Ordinance No. 14,595ORDINANCE NO. 14,595
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE
AND THE CITY CLERK TO ATTEST TO A PAYMENT IN LIEU OF TAXES
AGREEMENT WITH NATIONAL TUBE SUPPLY COMPANY; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the Mayor and City Clerk of the City of Baytown to execute and attest to a Payment
in Lieu of Taxes Agreement with National Tube Supply Company. A copy of said agreement is
attached hereto, marked Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the
City of Baytown, this the 171h day of November, 2020.
RANDON CAP TILLO, Mayor
iI
T:
A BRYSCH C' Clerk
APPROVED AS TO FORM:
KAREN L. HORNER, City Attorney
R: Karen Homer DocumentsTiles City Council Ordinances\2020 November 17\PILOT4NationalTubeSupplyCompany.doc
Exhibit "A"
PAYMENT IN LIEU OF TAXES
STATE OF TEXAS
COUNTY OF CHAMBERS
This Payment in Lieu of Taxes Agreement ("Agreement") is made and entered into between the City
of Baytown, Texas, a municipal corporation in Harris and Chambers Counties, Texas, hereinafter also
referred to as "Baytown" or "City," and National Tube Supply Company, a Delaware corporation (the
"Property Owner"). In consideration of the promises and of the mutual covenants and agreements herein
contained, it is agreed by and between the City and Property Owner as follows:
WHEREAS, the Property Owner owns that property located within Chambers County Improvement
District No. 3 and within the City of Baytown for limited purposes; and
WHEREAS, the Property Owner purchased such property subject to the Declaration of Covenants,
Conditions and Restrictions for Bay 10 Business Park, hereinafter referred to as the "Declarations"; and
WHEREAS, the Declarations require that the property owners with a proposed future development
value equal to or greater than $1,000,000, as will be determined by the Chambers County Appraisal District,
enter into an agreement with the City for payments in lieu of ad valorem taxes; and
WHEREAS, the Declarations provide that such an agreement is a condition to any construction of
improvements on the property;
NOW THEREFORE, the City and the Property Owner, in consideration of the mutual covenants,
agreements and benefits herein contained, do mutually agree as follows:
Parties
The parties to the Agreement and their addresses are:
City of Baytown National Tube Supply Company
Attn: City Manager Attn: President
P.O. Box 424 925 Central Avenue
Baytown, TX 77522 University Park, Illinois 60484
Fax No. (281) 420-6586
It.
Property
This Agreement includes provisions concerning certain real estate and tangible personal property
owned or leased by the Property Owner and located within the boundaries of Chambers County Improvement
District No. 3, as more particularly described in Exhibit "A," which is attached hereto and incorporated
herein for all intents and purposes, hereinafter sometimes referred to as the "Property" or the "affected area."
Ill.
Term
The term of this Agreement is seven tax years, from 2020 through 2026, unless it is sooner
terminated under the provisions hereof. This Agreement shall be effective and binding on the parties
hereto upon execution hereof on behalf of the parties to this Agreement and shall remain in effect for seven
years. This Agreement supersedes any prior existing agreements between the Property Owner and the City
relating to the subject matter hereof to the extent any such prior existing agreement required payment on or
after January 1, 2020, such payment obligations are hereby canceled and are superseded by the provisions
contained herein.
IV.
Payment in Lieu of Taxes (PILOT)
As part of the consideration for the City's undertakings as set forth above, the Property Owner agrees
to pay to the City on or before December 31 of each year during the tern hereof a sum of money equal to the
Base Year PILOT Payment or PILOT Payment.
The Based Value PILOT Payment shall be calculated as follows:
(2)
the fair market value, as agreed to and stipulated by the parties to be as follows
for each year indicated:
2020
$17,008,599.00
202 l
$17,008,599.00
2022
$17,0098,599.00
2023
$17,008,599.00
2024
$17,008,599.00
2025
$17,008,599.00
2026
$17,008,599.00
hereinafter referred to as the "Base Value," multiplied by
the property tax rate per $100.00 of assessed valuation adopted by the City
Council for the City, multiplied by the applicable Yearly Payment Rate as detailed
below:
TAX YEAR
YEARLY
PAYMENT
RATE
2020
.66
2021
.66
2022
.66
2023
.66
'WAX YEAR
YEARIIY
PAYMENT
RATE
2024
.66
2025
.66
2026
.66
V.
Lien and Damages
To secure the payment of any PILOT and any other sums due hereunder (including, without
limitation, interest, late fees or delinquency charges), a lien by virtue of the Declarations and/or this
Agreement is hereby reserved and created in favor of the City against the affected area. This lien is subject
only to and inferior to any and all first lien purchase money deeds of trust and liens in favor of third -party
financial institutions or representing bona fide seller financing. The lien for the payment of the PILOT
Payment shall be binding with a power of sale to enforce such lien by non judicial foreclosure pursuant to
the provisions of Section 51.002 of the Texas Property Code (the "Code"), or any successor statute governing
enforcement of consensual liens on real estate. Alternatively, the City may institute a suit or proceeding at
law or in equity or take any lawful action to enforce collection of any defaulted PILOT Payment, including,
but not limited to, an action to foreclose such lien. Any foreclosure may be brought by the City in the same
manner as an action to foreclose the lien of a mortgage of deed of trust on real property.
Additionally, the obligations contained in Article IV shall be enforceable by the City pursuant to all
applicable laws and by all applicable means, including, but not limited to, by an action for damages or an
action for an injunction, or both. Should the City prevail in a suit to enforce the terms and provisions of this
Article IV, the City shall also be entitled to recover a reasonable sum as attorney's fees. It is further agreed
that if a suit for injunctive relief is brought for enforcement of Article IV, the Property Owner shall have no
right to and shall be conclusively deemed to have covenanted and agreed not to (and to have waived any
right to), urge or assert as a defense that an adequate remedy at law exists.
VI.
Valuations
A.
Procedure
For the purpose of providing a procedure for determining and collecting the amounts payable by the
Property Owner hereunder, there are hereby adopted and made a part hereof all provisions of the Constitution
and statutes of the State of Texas pertaining to ad valorem taxation as amended throughout the term of this
Agreement (including, in particular, the Texas Property Tax Code), except, however, that (i) to the extent
that any of such provisions would require the assessment of the Property Owner's property on an equal and
uniform basis with property in the general corporate limits of the City, the provisions of this Agreement will
control where in conflict with the provisions of such laws and (ii) the income method of appraisal as
described in Section 23.012 of the Texas Property Tax Code shall not be limited to only properties for which
a rental market exists. Specifically, nothing contained herein shall limit the income method of appraisal
specified in Section 23.012 of the Texas Property Tax Code to only properties for which a rental market
exists, instead if such method is used, the chief appraiser shall:
1. use income and expense data pertaining to the property, if possible and applicable;
2. make any projections of future income and expenses only from clear and appropriate
evidence;
3. use data from generally accepted sources in determining an appropriate capitalization rate;
and
4. determine a capitalization rate for income -producing property that includes a reasonable
return on investment, taking into account the risk associated with the investment.
B.
Valuation of Property Outside the Corporate Limits
The parties hereto recognize that said Chambers County Appraisal District is not required to appraise
the land, improvements, and tangible property, real, personal, or mixed, in the affected area, which is not
within the corporate limits of the City, for the purpose of computing the payments hereunder. Therefore, the
parties agree that to determine the fair market value of all of the Property Owner's land, improvements, and
tangible property located outside the corporate limits of the City in accordance with the market value
computation contemplated in the Texas Property Tax Code for the purpose of calculating the Property
Owner's payment in the manner described above, the City may choose to use the appraised value for the Base
Year, as finally determined by the Chambers County Appraisal District (or through administrative or judicial
appeal of the Chambers County Appraisal District's determination), or by appraisal conducted by the City
and/or by an independent appraiser of the City's selection, and at the City's expense. Nothing contained
herein shall ever be construed as in derogation of the authority of the Chambers County Appraisal District to
establish the appraised value of land, improvements, and tangible personal property in the annexed portion
for ad valorem tax purposes.
C.
Binding
Determination of fair market values in the above -stated manner outside the corporate limits shall be
made by the City, which shall be final and binding unless the Property Owner, within thirty (30) days after
receipt of the valuation by Chambers County or the City, as applicable, petitions for a Declaratory Judgment
to the Civil District Court of Harris County, Texas, as provided for by Article XIII hereof. In determining
the fair market value of property and improvements as used herein, the City shall base its determination on
the fair market value as defined in Article VI herein, giving due consideration to comparable present-day
facilities considering and giving effect to sound engineering valuation practices relative to service life, life
expectancy, process and ftmctional obsolescence.
D.
Statements
The City shall mail one statement to the Property Owner on or about December I of each year
showing the total amount due on December 31 of such year pursuant to this Agreement. Such statement
shall be mailed to the address noted in Article I of this Agreement. Any amounts due on December 31 that
are not paid when due shall become delinquent on January 1 of the following year; provided, however, if the
tax statement is mailed after December 10, the delinquency date is postponed to the first day of the next
month that will provide a period of at least 21 days after the date of mailing for payment of the amount due.
Delinquent amounts shall be immediately subject to the same penalties, interest, attorneys' fees and costs of
collection as recoverable by the City in the case of delinquent ad valorem taxes.
E.
Valuation Contests
If any differences concerning the appraised values shall not have been finally determined by the due
date of the Property Owner's payment hereunder, and the Property Owner desires to pursue any additional
available remedies, the Property Owner shall, without prejudice to such remedies, pay to the City by
December 31 of each year (subject to the exception in the preceding paragraph for statements mailed after
December 10), such amount as is provided in the Texas Property Tax Code, as amended throughout the term
of this Agreement, for payments made under such conditions by owners of property within the general
corporate limits of the City subject to ad valorem taxation. Any refund payable by the City to the Property
Owner hereunder shall be paid within 60 days after receipt by the City of both Chambers County Appraisal
District's form notification that the appraised value of the property has been reduced and a written refund
request by the Property Owner; if not paid timely, the refund amount shall bear interest at the rate specified
in Section 2251.025 of the Texas Government Code beginning 60 days after the City received both the
Property Owner's written refund request and the Chambers County Appraisal District's formal notification
that the appraised value of the property has been reduced.
VII.
Compliance with Law
Tile City and the Property Owner mutually recognize that the health and welfare of Baytown
residents require adherence to high standards of quality in the air emissions, water effluents and noise,
vibration and toxic levels of those industries located in Chambers County Improvement District No. 3, and
that development within the District may have an impact on the drainage of surrounding areas. To this end,
the Property Owner and the City agree that the same standards and criteria relative to noise, vibration and
toxic levels, and drainage and flood control which are adopted by the City and made applicable to portions of
the City's extraterritorial jurisdiction shall also be applicable to the affected area. The Property Owner agrees
that any industrial or other activity carried on within the affected area will be constructed in strict compliance
with all applicable valid state and federal air and water pollution control standards. If the Property Owner's
property within the affected area is subject to the Occupational Safety and Health Act, 29 U.S.C. 65, et seq.,
as amended, then the Property Owner shall undertake to ensure that its facilities and improvements in the
affected area comply with the applicable fire safety standards of such act and the resolutions from time to
time promulgated hereunder (the "OSHA Standards"). The Property Owner agrees that any structure built
within the affected area shall be built in accordance with the building code adopted by the City in effect at
the time of construction.
The City and the Property Owner recognize that activities within Chambers County Improvement
District No. 3 are subject to regulation by other governmental entities, including the state and federal
governments and their various departments and agencies. The City and the Property Owner also recognize
that the City may have an interest in activities in Chambers County Improvement District No. 3 that are
regulated by other governmental entities. Nothing in this Agreement is intended to limit the City's right and
authority to communicate its interest in, or opposition to, those activities to the applicable regulatory
agencies or to participate, to the extent allowed by law, in any related administrative or judicial proceeding.
Vlll.
Inspections
The Chief Appraiser of the Chambers County Appraisal District and the City or its independent
appraiser shall have the same right to enter and inspect the Property Owner's premises and the same right to
examine the Property Owner's books and records to determine the value of the Property Owner's properties
as are provided in the Texas Property Tax Code as amended.
IX.
Default
In the event of default by the Property Owner in the performance of any of the terms of this
Agreement, including the obligation to make the payments above provided for, the City shall have the option,
if such default is not fully corrected within sixty (60) days from the giving of written notice of such default to
the Property Owner to either (i) declare this Agreement terminated or (ii) continue the term of this
Agreement and collect the payments required hereunder. Notwithstanding anything to the contrary contained
herein, should the City determine the Property Owner is in default according to the terms and conditions of
Article VII hereof, the City shall notify the Property Owner in writing by U.S. Mail, certified return receipt
requested, at the address stated in this Agreement, and if such default is not cured within sixty (60) days from
the date of such notice (the "Cure Period") then such failure to cure shall constitute a material breach of this
Agreement; provided that, in the case of a default under Article VII for causes beyond the Property Owner's
control that cannot with due diligence be cured within such sixty (60) day period, or in the event that the
failure to cure results from ongoing negotiations with federal or state officials, administrative proceedings or
litigation regarding the necessary cure steps, then the cure period shall be extended until such negotiations,
administrative proceedings or litigation are concluded.
X.
Notice
Any notice to the Property Owner or the City concerning the matters to which the Agreement relates
may be given in writing by registered or certified mail addressed to the Property Owner or the City at the
appropriate respective addresses set forth in Article I of this Agreement. Any such notice in writing may be
given in any other manner. If given by registered or certified mail, the notice shall be effective when mailed.
With the exception of annual bills for payments due herein, notice given in any other manner shall be
effective when received by the Property Owner or the City, as the case may be.
X1.
No Further Expansion of Taxing Jurisdiction
Nothing herein contained shall be construed to change or enlarge the jurisdiction, power or authority
of the City over or with respect to the affected area as prescribed by applicable law, except as specifically
provided in this Agreement. The Property Owner shall not be obligated by virtue of this Agreement to make
any ad valorem tax payments to the City during the tenn of this Agreement.
X 11.
Reimbursement for Services
If the Property Owner requests and receives mutual aid firefighting assistance and is a member of
Channel Industries Mutual Aid organization ("CIMA") or similar organization, the Property Owner shall
reimburse the City for costs incurred by the City in providing fire protection services to the Property Owner
as shall be provided in the charter, bylaws and agreements pursuant to which CIMA or such similar
organization is organized and operates. if the Property Owner requests and receives mutual aid firefighting
assistance and is not a member of CIMA or a similar organization, then the Property Owner shall be required
to reimburse the City for costs actually expended by the City in providing any firefighting assistance to the
Property Owner, including chemical and personnel costs.
XIII.
Declaratory Judgment Action
If any disagreement arises between the parties concerning the interpretation of this Agreement, it is
agreed that either of the said parties may petition any Civil District Court of Harris County, Texas, for a
Declaratory Judgment determining said controversy, and the cause shall be tried as other civil causes. If the
controversy affects a PILOT Payment, the Property Owner shall, pending final determination of said
controversy, pay to the City on the due date the same amount which was paid to the City for the last
preceding period as to which there was no controversy concerning the amount owed by the Property Owner
to the City. The Property Owner agrees to tender any additional amount of potential liability to the registry of
the Civil District Court, Harris County, Texas, pending final determination of the controversy beyond any
further appeal.
XIV.
Assignment
This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit
the Property Owner and the City only. If the Property Owner conveys all or any part of the property then
covered hereby, the Property Owner shall notify the City within 30 days of the conveyance and shall
thereafter cease to be obligated with respect to the property so conveyed, and the Base Value shall be
apportioned between the Property Owner and the grantee based upon the property conveyed, only if the
grantee thereof enters into a Payment in Lieu of Taxes Agreement with the City with respect to such property
so conveyed. No right or obligation under this Agreement may be sold, assigned or transferred.
XV.
Authority
The Property Owner covenants that it has the authority to enter into this Agreement by virtue of
being either the legal or equitable owner of a possessory estate (including a leasehold estate) in the land
comprising the affected area, which will not terminate before the expiration date of this Agreement.
Additionally, the officers executing this Agreement on behalf of the parties hereby represent that such
officers have full authority to execute this Agreement and to bind the party he represents.
XVI.
No Municipal Services
It is agreed that during the term of this Agreement, the City is under no obligation to provide any
governmental, proprietary or other municipal services to the affected area. Specifically, but without
limitation, it is agreed that the City shall not be required to furnish (1) sewer or water service, (2) police
protection, (3) fire protection, (4) road or street repairs, and (5) garbage pickup service.
XVII.
Severability
If any provision of this Agreement, or any covenant, obligation or agreement contained herein,
including, without limitation, that term hereof, is determined by a court to be invalidated or unenforceable,
such provision, covenant, obligation or agreement shall be reformed so as to comply with applicable law. If
it is not possible to so reform such provision, covenant, obligation or agreement, such determination shall not
affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced
as if the invalid or unenforceable portion were not contained herein. Provided, further that such invalidity or
unenforceability shall not affect any valid and enforceable provision thereof, and each such provision,
covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in
the manner and to the full extent permitted by law. Notwithstanding the above, if the application of this
Article XVII requires reformation or revision of any term that removes or materially diminishes the
obligation of the Property Owner to make the payments to the City described herein (except in the event of a
reformation that shortens the term of this Agreement), the City shall have the option to declare this
Agreement terminated.
XVIII.
Complete Agreement
This Agreement contains all the agreements of the parties relating to the subject matter hereof and is
the Hill and final expression of the agreement between the parties.
M.
Non -waiver
Failure of either party hereto to insist on the strict performance of any of the agreements herein or to
exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be
considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with
any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or
failure of performance.
XX.
Ambi uities
In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or
against any party hereto on the basis that such party did or did not author the same.
MI.
Headings
The headings appearing at the first of each numbered section in this Agreement are inserted and
included solely for convenience and shall never be considered or given any effect in construing this
Agreement or any provision hereof, or in connection with the duties, obligations or liabilities of the
respective parties hereto or in ascertaining intent, if any question of intent should arise.
XX11.
Choice of Law: Venue
This Agreement shall in all respects be interpreted and construed in accordance with and governed
by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The
place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas.
XXII1.
Agreement Read
The parties acknowledge that they have read, understand and intend to be bound by the terns and
conditions of this Agreement.
IN WITNESS WHEREOF, this Agreement is executed in multiple counterparts on behalf of the
Property Owner this "ITO-day of , 2020, and on behalf of the City this day of
, 2020.
CITY OF BAYTOWN
BRANDON CAPETILLO, Mayor
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
KAREN L. HORNER, City Attorney
W. VICTOR BROWNLEES, Finance Director
NATIONAL TU E SUPPLY OMPANY
By:
Printed Name
ATTEST:
Michele L. Markowski
Secretary
R \Karen HomeriDocumentsU'IIes�ContractslNahonal rube MLOTMLOT Agreement 2020 doe
10
EXHIBIT A
THE PROPERTY
Reserve "A" of BAY TEN BUSINESS PARK, an addition in Chambers County, Texas, according
to the map or plat thereof recorded in/under Clerk's File No. (2013) 83256 of the Map/Plat Records
of Chambers County, Texas, being the same property described below.
A METES & BOUNDS description of a certain 24.26 acre tract of land situated in the R.A. West
Survey, Abstract No. 314 in Chambers County, Texas, being out of a called 210.72 acre tract of
land conveyed to Grand Parkway/Kilgore Parkway LP by Special Warranty Deed recorded in
Volume (08) 1074, Page 223 of the Chambers County Official Public Records of Real Property;
said 24.26 acre tract being more particularly described as follows with all bearings being based on
the Texas Coordinate System, South Central Zone, NAD 83;
COMMENCING at a found 3/4-inch iron rod (with cap stamped "Cotton Surveying") in the east
right-of-way line of Grand Parkway (right of way width varies) in a curve to the left, being common
with the northwest comer of a called 254.14 acre tract of land conveyed to Grand Parkway/Kilgore
Parkway LP described in Special Warranty Deed recorded in Volume (08) 1067, Page 264 of the
Chambers County Official Public Records of Real Property, said iron rod being common with the
southwest corner of said called 210.72 acre tract, from said iron rod a found 1 1/2-inch iron pipe
bears North 87*27'18" East, 1667.18 feet;
THENCE, in a northerly direction along the east right-of-way line of said Grand Parkway and along
the arc of said curve to the left having a radius of 3064.79 feet, a central angle of 02018'00", an arc
length of 123.03 feet, and a long chord bearing North 24°03'25" East, 123.02 feet to a set 3/4-inch
iron rod (with cap stamped "Cotton Surveying") for the POINT OF BEGINNING of herein
described tract;
THENCE, continuing along the east right-of-way of said Grand Parkway and the arc of said curve
to the left having a radius of 3064.79 feet, a central angle of 10°3643", an arc length of 567.64 feet,
and a long chord bearing North 17°36'07" East, 566.83 feet to a set 3/4-inch iron rod (with cap
stamped "Cotton Surveying") for comer;
THENCE, North 66°46'55" East, 860.05 feet to a set 3/4-inch iron rod (with cap stamped "Cotton
Surveying") in the west line of proposed Upland Way (80-feet wide right of way);
THENCE, along the southerly right of way line of proposed Upland Way, the following four (4)
courses and distances:
1. South 23°13'05" East, 10.39 feet to a set 3/4-inch iron rod (with cap stamped "Cotton
Surveying') at the beginning of a curve to the left;
2. Along the are of said curve to the left having a radius of 127.00 feet, a central angle
of 90°00'00", an arc length of 199.49 feet, and a long chord bearing South 68°13'05"
East, 179.61 feet to a set 3/4-inch iron rod (with cap stamped "Cotton Surveying) for
comer;
iI
North 66°46'55" East, 401.64 feet to a set 3/4-inch iron rod (with cap stamped
"Cotton Surveying") at the beginning of a curve to the left;
4. Along the arc of said curve to the left having a radius of 340.00 feet, a central angle
of 08°48'37", an are length of 52.28 feet, and a long chord bearing North 62°22'37"
East, 52.23 feet to a set 3/4-inch iron rod (with cap stamped "Cotton Suryeying") for
corner;
THENCE, South 25°44'48" East, 604.60 feet to a set 3/4-inch iron rod (with cap stamped "Cotton
Surveying'] for corner in the north line of a Drainage Easement for Highway Purposes recorded in
Volume (04) 719, Page 120 of the Chambers County Official Public Records of Real Property;
THENCE, South 66°46'55" West, along the north line of said Drainage Easement for Highway
Purposes, 1020.56 feet to a set 3/4-inch iron rod (with cap stamped "Cotton Surveying") for corner,
THENCE, South 87°27'18" West, continuing along said Drainage Easement for Highway Purposes,
being parallel to and 110.00 feet north of the north line of the aforementioned called 254.14 acre
tract, 873.66 feet to the POINT OF BEGINNING, CONTAINING 24.26 acres of land in Chambers
County, Texas, as shown on Drawing No. 7846 in the office of Cotton Surveying Company in
Houston, Texas.
14