HomeMy WebLinkAboutO-2020-IDA-115 NRG Texas Power, LLCORDINANCE NO. 2020-IDA-115
AN ORDINANCE AUTHORIZING THE EXSECUTION BY TA CITY OF LA PORTE, TEXAS OF
AN INDUSTRIAL DISTRICT AGREEMENT WITH NRG TEXAS POWER LLC, A TEXAS
LIMITED. LIABILITY COMPANY, FOR THE TERM COMMENCING JANUARY 1, 2020, AND
ENDING,DECEMBER 31, 2031; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING
TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND
PROVIDING AN EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS:
Section 1. NRG Texas Power, LLC, a Texas limited liability company has executed an
industrial: district agreement with the City of La Porte, Texas, for the term commencing January
,
1, 2020, and ending December 31, 2031, a copy of which is attached hereto, incorporated by
reference herein, and made a part hereof for all purposes.
Section 2. The Mayor, the City .Manager, the City Secretary, and the City Attorney of
the City of La Porte, Texas, be and they are hereby, authorized; and empowered to execute and
deliver on behalf of the City of La Porte, Texas, the industrial district agreement with the
corporation named in Section 1 hereof.
Section 3. The City Council officially finds, determines, recites, and declares that a
sufficient written notice of the date, hour, place and subject of this meeting of the City Council was
posted at is place convenient to the public at the City Hall of the city for the time required by law
preceding. this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government
Code; and that this meeting has been open to the public as required by law at all times during
which this; ordinance and the subject matter thereof has been discussed, considered and formally
acted upon. The City Council further ratifies, approves and confirms such written notice and the
contents and posting thereof.
Section 4. This Ordinance shall be effective from and after its passage and approval,
and it is so ordered.
PASSED and APPROVED, this 13' day of January, 2020.
CITY OF, VA RQRT—E, TEXAS
is R. JRigby,
APPROVED AS TO FORM:
7 AA4-4"
Clark T. Askins, Assistant City Attorney
0
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San Jacinto - NRG Texas Power LLC
NO. 2020 IDA- W"
STATE OF TEXAS '
COUNTY OF HARRIS
INDUSTRIAL DISTRICT AGREEMENT
This AGREEMENT made and entered into by and between the CITY
OF LA PORTE, TEXAS, a. municipal corporation of Harris County,
Texas, hereinafter called "CITY", and NRG Texas Power LLC
, a limited liability
company, hereinafter called "COMPANY",
W I T N E S S E T H:
WHEREAS, it is the established policy of the City Council of
thei City of La Porte, Texas, to adopt such reasonable measures
from time to time as are permitted by law and which will tend to
enhance the economic stability and growth of the City and its
environs by attracting the location of new and the expansion of
existing industries therein, and such policy is hereby reaffirmed
and adopted by this City Council as being in the best interest of
the City and its citizens; and
WHEREAS, pursuant to its policy, City has enacted Ordinance
No. 729, designating portions of the area located in its
extraterritorial jurisdiction as the "Battleground Industrial
District of La Porte, Texas", and Ordinance No. 842A, designating
portions of the area located in its extraterritorial jurisdiction
as the "Bayport Industrial District of La Porte, Texas",
hereinafter collectively called "District", such Ordinances being
in compliance with the Municipal Annexation Act of Texas, codified
as 'Section 42.044, Texas Local Government Code; and
WHEREAS, Company is the owner of land within a designated
Industrial District of the City of La Porte, said land being
legally described on the attached Exhibit "A" (hereinafter
"Land"); and said Land being more particularly shown on a plat
attached as Exhibit "B", which plat describes the ownership
boundary lines; a site layout, showing all improvements, including
pipelines and railroads, and also showing areas of the Land
previously annexed by the City of La Porte; and
WHEREAS, City desires to encourage the expansion and growth
of 'industrial plants within said Districts and for such purpose
desires to enter into this Agreement with Company pursuant to
Ordinance adopted by the City Council of said City and recorded in
the official minutes of said City:
NOW, THEREFORE, in consideration of the premises and the
mutual agreements of the parties contained herein and pursuant to
the authority granted under the Municipal Annexation Act and the
Ordinances of City referred to above, City and Company hereby
agree with each other as follows:
I.
City covenants, agrees and guarantees that during the term of this
Agreement, provided below, and subject to the terms and provisions
of 'this Agreement, said District shall continue to retain its
extraterritorial status as an industrial district, at least to the
extent that the same covers the Land belonging to Company and its
assigns, unless and until the status of said Land, or a portion or
portions thereof, as an industrial district may be changed
pursuant to the terms of this Agreement. Subject to the foregoing
and to the later provisions of this Agreement, City does further
covenant, agree and guarantee that such industrial district, to
the extent that it covers said Land lying within said District and
not now within the corporate limits of City, shall be immune from
annexation by City during the term hereof (except as hereinafter
provided) and shall have no right to have extended to it any
services by City, and that all Land, including that which has been
heretofore annexed, shall not have extended to it by ordinance any
rules and regulations (a) governing plats and subdivisions of
land, (b) prescribing any building, electrical, plumbing or
inspection code or codes, or (c) attempting to exercise in any
manner whatever control over the conduct of business thereon;
provided, however, 1) any portion of Land constituting a strip of
land 100' wide and contiguous to either Fairmont Parkway, State
Highway 225, or State Highway 146, shall be subject to the rules
and regulations attached hereto as Exhibit "C" and made a part
hereof, 2) intermodal shipping containers (including but not
limited to freight and tank containers) placed on Land belonging
to Company shall be permitted to be stacked only two containers in
height within the 100' wide portion of Company's Land contiguous
to either Fairmont Parkway, State Highway 225, or State Highway
146; beyond said 100' wide strip, intermodal shipping containers
shall be eligible to be stacked one additional container in height
within and for each successive 100' wide portion of Company's Land
behind and following the preceding 100' wide strip, up to a
maximum of six containers in height, regardless of distance from
Fairmont Parkway, State Highway 225, or State Highway 146; and 3)
it is agreed that City shall have the right to institute or
intervene in any administrative and/or judicial proceeding
authorized by the Texas Water Code, the Texas Clean Air Act, the
Texas, Health & Safety Code, or other federal or state
environmental laws, rules or regulations, to the same extent and
to ,the same intent and effect as if all Land covered by this
Agreement were not subject to the Agreement.
II.
In the event that any portion of the Land has heretofore been
annexed by City, Company agrees to render and pay full City ad
valorem taxes on such annexed Land and improvements, and tangible
personal property.
Under the terms of the Texas Property Tax Code ( S . B . 621, Acts of
the 65th Texas Legislature, Regular Session, 1979, as amended),
the appraised value for tax purposes of the annexed portion of
Land, improvements, and tangible personal property shall be
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determined by the Harris County Appraisal District. The parties
hereto recognize that said Appraisal District has no authority to
appraise the Land, improvements, and tangible personal property in
the' unannexed area for the purpose of computing the "in lieu"
payments hereunder. Therefore, the parties agree that the
appraisal of the Land, improvements, and tangible personal
property in the unannexed area shall be conducted by City, at
City's expense, by an independent appraiser of City's selection.
The parties recognize that in making such appraisal for "in lieu"
payment purposes, such appraiser must of necessity appraise the
entire (annexed and unannexed) Land, improvements, and tangible
personal property.
Nothing herein contained shall ever be interpreted as lessening
the authority of the Harris County Appraisal District to establish
the appraised value of Land, improvements, and tangible personal
property in the annexed portion, for ad valorem tax purposes.
A. The properties upon which the "in lieu of" taxes are assessed
are; more fully described in subsections 1, 2, and 3 of subsection
C, of this Paragraph III (sometimes collectively called the
"Property"); provided, however, pollution control equipment
installed on the Land which is exempt from ad valorem taxation
pursuant to the provisions of Sec. 11.31 of the Texas Property Tax
Code is exempt from ad valorem taxation and "in lieu of taxes"
hereunder. Property included in this Agreement shall not be
entitled to an agricultural use exemption for purposes of
computing "in lieu of taxes" hereunder.
B. On or before the later of December 31, 2020, or 30 days from
mailing of tax bill and in like manner on or before each December
31st thereafter, through and including December 31, 2031, Company
shall pay to City an amount of "in lieu of taxes" on Company's
Property as of January 1st of the current calendar year ("Value
Year") .
C. Company and City agree that the following percentages
("Percentage Amount") shall apply during each of the Value Years:
Value
Year
2020:
64%
Value
Year
2021:
64%
Value
Year
2022:
64%
Value
Year
2023:
64%
Value
Year
2024:
64%
Value
Year
2025:
64%
Value
Year
2026:
64%
Value
Year
2027:
64%
Value
Year
2028:
64%
Value
Year
2029:
64%
Value
Year
2030:
64%
Value
Year
2031:
64%
Company agrees to pay to City an amount of "in lieu of
taxes" on Company's land, improvements and tangible
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personal property in the unannexed area equal to the sum
of:
1. Percentage Amount of the amount of ad valorem taxes
which would be payable to City if all of the Company's
Land and improvements which existed on January 1, 2020,
and each January 1 thereafter of the applicable Value
Year during the term of this Agreement, (excluding
amounts which would be so payable with respect to any
Substantial Increase in value of such Land and
improvements to which subparagraph 2, below applies),
had been within the corporate limits of City and
appraised each year by City's independent appraiser, in
accordance with the applicable provisions of the Texas
Property Tax Code; and
2. (a) On any Substantial Increase in value of the Land,
improvements, and tangible personal property
(excluding inventory) dedicated to new
construction, in excess of the appraised value of
same on January 1, 2019, resulting from new
construction (exclusive of construction in
progress, which shall be exempt from taxation),
for each Value Year following completion of
construction in progress, an amount equal to
Thirty percent (300), where construction is
completed in Value Years 2020 through 2031, of the
amount of ad valorem taxes which would be payable
to City if all of said new construction had been
within the corporate limits of City and appraised
by City's independent appraiser, in accordance
with the applicable provisions of the Texas
Property Tax Code. The eligible period for
application of said thirty percent (300) "in lieu"
rate shall be for a total of six (6) Value Years.
In the case of new construction which is completed
in Value Year 2028 or later, and provided,
further, that City and Company enter into an
Industrial District Agreement after the expiration
of this Industrial District Agreement, then, and
in such events, such new construction shall be
entitled to additional Value Years under the new
Agreement at a Thirty percent (300) valuation
under this subparagraph (a), for a total of six
(6) Value Years, but not extending beyond Value
Year 2034.
In the case of new construction which was
completed in Value Years 2016 through 2019 in
accordance with the previous Industrial District
Agreement between City and Company, such new
construction shall be subject to a Twenty percent
20o)valuation through Value Year 2022, and a
Thirty (300) valuation for any additional Value
Years beyond Value Year 2022, for a total of six
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( 6 ) Value Years.
(b) Application of the thirty percent (30%) "in lieu"
rate for Substantial Increase in value of the
Land, improvements, and tangible personal property
dedicated to new construction is limited to new
construction purposed for or related to
manufacturing and processing uses. In no case
shall Company be entitled to application of the
thirty percent (30%) "in lieu" rate for
Substantial Increase in value of the Land,
improvements, and tangible personal property
dedicated to new construction where the new
construction is purposed for or related to uses
for warehousing, storage, distribution, and/or
general freight trucking and transportation, as
well as general commercial uses, such as truck
stops, rental facilities, or repair shops.
(c) A Substantial Increase in value of the Land,
improvements, and tangible personal property
(excluding inventory) as used in subparagraph 2(a)
above, is'defined as an increase in value that is
the lesser of either:
i. at least Five percent (5%) of the total
appraised value of Land and improvements, on
January 1, 2019; or
ii. a cumulative value of at least $3,500,000.00.
For the purposes of this Agreement, multiple
projects that are completed in a Value Year can be
cumulated to arrive at the amount for the increase
in value.
(d) If existing Property values have depreciated below
the Property value established on January 1, 2019,
an amount equal to the amount of the depreciation
will be removed from the calculation under this
subparagraph 2 to restore the value to the January
1, 2019, value; and
3. Percentage Amount of the amount of ad valorem taxes
which would be payable to City on all of the Company's
tangible personal property of every description,
located in an industrial district of City, including,
without limitation, inventory, (including inventory in
a federal Foreign Trade Zone and including Freeport
exempted inventory), oil, gas, and mineral interests,
items of leased equipment, railroads, pipelines, and
products in storage located on the Land, if all of said
tangible personal property which existed on January 1,
2020, and each January 1 thereafter of the applicable
Value Year during the term of this Agreement,
(excluding amounts which would be so payable with
respect to any Substantial Increase in value of such
0
tangible personal property to which subparagraph 2,
above applies), had been within the corporate limits of
City and appraised each year by the City's independent
appraiser, in accordance with the applicable provisions
of the Texas Property Tax Code.
with the sum of 1, 2 and 3 reduced by the amount of City's ad
valorem taxes on the annexed portion thereof as determined by
appraisal by the Harris County Appraisal District.
4. Notwithstanding the above, should City elect to grant
the freeport inventory exemption authorized by Article
VIII, Section 1-j of the Texas Constitution and Section
11.251 of the Texas Property Tax Code to taxpayers
within the City limits, then the f'reeport inventory
exemption shall apply to parties to this Agreement.
Further, should inventory or any other class or type of
property become exempt from taxation by constitutional
amendment or act of the Texas Legislature (including,
but not limited to, Article VIII, Section 1-n, of the
Texas Constitution and Section 11.253 of the Texas
Property Tax Code), such class or type of property
shall be exempt for purposes of this Agreement, unless
the City Council of the City of La Porte shall by
Ordinance provide for the continued taxation of such
property under the authority of any applicable
provisions of the Texas Constitution and Texas
Statutes.
5. City and Company acknowledge circumstances might
require the City to provide emergency services to
Company's Property described on Exhibit "A" attached
hereto. Emergency services are limited to fire,
police, and public works emergency services. If
Company is not a member of Channel Industries Mutual
Aid Association (CIMA), Company agrees to reimburse
City for its costs arising out of any emergency
response requested by Company to Company's property,
and to which City agrees to respond. If Company is a
member of CIMA, the obligations of Company and City
shall be governed by the CIMA agreement, to which
agreement City is a party.
IV.
This Agreement shall extend for a period beginning on the 1st day
of January, 2020, and continuing thereafter until December 31,
2031, unless extended for an additional period or periods of time
upon mutual consent of Company and City, as provided by the
Municipal Annexation Act; provided, however, that in the event
this Agreement is not so extended for an additional period or
periods of time on or before August 31, 2031, the agreement of
City not to annex property of Company within the District shall
terminate. In that event, City shall have the right to commence
immediate annexation proceedings as to all of Company's property
covered by this Agreement, notwithstanding any of the terms and
0
provisions of this Agreement.
Company agrees that if the Texas Local Government Code Section
Chapter 42.044 "Creation of Industrial District in
Extraterritorial Jurisdiction", or Texas Local Government Code
Chapter 43 "Municipal Annexation", is amended, or any new
legislation is thereafter enacted by the Legislature of the State
of Texas which imposes greater restrictions on the right of City
to annex land belonging to Company or imposes further obligations
on City in connection therewith after the annexation of such land,
Company will waive the right to require City to comply with any
such additional restrictions or obligations and the rights of the
parties shall be then determined in accordance with the provisions
of said laws as the same existed on January 1, 2019.
V.
This Agreement may be extended for an additional period or periods
by agreement between City and Company and/or its assigns even
though it is not extended by agreement between City and all of the
owners of all land within the District of which it is a part.
VI.
A. In the event Company elects to protest the valuation for tax
purposes set on its said properties by City or by the Harris
County Appraisal District for any year or years during the terms
hereof, nothing in this Agreement shall preclude such protest and
Company shall have the right to take all legal steps desired by it
to reduce the same.
Notwithstanding such protest by Company, and except as otherwise
provided in Article VI(B), Company agrees to pay to City on or
before the date therefore hereinabove provided, at least the total
of (a) the total amount of ad valorem taxes on the annexed
portions, plus (b) the total amount of the "in lieu of taxes" on
the unannexed portions of Company's hereinabove described property
which would be due to City in accordance with the foregoing
provisions of this Agreement on the basis of renditions which
shall be filed by Company.
When the City or Harris County Appraisal District (as the case may
be) valuation on said property of Company has been so finally
determined, either as the result of final judgment of a court of
competent jurisdiction or as the result of other final conclusion
of the controversy, then within thirty (30) days thereafter
Company shall make payment to City of any additional payment due
hereunder, or City shall make payment to Company of any refund
due, as the case may be, based on such final valuation, together
with applicable penalties, interests, and costs.
B. Should Company disagree with any appraisal made by the
independent appraiser selected by City pursuant to Article II
above (which shall be given in writing to Company), Company shall,
within twenty (20) calendar days of receiving City's invoice, give
written notice to the City of such disagreement. In the event
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Company does not give such written notice of disagreement within
such time period, the appraisal made by said independent appraiser
shall be final and controlling for purposes of the determination
of "in lieu of taxes" payments to be made under this Agreement.
Should Company give such notice of disagreement, Company shall
also submit to the City with such notice a written statement
setting forth what Company believes to be the market value of
Company's hereinabove described property. Both parties agree to
thereupon enter into good faith negotiations in an attempt to
reach an agreement as to the market value of Company's property
for "in lieu" purposes hereunder. If, after the expiration of
thirty (30) days from the date the notice of disagreement was
received by City, the parties have not reached agreement as to
such market value, the parties agree to submit the dispute to
final arbitration as provided in subparagraph 1 of this Article
VI (B) .
Notwithstanding any such disagreement by Company, Company agrees
to pay to City on or before December 31 of each year during the
term hereof, at least the total of (a) the ad valorem taxes on the
annexed portions, plus (b) the total amount of the "in lieu"
payments which would be due hereunder on the basis of Company's
written valuations statement submitted to City by Company
hereunder, or the total assessment and "in lieu of taxes" thereon
for the last preceding year, whichever is higher.
1. A Board of Arbitrators shall be created composed of one
person named by Company, one by City, and a third to be
named by those two. In case of no agreement on this
arbitrator in 10 days, the parties will join in a
written request that the Chief Judge of the U.S.
District Court for the Southern District of Texas
appoint the third arbitrator who, (as the "Impartial
Arbitrator") shall preside over the arbitration
proceeding. The sole issue to be determined in the
arbitration shall be resolution of the difference
between the parties as to the fair market value of
Company's property for calculation of the "in lieu"
payment and total payment hereunder for the year in
question. The Board shall hear and consider all
relevant and material evidence on that issue including
expert opinion, and shall render its written decision
as promptly as practicable. That decision shall then
be final and binding upon the parties, subject only to
judicial review as may be available under the Texas
General Arbitration Act (Chapter 171, "General
Arbitration", Texas Civil Practice and Remedies Code).
Costs of the arbitration shall be shared equally by the
Company and the city, provided that each party shall
bear its own attorneys fees.
VII.
City shall be entitled to a tax lien on Company's above described
property, all improvements thereon, and all tangible personal
property thereon, in the event of default in payment of "in lieu
of taxes" payments hereunder, which shall accrue penalty and
interest in like manner as delinquent taxes, and which shall be
collectible by City in the same manner as provided by law for
delinquent taxes.
VIII.
This Agreement shall inure to the benefit of and be binding upon
City and Company, and upon Company's successors and assigns,
affiliates and subsidiaries, and shall remain in force whether
Company sells, assigns, or in any other manner disposes of, either
voluntarily or by operation of law, all or any part of the
property belonging to it within the territory hereinabove
described, and the agreements herein contained shall be held to be
covenants running with the land owned by Company situated within
said territory, for so long as this Agreement or any extension
thereof remains in force. Company shall give City written notice
within ninety (90) days, with full particulars as to property
assigned and identity of assignee, of any disposition of the Land,
and assignment of this Agreement.
IX.
If City enters into an Agreement with any other landowner with
respect to an industrial district or enters into a renewal of any
existing industrial district agreements after the effective date
hereof and while this Agreement is in effect, which contains terms
and provisions more favorable to the landowner than those in this
Agreement, Company and its assigns shall have the right to amend
this Agreement and City agrees to amend same to embrace the more
favorable terms of such agreement or renewal agreement.
GM
The parties agree that this Agreement complies with existing laws
pertaining to the subject and that all terms, considerations and
conditions set forth herein are lawful, reasonable, appropriate,
and not unduly restrictive of Company's business activities.
Without such agreement neither party hereto would enter into this
Agreement. In the event any one or more words, phrases, clauses,
sentences, paragraphs, sections, articles or other parts of this
Agreement or the application thereof to any person, firm,
corporation or circumstances shall be held by any court of
competent jurisdiction to be invalid or unconstitutional for any
reason, then the application, invalidity or unconstitutionality of
such words, phrase, clause, sentence, paragraph, section, article
or other part of the Agreement shall be deemed to be independent
of and separable from the remainder of this Agreement and the
validity of the remaining parts of this Agreement shall not be
affected thereby.
XI.
Upon the commencement, of the term of this Agreement, all other
previously existing industrial district agreements with respect to
9
said Land shall terminate.
XII.
Notices by a party to the other party hereto, shall be mailed or
delivered as follows:
To the City of La Porte: City Manager
City of La Porte
604 West Fairmont Parkway
La Porte, TX 77571
To Company: NRG Texas Power LLC
(COMPANY)
Attention: Tax Department Department
804 Carneaie Center
Princeton, NJ 08540
Company shall promptly notify City of any change of ownership of
Property, any assignment of this Agreement, and of any change of
billing address.
Company shall notify City annually, on or before June 1, of any
changes to the following information:
Plant Manager
Name:
Address:
Phone:
Fax:
Email:
Tax Agent/Billing Contact
Name: Cumminas Westlake LLC
Address : 12837 Louetta Rd. Suite 201
Cypress. TX 77429
Phone: 713-266-4456
Fax: 713-266-2333
Email: aevans0cwlp.net
ENTERED INTO effective the 1st day of January, 2020.
By:
Nam
Tit
Add
Princeton. NJ 08540
10
APPROVED:
Knox W. Askins
City Attorney
City of La Porte
P.O. Box 1218
La Porte, TX 77572-1218
281.471.1886
281.471.2047 fax
knoxaskins@comcast.net
STATE OF TEXAS
COUNTY OF HARRIS
CITY OF E, TEXAS
By:
Lo is 'RighV,1
Ma or
By:
Corb Alexander
City Manager
CITY OF LA PORTE, TEXAS
604 West Fairmont Parkway
La Porte, TX 77571
his instrument was acknowledged before me on the l�rlay of
Yl� 2 0�by Dudley Zahn , Vice President
Of NRG Texas Power LLC corporation, a Delaware corporation,
on behalf of said entity.
ELIZABETH WOLFORD
Nota Public, State f Texas
Notary Public, State of Texas
= j% Comm. Expires 11-28-2022
",,mn���Notary ID 125874473
:
11
STATE OF TEXAS '
COUNTY OF HARRIS '
This instrument was acknowledged befor me on the 13` day of
, 20A by Louis R. Rigb , Ma o of the City of La
Porte, municipal corporation, b al of said e ity.
�('AY PU�C
LEE 7PUBLIC
o ary Public, State o exas
NOT* * STAT�''�Of�*"g MY CONOTAR
IV
"EXHIBIT A"
(Metes and Bounds Description of Land)
Attached recorded instrument demonstrates NRG Texas Power LLC's leasehold
interest in the land and as such the owner of Improvements to the land.
12
After recording return to:
Baker Botts L.L.P.
/ One Shell Playa
910 Louisiana Street
1 Houston, Texas 770024995
Attention Janna L. Charlton, Esq.
STATE OF TEXAS
COUNTY OF HARRIS
09/03/02 30001353 V048245 I27.00
MEMORANDUM OF LEASE
cn
•- is
1
,..
MEMORANDUM OF LEASE
The Above Space for Recorders Use Only
This Memorandum of Lease, dated as of the 31st day of August 2002, is by and
between Texas Genco, LP, a limited partnership organized and existing under the laws of the
State of Texas with its principal office located at 1111 Louisiana, Houston, Texas 77002 ("Texas
Genco") and E. I. du Pont de Nemours and Company, a corporation organized and existing under
the laws of the State of Delaware with its principal office located at 1007 Market Street,
Wilmington, Delaware 19898 ("DuPont").
WITNESSETH
WHEREAS, Texas Genco and Du Pont have entered into a certain Ground Lease
of even date herewith (the "Ground Lease") whereby Du Pont did lease to Texas Genco certain
tracts of land situated in the Enoch Brinson League, Abstract No. 5, Harris County, Texas, more
particularly described in Exhibit A attached hereto and made a part hereof (the "Leased
Premises"); and
WHEREAS, in the Ground Lease Du Pont has granted to Texas Genco certain
easements, more particularly described in Exhibit B attached hereto and made a part hereof (the
"Easements"); and
H0003:866189.1
WHEREAS, Texas Genco and Du Pont desire to enter into and record this
Memorandum of Lease in order that third parties may have notice of Texas Genco's interests and
rights under the Ground Lease.
NOW, THEREFORE, Du Pont, in consideration of the rents and covenants
provided for in the Ground Lease to be paid and performed by Texas Genco, does hereby lease
and grant unto Texas Genco the Leased Premises and the Easements in accordance with the
terms and provisions of the Ground Lease.
Lease:
Specific reference is hereby made to the following provisions of the Ground
1. Pursuant to the Ground Lease, Texas Genco is granted a certain option to
extend the initial term of the Ground Lease as more particularly described in the Ground Lease.
2. Pursuant to the Ground Lease, Du Pont is granted a certain right of first
refusal to purchase equipment and facilities to be constructed on the Leased Premises as more
particularly described in the Ground Lease.
3. Pursuant to the Ground Lease, Texas Genco is granted certain rights to use
property contiguous to the Leased Premises for the purpose of ingress and egress and to enable
Texas Genco to perform certain contractual obligations as more particularly described in the
Ground Lease.
All terms, conditions, provisions and covenants of the Ground Lease are
incorporated in this Memorandum of Lease by reference as though fully set forth herein, and the
Ground Lease and this Memorandum of Lease shall be deemed to constitute a single instrument
or document. This Memorandum of Lease has been entered into by Du Pont and Texas Genco
for the purposes of recordation in the appropriate real estate records in Harris County, Texas to
H0003:866189.1
provide notice to third parties of the Ground Lease and the Easements and nothing contained
herein shall be deemed or construed to amend, modify, change, alter, amplify, interpret or
supersede any of the terms and provisions of the Ground Lease. In the event of a conflict
between the terms of the Ground Lease and the terns of this Memorandum of Lease, the terms of
the Ground Lease shall control.
H0003:866189.1
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of the dates set forth below. l
E. I. DU PONT DE NEMOURS AND COMPANY 1 �r
By:
Name: Dtom L. Boo
Title:
U. S. Reglon
Date: eo,h Lo v
TEXAS GENCO, LP
N By: Texas Genco GP, LLC
M
rl By:
Co Name: Rufus S. Scott
Title: Vice President
V) Date: August 21, 2002
H0003:866189.3
STATE OF DELAWARE
COUNTY OF NEW CASTLE
This instrument was acknowledged before me on the Z's day of
2002, by D.*F -L, 4, , IIG. x Grtp arraT QeF* Err F of E. I. du Pont de Nemours and .
Company, a Delaware corporation, on behalf of said corpora ion. F
otary Publi
State of Delaware
LOIS A SMITH
Notary Publio
New Castle County
State of Delaware
My Commission Expires Aug. p. 20M
(Type of Print Name of Notary)
My Commission Expires:
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on the CM day of A
2002, by Rufus S. Scott as Vice President of Texas Genco GP, LLC, the general p9rtner of Texas
Genco, LP, a Texas limited partnership, on behalf of said partnership.
�� NALIREEN SPITZER X
X 0 4
2U'
NOTARY PUBLIC, STATE OF TEXAS
MY COMMISSION EXPIRES
APRIL 1, 2005
!l/lllllllllll.Il/ll
My Commission Expires:
HOUO3:866189.3
N p k.. Aa .
Notary Public
State of Texas
(Type of Print Name of Notary)
San Jacinto Electric
Station
Job No. 13015020P
Ref. Map 14-H-5E
Tract 3
EXHIBIT A
Page 1 of 2
Description of 7.306 acres of land in the Enoch Brinson League, Abstract 5,• Harris
County, Texas, being partly out of the residue of an 822.154-acre tract recorded in Volume 1318,
Page 364 of the Deed Records of Harris County, Texas, and partly out of the residue of a 97.477-
acre tract recorded in Volume 7034, Page 10 of said Deed Records and out of a 9.991-acre tract
recorded in Clerk's File No. N 530947 and Film Code No. 014-59-1718 of the Official Public
Records of Real Property of Harris County, Texas:
q{ All coordinates and bearings herein refer to the Texas Coordinate System of 1983, South
Central Zone as defined in the Texas Natural Resources Code, and based on the position of
Qi
H.G.C.S.D. 42 (1986), having published coordinates of N (Y) = 13,823,622.030 and E (X) _
Ql
3,216,990.899 U.S. Survey Foot with an applied scale factor of 0.9998839. Said 7.306-acre tract
is described by metes and bounds as follows:
COMMENCING at a 114 inch iron pipe found at the southwest comer of said 97.477-acre tract,
having coordinates of N (Y)=13,820,895.82 and E ()Q= 3,223,298.68 same being the southwest
comer of a 250-foot wide easement described as Way No. 2 recorded in File D332601 and Film
Code 129-23-2583 of the Official Public Records of Real Property of Harris County, Texas and
also on the east line of Sens Road (60 feet wide), from which a found % inch iron pipe bears
North 58 degrees 48 minutes 36 seconds West, a distance of 0.82 feet and from which a found %
inch iron rod bears North 72 degrees 01 minutes 34 seconds West, a distance of 1.17 feet;
THENCE, North 86 degrees 55 minutes 32 seconds East, a distance of 2482.03 feet along the
south line of said 97.477-acre tract, same being the south line of said 250-foot wide easement, to
a point;
THENCE, North 03 degrees 04 minutes 28 seconds West, a distance of 301.31 feet to a chain
link fence post found for the southeast corner of Tract 1 and said 9.991- acre tract;
THENCE, South 86 degrees 53 minutes 39 seconds West, with the south line of Tract 1 and said
9.991- acre tract, a distance of 265.00 feet to a found iron rod with aluminum cap stamped
HL&P;
H0003:811520.3
San Jacinto Electric
Station
Job No. 13015020P
Ref. Map 14-H-5E
Tract 3
EXHIBIT A
Page 2 of 2
THENCE, North 86 degrees 15 minutes 30 seconds West, continuing with said south line, a
distance of 60.40 feet to a R.R. spike set for a common corner of Tract 1, and a 7.306-acre tract
referred to as Tract 3, and the POINT OF BEGINNING having coordinates of N (Y)=
13,821,319.34 and E (X)= 3,225,435.84;
THENCE, North 86 degrees 15 minutes 30 seconds West, with the south line of said Tract 3 and
said 9.991- acre tract, a distance of 100.72 feet to a point for comer;
THENCE, South 86 degrees 53 minutes 39 seconds West, a distance of 540.00 feet to a found
iron rod with aluminum cap stamped HL&P for the southwest comer of the herein described
tract and said 9.991- acre tract;
THENCE, North 51 degrees 40 minutes 56 seconds West, at 463.30 feet passing the common
line of said 94.477-acre tract with said 822.154 —acre tract, for a total distance of 566.79 feet to a
found iron rod with aluminum cap stamped HL&P for the northwest corner of the herein
N described tract and said 9.991- acre tract;
�I
THENCE, North 86 degrees 53 minutes 39 seconds East, with the north line of Tract 3 and said
9.991- acre tract, a distance of 1,059.63 feet to a 3/4 inch iron rod with plastic cap stamped
"Reliant Energy HL&P" set for the common comer of Tract 1, 3, and 4;
THENCE, South 03 degrees 02 minutes 05 seconds East, at 75.00 feet passing the southwest
corner of said tract 4, at 119.08 feet passing the northeast comer of a 0.155-acre tract referred to
as Tract 2, at 276.83 feet passing the southeast comer of said Tract 2, for a total distance of
364.33 feet to a % inch iron rod with plastic cap stamped "Reliant Energy HL&P" set for corner;
THENCE, South 90 degrees 00 minutes 00 seconds East, a distance of 7.05 feet to a 3/4 inch iron
rod with plastic cap stamped "Reliant Energy HL&P" set for comer;
THENCE, South 00 degrees 00 minutes 00 seconds West, a distance of 22.33 feet to the POINT
OF BEGINNING and containing 7.306 acres of land.
A survey drawing with Map Number 14-H-5E was prepared by Carter & Burgess, Inc. in
conjunction with this metes and bounds descrip1km---,
VALTER J. WILBANKS
�9 904936 �P� QV
�ssio �p
11OUO3:811520.3
Exhibit B
Easements
ACCESS EASEMENT
A 1.017-acre tract in the Enoch Brinson League, Abstract 5, Hams County, Texas, being
out of the residue of a 97.477-acre tract described in a deed from St. Joe Paper Company to E. I.
du Pont de Nemours and Company, dated December 21, 1967, and recorded in Volume 7034,
Page 10 of the Deed Records of Harris County, Texas.
All coordinates and bearings are referred to the Texas Coordinate System of 1983, South
Central Zone, as defined in the Texas Natural Resources Code, section 21.071, et seq., and are
based on the position of "H.G.C.S.D. 942", having published coordinates of Y = 4,213,448.464
and X = 980,540.797 Meters, and Y = 13,823,622.030 and X = 3,216,990.899 U.S. Survey Foot;
and also having an applied scale factor of 0.9998839. All Houston Lighting & Power Company
Lease Monuments called for in this exhibit are 3/4-inch iron rods with 2-inch aluminum caps
stamped "survey monument, do not disturb, H L & P Co, Houston" and a number identifying the
Lease Monument. Said 1.017-acre tract in further described by metes and bounds as follows:
COMMENCING at a 3/4-inch iron pipe called and found for the southwest comer of
said 97.477-acre tract, having coordinates X = 3,223,298.68 and Y = 13,820,895.82,
same being the southwest comer of a 250-foot wide easement described as Way No.
2 in an instrument recorded in the Official Public Records of Real Property of Hams
County, Texas, under File D332601 and Film Code 129-23-2583, and also found in
the east line of Sens Road;
THENCE, N. 860 55' 32" E., a distance of 2,482.03 feet, along the south line of said
97.477-acre tract, same being the south line of said 250-foot wide easement, to a
point;
THENCE, N. 030 04' 28" W., a distance of 301.31 feet to a found fence post, having
coordinates X = 3,225,760.69 and Y=13,821,329.76;
THENCE, S. 860 53' 39" W., a distance of 265.00 feet to Lease Monument 2 set at
an angle point;
THENCE, N. 86° 15' 30" W., a distance of 60.40 feet to the POINT OF
BEGINNING of the herein described 1.017-acre tract;
THENCE, S. 030 06' 21" E., a distance of 58.33 feet to a point for comer in the north
line of said 250-foot wide easement;
THENCE, S. 86° 55' 32" W., a distance of 640..00 feet, along the north line of said
250-foot wide easement, to a point for corner;
THENCE, N. 03° 06' 21" W., a distance of 69.98 foot to Lease Monument 4 set at
the northwest comer of the herein described tract;
THENCE, N. 86° 53' 39" E., a distance of 540.00 feet to Lease Monument 3 set at
an angle point;
THENCE, S. 86° 15' 30" E., a distance of 100.72 feet to the POINT OF
BEGINNING and containing 1.017 acres of land.
The roadway, which is to be constructed, maintained, repaired, and used by Houston
Lighting & Power Company for ingress to and from the facility, lies within said 1.017-acre tract
at the following described location:
COMMENCING at a 3/4-inch iron pipe called and found for the southwest corner of
said 97.477-acre tract, having coordinates X = 3,223,298.68 and Y = 13,820,895.82,
same being the southwest comer of a 250-foot wide easement described as Way No.
2 in an instrument recorded in the Official'Public Records of Real Property of Harris
County, Texas, under File D332601 and Film Code 129-23-2583, and also found in
the east line of Sens Road;
THENCE, N. 86° 55' 32" E., a distance of 2,482.03 feet, along the south line of said
97.477-acre tract, same being the south line of said 250-foot wide easement, to a
point;
THENCE, N. 03° 04' 28" W., a distance of 301.31 feet to a found fence post, having
coordinates X = 3,225,760.69 and Y = 13,821,329.76;
THENCE, S. 86° 53' 39" W., a distance of 265.00 feet to Lease Monument 2 set at
an angle point;
THENCE, N. 86° 15' 30" W., a distance of 60.40 feet to the POINT OF
BEGINNING of the herein described 0.148 of an acre tract;
THENCE, S. 030 06' 21" E., a distance of 58.33 feet to a point for corner in the north
line of said 250-foot wide easement;
H0003:866189.1
THENCE, S. 86° 55' 32" W., a distance of 100.00 feet, along the north line of said
250-foot wide easement, to a point for comer;
THENCE, N. 030 06' 21" W., a distance of 70.28 feet to Lease Monument 3 set at
the northwest comer of the herein described tract;
THENCE, S. 860 15' 30" E., a distance of 100.72 feet to the POINT OF
BEGINNING and containing 0.148 of an acre of land.
AT�DeDEYWIVI
I. EEa�FNEwF
LOWFEDMuw.
THE STATE OF TEXAS
COUNTY OFHARRIS mhibW�lrii„
IMplwfflf/CiFYt/netMf FIIDnR� NeihrSgeitt
��lsea 61'r: d � d1I ��. Y Y 05dr' Tabk AraY d 6d Rory � H�
Wury,T�m
SEP - 3 2002
COUNTY CLERK
,y HARRIS COUNTY. TEXAS
HOUO3:866189.1
"EXHIBIT B"
Attach Plat reflecting the ownership boundary lines; a
site layout, showing all improvements, including
pipelines and railroads, and also showing areas of the
Land previously annexed by the City of La Porte.)
a]
San Jacinto Plant Boundary Overview
Do
Son Jacinto Generating Station
nrgw
1913912919 —— 10fl
"EXHIBIT C"
Page 1 of 3
RULES AND REGULATIONS
Any -portion of Land constituting a strip of land 100' wide and
contiguous to either Fairmont Parkway, State Highway 225, or State
Highway 146 shall be subject to the following rules and
regulations pertaining to new signage, screening, driveways and
median crossovers, as well as the stacking of intermodal shipping
containers. These rules and regulations shall apply after the
effective date of this Agreement when Company develops or
constructs improvements on vacant Land described in Exhibit "A"
which is adjacent to Fairmont Parkway, State Highway 225, or State
Highway 146.
1. Any sign erected in said,100' strip of land shall be subject
to the following provisions:
(;r_ One freestanding identification sign shall be permitted
for each side of an industrial establishment that
fronts on an improved public right-of-way.
(;r_ Freestanding identification signs for single tenant
buildings shall not exceed 150 square feet in area.
(Z One freestanding identification sign for identifying
multiple businesses is allowable at the intersection of
improved public rights -of -way.
(:;r_ Freestanding identification signs for multiple
businesses shall not exceed 350 square feet.
c4- Freestanding identification signs shall not exceed 45
feet in height.
(:;-t Minimum setback for sign construction shall be ten (10)
feet from property lines.
2. Intermodal shipping containers (including by not limited to
freight and tank containers) shall be permitted to be stacked
only to a maximum of two (2) containers in height in the said
100' strip. In those instances where shipping containers are
placed within the said 100' wide strip, the screening
requirements established in paragraph 3 immediately below
shall apply.
3. When Land adjacent to said 100' strip is developed, the
initial 50' of said strip beyond any existing pipeline
easement contiguous to either Fairmont Parkway, State Highway
225, or State Highway 146 shall be screened by one of the
following techniques:
a) Leaving in place existing trees, vegetation, underbrush,
etc. to provide a thorough and effective visual screening
14
"EXHIBIT C"
Page 2 of 3
of 'the development. Existing trees shall, together
with other vegetation and underbrush, create a
continuous visual screen.
b) The use of earthen berms with approximately 3:1 side
slopes, 50' wide at the base and 8' high. The berms
may be landscaped with a combination of trees, shrubs,
and ground cover. All berms and landscaping will be
maintained by the property owners.
c) A screening plan, to be approved by the City, that
includes a combination of trees, shrubs, and ground
cover that after 5 years growth will be at least 20
feet in height and shall, together with shrubs and
ground cover, create a continuous visual screen.
Provided, however, in public utility easements or
rights -of -way, the vegetation shall be installed and
maintained in a manner which is acceptable to the
public utility company, and does not interfere with the
operation and maintenance of the public utility
facilities.
For items b and c above, the actual length of required
screening along the roadway will be equal to the length
of the new development that is parallel to the roadway.
Screening shall not be required for new development
that is to the rear of or behind existing facilities.
In all cases the 50' strip, along the entire roadway
frontage, shall be dedicated as a landscape easement
and shall be kept free from any improvements except for
approved driveway access and identification signs.
For cases of new development or improvements where a
50' landscape easement 'is not available or practical,
Company shall meet with City to determine a suitable
landscaping alternative.
d) In the case of land contiguous to Fairmont Parkway, in
addition to the other requirements of these Rules and
Regulations, Company shall dedicate to City by Plat a
ten foot (10') wide pedestrian and bicycle easement,
extending along Company's Fairmont Parkway boundary,
within the fifty foot (50') landscape easement. The
pedestrian easement shall not be within any pipeline
facility, except for necessary crossings.
4. Driveways opening from said strip of land onto State Highway
225 or State Highway 146 shall be subject to the rules and
regulations of the Texas Department of Transportation and
provisions of the City's Code of Ordinances, whichever is
more restrictive.
15
"EXHIBIT C"
Page 3 of 3
Driveways opening from said strip of land onto Fairmont
Parkway shall be subject to the rules and regulations of
Harris County and provisions of the City's Code of
Ordinances, whichever is more restrictive.
5. Driveways opening from said strip of land onto Fairmont
Parkway shall be approved by the City and may require the
installation of separate acceleration/deceleration lanes.
6. Installation of a median crossover on Fairmont Parkway shall
be subject to the approval of both Harris County and City.
16