Ordinance No. 13,303ORDINANCE NO. 13,303
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO THE CHAPTER
380 ECONOMIC DEVELOPMENT AGREEMENT WITH THE KROGER CO.; 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 hereby authorizes and directs the
City Manager to execute and the City Clerk to attest to the First Amendment to the Chapter 380
Economic Development Agreement with The Kroger Co. A copy of the amendment is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and purposes. ,
Section 2: This ordinance shall take effect
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmati
Baytown this the 22 "d day of September, 2016.
Ely M
APPROVED AS TO FORM:
l
ACID RAMIREZ, SR., Cit ttorney
and after its passage by the
of the City Council of the City of
H. DONCARLOS,
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FIItST AMENDMENT TO THE
CHAPTER 380
ECONOAUC DEVELOPMENT AGREEMENT
STATE OF TEXAS
COUNTY OF HARRIS
This First Amendment to the Chapter 380 Economic Development Agreement ('First
Amendment") is made and entered into by and between The Kroger Co., an Ohio corporation
qualified to do business in Texas, its successors and assigns ('DEVELOPER") and the CITY OF
BAYTOWN, TEXAS, a home rule city and municipal corporation ( "CITY").
RECITALS
WHEREAS, CITY and DEVELOPER entered into a Chapter 380 Economic Development
Agreement effective June 25, 2015, to promote state and local economic development and stimulate
business and commercial activity within the corporate limits of Baytown (the "Agreement"); and
WHEREAS, the Agreement required DEVELOPER to construct and operate a new Kroger
Grocery Retail Store with approximately 100,000 square feet (the "Project") on the property, which
CITY conveyed to DEVELOPER on August 11, 2015, and filed of record in the Harris County Real
Property Records under GF# 1520122436 (the `Troperty"); and
WHEREAS, the Agreement requires DEVELOPER:
1. by June 1, 2017:
a. to invest at least FIFTEEN MILLION AND NO 1100 DOLLARS
($15,000,000.00) in real property improvements, new equipment and
machinery, for the Project and
b. to obtain a certificate of occupancy for the Project; and
2. 'by January 1, 2018, to ensure that the Project has a taxable value of at least FIFTEEN
MILLION AND NO 1100 DOLLARS ($15,000,000.00); and
WHEREAS, DEVELOPER has requested a ten -month extension to make the required
investment and to obtain the certificate of occupancy for the Project; and
WHEREAS, CITY is willing to grant such extension under the terms and conditions specified
herein;
NOW, THEREFORE, in consideration of the mutual benefits and promises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acimowledged, the
CITY and DEVELOPER agree as follows:
Fing i
"� !�
1. Rcox—Ws The recitals set forth above are declared true and correct and are
hereby incorporated as part of this Amendment
2. Definitions. Unless a different meaning clearly appears from the context, words and
phrases as used in this First Amendment shall have the same meanings as in the
Agreement
3. Amendments.
a. The second recital contained in the Agreement shall be amended to read as follows:
WHEREAS, as part of the Project, the CITY seeks to induce
DEVELOPER to invest at least FIFTEEN MILLION AND N01100
DOLLARS ($15,000,000.00) by April 1, 2018, in real property
improvements, new equipment and machinery, at its site or
sites within the corporate limits of Baytown; and
b. Section 3.02 "Creation of Taxable Value" of the Agreement is hereby amended to read
as follows:
3.02 Creation of Taxable Value. Between the Effective Date
and April 1, 2018, DEVELOPER will cause to be constructed and
obtain a certificate of occupancy for the Project, having a
taxable value of at least FIFTEEN MILLION AND N01100
DOLLARS ($15,000,000.00) as assessed by HCAD as of January 1,
2019. The taxable value of the Project as assessed by HCAD must
be at least EIGHT MILLION AND N01100 DOLLARS
($8,000,000.00) as of January 1 of each year after January 1, 2019, for
the term of this Agreement For purposes of this section, the Project
consists of taxable land and real property improvements, located on the
Property.
c. Section 3.04 `Failure to Meet Obligations" of the Agreement is hereby amended to
read as follows:
3.04 Failure to Meet Obgglgaus. In the event that
DEVELOPER fails to fulfill its obligations under the performance
guidelines contained in this Article lIl`, after receipt of notice and
expiration of the cure period described in Section 5.03 below, the
CITY may, at its option, terminate this Agreement, whereupon
DEVELOPER shall be required, as the CITVs sole and exclusive
remedies, to reconvey the property conveyed pursuant to Section 4.03
to the CITY and to reimburse the CITY within 30. days' for
expenditures, which are subject to the Maximums Payment, made by
F A AMeedmart 10 the Chaetc 380 ROMMIe 002hy= AgMMUM. pp 2
the CITY pursuant to this Agreement in accordance with the following.
2015-2019
1000/0
2020
90%
2021
80%
2022
70%
2023
60%
2024
50%
2025
40%
2026
30%
2027
20%
2028 —2030
100%
4. Except as specifically amended by this Amendment, the Agreement shall remain in fill force
and effect in accordance with its original terms and conditions. The provisions of this First
Amendment and the Agreement should be read together and construed as one agreement
provided that, in the event of any conflict or inconsistency between the provisions of this First
Amendment and the provisions of the Agreement, the provisions of this First Amendment
shall control. Nothing contained in this First Amendment or in the Agreement shall be
construed in any way to limit or to waive the City's sovereign immunity.
EXECUTED by the authorized representatives of the parties on the dates indicated
below.
CITY OF BAYTOWN, TEXAS,
RICHARD L. DAVIS, City Manager
(Date)
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO R AMTREZ, SR., City Attorney
THE KROGER CO.
By. v -.
JOSEPH W. BRADLEY
Vice President of Tax and Assistant
Treasurer
9/14/2016
(Date)
STATE OF OHIO
COUNTY OF HAMILTON
The foregoing instrument was acknowledged before me on this i ul, day of September
2016 by Joseph W. Bradley . as Vice PresicTcnt and Assistant rcasurer
of THE KROGER CO., an Ohio Corporation, on behalf of said corporation.
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CAROLA. HAGEN
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NOTARY PUBLIC
FOR THE
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My Commisslon Expire`
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OF 01. ;1
Nov. 26, 2017
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