Ordinance No. 12,265C)l?U-)I N,N NCF.% NC,). 12,265
AIN ORIDINANCIII OF C711 "Y COUNCIL OF T1411 CFl Y C)F BAY'TC-)%VN. T"ENXAS�
Pau"mmumms Apm ummcnmm TFIF CIT'N' NIANAC;L-,"AZ, "1-0 EXECAJ-YLE. AND
T11FI. ICATY CIVERK '17C) A'Vl'l,ST T()"FFIF, 1, IPS-F ANIENDYIEN-l" -m wum cot inp-twN,
380 F`C-'ONO,NIIC 13l1,VEI,C)PNl[z.N'F' ACiR'L`-*ENIF,-"NF WAIII ClUkAVIBERS TUVVIN
I, 1 "E); AITI-FIORIZING PAIMIENT Me MAE- CFI'Y OF BAWFUSA/14 164 AN
ANIOUNT v x 'Emu immum cONL-, NiMLICAN AND PQC)/")O DOLLARIS
(SIAMm%000,()()); MAKINCA OTHER PROVISIONS RIELAWEM TIAERET('); AND
laRtOVIDUNCi FOF, TI IFE, EF'I-'I,-,C-FIVI--.
nu ru cmummm in, m w cm-Y C. °4-)L1.. C:IE- C)F—HIF, CFFY OF BAYTC-)NN/i,<, TEXAS:
Seclioll 1: 'Fliat the City C'ottuieil of the City of l3aytown hereby aorth(,-,)rizes alut directs the
C h y Manager to execute and the City Clerk to allQst In the First Arriendinent to the Chapter 380
Economic Development Agn-cen-tem v--Ali Chambers,- "11"vm Ce"ter, 1.1d. A copy of the mnetudmem is
atoknehed 1wrato, tronrked Exhibit "A," and inade it par( here(-A- Cor all fate its and
Section, 2 Thal the City C7(,-nlnQil of tire City of 13ayto%vn authorizes pay"icnt Or
Amendment Ts I in all .1111ount, 1,1(-)( it, exceed C)AH1 MILLION ANE) NO /100 D(-)Ll-ARS
($I J)tUVOOOA)O) in accordance vvAh the kiniculdt-olern anthorized A% Section I hercirlabove,
Section 3. That the Coit:,s, Manager is hereby granted general aulhority to approve a decrease.
or ;un increase in coms, lai FIFIM ANF) NO/100 DULLARS ($50,000.00) or less.
that tlie�, artu"'mo-to. authorized W Sucizion 2 hereof may nxA he increased by niore thin INvenvy-1-1ve I.:)CI-cent
(2 -5
secliorl 4: -1-his ordinance shall take clTect innuedibucly i and after As passage by the
(Aq, CAnuncil ofthe City ol'Baytcrwzl� !T
INTRODUCIED, PLISAII and PASSLA:) by tire aff-irmative
Baytoxvia this the Ica" muiarjune, 20 m Y,
1 j- 11
0-11;f -
11� n
/%PPRI0,Vl-ED AS '1-() FORM:
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99111112MUS11=0
<.�, of1the C7ity Comicil cd-1he Cit_y of
CMWC35t Mayor
owl d0k:
Exhibit "A"
FIRST AMENDMENT
TO THE
ECONOMIC DEVELOPMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This First Amendment ( "Amendment ") to that certain "Economic Development
Agreement" dated August 14, 2012, by and between the City of Baytown, a Texas home -rule
municipal corporation ( "City "), Chambers Town Center, Ltd., a Texas limited partnership, and
A -S 115 SH 146 -IH 10, L.P.( "Developer "), (all collectively referred to as the "Parties ") is
entered into on this day of , 2013 (the "Effective Date ").
WHEREAS, the City and Chambers Town Center, Ltd. entered into the Economic
Development Agreement (the "Agreement ") on August 14, 2012, in order to set out the terms of
an economic development program to stimulate business and commercial activity in the City;
and
WHEREAS, the Parties agree that certain terms of the Agreement should be amended to
modify the Project as defined herein, modify the terms of the economic development grant, detail
the allowable signage for the Property, and acknowledge the assignment of the Agreement to
Developer; and
WHEREAS, the terms of the Agreement shall remain in full force and effect except as
specifically altered by the terms of this Amendment;
NOW THEREFORE, for and in consideration of the promises and the mutual agreements
set forth herein, the Parties hereby agree to amend the Agreement as follows:
ARTICLE I
AMENDMENTS
Section 1. The "Property" as defined in the recitals and Exhibit "A" of the Agreement is
amended to include a 68 acre tract and a 5 acre tract, totaling approximately 73 acres, within an
area that has been annexed by the City for limited purposes, as depicted on Exhibit "A" attached
hereto and incorporated herein, for the purposes of developing a commercial /retail development
including a Wal -Mart Super Store with a minimum of 150,000 square feet and multi- screen
theater with at least eight screens.
436493
Section 2. The "Project" as defined in Article II, Section 1 of the Agreement is amended
as follows:
The Project. The Developer intends to construct or cause to be
constructed a retail development, which shall include a Wal -Mart Super Store
with a minimum of 150,000 square feet, and multi- screen cinema project with at
least eight screens known as Chambers Town Center (the "Project "). The Project
is to be constructed in substantial accordance with the Conceptual Site Plan
attached as Exhibit "A" (the "Conceptual Site Plan").
Section 3. Article II, Section 2, Water and Wastewater Service for the Project, is
amended by adding the following paragraph to Section 2:
The City owns the Hunters Creek Lift Station, and the Hunters Creek Lift Station will
require an upgrade in order to serve the Project. The Developer shall either:
1. construct and fund the upgrade to the Hunters Creek Lift Station subject to City
approval of plans and specifications; or
2. request the City to construct and fund the upgrade to the Hunters Creek Lift Station,
with the City being reimbursed from Annual Sales Taxes Collected at the Project.
If the Developer elects to reimburse the City the construction costs for the upgrade to the
Hunters Creek Lift Station, such reimbursement will be made after the City's annual collection
of $300,000 or $325,000 (as described in Section 6(l)(a)) from Annual Sales Tax Collected at
the Project and before the City Payment in accordance with Article III, Section l (a).
Section 4. Article II, Section 4(c), Public Purpose, is amended as follows:
c. A Wal -Mart Super Store with a minimum of 150,000 square feet to the Project
no later than December 31, 2015 and a multi- screen cinema with a minimum of eight screens;
Section 5. Article II is hereby amended to add a new section to be numbered and entitled
Section 5, "Signage," which section shall read as follows:
5. Si na e. The Developer or subsequent tenant or owner shall
acquire permits from the City of Baytown pursuant to Chapter 118 for the Code of
Ordinances, Baytown, Texas, for the following sign structures if located on the
Property as more particularly detailed in Exhibit "C," which is attached hereto
and incorporated herein for all intents and purposes. It is agreed that nothing
contained in Chapter 118 of the Code of Ordinances, Baytown, Texas, shall be
construed so as to prohibit the sign structures referenced in Exhibit "C" from
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being erected on the Property, including the signs' classification, type, overall
height, or overall area; provided, however, spectacular signs are expressly
prohibited. The Parties further agree in exchange for such allowance, no other
sign structures (other than "directional signs ") shall be permitted on the Property
without City consent. Wall signs and other non - structure signs are not regulated
by the City on this Project. The Developer agrees that it shall bind all subsequent
tenant(s) and owner(s) to this section by including it in a restrictive covenant,
which shall run with the land and which shall not be subject to change without the
express written consent of the City. The Developer agrees to add the City as a
third party beneficiary to the restrictive covenants for the sole purpose of
enforcing the signage restrictions in this section. This section shall not expire and
shall remain in full force and effect after the expiration or termination of this
agreement.
Section 6. Article III, Section 1(a), Economic Development Grant is amended as follows
(with subsections (b) and (c) remaining unaffected by this First Amendment):
1. Economic Development Grant. The City shall pay to the Developer an economic
development grant in the form of periodic payments made solely from Annual Sales Taxes
Collected at the Project pursuant to Chapter 380 of the Texas Local Government Code (the
"Economic Development Grant "). The Economic Development Grant is in the amount of
THREE MILLION FIVE HUNDRED SEVENTY -FIVE THOUSAND AND N01100
DOLLARS ($3,575,000.00), of which there are two components: (1) an amount not to exceed
two million five hundred seventy -five thousand and no /100 dollars ($2,575,000.00) based on
completion of the portion of the Project consisting of the Wal -Mart Super Store as described in
this Agreement; and (2) an amount not to exceed one million and no /100 dollars ($1,000,000.00)
based on the completion of the portion of the Project consisting of the multi - screen theater as
described in this Agreement. The Economic Development Grant is comprised exclusively of a
City Payment as defined below, which grant expires within ten (10) years from the earlier of (1)
June 1, 2014 or (2) the date that the Wal -Mart Super Store issues its notice to proceed to its
contractor to begin construction of the store, unless the Agreement is earlier terminated. The
Developer shall provide the City a copy of the notice to proceed issued for the construction of
the Wal -Mart Super Store within ten (10) calendar days of its issuance. The Developer
understands and agrees that the City is not certifying or otherwise encumbering any funds for the
Economic Development Grant and does not have any monies for the same. The Developer
agrees not to make any claims against the City for any monies other than those from the Annual
Sales Taxes Collected at the Project.
a. City Payment. The City will make payments to the Developer from sales
tax revenues pursuant to Chapter 380 of the Texas Local Government
Code to the Developer in the amount of 100% of the Annual Sales Taxes
Collected at the Project as defined below over $300,000; however, if the
multi- screen theater is completed pursuant to the terms of this Agreement
and the Developer is entitled to the second component of the Economic
Development Grant of $1,000,000 as stated in Section 6.(1) above, the
3
City will make payments to the Developer in the amount of 100% of the
Annual Sales Tax Collected at the Project as defined below over $325,000
(the "City Payment'). The City Payment shall be paid in annual
installments beginning fourteen months after the date the Wal -Mart Super
Store opens to the public. The City shall have the right to pay the City
Payment more frequently than annually. If this Agreement is not
terminated prior to its expiration, the final City Payment to the Developer
shall be that portion of the Annual Sales Taxes Collected at the Project as
of the date of the expiration of this Agreement.
Section 7. Article III, Section 2, Grant Limitation, is amended solely by modifying the
last sentence in Section 2 as follows:
2. Furthermore, the Economic Development Grant shall expire within 10 years from
the earlier of (1) June 1, 2014 or (2) the date that a notice to proceed to begin construction of the
Wal -Mart Super Store with a minimum of 150,000 square feet is issued, unless the Agreement is
earlier terminated.
Section 8. Article III, Section 3, Traffic Signal Installation, is amended solely by
modifying the last sentence in Section 3 as follows:
In the event that no notice to proceed has been issued for the construction of a Wal -Mart Super
Store with a minimum of 150,000 square feet by June 1, 2014, the Developer shall reimburse the
City for all costs expended for the traffic signal installation described herein.
Section 9. Article III, Section 4, Refund, is amended solely by modifying the table below
and adding the sentence hereinbelow to such section:
Year of Non-Compliance
2015
&
2016
Percentage to be Reillibursed
100%
2017 -&
2018
80%
2019
&
2020
60%
2021
&
2022
40%
2023
&
2024
20%
This section shall not expire and shall remain in full force and effect after the expiration
or termination of this agreement if a breach occurs during the a year of non - compliance as
indicated hereinabove.
4
Section 10. Article IV, Section 8, Notice, is amended as follows:
If to the Developer:
A -S 115 SH 146 -IH 10, L.P.8827 W. Sam Houston Pkwy. N.
Suite 200
Houston, TX 77040
Attn: Steve Alvis
Section 11. Article IV, Appointment of Representatives, is amended solely to designate
Steve Alvis as the Developer Representative.
Section 12. Article IV, Term, is amended as follows:
Term. This Agreement will remain in force and effect for ten (10) years from the earlier of (1)
June 1, 2014; or (2) the date that a notice to proceed to begin construction of the Wal -Mart Super
Store is issued; or until the Economic Development Grant is paid in full.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 1. Recitals. The recitals set forth above are declared true and correct and are
hereby incorporated as part of this Amendment.
Section 2. Definitions. Unless a different meaning clearly appears from the context,
words and phrases as used in this Amendment shall have the same meanings as in the
Agreement.
Section 3. Assignment. Chambers Town Center, Ltd. hereby assigns and transfers its
rights, duties and obligations under the Agreement as amended herein to the Developer; the
Developer accepts such transfer of rights, duties and obligations under the Agreement as
amended herein; and the City hereby consents to such assignment.
Section 4. Entire Agreement. The provisions of this 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 Amendment and the provisions of the
Agreement, the provisions of this Amendment shall control.
Section 5. Interpretation. This 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 Amendment
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Section b. Captions. Captions contained in the Agreement and 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.
Section 7. No Waiver. By this 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 terms of this Amendment, the Agreement or any other contract or agreement or addenda, any
charter, or applicable state law. Nothing contained in this Amendment or in the Agreement shall
be construed in any way to limit or to waive the City's sovereign immunity.. However, the
parties agree that they have entered into this Agreement and Amendment in good faith,
intend to deal with each other in good faith, and intend for this Agreement and Amendment
to be enforceable as to its terms under Texas law.
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 June, 2013, the date of execution by the City
Manager.
CITY:
City of Baytown
IIn
ATTEST:
By:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
By:
IGNACIO RAMIREZ, SR., City Attorney
ROBERT D. LEIPER, City Manager
G-1
DEVELOPER:
A -S 115 SH 146 -IH 10, L.P., by and through its
General Partner A -S 115, L.C., a Texas limited
liability company
ATTEST:
By:
7
Steven D. Alvis
Manager
CHAMBERS TOWN CENTER. LTD:
Chambers Town Center, Ltd., by and through its
General Partner ACTG, LLC
By:
ATTEST:
By: