Ordinance No. 14,065ORDINANCE NO. 14,065
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 FOURTH
AMENDMENT TO THE CHAPTER 380 ECONOMIC DEVELOPMENT
AGREEMENT WITH YOYO LLC, SERIES 13; AUTHORIZING PAYMENT
BY THE CITY OF BAYTOWN AS AUTHORIZED IN SAID AGREEMENT;
MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING
FOR THE EFFECTIVE DATE THEREOF.
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 Fourth Amendment to the
Chapter 380 Economic Development Agreement with YoYo LLC, Series 13. 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 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 251h day of April, 2019.
BRANDON CAPETILLO, Mayor
A ST:
L TICIA BRYSCH, My Clerk
APPROVED AS TO FORM:
'NACIO RAMIREZ, SR ity Attorney
R: Karon Files City CounciPOrdinances 2019'April 25 4thAmendmenito380EconomicDcvelopmentAgreementOrdLnance4YoYo doc
Exhibit "A"
FOURTH AMENDMENT TO THE
CITY OF BAYTOWN / YOYO LLC, SERIES 13
CHAPTER 380
ECONOMIC DEVELOPMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Fourth Amendment ("Amendment") to that certain Chapter 380 Economic Development
Agreement dated April 18, 2017, ("Agreement") by and between YOYO LLC, SERIES 13 (the
"Developer") and the CITY OF BAYTOWN, TEXAS, a home -rule city and municipal corporation,
located in Harris and Chambers Counties, Texas (the "City") is made and entered into on this day of
April, 2019.
RECITALS
WHEREAS, the City and the Developer entered into the Economic Development Agreement (the
"Agreement") on April 18, 2017, in order to set out the terms of an economic development program to
stimulate business and commercial activity in CITY; and
WHEREAS, due to delays caused by Hurricane Harvey, the City and the Developer entered into
the First Amendment to the Agreement on December 17, 2017, to extend certain milestone dates; and
WHEREAS, the City and the Developer entered into the Second Amendment to the Agreement
on March 23, 2018, to extend certain milestone dates; and
WHEREAS, the City and the Developer entered into the Third Amendment to the Agreement on
November 20, 2018, to extend certain milestone dates again; and
WHEREAS, the City and the Developer desire to modify the payout of the Economic
Development Grant; and
WHEREAS, the terms of the Agreement shall remain in full force and effect except as
specifically altered by the terms of the First Amendment, the Second Amendment, the Third Amendment
and this Fourth Amendment;
NOW THEREFORE, for and in consideration of the promises and the mutual agreements set
forth herein, the Parties hereby agree to amend the Third Amendment, the Second Amendment, the First
Amendment and the Agreement as follows:
1.
Amendments
1.01 Subsection a, Section 5.01 "Commitment to Develop," Article V "Developer's Obligations" of
the Agreement is hereby amended to read as follows:
Fourth Amendment to the Chanter 380 Economic Development Agreement, Page 1
5.01 Commitment to Develop.
a. The Developer hereby agrees to complete the approved Fagade Improvements
and to develop the Project in conformance with all applicable laws, rules and
regulations of the City and any other governmental entity having authority over
the Project, so that, upon approval by the Chief Building Official of the City, the
Project fully satisfies the Code in accordance with a scope of work approved by
the City Manager. The Fagade Improvements must be commenced within sixty
(60) days of the City Manager's approval of the documents detailed in Section
4.01 of this Agreement. The Project must be finally completed and the
Developer must have obtained the following from the City on or before the date
indicated:
1. a certificate of occupancy for the multi -family dwelling unit component
of the Project on or before July 31, 2018;
2. a certificate of completion for the commercial retail component of the
Project on or before July 31, 2018; and
3. a certificate of occupancy for the commercial retail component of the
Project on or before September 30, 2020.
Prior to any construction activity on the Facade Improvements, the Developer must
obtain the written approval of the City's Chief Building Official and the City Manager of
the plans and specifications for the Fagade Improvements, which approval shall not be
unreasonably withheld, conditioned or delayed. After such approval, no change may be
made without the prior written approval of the City's Chief Building Official and the City
Manager.
1.02 Subsection a, Section 5.04 "Creation of Jobs," Article V "Developer's Obligations" of the
Agreement is hereby amended to read as follows:
5.04 Creation of Jobs. Between the Effective Date and one year after the date the certificate of
occupancy is issued for the Project, Developer will cause the creation and/or retention of
at least eight (8) FTE jobs at the Project, which shall be maintained for the term of this
Agreement.
Developer in filling the FTE's created shall give preference to Baytown residents over
other applicants who do not have greater qualifications so that at all times at least forty-
five percent (45°f0') of the employees of Developer are selected based upon this preference
to hire persons, who reside within the corporate limits or extraterritorial jurisdiction of
the City of Baytown.
In the event of a voluntary or involuntary termination or elimination of a job after the
date of the issuance of the certificate of occupancy for the project that causes the number
of FTE's to fall below five (5), Developer shall continue to receive the incentive set out in
Article VI below, provided the required number of FTE's is re-established within one
hundred twenty (120) days after the date of the termination or elimination that caused the
FTE's to fall below five (5),
DEVELOPER shall report in writing the number of FTE's and the percentage of
employees residing within the corporate limits and/or the extraterritorial jurisdiction of
the City of Baytown each quarter during the term of this Agreement.
Fourth Amendment to the Chanter 380 Economic Develonment Agreement, Page 2
1.03 Subsection (a) of Section 6.01 "Economic Development Grant," Article IV "City's Obligations"
of the Agreement is hereby amended to read as follows:
6.01 Economic Development Grant.
(a) Subject to subsection (b) of this section, the City will pay the Developer the
Economic Development Grant within thirty (30) days after the receipt of a
written request for payment and evidence that the following benchmarks have
been satisfied:
Developincill
Grant to he Paid
(a) 100% occupancy of the multi -family
dwelling units;
(b) Occupancy of at least 1 retail unit; and
(c) Compliance with the following:
(1) the investment requirement
contained in Section 5.02,
1 (2) the creation of value requirement 50o 0
contained in 5.03, and
(3) the payment obligations contained in
Section 5.05; and
(4) the maintenance obligations
contained in Section 5.06.
(a) Issuance of the certificates of occupancy
for the entire Project; and
(b) Compliance with the following:
(1) the investment requirement
contained in Section 5.02,
2 (2) the creation of value requirement 50"-o
contained in 5.03, and
(3) the payment obligations contained in
Section 5.05; and
(4) the maintenance obligations
contained in Section 5.06.
H.
Miscellaneous Provisions
2.01 Recitals. The recitals set forth above are declared true and correct and are hereby incorporated as
part of this Amendment.
2.02 Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this Fourth Amendment shall have the same meanings as in the Third Amendment, the
Second Amendment, the First Amendment, and the Agreement.
2.03 Entire Agreement. The provisions of this Fourth Amendment, the Third Amendment, the Second
Amendment, the First Amendment, and the Agreement should be read together and construed as
Fourth Amendment to the Chapter 380 Economic Develonment Agreement, Page 3
one agreement provided that, in the event of any conflict or inconsistency between the provisions
of this Fourth Amendment and the provisions of the Third Amendment, the Second Amendment,
the First Amendment or the Agreement, the provisions of this Fourth Amendment shall control.
2.04 Interpretation. This Fourth Amendment has been jointly negotiated by the parties hereunder and
shall not be construed against a party hereunder because that party may have assumed primary
responsibility for the drafting of this Fourth Amendment.
2.05 Captions. Captions contained in the Agreement, the First Amendment, the Second Amendment,
the Third Amendment, and the Fourth Amendment are for reference only and, therefore, have no
effect in construing the documents. The captions are not restrictive of the subject matter of any
section.
2.06 No Waiver. By this Fourth Amendment, the City does not consent to litigation or suit, and the
City hereby expressly revokes any consent to litigation that it may have granted by the terns of
this Fourth Amendment, the Third Amendment, the Second Amendment, the First Amendment,
the Agreement or any other contract or agreement or addenda, any charter, or applicable state
law. Nothing contained in this Fourth Amendment, the Third Amendment, the Second
Amendment, the First Amendment or in the Agreement shall be construed in any way to limit or
to waive the City's sovereign immunity.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the same
amendment, this day of April, 2019, the date of execution by the City Manager.
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
CITY OF BAYTOWN, TEXAS
RICHARD L. DAVIS, City Manager
(Date)
YOYO LLC, SERIES 13
OSCAR CHAPA
Fourth Amendment to the Chanter 380 Economic Development Agreement, Page 4
Governing Person
(Date)
STATE OF TEXAS
COUNTY OF
Before me, _ _ , the undersigned notary public, on this day personally
appeared OSCAR CHAPA, the Governing Person of YOYO LLC, SERIES 13
known to me
proved to me on the oath of or
proved to me through his current (description of
identification card or other document issued by the federal government or any state
government that contains the photograph and signature of the acknowledging person)
(check one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he
executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this _day of , 2019.
Notary Public in and for the State of Texas
My commission expires:
R: Karen' Fiies-.Contracts' YoYo 380 Agreemenf4diAmendment04152019.doe
Fourth Amendment to the Chanter 380 Economic Development Agreement, Page 5