HomeMy WebLinkAboutC2019-594 - 7/23/2019 - Approved Execution Version
692367 AGREE Total Pages: 20
VIII 14iir rENVAIRMiliiiihinin A I I'iY , 11111
TEXAS LOCAL GOVERNMENT CODE SECTION 212.172
EXTRATERRITORIAL JURISDICTION NON-ANNEXATION AGREEMENT
BETWEEN
CITY OF CORPUS CHRISTI, TEXAS
AND
CORPUS CHRISTI ALUMINA LLC
SCANNED
Execution Version
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EXTRATERRITORIAL JURISDICTION NON-ANNEXATION AGREEMENT
This Extraterritorial Jurisdiction Non-Annexation Agreement (this "Agreement") is
entered into in accordance with and under the authority of Section 212.172 of the Texas Local
Government Code("Section 212.172") effective as of 5 krw'r.,?.a it , 2019 (the"Effective
Date"), by and between THE CITY OF CORPUS CHRISTI, TEXAS ("City"), and CORPUS
CHRISTI ALUMINA LLC, a Delaware limited liability company("Company").
RECITALS
WHEREAS, Company has acquired the land more particularly described in Exhibit A, all
or a portion of which is located within City's extraterritorial jurisdiction (all or such portion, the
"ETJ Land"); and
WHEREAS, Company has entered into that certain Agreement to Purchase and Sell Real
Estate (with all exhibits, schedules and amendments thereto the "Cheniere Contract") with
Cheniere Land Holdings, LLC ("Cheniere") for the sale of the ETJ Land for further development;
and
WHEREAS, City recognizes the positive economic impact that further development will
bring to City and its extraterritorial jurisdiction through development and diversification of the
economy, reduction of unemployment and underemployment through the creation of new jobs,
and the attraction of new businesses; and
WHEREAS, City has entered into an Economic Development Incentive Agreement with
Cheniere("Cheniere Agreement"); and
WHEREAS, Section 212.172 authorizes City to make a written contract with an owner of
land that is located in City's extraterritorial jurisdiction to guarantee the continuation of the
extraterritorial status of such land and its immunity from annexation by City for a period of up to
forty-five (45) years, and to agree to other terms regarding land usage, development, and
regulation; and
WHEREAS, Company has sought certainty from City as to future annexation of the ETJ
Land, and in consideration of the positive economic impact that further development will bring to
City and its extraterritorial jurisdiction, City intends that the ETJ Land not be annexed during the
term of this Agreement; and
WHEREAS, in consideration of the positive economic impact that further development
will bring to City and its extraterritorial jurisdiction, City intends that the extraterritorial status of
the ETJ Land be continued during the term of this Agreement; and
WHEREAS, in consideration of the benefits provided to Company pursuant to this
Agreement, Company has agreed to comply with the terms and conditions of this Agreement, and
to make payments in lieu of taxes to City as provided in this Agreement.
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NOW,THEREFORE,in consideration of the mutual benefits described in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, City and Company agree as follows:
ARTICLE I
DEFINITIONS
The recitals to this Agreement are hereby incorporated for all purposes. The terms
"Agreement," "City," "Company," "Cheniere," "Cheniere Agreement", "Cheniere Contract",
"Effective Date," "ETJ Land," and "Section 212.172" shall have the above meanings, and the
following words or phrases shall have the following meanings:
1.1 "Act of Default" or "Default" means a failure to timely, fully, and completely comply in
any material respect with one or more requirements, obligations, performance criteria, duties,
terms, conditions or warranties in this Agreement.
1.2 "Base Payment"has the meaning assigned to such term in Section 5.3 of this Agreement.
1.3 "Corpus Christi MSA" means the Corpus Christi Metropolitan Statistical Area (which
includes San Patricio County,Nueces County, and Aransas County).
1.4 "Extraterritorial Jurisdiction Services Agreement"has the meaning assigned to such term
in Section 2.5 of this Agreement.
1.5 "Force Majeure" means any failure by Company to comply with any requirement of this
Agreement that is caused by (i) provisions of law, or the operation or effect of rules, regulations
or orders promulgated by any governmental authority having jurisdiction over Company,the ETJ
Land or any improvements or operations thereon or any upstream, intermediate or downstream
equipment or support facilities as are necessary to such operations; (ii) any demand or requisition,
arrest, order, request, directive, restraint or requirement of any government or governmental
agency whether federal, state, military, local or otherwise; (iii) the action,judgment or decree of
any court; (iv) floods, tornadoes, hailstorms, hurricanes, evacuation due to threats of hurricanes,
lightning, earthquakes, washouts,high water, fires, acts of God or public enemies, wars (declared
or undeclared),blockades,epidemics,riots or civil disturbances,insurrections,terrorism,sabotage,
threats of terrorism or sabotage, strikes,labor disputes(it being understood that nothing contained
in this Agreement shall require Company to settle any such strike or labor dispute), explosions,
breakdown or failure of plant, machinery, equipment, lines of pipe or electric power lines (or
unplanned or forced outages or shutdowns of the foregoing for inspections, repairs or
maintenance), inability to obtain, renew or extend franchises, licenses or permits, loss,
interruption, curtailment or failure to obtain electricity, gas, steam, water, wastewater disposal,
waste disposal or other utilities or utility services, inability to obtain or failure of suppliers to
deliver feedstock, raw materials, equipment, parts or materials (including, but not limited to,
specially-manufactured tangible personal property that is manufactured by Company or its
affiliates or purchased by Company from an unrelated party for installation and operation of the
improvements on the ETJ Land),or inability of Company to ship,or failure of carriers to transport
to or from Company's facilities, products (finished or otherwise), feedstock, raw materials,
equipment, parts or material; or (v) any other cause (except financial), whether similar or
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dissimilar, over which Company has no reasonable control and which forbids or prevents
performance and cannot be overcome by reasonable diligence or without unusual expense.
1.6 "Industrial District Agreement" means an agreement made and entered into under the
authority of Section 42.044 of the Texas Local Government Code, or successor provisions thereto.
1.7 "Notice"has the meaning assigned to such term in Section 8.7 of this Agreement.
1.8 "Term"has the meaning assigned to such term in Article III of this Agreement.
ARTICLE II
ETJ LAND ANNEXATION AND USAGE
2.1 Extraterritorial Status of ETJ Land. Pursuant to its authority under Section 212.172, City
agrees that,beginning on the Effective Date,and subject to Section 2.2 and Company's compliance
with the applicable terms of this Agreement, the ETJ Land shall remain in City's extraterritorial
jurisdiction and shall not be annexed by City during the Term.
2.2 Industrial District Agreement or Other Agreement.
(A) At any time during the Term, Company may give City written notification of a
request to have all or any portion of the ETJ Land placed in an industrial district and bound by the
terms of an Industrial District Agreement with City effective on the earlier of(i) the termination
of this Agreement, and (ii) January 1, 2034. City will not withhold approval of any such request.
(B) Upon expiration of the Term or earlier termination of this Agreement, if City and
Company have not previously entered into an Industrial District Agreement pursuant to Section
2.2(A)with respect to any portion of the ETJ Land then owned by Company, Company shall,prior
to the effective date of the expiration or earlier termination of this Agreement, enter into an
Industrial District Agreement with City to include all of the ETJ Land then owned by Company
and not covered by an Industrial District Agreement entered into pursuant to Section 2.2(A). Any
Industrial District Agreement entered into pursuant to this Section 2.2(B) shall contain terms and
provisions comparable in all material respects to the most favorable terms and provisions contained
in any Industrial District Agreement then in effect to which City is a party, and will be effective
on the earlier of(i) the termination of this Agreement, and (ii) January 1, 2034.
(C) Notwithstanding the provisions of this Section 2.2, City and Company may, in lieu
of entering into an Industrial District Agreement under such provisions, enter into another type of
agreement (including, but not limited to, an agreement under Section 212.172 or an agreement
under Chapter 380 of the Texas Local Government Code) containing such terms and provisions as
are mutually agreed upon by City and Company, so long as such agreement is approved and
executed prior to the effective date of the expiration or earlier termination of this Agreement.
2.3 Limited to Industrial and/or Commercial Use. Company covenants and agrees that during
the Term, Company will use or permit the use of the ETJ Land only for industrial and/or
commercial purposes, which use may include buildings or other improvements used for the
administration or support of such industrial and/or commercial purposes. Holding the ETJ Land
for future industrial and/or commercial use, and/or industrial and/or commercial support use,
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without using it for non-industrial or non-commercial purposes, shall not be a violation of this
Section 2.3.
2.4 Maintenance of ETJ Land and Improvements; Conduct of Operations. During the Term,
Company shall maintain the ETJ Land and any of its improvements thereon, except those
demolished or slated for demolition, and conduct its operations thereon, in a commercially
reasonable manner.City shall not be responsible for any costs and expenses incurred in connection
with the construction of any facilities. If requested by City, Company agrees to reasonably assist
City in the preparation of any documentation necessary for the preparation and approval of any of
the documents or actions required by City to perform any of its obligations under this Agreement.
2.5 City Services.
(A) During the Term, City shall have no obligation to extend to the ETJ Land, or any
improvements or operations thereon, any utility, fire protection, or other City services, except for
services that are being provided to and paid for by Company on the date hereof, or as City and
Company shall otherwise agree in writing(any such agreement, and any amendment or successor
agreement thereto, an"Extraterritorial Jurisdiction Services Agreement").
(B) Company agrees that during the Term, the provision of water service, wastewater
service or any other services to Company may be provided by any special district or city other than
City.
2.6 Compliance with City Rules and Regulations. City and Company agree that during the
Term, with respect to the ETJ Land and any improvements or operations thereon, City shall not
require compliance with its rules or regulations: (1)governing zoning and platting of the ETJ Land;
provided, however, Company further agrees that it will in no way divide the ETJ Land without
complying with applicable state law and City ordinances governing subdivision of land; (2)
prescribing any building, electrical, plumbing, inspection, or similar or related code or codes; or
(3)otherwise governing the operation of Company's business on the ETJ Land;provided,however,
that an Extraterritorial Jurisdiction Services Agreement between City and Company may require
Company's compliance with certain rules or regulations directly relating to City's provision of
services to Company thereunder.
2.7 Annexation by Another Entity. If(i)any attempt to annex any of the ETJ Land is made by
another municipality, (ii) any attempt is made by another municipality to include any of the ETJ
Land within the extraterritorial jurisdiction of such municipality, or(iii) any incorporation of any
new municipality should attempt to include any of the ETJ Land within the boundaries or
extraterritorial jurisdiction of such municipality, City may seek a temporary and permanent
injunction against such annexation, inclusion or incorporation, with the cooperation of Company,
or may take other legal action necessary or advisable under the circumstances to prevent such
annexation, inclusion or incorporation. Company agrees to provide City with prompt notice of
any such attempted annexation.
2.8 Annexation Corridor. Except for any sale of the ETJ Land or any portion thereof which is
contemplated by Section 5.1(B)of this Agreement,should Company sell a portion of the ETJ Land
to any third party that is not an affiliate, subsidiary, related company, entity, partnership or joint
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venture that controls,is controlled by,or is under common control with Company,and should such
sold portion of the ETJ Land no longer be covered by this Agreement pursuant to the assignment
provisions of Section 5.1 ("Relinquished Land"), Company shall, after City provides Company
with sixty (60) days prior written notice of intent to initiate annexation proceedings with respect
to such Relinquished Land, but only to the extent necessary to allow City to annex such
Relinquished Land,permit City to annex a suitable strip of ETJ Land from City's boundary to such
Relinquished Land (an "Annexation Corridor"). Any Annexation Corridor shall (i) except to the
extent otherwise required by clause(ii)of this sentence be the minimum amount legally necessary
to annex the Relinquished Land,and(ii)be located and configured in a manner that does not result
in the annexation of any portion of the facilities. The location and configuration of any Annexation
Corridor shall be subject to the approval of Company, which approval shall not be unreasonably
withheld. Company and any Annexation Corridor shall have no right to any City services as a
result of such annexation,except as otherwise provided in any Extraterritorial Jurisdiction Services
Agreement; nor shall City extend, by ordinance or otherwise, any rules or regulations to the
Annexation Corridor, including, but not limited to, those (a) governing zoning, plats and
subdivisions of land, (b) prescribing any building, electrical, plumbing, inspection, or similar or
related code or codes, or (c) attempting to exercise in any manner whatsoever control over the
conduct or operation of Company's business thereon. Any such Annexation Corridor shall remain
subject to this Agreement and shall not be subject to City taxes. In the event that the need for any
Annexation Corridor no longer exists, City agrees to immediately cease any annexation
proceedings related to such Annexation Corridor or,if such Annexation Corridor has been annexed
by City, within sixty (60) days after such need no longer exists, take the steps necessary to
complete disannexation proceedings required to remove the Annexation Corridor from City limits.
ARTICLE III
TERM
The term of this Agreement (the "Term") will begin on the Effective Date and shall
continue until December 31, 2033, unless this Agreement is earlier terminated as provided
elsewhere herein.
ARTICLE IV
REPRESENTATIONS
4.1 Representations of City. City hereby represents to Company that as of the date hereof:
(A) 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) City has the power, authority and legal right under the laws of the State of Texas 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)
does not constitute a default under, or result in the creation of any lien, charge, encumbrance or
security interest upon any assets of City under, any agreement or instrument to which City is a
party or by which City or its assets may be bound or affected.
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(C) This Agreement has been duly authorized, executed and delivered by City and
constitutes a legal, valid and binding obligation of City, enforceable in accordance with its terms
except to the extent that (i) such enforceability 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 City do not require
the consent or approval of any person that has not been obtained.
4.2 Representations of Company. Company hereby represents to City that as of the date
hereof:
(A) Company is duly organized and existing and in good standing as a limited liability
company under the laws of Delaware and shall remain in good standing in Delaware during the
Term. Company is registered with the Texas Secretary of State and authorized to do business in
Texas.
(B) Company 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 applicable
judgment, order, law or regulation applicable to Company, and (ii) does not constitute a default
under,or result in the creation of any lien,charge, encumbrance or security interest upon any assets
of Company under, any agreement or instrument to which Company is a party or by which
Company or its assets may be bound or affected.
(C) This Agreement has been duly authorized, executed and delivered by Company and
constitutes a legal, valid and binding obligation of Company, enforceable in accordance with its
terms except to the extent that(i)such enforceability 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 Company do not
require the consent or approval of any person that has not been obtained.
ARTICLE V
ADDITIONAL COMPANY REQUIREMENTS
5.1 Assignment. Except as provided in this Section 5.1, Company may not assign all or part
of its rights and obligations under this Agreement to a third party without prior written approval
of City, which approval will not be unreasonably withheld, delayed or conditioned.
(A) City agrees, that Company may assign in whole or in part its rights and obligations
under this Agreement or with respect to all or any part of the ETJ Land or improvements thereon
to any affiliate, subsidiary, related company, entity, partnership or joint venture of Company, as
long as the assignee controls, is controlled by, or is under common control with Company; or to a
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third party lender advancing funds for the acquisition of all or any part of the ETJ Land or
improvements thereon or for the construction or operation of such improvements. City expressly
consents to any assignment described in the preceding sentence, and agrees that no further consent
of City to such an assignment will be required. Company agrees to provide City with written
notice of any such assignment within 20 days of the effective date of such assignment.
(B) City agrees that Company may assign in whole or in part its rights and obligations
under this Agreement or with respect to all or any part of the ETJ Land or improvements thereon
to Cheniere and/or any affiliate of Cheniere that is also a party to the Cheniere Contract upon the
consummation of the Cheniere Contract. City expressly consents to any assignment described in
the preceding sentence and agrees that no further consent of City to such an assignment will be
required. Company agrees to provide City with written notice of any such assignment within 20
days of the effective date of such assignment. City further acknowledges and agrees that upon an
assignment under Section 5.1(B) of this Agreement, all terms, obligations, and requirements of
Cheniere shall be governed by the Cheniere Agreement as modified from time to time by and
between the City and Cheniere.
(C) In the event that a permitted assignee hereunder shall assume in writing the
obligations of the assignor hereunder, the assignor shall cease to have any obligations or further
obligations under this Agreement. City agrees that performance of any obligations of a party or a
permitted assignee under this Agreement by any affiliate, subsidiary, related company, entity,
partnership or joint venture of such party or permitted assignee shall be accepted as performance
of such obligations for all purposes under this Agreement.
(D) In the event that the Cheniere Contract, as it may be amended from time to time,
shall be terminated without the sale of the ETJ Land occurring thereunder, this Agreement shall
terminate and the Parties shall enter into an industrial district agreement or other agreement in
accordance with Section 2.2.
5.2 Prohibited Transfers. Company agrees that, without the express written approval of City,
Company may not deed any part of the ETJ Land or improvements thereon to a tax-exempt entity
or public entity; provided, however, that no such approval of City shall be required if any part of
the ETJ Land or improvements thereon are(i)taken in condemnation proceedings or by any other
exercise of any right or power of eminent domain, or(ii) conveyed or transferred under the threat
of such condemnation proceedings or the exercise of any such right or power.
5.3 Payment In Lieu of Taxes.
(A) For purposes of this Agreement,the term"Base Payment"shall mean,with respect
to any calendar tax year, an amount equal to the sum of(i)an amount equal to one hundred percent
(100%) of the ad valorem taxes for the ETJ Land based upon its taxable value (as determined by
the relevant appraisal district for such tax year) which would otherwise be payable to City by
Company if the ETJ Land was situated within the city limits of City, plus (ii) sixty-two and one-
half percent (62.5%) of the ad valorem taxes for that portion of the facilities (excluding personal
property and inventory) located on the ETJ Land based upon its taxable value (as determined by
the relevant appraisal district for such tax year) which would otherwise be payable to City by
Company if such portion of the facilities was located within the city limits of City.
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(B) For the tax year 2031, Company shall pay City an amount equal to thirty-three
percent(33%)of the Base Payment with respect to such tax year. For the tax year 2032,Company
shall pay City an amount equal to sixty-six percent (66%) of the Base Payment with respect to
such tax year. For the tax year 2033, Company shall pay City an amount equal to one hundred
percent (100%) of the Base Payment with respect to such tax year. Each such payment shall be
due on January 31 of the year following the tax year with respect to which such payment is made.
Except as otherwise provided in Section 5.3(C), Company shall not be obligated to pay City any
portion of the Base Payment with respect to any other tax year during the Term.
(C) If upon the effective date of the expiration of the Term or earlier termination of this
Agreement Company and City have not entered into an Industrial District Agreement or another
type of agreement in accordance with Section 2.2, Company will, within 120 days following the
expiration or earlier termination of this Agreement (except as otherwise provided in Section
5.3(C)(ii)), make an additional payment to City in an amount equal to the following, whichever is
applicable:
(i) if the expiration or earlier termination of this Agreement occurs on or after
January 1, 2029, an aggregate amount equal to the sum of one hundred percent(100%) of
the Base Payment for each of the ten (10) calendar tax years immediately preceding the
calendar tax year that includes the date of the expiration or earlier termination of this
Agreement; or
(ii)if the expiration or earlier termination of this Agreement occurs before January
1, 2029, an aggregate amount equal to the sum of one hundred percent(100%)of the Base
Payment for each calendar tax year from and including the calendar tax year 2019 through
and including the calendar tax year that includes the date of the expiration or earlier
termination of this Agreement (it being understood and agreed that if the taxable value of
the ETJ Land and/or the portion of the facilities (excluding personal property and
inventory) located on the ETJ Land for the calendar tax year that includes the date of the
expiration or earlier termination of this Agreement has not been determined by the relevant
appraisal district within 90 days following the expiration or earlier termination of this
Agreement, the amount due under this Section 5.3(C)(ii) for the calendar tax year that
includes the date of the expiration or earlier termination of this Agreement shall be due
within 90 days after such taxable values of the ETJ Land and/or the portion of the facilities
(excluding personal property and inventory)located on the ETJ Land have been determined
by the relevant appraisal district).
(D) The obligations contained in this Section 5.3 shall survive the expiration or earlier
termination of this Agreement until paid in full.
5.4 Use of Local Resources. [intentionally omitted]
ARTICLE VI
COVENANTS,WARRANTIES, OBLIGATIONS AND DUTIES
OF COMPANY
Company, as of the Effective Date, makes the following covenants and warranties to City
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and agrees to timely and fully perform the following obligations and duties.
6.1 Untrue Statements. To the best of Company's knowledge, no written certificate or
statement delivered by Company to City in connection herewith or with any transaction
contemplated hereby contains any material untrue statement or fails to state any fact necessary to
keep the statements contained therein from being misleading in any material respect except those
which have been replaced by subsequent certificates or statements heretofore given to City in
substitution.
6.2 Bankruptcy. Company is not the subject of any bankruptcy proceedings, and Company
has not been informed that it is the subject of any potential involuntary bankruptcy proceedings.
6.3 Licenses and Authority. To the best of Company's knowledge, it has acquired or is in the
process of acquiring and maintaining all necessary rights, licenses, permits and authority to carry
on its business in City, City's extraterritorial jurisdiction,and San Patricio County,Texas,and will
continue to use commercially reasonable efforts to maintain all such necessary rights, licenses,
permits and authority.
6.4 Succession of Ownership. Except as provided in Section 5.1, no change of ownership or
management of any part of the facilities nor a change of ownership or management of Company
shall abate,waive,terminate or in any way relieve Company,or its successors and assigns,of their
respective obligations herein.
6.5 Non-Discrimination. Company agrees that, as to all of the programs and activities arising
out of this Agreement, it will not discriminate against any person on the basis of race, color,
national or ethnic origin, sex, age, religion, or by reason of being disabled, or any other
characteristic protected under applicable federal or state law.
6.6 Employment of Undocumented Workers. Company does not and agrees that it will not
knowingly employ an undocumented worker (as defined by Texas Government Code, Section
2264.001(4)). Company's conviction of a violation under 8 U.S.C. 1324a shall constitute an Act
of Default hereunder.
ARTICLE VII
DEFAULT
7.1 Company Default. Subject to Force Majeure and any consent given under Section 7.3 or
variance granted under Section 8.12, if an Act of Default by Company is not cured and corrected
within ninety (90) days after written notice from City to do so or by express waiver by City, City
has the option to terminate this Agreement;provided,however,that if such Act of Default is caused
by an event constituting Force Majeure, Company shall be allowed additional time reasonable
under the circumstances to cure and correct such Act of Default. Company shall be liable to City
for any actual proven damages sustained by City as a result of said Act of Default by Company
under this Agreement, subject to the provisions of Section 8.13.
7.2 City Default. Should City fail to timely,fully and completely comply with any one or more
of the requirements, obligations, duties, terms, conditions or warranties of this Agreement, such
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failure shall be an Act of Default by City and City shall have ninety(90) days to cure and remove
the Default after receipt of written notice to do so from Company. Upon the occurrence of an Act
of Default by City (including, but not limited to, by annexing or attempting to annex any of the
ETJ Land during the Term or wrongfully terminating this Agreement), Company shall, in addition
to any other legal or other remedy that may be available to it, be entitled to specific performance
and temporary and permanent injunctive and any other equitable relief from the date of such Act
of Default for the balance of the Term (without proof of actual damage or inadequacy of legal
remedy and without the necessity of posting a bond), including, but not limited to, enjoining City
from enforcing any annexation ordinance adopted in violation of this Agreement, terminating this
Agreement, or taking any other action in violation of this Agreement.
7.3 Consent and Excuse. In the event of unforeseeable third-party delays which are not Force
Majeure and upon a reasonable showing by Company that it has immediately and in good faith
commenced and is diligently and continuously pursuing the correction, removal or abatement of
such delays by using commercially reasonable efforts, City may consent to and excuse any such
delays, which consent and excuse shall not be unreasonably withheld, delayed or conditioned.
7.4 Delay. Any delay for any amount of time by a party in providing notice of Default to a
defaulting party hereunder,or in taking action in response to a Default,shall in no event be deemed
or constitute a waiver of such Default by the non-defaulting party of any of its rights and remedies
available in law or in equity.
7.5 Waiver. Any waiver granted by a party to a defaulting party of an Act of Default shall not
be deemed or constitute a waiver of any other existing or future Act of Default by the defaulting
party or of a subsequent Act of Default of the same act or event by the defaulting party.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Attorneys' Fees. If any legal action or proceeding is commenced between City and
Company under this Agreement, each party will be responsible for its own attorneys' fees and
expenses.
8.2 Binding Effect. This Agreement will be binding on and inure to the benefit of the parties
and their respective successors and assigns.
8.3 Not an Industrial District Agreement. The Parties agree that this Agreement is not an
Industrial District Agreement and should not be considered an Industrial District Agreement for
any purpose.
8.4 Termination. At any time during the Term, Company may elect to terminate this
Agreement as to all or any portion of the ETJ Land by providing City with written notice of such
election. Following the giving of any such notice, this Agreement shall terminate and be of no
further force or effect as to the portion or portions of the ETJ Land designated in such notice and
all parties hereto shall be fully released of any further obligations under this Agreement relating to
said designated portion or portions of the ETJ Land; provided, however, that if at the time of the
giving of any such notice City is a Tier 2 Municipality with respect to such designated portion or
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portions of the ETJ Land, Company and City shall enter into an Industrial District Agreement or
another type of agreement in accordance with Section 2.2.
8.5 Compliance Review by City. City or City's designee may conduct a compliance review of
Company's records relative to compliance with this Agreement to determine Company's
compliance with the terms of this Agreement. This review may be done by City or its designee on
an annual basis.
8.6 Access to Records. Company, during normal business hours and after being provided at
least ten (10) working days prior written notice, shall allow City or its designee reasonable access
to its records and books and all other relevant records relative to compliance with this Agreement,
but the confidentiality of such records and information shall be maintained by City unless
disclosure of such records and information shall be required by a court order, a lawfully issued
subpoena, or the Office of the Texas Attorney General.
8.7 Notice. Any notice or other communication ("Notice") given under this Agreement must
be in writing, and may be given: (i) by depositing such Notice in the United States Mail, postage
paid, certified, and addressed to the party to be notified with return receipt requested; (ii) by
personal delivery of such Notice to the party, or an agent of the party; or (iii) by confirmed
facsimile, provided that a copy of such Notice is also given in one of the manners specified in (i)
or (ii). Notice deposited in the mail in the manner specified will be effective two (2) days after
such deposit. Notice given in any other manner will be effective only if and when received by the
party to be notified. For the purposes of Notice, the addresses of the parties will, until changed as
provided below, be as follows:
Company:
Corpus Christi Alumina, LLC
Attn: Andrew Smith
330 Madison Avenue
New York, New York 10017
Phone: (646) 949 - 2440
Fax:
with a simultaneous copy (which shall not constitute notice) to:
Locke Lord, LLP
200 Vesey Street
20th Floor
New York, NY 10281
Phone: (212) 912 —2816
Fax: (646) 786 - 4116
Attention:
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Andrew D. Otis
Scott Husaker
City:
City of Corpus Christi
Attn.: City Manager
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Phone: (361) 826-3220
Facsimile: (361) 826-3839
with a copy to:
City Attorney
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Phone. (361) 826-3360
Facsimile: (361) 826-3239
Any party may designate a different address at any time by giving Notice to the other party.
8.8 Severability. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws, it is the intention of the parties that the remainder of
this Agreement not be affected and it is also the intention of the parties that, in lieu of each
provision that is found to be illegal, invalid or unenforceable, a provision be added to this
Agreement which is legal, valid or enforceable and is as similar in terms as possible to the
provision found to be illegal, invalid or unenforceable.
8.9 Article and Section Headings, Etc. The Article and Section headings contained in this
Agreement are for convenience only and will in no way enlarge or limit the scope or meaning of
such Articles and Sections.
8.10 No Third-Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
8.11 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, but all of which will constitute one and
the same instrument. A facsimile signature will be deemed to be an original signature for all
purposes.
8.12 Variances. City, in its sole discretion, may grant and approve variances to Company with
respect to any of Company's requirements, obligations, performance criteria, duties, terms,
conditions or warranties in this Agreement upon application in writing therefore by Company.
8.13 Damages not Included. Damages awarded in an adjudication brought against City or
Company arising under the Agreement, including any amendments thereto, may not include: (i)
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Execution Version
special or consequential damages; (ii) punitive or exemplary damages; or (iii) damages for
unabsorbed home office overhead.
8.14 Interpretation. Each of the parties hereto has been represented by counsel of their choosing
in the negotiation and preparation of this Agreement. In the event of any dispute regarding the
interpretation of this Agreement, this Agreement will be interpreted fairly and reasonably and
neither more strongly for nor against either party based on draftsmanship.
8.15 Relationship of the Parties. This Agreement will not be construed as establishing a
partnership or joint venture, joint enterprise, express or implied agency, or employer/employee
relationship between the parties. Neither City nor its officers, elected officials, employees, or
agents assume any responsibility of liability to any third party in connection with the development
of the facilities or the design, construction or operation of any portion of the facilities.
ARTICLE IX
GENERAL TERMS
9.1 Entire Agreement. This Agreement (together with any Extraterritorial Jurisdiction
Services Agreement) embodies the complete agreement of the parties hereto, superseding all oral
or written, previous or contemporary, agreements between the parties relating to matters in this
Agreement; and, except as otherwise provided herein, this Agreement cannot be modified or
amended without a written agreement of the parties.
9.2 Required Recordation. City will file a copy of this Agreement in the real property records
of each county in which any part of the land that is subject to the Agreement is located in
compliance with Texas Local Government Code 212.172(c)(4).
9.3 Law. This Agreement is subject to all legal requirements of the State of Texas and U.S.
Federal laws, and Company agrees that it will promptly comply in all material respects with all
such applicable laws, regulations, orders and rules of the State of Texas and other applicable
governmental agencies. This Agreement shall be governed by and construed in accordance with
the laws and court decisions of the State of Texas without regard, however,to the conflicts of laws
provisions of Texas law.
9.4 Confidential. City, its officers and employees, and its agents or contractors retained to
perform economic development services for City, shall treat as confidential any information
delivered by Company or its representatives to City and its representatives and shall not release
such information to the public,unless required by law, court order, or ruling of the Texas Attorney
General's Office. City shall immediately notify Company of requests or court orders to release
such information.
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Execution Version
EXECUTED effective as of the Effective Date.
CORPUSCHRIST A, LLC
By: -4 ,111
Lia,a)A9.4
Name: Andrew rth
Title: Corporat6cretary
STATE OF NEW YORK §
COUNTY OF NEW YORK §
This instrument was acknowledged before me on the 2oi`` day of
PIN ,2019,by And etk) Swtt , on behalf of Corpus Christi Alumina,
LLC.
Notary Public, State of New York CYNTHIA MEDINA
Notary Public, State of New York
My commission expires: Se{pievinbe c (iz,, 201`i Registration tlt01ME624783.0,
-Qualified to Nassso-County
Commission Expires Sept.6.20, ,
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Execution Version
CITY OF CORPUS CHRISTI,TEXAS
By: .... ;,;? grg~,11___
Peter Zanoni
City Manager
ATTEST: APPROVED AS TO LEGAL FORM:
6„.L.,. (64v., died
Rebecca Huerta ssistant City Attorney
City Secretary For City Attorney
STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on the 21) day of
, 2019, by Peter Zanoni, City Manager, on behalf of City of Corpus Christi.
X
`��P,pY P�,e%� MILES K. RISLEY
Notary Public, State of Texas =
• Execution Version
EXHIBIT A
PROPERTY
METES AND BOUNDS DESCRIPTION
OF
410.487 ACRES OF LAND
(NET 402.9886 ACRES)
Being 410.487 acres of land (net 402.9886 acres), more or less, out of G. Valdez Survey, A-269,
T.T. Williamson Surveys, A-288, A-290, A-291, San Patricio County, Texas and Corpus Christi
Bay Submerged Tracts 1 and 2, Nueces County, Texas, and being out of a 1610.0 acre tract, a
4.264 acre tract and a 31.82 acre tract recorded in Clerk File No. 490819, Official Public Records
of San Patricio County, Texas, and this 410.487 acres of land made up of two tracts, each being
more particularly described by metes and bounds as follows:
NORTH 20.80 ACRE TRACT
Beginning at the northeast corner of this tract, said corner also being the northwest corner of a
203.20 acre tract recorded in C.F. #649462, O.P.R.S.P.C.T. and being on the south right-of-way
line of Highway 361, said corner having State Plane Grid Coordinate of N 17,219,865.62', E
1,384,905.46',NAD'83, Texas South Zone in U.S. feet;
Thence with the east boundaries of this tract, the same being the west boundaries of said 203.20
acre tract as follows:
S 29-55-20 W, 208.19 feet;
S 00-28-40 E, 2107.32 feet, to the southeast corner of this tract;
Thence S 89-37-22 W with the south boundary of this tract, 366.11 feet, to the southwest corner
of this tract,said corner being on the east boundary of a 827.38 acre tract recorded in C.F.#649462,
O.P.R.S.P.C.T.;
Thence N 00-22-38 W with the west boundary of this tract, the same being the east boundary of
said 827.38 acre tract, 2,560.76 feet, to the northwest corner of this tract, said corner also being
the northeast corner of said 827.38 acre tract and said corner lying on the south right-of-way line
of said Highway 361;
Thence S 60-01-57 E with the north boundary of this tract, the same being the south right-of-way
line of said highway, 541.64 feet, to the point of beginning and containing 20.80 acres of land,
more or less.
SOUTH 389.687 ACRE TRACT
Beginning at the northeast corner of this tract, said corner being on the west boundary of the
aforementioned 203.20 acre tract and having State Plane Grid Coordinate of N 17,217,357.76', E
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1,384,820.83', NAD'83, Texas South Zone in U.S. feet and said 203.20 acre tract being out of a
341.3 acre tract recorded in C.F. #490819, O.P.R.S.P.C.T;
Thence S 00-28-40, at 906.66 pass the southwest corner of said 203.20 acre tract, in all 1,444.19
feet to an interior corner of this tract and said 341.3 acre tract;
Thence with the east boundaries of this tract, the same being the west boundaries of said 341.3
acre tract, as follows:
S 89-25-19 W, 160.89 feet,
S 01-02-07 E, 322.96 feet;
S 23-20-51 E, 93.03 feet;
S 33-49-25 E, 89.86 feet;
N 89-52-53 E, 656.55 feet;
S 00-15-49 E, 242.54 feet;
S 00-35-24 W, 251.78 feet;
S 01-22-09 E, 611.35 feet;
S 56-10-24 E, 89.56 feet;
S 88-03-03 E, 141.09 feet;
S 61-04-59 E, 293.53 feet, to a southeast corner of said 341.3 acre tract, said corner being on the
east boundary of said 1610.0 acre tract and the west boundary of a Occidental Chemical Corporation
310.70 acre tract recorded in C.F. #605165, O.P.R.S.P.C.T.
Thence S 00-17-00 E with the east boundary of this tract and said 1610.0 acre tract,the same being
the west boundary of said 310.70 acre tract, 4139.64 feet, to the southeast corner of said 1610.0
acre tract and the northeast corner of the aforementioned 4.264 acre tract;
Thence S 25-30-31 W, 437.10 feet, to the southeast corner of this tract and said 4.264 acre tract,
said corner being on the north bulkhead line of the La Quinta Channel;
Thence N 77-31-01 W with the south boundary of this tract, the south boundaries of said 4.264
acre tract and 31.82 acre tract and said north bulkhead line, 2151.96 feet, to the southwest corner
of this tract, said corner also being the southeast corner of a 212.20 acre tract recorded in C.F. #
531139, O.P.R.S.P.C.T.;
N 01-10-33 W with the west boundary of this tract and said 31.82 acre tract, the same being the
east boundary of said 212.20 acre tract, 767.49 feet, to a corner;
Thence N 17-32-45 W with the west boundary of this tract and said 1610.0 acre, the same being
the east boundary of said 212.20 acre tract, at 296.87 feet pass a northeast corner of said 212.20
acre tract, the same being the southeast corner of a 125.20 acre tract recorded in C.F. #613799,
O.P.R.S.P.C.T., in all 1559.00 feet, to a corner of this tract;
Thence entering said 1610.00 acre tract and with the west boundaries of this tract as follows:
N 00-34-25 W, 1,009.16 feet, to the beginning of a curve to the right;
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Execution Version
Thence with said curve to the right have a radial bearing of N 89-25-33 E, 382.66 feet, a central
angle of 39-16-13, a length of 262.27 feet;
North, 369.46 feet;
West, 161.75 feet;
North 194.05 feet;
N 45-00-00 E, 56.65 feet,
N 00-20-25 W 1259.86 feet;
N 03-20-06 E,232.21 feet;
N 19-42-49 W, 93.23 feet;
N 63-56-35 E, 287.81 feet;
N 18-21-49 W, 665.67 feet;
N 27-51-44 E, 160.87 feet;
N 16-38-15 W,219.52 feet;
N29-40-51 E, 103.17 feet,to the northwest corner of this tract;
Thence with the north boundary of this tract N 72-06-55 E, 1362.22 feet,to a corner of this tract;
Thence N 89-37-22 E, 366.49 feet,to the point of beginning and containing 389.687 acres of land,
more or less, save and except from this tract a 3.1067 acre Nashtec tract recorded in C.F. #539596,
O.P.R.S.P.C.T. lying within an 4.3917 acre Nashtec tract, leaving a net acreage of 382.1886
acres, and said 4.3917 being more particularly described by metes and bounds below:
Beginning at the northeast corner of this tract, said corner bearing S 26-03-09 W,453.94 feet, from
the southeast corner of the aforementioned 341.3 acre tract, said southeast corner being at the east
boundary of said 1610.0 acre tract, the same being the west boundary of said Occidental Chemical
Corporation 310.70 acre tract;
Thence with the outer limits of this 4.3917 acre tract as follows:
S 00-27-45 E, 1,399.65 feet;
S 89-18-17 W, 118.98 feet;
S 00-05-37 E, 222.82 feet;
N 89-22-02 E, 120.35 feet;
S 00-28-16 E, 116.61 feet,to the southeast corner of this tract;
N 89-14-09 W, 269.30 feet, to the southwest corner of this tract;
N 00-36-19 W, 339.02 feet;
N 89-35-34 E, 18.29 feet;
N 00-31-19 W, 545.70 feet;
N 89-25-25 E, 21.87 feet;
N 00-27-10 W, 118.30 feet;
S 89-51-28 W, 36.64 feet;
N 00-14-01 W, 156.16 feet;
N 89-26-59 E, 172.70 feet;
N 00-41-31 W 573.50 feet, to the northwest corner of this tract;
N 89-22-57 E, 96.12 feet, to the point of beginning and containing 4.3917 acres of land, more or
less.
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• Execution Version
,
Notes:
1. Bearings are State Plane Grid.
2. Drawing accompanies this metes and bounds description.
3. Limits of tract based on surveys by Weisser Eng. And G& W Engineers and Cheniere
provided information.
4. Description of 4.3917 acre tract based on survey conducted by Maverick Engineering, Inc. dated
December 2, 2016.
FILED AND RECORDED
OFFICIAL PUBLIC RECORDS
6�n:sr L�1GC.�� 64 jj�.�j4/
Gracie Alaniz-Gonzales
County Clerk
San Patricio County,Texas
09/26/2019 01:49 PM
Fee: $102.00
692367 AGREE
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