the home office of
the business as complying with state or federal standards for qualification as such an enterprise.
Owner agrees to a goal of 30% of the total dollar amount of all construction contracts and
supply agreements being paid to disadvantaged business enterprises,: with a priority made for
disadvantaged business enterprises which are local. Owner agrees, during the construction of
the Project and for four years after Completion, to maintain written records documenting the
efforts of Owner to comply with the DBE Requirement, and to provide an annual report to the
City Manager or designee, from which the City Manager or designee shall determine if Owner is
in compliance with this requirement. Failure to substantially comply with this requirement, in the
sole determination of the .City Manager or designee, shall be a default hereunder. For the
purposes of this section, the term "local" as used to describe contractors and suppliers that are
determined to be disadvantaged business enterprises, including minority business enterprises
women -owned business enterprises and historically- underutilized business enterprises includes
firms, businesses, and persons who reside in or maintain an office within a 50 mile radius of
Nueces County.
F. Living Wage Requirement. In order to count as a permanent full -time job under this tax
abatement program, the job should provide a "living wage" for the employee. The target living
wage under this abatement program is that annual amount equal or greater than poverty level
for a family of three, established by the U.S. Department of Health and Human Services
Poverty Guidelines, divided by 2,080 hours per year for that year.
G. Health Insurance. To qualify for this incentive, an employer shall certify that it has offered a
health insurance program for its employees during the term of the Agreement.
H. Undocumented Workers. JHPK does not and agrees that it will not knowingly employ an
undocumented worker. If, after receiving payments under this Agreement, JHPK is convicted of
a violation under §U.S.C. Section 1324a(f), JHPK shall repay the payments at the rate and
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Tax Abatement Agreement JHPK LLC 09 14 2012
according to the terms as specified by City Ordinance, as amended, not later than the 120 day
after the date JHPK has been notified of the violation.
X. ASSIGNMENT
A. 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
Owners, or any partnership(s) or limited partnership(s) in which an Owner, or a subsidiary of an
Owner, is a general partner,
B. The Owner may assign this Agreement to any other new owner or lessee of the Facility with
the prior written consent of the City, which consent may not be unreasonably withheld.
C. Any assignment must 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.
D. In the event more than one entity is Owner under this Agreement, the obligations of the
entities are joint and several.
E. Any assignment of this Agreement is to an entity that must provide substantially the same
improvements to the Property, except to the extent the improvements have been completed.
F. No assignment is approved if the Owner or any assignee is indebted to the City for ad
valorem taxes or other obligations.
XI. NOTICES
A. Any notice required to be given under the provisions of this Agreement must be in writing
and is duly served when deposited, with the proper postage prepaid, and registered or certified,
return receipt requested, with the United States Postal Service, addressed to the City or Owner
at the addresses listed below.
B. If mailed, any notice or communication is deemed to be received three days after the date of
deposit in the United States Mail. Unless otherwise provided in this Agreement, all notices are
delivered to the following addresses:
To the City: CITY OF CORPUS CHRISTI
1201 Leopard Street
P. 0. Box 9277
Corpus Christi, Texas 78469
Attn: City Manager
To the Owner: JHPK, LLC
6200 Saratoga Blvd, Building 3
Corpus Christi, Texas 78414
C. Either party may designate a different address by giving the other party ten days written
notice.
Tax Abatement Agreement JHPK LLC 09 14 2012
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This Agreement has been executed. by the parties in multiple originals or counterparts., each
having full farce and effect.
Executed this day of
ATTEST:
B y: B
Armando Chapa
City Secretary
OWNER: JHPK, LLC
Sy.
I
Paul A. Kennedy, Jr.
Owner
JHPK, LLC
ACKNOWLEDGMENT
STATE OF TEXAS §
.5. OCA
■ +wJM��wo�wir
§ KNOW ALL BY THESE PRESENTS
COUNTY OF NUECE,S §.
This instrument was acknowledged before me on
�
, 2012, by
Paul.A. Kennedy, Jr., Owner, JHPK, LLC, a Texas domestic for profit limited liability company,
on behalf of the company.
= RLY AN N HAYSS mmission Expires pril 20, 2014
NO R1' Pl1BLC St 4e of Texas
CITY OF CORPUS CHRISTI, TEXAS
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Tax. Abatement Agreement Saratoga :$hores .Surginai.N 142012
SCHEDULE 1
"Buy Local" Annual Reports
The following information is reported to the City on a calendar -year basis during the first four
years of the tax abatement program:
1. Dollar amount spent for materials` (local).
2. Dollar amount spent for materials (total).
3. Dollar amount spent for labor ** (local).
4. Dollar amount spent for labor ** (total).
5. Number of jobs created in the construction project (local).
6. Number of jobs created in the construction project (total).
7. Number of jobs created on a permanent basis (local).
8. Number of jobs created on a permanent basis (total).
* "Materials" are defined to include all materials used in excavation, site improvement,
demolition, concrete, structural steel, fire 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 includes
firms, businesses, and persons who reside in or maintain an office within a 50 mile radius of
Nueces County.
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Tax Abatement Agreement JHPK LLC 09 14 2012
Exhibit A
Project Plan
This new facility will be an outpatient ambulatory surgical center serving both pediatric
and adult dental and medical patients. The facility will serve the entire South Texas
area from Victoria to near San Antonio, Freer, Hebbronville, Kingsville, and Corpus
Christi.
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EXHIBIT B
Property Description
Unit No. 3 of Saratoga Shores Condominiums, a condominium project being established in
Corpus Christi, Nueces County, Texas, OUT OF Lot 5, Bk 7, BENT TREE UNIT 2, an addition
of the City of Corpus Christi, Nueces County, Texas, according to the map or plat thereof
recorded at Volume 57, Pages 99 -100, Map Records of Nueces County, Texas.
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Tax Abatement Agreement JHPK LLC 09 14 2012