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Ordinance No. 14,211ORDINANCE NO. 14,211 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 ALAJEN BAY 10 PROPERTIES, LLC; 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, 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 Alajen Bay 10 Properties, LLC. 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 261h day of September, 2019. NDON CAPETILLO, a�yyor ATT T: L T CIA BRYSCH, City erk APPROVED AS TO FORM: ACIO RAMIREZ, SR ,' 'ty Attorney RAKarenTiles'-City Council Ordinances\2019 September 26WlajenBaylOPropertiesLLCPILOTOrdinance.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 Alajen Bay 10 Properties, LLC, a Texas limited liability company (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 Joseph Kilgore Lands, which is within Chambers County Improvement District No. 3, 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, to 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; and NOW THEREFORE, the City and the Property Owner, in consideration of the mutual covenants, agreements and benefits herein contained, do mutually agree as follows: I. Parties The parties to the Agreement and their addresses are: City of Baytown Alajen Bay 10 Properties, LLC Attn: City Manager Attn: Manager P.O. Box 424 P.O. Box 1646 Baytown, TX 77522 Mont Belvieu, TX 77580 Fax No. (281) 420-6586 Fax No. (_J 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." The term of this Agreement is seven tax years, from 2019 through 2025, 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 specific hereof and governing the Property during the term hereof. 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 3181 of each year during the term hereof a sum of money equal to the Base Year PILOT Payment plus the Added Value PILOT Payment. The sum of the Base Value PILOT Payment plus the Added Value PILOT Payment shalt be referred to as the PILOT Payment. A. Base Value PILOT Pa +moment The Base Value PILOT Payment shall be calculated as follows: (1) the fair market value, as agreed to and stipulated by the parties to be as follows for each year indicated: 2019 $2,352,395.00 2020 $2,352 395.00 2021 $2 352 395.00 2022 $2,352,395.00 2023 $2,352,395.00 2024 $2,352,395.00 2025 $2 352 395.00 hereinafter referred to as the "Base Value," multiplied by (2) 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: chart; plus -ti-•?ht^rt }aia`_ ;ay�� :� arm '�:. 2022 .66 2023 .66 2024 .66 2025 .66 B. Added Value PILOT Payment The Added Value PILOT Payment shall be calculated as follows: (1) the fair market value as determined by the City, of all of the Property Owner's land and all other tangible property, real, personal or mixed, within the affected area on January 1 of each year in which a PILOT Payment is due hereunder minus the Base Year Value, hereinafter referred to as the "Added Value," multiplied by (2) the property tax rate per $100.00 of assessed valuation adopted by the City Council for the City for each year of the tern of this Agreement, multiplied by the applicable added value PILOT payment rate detailed below. The applicable Added Value PILOT Payment Rate shall be determined using the following 2019 .00 2020 .00 2021 .25 2022 .35 2023 .45 2024 .55 2025 .66 If the formula used in calculating the Added Value PILOT Payment produces a negative number, then the Added Value PILOT Payment shall be $0.00. 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 su►n 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. Vl. 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 tern 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; i . 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 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 for ad valorem tax purposes. C. Binding Effect 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 XN 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 functional obsolescence. D. Statements The City shall snail one statement to the Property Owner on or about December 1 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 arnount 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_ The 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 in 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. VIll. 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 detennine 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 6 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 carutot 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. No ice Any notice to the Property Owner or (lie 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. XI. 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 term of this Agreement. XII. 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 plus the Added 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 leaseliold 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 tern 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 meat This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. XIX. 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. Ambiguities 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. XXI. Headings The headings appearing at the first of each numbered section in this Agreement are insetted 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. XXII. 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 malting and the place of performance for all purposes shall be Baytown, Harris County, Texas. XXIII. Agreement Read The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. IN WITNESS WHEREOF, this Agreement is executed in multiple counterparts on behalf of the Property Owner this �� day of WHEREOF, bP—i , 2019, and on behalf of the City this day of , 2019. ALAJEN BAY 10 PROPERTIES, LLC gnature Printed Name Title ATTEST: ecretary CITY OF BAYTOWN BRANDON CAPETILLO, Mayor ATTEST: LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney WADE NICKERSON, Finance Director \\cobfs0l\legal\Karen\Files\Contipcts\Alajen Bay 10 Propeoles PILOWILOT Agivcment2019.doc 10 Exhibit "A" W '-Jill it. lit ;Ijj 6"! 0 LO I w 1: j �j jLU Ip] 6, S fill j IfN I'll In. "-..I 41i�j IN Ill 1111 141 jib! Alt 11 '33 Snits u 0, X ak S a2M'14'f 66133' 1 -7-7 ------- ---- - r"V, R - A m p ZI ---------------------------- --------- .7.*Z.Oaoo IV A j Dig, hl 1i I,,