Ordinance No. 10,832ORDINANCE NO. 10,832
AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING
AND DIRECTING THE MAYOR TO EXECUTE AND THE INTERIM CITY
CLERK TO ATTEST TO AN INDUSTRIAL DISTRICT AGREEMENT WITH
HOME DEPOT U.S.A., INC.; 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 Interim City Clerk of the City of Baytown to execute and attest to an
Industrial District Agreement with Home Depot U.S.A., Inc. A copy of said Industrial District
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 affirmativ^Vote of the City Council of the
City of Baytow#ti$gthe44th day of February, 2008.
STEPH DONCARLOS, Mayor
APPROVED AS TO FORM:
<TONACIO RAMIREZ, SR., GM Attorney
RAKurcn\l"ilos\Cily Coimcil\OrdinaiKes\2008\l:cbruary l4\HonicDcpotIDAOrdinancc.doc
Industrial District Agreement
This Industrial District 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 Home Depot U.S.A., Inc., a Delaware
corporation, hereinafter referred to as "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:
I.
Parties
This Agreement is made under the authority of Texas Local Government Code Annotated
§42.044 (Vernon 1993), article XI, §5 of the Texas Constitution and other applicable law. The
parties to the Agreement and their addresses are:
1. The "City"
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Copy to:
City of Baytown
Attn: City Attorney
P.O. Box 424
Baytown, TX 77522
2. The "Property Owner" Tax Statement Address:
Home Depot U.S.A., Inc. Home Depot Tax Department #5565
Attn: Vice President -Real Estate Law P. O. Box 105842
2455 Paces Ferry Road, NW Atlanta, GA 30348-5842
Atlanta, GA 30339-4084
Copy to:
Home Depot U.S.A., Inc.
Attn: Director -Legal
2800 Forest Lane
Dallas, TX 75217
EXHIBIT A
II.
Identification of Property and Industrial District
This Agreement includes provisions concerning certain real estate and tangible personal
property owned or leased by the Property Owner. Real estate located outside the corporate limits
of the City is sometimes referred to herein as the "affected area," and it is described in Exhibit
A, which is attached to this Agreement and made a part hereof. Acting pursuant to the above
mentioned authority, the City Council of the City has by ordinance, designated the affected area
as an industrial district, the same to be known as Baytown Industrial District No. 3 (the
"Industrial District").
The term of this Agreement is seven tax years, from 2008 through 2014, 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. This
Agreement supersedes any prior existing agreements between the Property Owner and the City
relating to the subject matter hereof and governing the affected area; to the extent any such prior
existing agreement required payment on or after January 1, 2008, such payment obligations are
hereby canceled and are superseded by the provisions contained herein.
IV.
Limited Immunity from Annexation bv the Citv
In consideration of the obligations of the Property Owner herein set forth, the City hereby
guarantees for the term of this Agreement the immunity of the affected area from annexation of
any type by the City except for such parts of the affected property as may be necessary to annex
property owned by third parties within the Industrial District that the City may decide to annex.
Additionally, this Agreement shall not affect the continuation of any limited purpose annexation
status to which the affected area is now subject.
V.
Industrial District Payment
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 31st of each year during the term hereof a
sum of money equal to:
(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, 2002, or
(2)
> as most recently certified by the chief appraiser of the appraisal district
and/or approved by the Industrial Appraisal Review Board established
and appointed by the City Council, as of the date of this Agreement,
whichever is greater hereinafter referred to as the "Base Year." Such fair market
value for the Base Year is agreed to and stipulated by the parties to be SIXTY-
SIX MILLION NINE HUNDRED FIFTY-EIGHT THOUSAND SEVEN
HUNDRED SEVENTY AND NO/100 DOLLARS ($66,958,770.00) , less the fair
market value in the Base Year as determined by the City of that portion of the
Property' Owner's property, real, personal or mixed, which was located within the
industrial district on the effective date of this agreement and subsequently
annexed by the City, the difference of which is hereinafter referred to as the "Base
Year Value," multiplied by
the property tax rate per $100.00 of assessed valuation adopted by the City
Council for the City, multiplied by the applicable industrial district payment rate
as detailed below.
chart:
The applicable Industrial District Payment Rate shall be determined using the following
VI.
Valuations
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 term 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:
1. 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;
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.
A.
Valuation of Property Inside the Corporate Limits
The payments required hereunder shall be based upon the appraised value for the Base
Year, as finally determined by the Chambers County Appraisal District or its legal successor (or
through administrative or judicial appeal of the Chambers County Appraisal District's
determination), for (i) the land within the corporate limits of the City and owned by the Property
Owner as of January 1 of the Base Year, and (ii) all improvements and tangible property, real or
mixed, situated within the corporate limits of the City and owned by the Property Owner as of
January 1 of the Base Year.
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 in the annexed portion for ad valorem tax purposes.
C.
Binding Effect
Determination of Industrial District fair market values in the above-stated manner outside
the corporate limits shall be made by the City and approved by the Industrial Appraisal Review
Board. Such final fair market value as approved by the Industrial Appraisal Review Board shall
be final and binding unless either party within thirty (30) days after receipt of the Board's
determination petitions for a Declaratory Judgment to the Civil District Court of Harris County,
Texas, as provided for by Section XIII hereof. In determining the fair market value of property
and improvements as used herein, the Industrial District Appraisal Board shall base its
determination on the fair market value as defined in Section 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 mail 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 "Tax Statement Address" noted in 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 amount 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. The City shall have a lien
upon the Property Owner's land within the affected area upon any delinquency in the Industrial
District Payment.
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 eight percent per annum 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 the Industrial District,
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 adjacent to the Industrial District shall also
be applicable lo 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 hcreunder (the "OSHA
Standards"), but there shall be no obligation to obtain any permits of any kind from the City in
connection with the construction, operation or maintenance of improvements and facilities in the
affected area not located within the corporate limits of the City. Nonetheless, 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 the City's industrial districts
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 the City's industrial districts 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.
VIII.
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 determine the
value of the Property Owner's properties as arc provided in the Texas Property Tax Code as
amended.
IX.
Default
A.
Default bv Property Owner
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 Agreement and collect the payments required
hereunder. Notwithstanding any to the contrary contained herein, should the City determine the
Property Owner is in default according to the terms and conditions of Section 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 Section VII for causes
beyond the Property Owner's control that cannot 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.
B.
Default bv Citv
In the event of default by the City, the Property Owner may, if such default is not fully
corrected within 60 days from giving written notice of such default to the City, terminate this
Agreement. Upon such termination, both the Property Owner and the City shall be relieved of
all further obligations hereunder, but the Property Owner shall not be relieved of the obligation
to pay any amounts that accrued prior to such termination. In the event of termination, the City
shall have the right to repeal the ordinance designated the affected area as an industrial district.
Provided, however, if the termination occurs as a result of the City's exercising its option to
terminate (as provided in the first sentence of this Section IX), the City shall not have the right
to annex the affected area into the general corporate limits of the City so as to subject the
affected area to ad valorem taxes for any part of the period covered by the Property Owner's last
payment hereunder.
X.
Jotice
Any notice to the Property Owner or the 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 on the cover page 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, or the establishment of the industrial district covering the affected area
not within the corporate limits of the City, to make any payments to the City in the nature of a
tax or assessment based upon the value of the Property Owner's property in the affected area
during the term of this Agreement other than the payments specified herein. Specifically, the
Property Owner shall not be liable for any City taxes within the affected area, including, without
limitation, City ad valorem taxes on taxable property within the affected area.
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 an Industrial District 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 shall be apportioned between the Property Owner and the grantee
based upon the property conveyed, only if the grantee thereof enters into an Industrial District
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 leasehold
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 term 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.
Severabilitv
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 Section 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
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
inserted and included solely for convenience and shall never be considered or given any effect in
constniing this Agreement or any provision hereof, or in connection with the duties, obligations
or liabilities of (he respective parties hereto or in ascertaining intent, if any question of intent
should arise.
XXII.
Choice of Law: Venue
10
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 making 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 \*6 day of \g~v^U**-—-v 2008, and on behalf of the City
this day of , 2008.
' V
HOME
Printed^lame
.A., INC.
Director,
Title
CITY OF BAYTOWN
ATTEST:
STEPHEN H. DONCARLOS, Mayor
KELVIN KNAUF, Interim City Clerk
11
t
! APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
RHONDA DAUGHERTY, Finance Director
R:\Jeancnc\MyDocumcnts\ConIraclsMDAMiomcDcpotRenewal2008.doc
12
m-mmm) \\m p.
JflN-22-2001 10:53 HIRSCH & UESTHEIfER.P.C. P.15/17
APPENDIX A
METES AMD BOUNDS DESCRIPTION
OF 40.00 ACRES OF LAND
IN THE JOHN STEEL SURVEY, A -227
CHAMBERS CODNTT, TEXAS
Ail that certain 40.00 acres of land, out of the 59.706 acre tract
described in the deed from c.A. Wilburn to United States Steel
Corporation, recorded under Volume 284, Page 461, in the Deed Records of
Chambers County, Texas, out of the 30.940 acre tract described in the
deed from L.B. Fisher, et ux to United States Steel Corporation, recorded
under Volume 284, Page 479, in the Deed Records of Chambers County,
Texas, out of the 17.280 acre tract described in the deed from Marjorie
W. Laughlin, et vir to United States Steel Corporation, recorded under
volume 283, Page 703, in the Deed Records of Chambers County, Texas, out
of the 279.128 acre tract, described as Tract 1 in the deed from Lislei
Doyle Wilburn, et al to United States Steel Corporation, recorded under
Volume 283, Page 186, in the Deed Records of Chambers County, Texas, and
out of the 15 acre tract described in the deed from Merle L. Wismer to
David T. Searls, Trustee, recorded under Volume 276, Page 539, in the
Deed Records of Chambers County, Texas, in the John Steel Survey, A -
227, Chambers County, Texas, and being more particularly described by
mates and bounds as follows: (All bearings based on the 15.4132 acre
tract described as Parcel No. 5, Part 1 in the deed from United States
Steel Corporation to State of Texas, recorded under Volume 351, Page 192,
in the Deed Records of Chambers County, Texas)
Coanenoing at concrete monument found for the Point of Curvature of a
curve-to the left, having a central angle of 04° 19' 58", and a radius of
3014.79', in the west right-of-way line of F.M. 1405 (300» right-of-way),
ITom vhith a concrete monument found in said west right-of-way line bears N 38 251 06-2 -1449.87', and from which a concrete monument found in
said west right-of-way line bears N 38° 25' 06" E -2449.25'; Thence
along said curve to the left, along said west right-of-way line, in a
southwesterly direction, an arc distance of 227.98' to a capped 3/4" iron
rod set for the Point o£ Beginning and east corner of the herein
described tract, common to a point on a curve to the left, having a
central angle of 06s 42' 19", a radius of 3014.79', and from which point
the center of the circle of said curve bears S 55° 54' 52" E;
THENCE along said curve to the left, along said west right-of-way line,
in a southwesterly direction, an arc distance of 352.82' to a capped 3/4" iron rod set for the end of curve;
THEHCB S 27° 22* 48" W -1413.55', continuing along said west right-of-
way line (right-of-way varies), co a capped 3/4" iron rod set for an
angle corner of the herein described tract;
THENCE S 31° 42' 50" w -54.581, continuing along said west right-of-way
line, to a capped 3/4" iron rod set for the south corner of the herein
described tract;
thence N 61° 10' 25" W -974.92' to a capped 3/4" iron rod set for che
west corner of the herein described tract;
hJale/Hie JAN-22-2001 (HON) 11:31 p.
JflN-22-2801 10:51 H1RSCH & UESTHEIttER.P.C. P. 16/1?
Page 2 -40.00 acre tract
THEMC8 N 28' 49' 35" B -1820.04' to a capped 3/4-iron rod set for the
north corner of che herein described tract;
THENCE S 61° 10' 25" E -953.73' to the POIHT OP BEGINNING of the herein
described tract and containing 40.00 acres of land.
Prepared by:
G. P. SURVEYORS
a division of
Pate Engineers, Inc.
Job No. 947-003-00-53
Revised: December 20, 2000
fication Date
cember 1, 2000