§ 44-134. Default; recapture.
(a)
Event of default. The abatement recipient shall be in default under the agreement if any of the following occur at any time during the term of the agreement:
(1)
A facility is completed and begins producing or providing the product or service delineated in the agreement, but subsequently discontinues producing or providing the product or service for any reason other than fire, explosion, or other casualty or accident or natural disaster;
(2)
The abatement recipient fails to comply timely with job creation or investment requirements pursuant to the agreement;
(3)
The abatement recipient fails to comply timely with any material term of the agreement;
(4)
The abatement recipient fails to timely file any required report or statement or to timely give any required notice pursuant to the agreement; or
(5)
Employees or designated representatives of the city determine pursuant to an inspection under section 44-135 of this Code that the abatement recipient has not complied with the agreement.
(b)
Notice.
(1)
If the director determines that an event of default has occurred, the director shall notify the abatement recipient in writing at the address stated in the agreement, and if the condition of default is not cured within 30 days after the date of the notice, then the city may take any one or more of the actions set forth in subsection (d) of this section. Provided, however, that the city shall only be required to give a 30-day notice of default for failure to comply with job creation or investment requirements. The abatement recipient's failure to comply with job creation or investment requirements is an "incurable default." Within the 30-day notice period, the abatement recipient shall be entitled to question the accuracy of the city's determination of the incurable default but shall not be entitled to cure the default. After the 30-day notice period, if the city concludes that its determination of the incurable default is correct ("noticed incurable default"), then the city shall be entitled to pursue any one or more of the remedies set forth in subsection (d) of this section.
(2)
If the abatement recipient is in default under subsection (a) of this section, the abatement recipient shall notify the city within 30 days after the default and if the default is one that can be cured hereunder (and is not an incurable default), such default shall be cured within 30 days following the date of the notice of default. If the abatement recipient fails to cure such curable default within the 30-day period, then the city may pursue any one or more of the remedies listed in subsection (d) hereof.
(c)
Cure. In curing an event of default based on any of the items set forth in subsection (a) of this section , and assuming such event of default is curable and is not an incurable default, the abatement recipient shall provide sufficient evidence to the director that the default has been cured within 30 days following the date of the notice of default. Sufficient evidence shall include the providing of the information not timely provided and/or providing evidence of the completion of the act(s) not timely performed. The city shall have the right to ask for additional information to confirm the adequate cure of any default.
(d)
City remedies for default.
(1)
In the event of a noticed incurable default or a curable default that has not been cured after notice and an opportunity to cure, no tax abatement shall be allowed for the calendar year in which the default occurs (and thereafter), and the city shall have the right to pursue any one or more of the following remedies: terminate the agreement; terminate the abatement recipient's right to any future abatement under the agreement without terminating the agreement; pursue any and all remedies allowed under the abatement agreement; and pursue any and all remedies allowed under Texas law;
(2)
In addition to the foregoing, in the event of a noticed incurable default or a curable default that has not been cured after notice and an opportunity to cure, the city, in its sole discretion, may recover all or any part of the taxes abated at any time under the agreement. The abatement recipient shall pay all taxes to the city within 30 days after the city's written demand therefore. Any taxes not paid timely shall bear interest at the rate of 12% annually;
(3)
Notwithstanding the foregoing, the director and the city attorney are hereby authorized to negotiate and enter into amendments and revisions to agreements under which there are noticed incurable defaults or curable defaults that have not been cured after notice and opportunity to cure. In the foregoing circumstances, the parties are also authorized to negotiate and enter into any other and further agreements they determine best protect the city's interests; and
(4)
The city's right and authority to pursue any default and to recover abated taxes under this section shall survive the amendment, revision, expiration, or termination of any tax abatement agreement.
(Ord. No. 2018-391 , § 2(Exh. A), 5-16-2018)