Ordinance No. 11,304 ,
ORDINANCE NO. 11,304
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS.
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
TIME CITY CLERK TO ATTEST TO A CHAPTER 380 ECONOMIC DEVELOPMENT
AGREEMENT WITH DARDEN SW, LLC; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED FORTY THOUSAND
AND NO/100 DOLLARS ($40,000.00): MAKING OTHER PROVISIONS RELATED
THERETO; 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 I: 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 a Chapter 380 Economic Development Agreement
with Darden SW. LLC. A copy of the agreement is attached hereto. marked Exhibit "A." and made a part
hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Darden SW,
LLC in an amount not to exceed FORTY THOUSAND AND NO/100 DOLLARS ($40,000.00) in
accordance with the agreement authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by TWENTY-FIVE THOUSAND AND NO/I00 DOLLARS ($25.000.00) or less.
provided that the amount authorized in Section 2 hereof may not he increased by more than twenty-tive
percent (25%).
Section 4: This ordinance shall take effect immediately fro nd after its passage by the
City Council of the City of Baytown.
INTRODUCED. READ and PASSED by the affirmative v f the City Council of the City of
i . • . n this the 1 I'h day of February. 2010.
s.
(PP' ST ONCARLOS, Mayor
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APPROVED AS TO FORM:
ACID RAMIREZ. SR.. Ci ttorney
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Exhibit "A"
CITY OF BAYTOWN / DARDEN SW LLC
CHAPTER 380
ECONOMIC DEVELOPMENT AGREEMENT
STATE OF TEXAS
COUNTY OF HARRIS
This Chapter 380 Economic Development Agreement ( "Agreement ") is made and entered
into by and between DARDEN SW LLC, a Florida limited liability company qualified to do
business in Texas, its successors and assigns ( "DARDEN ") and the CITY OF BAYTOWN,
TEXAS, a home rule city and municipal corporation ( "CITY ").
RECITALS
WHEREAS, as part of the Project, the CITY seeks to induce DARDEN to create at least
100 new jobs in connection with the Project and the operations of DARDEN in the corporate
limits of Baytown, Texas, which jobs will promote state and local economic development and
stimulate business and commercial activity within the corporate limits of Baytown; and
WHEREAS, as part of the Project, the CITY seeks to induce DARDEN to invest at least
$1 million by December 31, 2010, in real property improvements, new equipment and
machinery, at its site or sites within the corporate limits of Baytown; and
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 acknowledged,
the CITY and DARDEN agree as follows:
I.
Contingency
1.01 This Agreement and the CITY's and DARDEN's obligations herein are expressly
contingent upon DARDEN acquiring the property located at 6744 Garth Road, Baytown, Harris
County, Texas, on or before May 1, 2010.
H.
Authority
2.01 CITY. The CITY's execution of this Agreement is authorized by Chapter 380 of the
Texas Local Government Code and constitutes a valid and binding obligation of the
CITY.
Chanter 380 Economic Development AereemcaL Page 1
2.02 DARDEN. DARDEN'S execution and performance of this Agreement constitutes a valid
and binding obligation of DARDEN. The CITY acknowledges that DARDEN is acting in
reliance upon the CITY'S performance of its obligations under this Agreement in making
its decision to invest its funds and expand employment in Baytown.
III.
Definitions
3.01 "Restaurant Facility ": A building or buildings containing food storage, preparation,
service and dining facilities under the trade name of Olive Garden Italian Restaurant,
equal or superior to the standard DARDEN facility at the approximate location delineated
in the attached Exhibit A.
3.02 "Effective Date" is February 12, 2010.
3.03 "Job(s)" means full -time and part -time jobs performed at the Restaurant Facility by
employees of DARDEN and created as the result of the construction and the operation of
the Project by DARDEN.
3.04 "Program' means the economic development program for this Project established by the
CITY pursuant to Texas Local Government Code Chapter 380 to promote local economic
development and stimulate business and commercial activity within the CITY.
3.05 "HCAD" means the Harris County Appraisal District or its successor.
IV.
DARDEN Obligations
4.01 Creation of Jobs. Between the effective date of this Agreement and December 31, 2010,
DARDEN will create at least 100 new Jobs and maintain those until December 31, 2015.
In the event of a voluntary or involuntary termination or elimination of a Job after
December 31, 2010, that causes the number of people employed in Jobs to fall below
100, DARDEN shall continue to receive the incentives set out in Section 5.01 below,
provided the required number of people employed in said Jobs is re- established within
one hundred twenty (120) days after the date of the termination or elimination that caused
the number of people employed in Jobs to fall below 100.
4.02 Creation of Taxable Value. Between the effective date of this Agreement and December
31, 2010, DARDEN will cause to be constructed the Restaurant Facility of approximately
7,500 square feet as generally depicted in Exhibit "A" with a taxable value of at least $1
million, as assessed by HCAD. The property must maintain a taxable value of at least $1
million for the term of this Agreement.
Chanter 380 Economic Development Agmment. Page 2
4.03 Certificate of Compliance and Inspection.
(a) DARDEN shall annually deliver to the CITY a Certificate of Compliance, at the
time that DARDEN delivers to the CITY the annual Property Tax Notice required
under Section 5.02 below, utilizing the form attached as Exhibit B. The form is
subject to revision by the CITY in its sole discretion.
(b) In the Certificate of Compliance, DARDEN shall warrant to the CITY whether it
is in full compliance with each of its obligations under this Agreement, including
the number of new Jobs maintained by DARDEN for the preceding year pursuant
to Section 4.01 above.
(c) The CITY, and/or its representative(s), has the right to inspect only such pertinent
records of DARDEN as are reasonably necessary to verify compliance with all
requirements of this Agreement. Inspections shall be preceded by at least two
week's notice in writing to DARDEN. DARDEN shall make copies of the
pertinent records available to the CITY at the Restaurant Facility or deliver them
directly to the City.
4.04 Failure to Meet Obligations. In the event that DARDEN fails to fulfill its obligations
under the performance guidelines contained in this Article IV, after receipt of notice and
expiration of the cure period described in Section 6.03 below, the CITY may, at its
option, terminate this Agreement, whereupon DARDEN shall be required to reimburse
the CITY within 30 days for payments made by the CITY pursuant to this Agreement in
accordance with the following:
Vear of Non-Conipliance
2010-2011
Percentage to he Rehulmrsed
100%
2012
80%
2013
60%
2014
40%
2015
20%
V.
CITY Obligations
5.01 Economic Development Incentive. As consideration for DARDEN's performance of its
obligations under this Agreement and as the CITY'S sole obligation under this
Agreement, the CITY will reimburse the following concerning the Restaurant Facility;
provided that the CITY's obligation herein shall never exceed FORTY THOUSAND
AND NO /100 DOLLARS ($40,000.00):
(a) the CITY'S water and wastewater impact fees, and
Chapter 380 Economic Development AX=men Page 3
(b) the CITY'S building permit, plan review, inspection and platting fees.
Any amounts over FORTY THOUSAND AND NO/ 100 DOLLARS ($40,000.00) shall
be the sole responsibility of DARDEN and will not be subject to reimbursement under
this Agreement. Reimbursements shall be made within thirty (30) days after the CITY's
receipt of a reimbursement request and proof of payment.
VI.
General Terms
6.01 Term. This Agreement shall become enforceable upon execution by the City Manager of
the CITY and shall be effective on the Effective Date. Unless terminated earlier in
accordance with its terms, this Agreement shall terminate December 31, 2015.
6.02 Default. If either the CITY or DARDEN should default in the performance of any
obligations of this Agreement, the other party shall provide such defaulting party written
notice of the default, and a minimum period of ninety (90) days after the receipt of said
notice to cure such default, prior to instituting an action for breach or pursuing any other
remedy for default.
6.03 Termination. In the event DARDEN elects not to proceed with the Project as
contemplated by this Agreement, DARDEN shall notify the CITY in writing, and this
Agreement and the obligations on the part of both parties shall be deemed terminated and
of no further force or effect. If so terminated, DARDEN shall be required to reimburse
the CITY for all monies paid pursuant to Section 5.01 hereinabove prior to the
termination being effective.
6.04 Mutual Assistance. CITY and DARDEN will do the things commercially reasonable,
necessary or appropriate to carry out the terms and provisions of this Agreement, and to
aid and assist each other in carrying out such terms and provisions in order to put each
other in the same economic condition contemplated by this Agreement regardless of
changes in public policy, the law or taxes or assessments attributable to DARDEN
facilities.
6.05 Entire Agreement. This Agreement contains the entire agreement between the parties. All
prior negotiations, discussions, correspondence, and preliminary understandings between
the parties and others relating hereto are superseded by this Agreement. This Agreement
may only be amended, altered or revoked by written instrument signed by the CITY and
DARDEN.
6.06 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties
and their respective successors and assigns.
6.07 Assignment. Except as provided below, DARDEN may not assign all or part of its rights
and obligations to a third party without prior written approval of the CITY, which
Chapter 380 Economic Development Aucement. Page 4
approval shall not be unreasonably withheld or delayed. Notwithstanding anything to the
contrary, DARDEN may assign all or part of its rights and obligations without the prior
consent of the CITY to an affiliate of DARDEN and to a third party lender advancing
funds for the acquisition, construction or operation of Restaurant Facilities.
6.08 Release. By this Agreement, 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
terms of this Agreement or any other contract or agreement, any charter, or applicable
state law. Nothing contained herein shall be construed in any way so as to waive in
whole or part the CITY's sovereign immunity. DARDEN assumes full responsibility for
its obligations under this Agreement performed hereunder and hereby releases,
relinquishes, discharges, and holds harmless the CITY, its officers, agents, and
employees from all claims, demands, and causes of action of every kind and character
that is caused by or alleged to be caused by, arising out of, or in connection with
DARDEN'S obligations hereunder. This release shall apply with respect to DARDEN'S
work regardless of whether said claims, demands, and causes of action are covered in
whole or in part by insurance.
6.09 Notice. Any notice and/or statement required or permitted to be delivered shall be
deemed delivered by actual delivery, by facsimile, with receipt of confirmation, or by
depositing the same in the United States mail, certified with return receipt requested,
postage prepaid, addressed to the appropriate party at the following addresses:
DARDEN:
Darden SW LLC
1000 Darden Center Drive
Orlando, FL 32837
FAX: 407 -245 -4989 24 I -1011
Attn: Property Law Administration
CITY:
City of Baytown
P.O. Box 424
Baytown, TX 77522
FAX: 281 -420 -6586
Attn: City Manager
Either party may designate a different address at any time upon written notice to the other
pay.
6.10 Interpretation. Each of the parties has been represented by counsel of their choosing in
the negotiation and preparation of this Agreement. Regardless of which party prepared
the initial draft of this Agreement, this Agreement shall, in the event of any dispute
regarding its meaning or application, be interpreted fairly and reasonably and neither
more strongly for, nor against any party.
Chanter 390 Economic Develonment AMement Page 5
6.11 Applicable Law. This Agreement is made, and shall be construed and interpreted, under
the laws of the State of Texas and venue shall lie in the State courts of Harris County,
Texas.
6.12 Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of the
parties that the remainder of this Agreement shall not be affected. It is also the intention
of the parties that in lieu of each clause and provision that is found to be illegal, invalid or
unenforceable, a provision be added to this Agreement which is legal, valid or
enforceable and is as similar in terms as possible to the provision found to be illegal,
invalid or unenforceable.
6.13 Parag_ragh Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various
and several paragraphs.
6.14 No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
6.15 No Joint Venture. It is acknowledged and agreed by the parties that the terms of this
Agreement are not intended to and shall not be deemed to create any partnership or joint
venture among the parties. The CITY, its past and future officers, elected officials,
employees and agents do not assume any responsibilities or liabilities to any third party in
connection with DARDEN facilities or the design, construction or operation of any
portion of the facilities.
6.16 Public Information. Records and information provided to the CITY or its
representative(s) to verify compliance with this Agreement shall be available for public
inspection.
6.17 Exhibits. The following Exhibits "A" and "B" are attached and incorporated by reference
for all purposes.
6.18 Multiple Originals. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute but
one and the same instrument, which may be sufficiently evidenced by one counterpart.
6.19 Authorily to Enter Contract. Each party has the full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each party
has been properly authorized and empowered to enter into this Agreement. The persons
executing this Agreement hereby represent that they have authorization to sign on behalf
of their respective entities.
6.20 Non - Waiver. Failure of either party hereto to insist on the strict performance of any of
the agreements contained herein or to exercise any rights or remedies accruing hereunder
upon default or failure of performance shall not be considered a waiver of the right to
Chapter 380 Economic Devetorment Agreement. Page 6
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.
EXECUTED by the authorized representatives of the parties on the dates indicated
below.
DARDEN SW LLC
By: GMRI, Inc. a Florida
corporation
Its Managing Member
Signature)
'So F-t S- Qvu�nlar�
(Printed Name)
Spn'04- V"' �n-E-
(Title)
2�3�tO
(Date)
CITY OF BAYTOWN, TEXAS,
GARRISON C. BRUMBACK
City Manager
(Date)
Chapter 380 Economic Derelooment Acreem=t. Pap 7
ATTEST:
LETICIA GARZA
City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR.
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE §
The foregoing instrument was acknowledged before me on this 3rl day ofd br , 244 by
J o El S. Qu�nlat� , as S¢ ,er Vi Le Pre5l60- of , Inc., a
Florida corporation and Managing Member of Darden SW LLC, a Florida limited liability
company, on behalf of said entities.
[ SEAL ]
Notary Public
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Exhibit "A"
Plat and Drawing of the Olive Garden Site
Chamet 380 Economic Devebpment Ag=ment Page 9
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Exhibit "B"
Economic Development Agreement Reporting Form
City of Baytown
REPORTING YEAR 20_
1.0 Employment
1.1 Number of employees at facility for reporting year:
Full -time
Part Time
Total
1.2 Average Annual Salary
Average. annual salary for reporting year $
1.3 Total Payroll
Annual payroll for reporting year S
2.0 Investment
2.1 Agreement requires a taxable value of $1,000,000 by December 31, 2010 for the
Restaurant Facility.
Investment for first year S
3.0 Value.
Total investment for first year of the agreement: $
HCAD appraised value for subsequent reporting years: S
I, the authorized GMRI, Inc. representative, hereby certify that the above information is correct
and accurate pursuant to the terms of the Agreement.
DARDEN SW LLC
By: GMRI, Inc., a Florida corporation
Its Managing Member
(Signature)
(Printed Name)
(Title; Vice President)
Chanter 180 Economic Development Aercemcnt. Page 10