HomeMy WebLinkAboutRes 2023-02-1385 Economic Development Incentive Agreement with Home Depot U.S.A., Inc.RESOLUTION NO. .20--5 — G oL — 13 35
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS
APPROVING AN INCENTIVE AGREEMENT WITH HOME DEPOT U.S.A., INC.
WHEREAS, Home Depot U.S.A., Inc. is in the process of developing property at the
southeast corner of Hackberry Drive and Buddy Hayes Blvd. in the City of Anna, as generally
described and depicted in Exhibit 1; and
WHEREAS, the City has found that the Project will promote new or expanded business
enterprises; and
WHEREAS, the City is authorized to grant the sales tax rebates under Chapter 380 of the
Texas Local Government Code;
NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ANNA, TEXAS:
SECTION 1. Findings. The findings set forth above are incorporated herein for all
purposes as if set forth in full.
SECTION 2. Approval of Project and Agreement
The City Council of the City of Anna, Texas hereby approves the Economic Development
Incentive Agreement between Home Depot U.S.A., Inc. and the City of Anna, Texas
("Agreement") attached hereto as Exhibit 1, incorporated herein for all purposes, and authorizes the
Mayor to execute the same on its behalf, subject to approval as to form by legal counsel for the
City, said Agreement to be effective upon its passage and as set forth in said Agreement.
SECTION 3. Administration
The City hereby authorizes the City Manager or his designee to administer the Agreement.
PASSED, APPROVED AND ADOPTED by the City Coun,¢Yf of the lt�f Anna,
Texas, on this the 28a' day of February 2023. 7 / /
ATTEST:
Mayor
Carrie L. Land, City Secretary \*\ 1913
Page I
ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT
THIS ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT (this "Agreement") is
made and entered into this day of 20,%3_, by and between the City
of Anna, Texas (the "City") and Home Depot U.S A., Irrb. ("Home Depot").
WHEREAS, that certain real property consisting of approximately 13.71 acres of land
located at or nearthe southeast corner of the intersection of Highway 75 and Hackberry Drive,
in the City of Anna, County of Collin, State of Texas, as generally described and depicted as
"The Home Depot" on Exhibit A attached hereto and incorporated by reference ("the
Property"), is in the process of being developed in order to be acquired and used by Home
Depot as a new retail store; and
WHEREAS, Home Depot has requested certain economic development incentives for
the retail store on the Property to defray a portion of the costs of the improvements and
infrastructure associated with the Property; and
WHEREAS, Chapter 380 of the Texas Local Government Code provides that Texas
municipalities may create programs to promote local economic development; and
WHEREAS, the City has concluded and hereby finds that this Agreement clearly
promotes economic development in the City and, as such, meets the requisites under
Chapter 380 of the Texas Local Government Code, as amended, and further, is in the best
interests of the City and Home Depot; and
WHEREAS, the City has determined that making economic development grants to
Home Depot in accordance with this Agreement will further the objectives of the City, will
benefit the City and the City's inhabitants, will promote local economic development, will
stimulate commercial and business activity, and will generate additional sales tax and will
enhance the property tax base and economic vitality of the City; and
WHEREAS, the City has adopted programs for promoting economic development,
and this Agreement and the economic development incentives set forth herein are given and
provided by the City pursuant to and in accordance with those programs.
NOW, THEREFORE, in consideration of the foregoing premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the City and Home Depot covenant and agree as follows:
1. Definitions. For purposes of this Agreement, each of the following terms shall
have the meanings set forth below unless the context clearly indicates otherwise:
Annual Sales Tax Grants" shall mean economic development grants, each in the
amount equal to fifty percent (50%) of the Sales Tax Receipts received by the City for the
applicable Sales Tax Reporting Period, to be paid annually to Home Depot as set forth herein.
The amount of each Annual Sales Tax Grant shall be computed by multiplying the Sales Tax
Receipts received by the City for the given Sales Tax Reporting Period times fifty percent
(50%), less the administrative fee charged to the City by the State of Texas. For purposes of
clarification, and as defined in "Sales and Use Tax," below, the tax referenced herein subject
to the aforementioned fifty percent (50%) limitation is the City's one and one quarter percent
(1.25%) general municipal sales and use tax imposed pursuant to Chapter 321, Texas Tax
Code, on the sale of Taxable Items by Home Depot consummated on the Property.
"Bankruptcy or Insolvency" shall mean the dissolution or termination of a Party's
existence as a going business, insolvency, appointment of receiver for any part of such
Party's property and such appointment is not terminated within one hundred twenty (120)
days after such appointment is initially made, any general assignment for the benefit of
creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws
by or against such Party and such proceeding is not dismissed within one hundred twenty
(120) days after the filing thereof.
"Commencement Date" shall mean the date a certificate of occupancy is issued by
the City for occupancy of the Improvements by Home Depot.
"Completion of Construction" shall mean that (i) the Improvements are sufficiently
complete, so as to be operational and fit for the intended use, and only minor items such as
touch-up, adjustments, and minor replacements or installations remain to be completed; and
(ii) the City has issued a certificate of occupancy for occupancy of the Improvements by Home
Depot.
"Consummated" is defined in Section 321.203, Texas Tax Code, or its successor.
"Effective Date" shall mean the last date of execution hereof.
"Expiration Date" shall mean the earlier of. (i) the date of payment of the tenth (10t')
Annual Sales Tax Grant; or (ii) the date of payment of the Maximum Sales Tax Grant amount.
"Force Majeure" shall mean any contingency or cause beyond the reasonable control
of a Party including, without limitation, acts of God or the public enemy, war, riot, civil
commotion, insurrection, government or de facto governmental action or inaction (unless
caused by the intentionally wrongful acts or omissions of the Party), fires, explosions or
floods, strikes, slowdowns or work stoppages, and epidemic, pandemic or other widespread
disease (and including delays due thereto continuing after such event has ended).
"Impositions" shall mean all taxes, assessments, use and occupancy taxes, charges,
excises, license and permit fees and other charges, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, which are or may be assessed, charged, levied, or
imposed by any public or governmental authority or the City on Home Depot, and/or a Home
Depot affiliate, and applicable to the development of the Property.
"Improvements" shall mean a Home Depot retail store to be constructed on the
Property, more fully described in the submittals filed by Home Depot, or any of its agents,
with the City, from time to time, in order to obtain a building permit(s).
"Maximum Sales Tax Grant" shall mean the cumulative payment of Sales Tax Grants
to Home Depot in the amount of $4 Million Dollars ($4,000,000.00).
"Party" shall mean any party to this Agreement.
"Payment Requesth" shall mean a written request from Home Depot to the City for
payment of an Annual Sales Tax Grant for the applicable Sales Tax Reporting Period.
"Property" shall mean the real property described in Exhibit A.
"Sales and Use Tax"shall mean with respect to the City, the City's one and one quarter
percent (1.25%) general municipal sales and use tax imposed pursuant to Chapter 321,
Texas Tax Code, on the sale of Taxable Items by Home Depot consummated on the Property.
"Sales Tax Area Reports" shall mean reports provided by the Comptroller to the City
pursuant to Texas Tax Code, Section 321.3022, or other provision of the Texas Tax Code,
with respect to Sales and Use Tax allocations to the City attributable to the sale of Taxable
Items by Home Depot consummated on the Property or if such reports are not available from
the Comptroller, such other documentation in a form reasonably acceptable to the City setting
forth the collection of Sales and Use Tax by Home Depot received by the City from the
Comptroller for the sale of Taxable Items by Home Depot consummated on the Property.
"Sales Tax Certificate" shall mean one or more Sales Tax Area Reports or a report
provided by the Comptroller to the City in accordance with Section 321.3022, Texas Tax Code
(or other applicable provision of the Texas Tax Code), which lists the amount of Sales and
Use Tax collected (including any refunds, credits or adjustments) for the Sales Tax Reporting
Period paid by Home Depot and received by the City from the Comptroller from the sale of
Taxable Items consummated by Home Depot on the Property and, in turn, paid by the
Comptroller to the City for use by the City in accordance with this Agreement; or, if such a
report is not available, then a certificate or statement in a form reasonably approved by the
City, setting forth the collection of Sales and Use Tax (including any refunds, credits or
adjustments) by Home Depot received by the City from the Comptroller, from the sale of
Taxable Items by Home Depot consummated on the Property, including supporting
documentation, to be provided by Home Depot that provides the same or similar information,
as such other information as the City may reasonably require from time to time.
"Sales Tax Receipts" shall mean the City's receipt of the City's Sales and Use Tax
from the Comptroller from Home Depot's collection of Sales and Use Tax (it being expressly
understood that the City's use of the sales and use tax receipts are being used only as a
measurement for its use of general funds to make a grant for economic development
purposes) as a result of the sale of Taxable Items by Home Depot for the Sales Tax Reporting
Period consummated on the Property.
"Sales Tax Reporting Period" shall mean a calendar year (with the calendar year
ending December 31) except that (1) Home Depot may designate a different period coinciding
with the fiscal year covered by its annual Sales and Use Tax return filed with the State of
Texas and (2) the first Sales Tax Reporting Period shall begin on the Commencement Date
and continue through and include the last day of the first full calendar year or fiscal year, as
applicable, following the Commencement Date.
"State of Texas" shall mean the Office of the Texas Comptroller, or its successor.
"Taxable Items" shall mean both "taxable items" and "taxable services" as those terms
are defined by Chapter 151, Texas Tax Code, as amended.
2. Sales Tax Grants.
(a) Annual Sales Tax Grants. Subject to the continued satisfaction of all the terms
and conditions of this Agreement by Home Depot, the City agrees to provide Home Depot
with ten (10) Annual Sales Tax Grants, not to exceed the Maximum Sales Tax Grant in the
aggregate. The Annual Sales Tax Grants shall be paid within ninety (90) days after receipt of
a Payment Request. Each Payment Request shall be submitted to the City not later than April
1 of the calendar year immediately following the end of the applicable Sales Tax Reporting
Period (or 90 days immediately following the end of the applicable Sales Tax Reporting
Period if such period is not on a calendar year basis), beginning with the first Sales Tax
Reporting Period. Failure to timely submit a Payment Request for a given Sales Tax Grant
Reporting Period shall require the City to notify Home Depot of such failure to submit and
give Home Depot thirty (30) days to cure after its receipt of such notice. Each Annual Sales
Tax Grant shall be paid by the City directly to Home Depot at the address of Home Depot
specified on the related Payment Request.
(b) Adjustment Notification. Home Depot shall promptly notify the City in writing of
any adjustments found, determined or made by Home Depot, the State of Texas, or by an
audit which results, or will result, in either a refund or reallocation of Sales Tax Receipts or
the payment of Sales and Use Tax or involving amounts reported by Home Depot as subject
to this Agreement. Such notification shall also include the amount of any such adjustment in
Sales and Use Tax or Sales Tax Receipts. Home Depot shall notify the City in writing within
ninety (90) days after receipt of notice of the intent of the State of Texas to audit Home Depot.
Such notification shall also include the period of such audit or investigation.
(c) Adjustments. In the event Home Depot files an amended Sales and Use Tax
return, or report with the State of Texas, or if additional Sales and Use Tax is due and owing
by Home Depot to the State of Texas, as determined, or approved by the State of Texas
affecting Sales Tax Receipts for a previous Sales Tax Reporting Period, then the Annual
Sales Tax Grant payment for the Sales Tax Reporting Period immediately following such
State of Texas approved amendment shall be adjusted accordingly (i.e., up or down,
depending on the facts), provided the City has received Sales Tax Receipts attributed to such
adjustment. As a condition precedent to payment of such adjustment, Home Depot shall
provide the City with a copy of any such amended sales and use tax report or return, and the
approval thereof by the State of Texas. Copies of any amended sales and use tax return or
report or notification from the State of Texas that additional Sales and Use Tax is due and
owing by Home Depot to the State of Texas, as determined by the State of Texas, affecting
Sales Tax Receipts for a previous Sales Tax Reporting Period shall be provided to the City
with the Payment Request for the next Sales Tax Reporting Period.
(d) Refunds and Underpayments of Annual Sales Tax Grants. In the event the
State of Texas issues a final determination that the City erroneously received (or failed to
receive), for the benefit of the City, Sales Tax Receipts, or that the amount of Sales and Use
Tax paid by Home Depot exceeds (or is less than) the correct amount of Sales and Use Tax
for a previous Sales Tax Reporting Period, for which Home Depot has received an Annual
Sales Tax Grant, Home Depot shall, within sixty (60) days after receipt of notification thereof
from the City specifying the amounts by which such Annual Sales Tax Grant exceeded (or
was less than) the amount to which Home Depot were entitled pursuant to such State of
Texas determination, adjust (up or down, depending on the facts) the amount claimed due for
the Annual Sales Tax Grant payment for the Sales Tax Reporting Period immediately
following such State of Texas determination. If the adjustment results in funds to be refunded
to the City for the benefit of the City, the City shall withhold such amount to be refunded from
the next Annual Sales Tax Grant payment payable to Home Depot. As a condition precedent
to payment of such refund, the City shall provide Home Depot with a copy of such
determination issued by the State of Texas. If the adjustment results in additional funds to be
paid to Home Depot, the City shall pay such amount to Home Depot as an addition to the
next Annual Sales Tax Grant payment. The provisions of this section shall survive termination
of this Agreement.
(e) Grant Payment Termination: Suspension. The payment of the Annual Sales
Tax Grants shall terminate on the effective date of a final determination by the State of Texas
or other appropriate agency or court of competent jurisdiction that Home Depot is not a place
of business resulting in Sales and Use Taxes being due the City from the sale of Taxable
Items by Home Depot on the Property. In the event the State of Texas seeks to invalidate
Home Depot as a place of business where Sales and Use Tax was properly remitted to the
State of Texas (the "Comptroller Challenge") the payment of Annual Sales Tax Grants by the
City hereunder shall be suspended until such Comptroller Challenge is resolved in whole and
favorably to the City. In such event, Home Depot shall not be required to return or refund
Annual Sales Tax Grants previously received from the City provided Home Depot is actively
defending against and/or contesting the Comptroller Challenge and Home Depot promptly
informs the City in writing of such Home Depot actions and provides copies of all documents
and information reasonably related thereto. In the event the Comptroller Challenge is resolved
favorably to the City, the City shall remit to Home Depot within thirty (30) days thereafter all
unpaid Annual Sales Tax Grants that it would have otherwise been entitled to during the
suspension due to the Comptroller Challenge. In the event the Comptroller Challenge is not
resolved favorably to the City and/or in the event the State of Texas determines that Home
Depot does not have a place of business on the Property or that Home Depot is not a place
of business where the Sales and Use Tax was properly remitted to the State of Texas, and
Sales and Use Tax Receipts previously paid or remitted to the City relating to the
Improvements are reversed and required to be repaid to the State of Texas, then the
obligation thereafter to pay the Annual Sales Tax Grants shall terminate, and Home Depot
shall refund all respective amounts of Annual Sales Tax Grants received by Home Depot from
the City that relate to such Sales and Use Tax Receipts required to be repaid to the State of
Texas, which refund shall be paid to the City within ninety (90) days after the date that the
Comptroller Challenge required the City to repay Sales and Use Tax Receipts.
(f) Sales Tax Reports. The City and Home Depot designate this Agreement as a
"revenue sharing agreement," thereby entitling the City to request annual sales and use tax
information from the Comptroller, pursuant to Section 321.3022 of the Texas Tax Code, as
amended. The City shall request in writing that the Comptroller issue sales tax reports
pursuant to Section 321.3022 for total sales of Taxable Items consummated on the Property
by Home Depot and the payment of Sales and Use Tax (the "Sales Tax Reports") for each
calendar year during the term hereof. To the extent that the release of any such reports or
information regarding the Sales and Use Tax collected by Home Depot for the sale of Taxable
items consummated on the Property by Home Depot shall require the consent of Home
Depot, Home Depot shall provide such consent to the City. Home Depot shall provide the
sales tax identification numbers for Home Depot so that payments can be verified by the City.
(g) Confidentiality. Unless otherwise determined by the Texas Attorney General in
writing, the sales and use tax documentation referenced in this Agreement shall be
considered confidential financial information contained in a public document (or other
reproduction media) not subject to release to the public. The City shall seek a written opinion
from the Texas Attorney General raising any applicable exception to release, prior to any
release to a third -party under the Texas Public Information Act. The Parties agree, however,
that this Agreement shall not be considered confidential.
3. Obligations. The obligation of the City to provide the Annual Sales Tax Grants
hereunder shall be conditioned upon the compliance and satisfaction of each of the terms
and conditions of this Agreement by Home Depot and each of the terms and conditions set
forth below:
(a) Payment Request. Home Depot shall provide the City with the applicable
Payment Request.
(b) Good Standing. Home Depot shall not have an uncured breach of this
Agreement.
(c) Completion of Construction of the Improvements. Home Depot shall, subject to
events of Force Majeure and Sections 4(a)(2) and 27 below, cause Completion of
Construction to occur on or before April 10, 2025.
(d) Required Use. During the term of this Agreement following the
Commencement Date and continuing thereafter until the Expiration Date, the Improvements
shall not be used for any purpose other than as a Home Depot store.
(e) Continuous Ownership. During the term of this Agreement following the
Commencement Date and continuing thereafter until the Expiration Date, Home Depot or an
affiliate of Home Depot shall continuously own the Property.
(f) Sales Tax Certificate. As a condition to the payment of each Annual Sales Tax
Grant hereunder, the City shall have received a Sales Tax Certificate for the applicable Sales
Tax Reporting Period for which payment of an Annual Sales Tax Grant is requested. The City
shall obtain such Sales Tax Certificate from the Comptroller and shall provide a copy of each
such Sales Tax Certificate to Home Depot upon its request. The City's obligations to calculate
the Sales Tax Receipts or determine the entitlement of Home Depot to any Annual Sales Tax
Grant or pay any Annual Sales Tax Grant during the term of this Agreement are contingent
upon Home Depot providing items (1) through (4) set forth below and a Payment Request for
the applicable Sales Tax Reporting Period. The City shall provide Home Depot with forms for
items (1) through (4) set forth below and required herein. At the request of the City, Home
Depot shall provide such additional documentation as may be reasonably requested by the
City to evidence, support and establish the Sales Tax Receipts (including Sales and Use Tax
paid directly to the State of Texas pursuant to a direct payment permit) received by City from
the State of Texas. Each Payment Request shall at a minimum be accompanied by the
following:
(1) Schedules, which show the amount of total sale of Taxable Items by Home
Depot consummated on the Property for the applicable Sales Tax Reporting
Period, and the amount of Sales and Use Tax collected and paid to the State
of Texas as a result of the sale of Taxable Items by Home Depot consummated
at the Improvements for the applicable Sales Tax Period;
(2) A copy of all Sales and Use Tax returns and reports, Sales and Use Tax
prepayment returns, direct payment permits and reports, including amended
sales and use tax returns or reports, filed by Home Depot for the applicable
Sales Tax Reporting Period showing the Sales and Use Tax collected
(including Sales and Use Tax paid directly to the State of Texas pursuant to a
direct payment certificate) by Home Depot for the sale of Taxable Items
consummated at the Improvements;
(3) A copy of all direct payment and self -assessment returns, if any, including
amended returns, filed by Home Depot for the applicable Sales Tax Reporting
Period showing the Sales and Use Tax paid for the sale of Taxable Items
consummated at the Improvements; and
(4) Information concerning any refund or credit received by Home Depot during
the applicable Sales Tax Reporting Period of the Sales and Use Taxes paid or
collected by Home Depot which has previously been reported by Home Depot
as Sales and Use Tax paid or collected.
Within thirty (30) business days after a request by the City, Home Depot shall provide a
release or releases to the City as necessary to allow the State of Texas to disclose the Sales
and Use Tax information pertaining to the sale of Taxable Items by Home Depot on the
Property during the term of this Agreement in a form as may be required by the State of
Texas.
4. Termination Provisions.
(a) Termination. This Agreement terminates on the Expiration Date, and may, prior
to the Expiration Date, be terminated upon any one or more of the following:
(1) by mutual written agreement of the Parties;
(2) by a Party, if another Party defaults or breaches any of the terms or conditions
of this Agreement, and such default or breach is not cured within ninety (90)
days, after written notice thereof; provided, it shall not constitute a breach or
default if corrective action is instituted by or on behalf of such Party within the
ninety (90) day period and diligently pursued until the breach or default is
corrected.
(3) by the City if any Impositions owed to the City or the State of Texas by Home
Depot with respect to the Property shall have become delinquent (provided,
however, Home Depot retains the right to timely and properly protest and contest
any such taxes or Impositions);
(4) by the City if Home Depot suffers a Bankruptcy or Insolvency; or
(5) by any Party if any subsequent federal or state legislation or any final and non -
appealable decision of a court of competent jurisdiction declares or renders this
Agreement invalid, illegal or unenforceable.
(b) Effect of Termination. Except to the extent provided herein, upon termination
of this Agreement, the Parties shall have no further liabilities or obligations under this
Agreement.
(c) Offsets. The City may at its option, offset any amounts due and payable under
this Agreement against any debt (including taxes) lawfully due to the City from Home Depot
regardless of whether the amount due arises pursuant to the terms of this Agreement or
otherwise; provided, however the debt due to the City has been finally determined or reduced
to judgment by a court of competent jurisdiction.
5. Binding Agreement. The terms and conditions of this Agreement are binding
upon the successors and permitted assigns of the Parties.
6. Limitation on Liability. It is understood and agreed between the Parties that
Home Depot in satisfying the conditions of this Agreement has acted independently, and the
City assumes no responsibilities or liabilities to third parties in connection with Home Depot's
actions.
7. No Joint Venture. It is acknowledged and agreed by the Parties that the terms
hereof are not intended to and shall not be deemed to create a partnership or joint venture
among the Parties.
8. Authorization. Each Party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this
Agreement.
9. Reserved.
10. Construction of Agreement: Venue. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, and all obligations of the
parties created hereunder are performable in Collin County, Texas. Venue for any action
arising under this Agreement shall lie in Collin County, Texas.
11. Notices. Any notices required or permitted to be given hereunder shall be
given by hand delivery with proof of delivery or certified or registered mail, return receipt
requested, to the addresses set forth below. Any notice sent by certified or registered mail
shall be deemed delivered three days after deposit with USPS with proper postage paid.
If to the City: City of Anna
Attn: City Manager
120 W. 7th Street
Anna, Texas 75409
If to Home Depot: Home Depot U.S.A., Inc.
2455 Paces Ferry Road
Atlanta, Georgia 30339-4024
Attn: L. Renee Janssen, Senior
Real Estate Manager
With a copy to: Home Depot U.S.A., Inc.
2455 Paces Ferry Road
Atlanta, Georgia 30339-4024
Attn: Nick Harper, Senior Corporate Counsel
12. Attorney's Fees to Prevailing Party. In the event any Party initiates or
defends any legal action or proceeding against another Party to enforce or interpret any of
the terms of this Agreement, the prevailing Party in any such action or proceeding shall be
entitled to recover its reasonable costs and attorney's fees (including its reasonable costs
and attorney's fees on any appeal).
13. Entire Agreement: Binding Effect of Agreement. This Agreement contains
the entire agreement between the parties hereto and supersedes all prior agreements, oral
or written, with respect to the subject matter hereof.
14. Indemnification.
HOME DEPOT AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY AND ITS
OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY FOR THE
PURPOSE OF THIS SECTION, THE "CITY") HARMLESS FROM AND AGAINST
ANY AND ALL REASONABLE LIABILITIES, DAMAGES, CLAIMS, LAWSUITS,
JUDGMENTS, ATTORNEY FEES, COSTS, EXPENSES, AND DEMANDS BY THE
STATE OF TEXAS INSOFAR AS SUCH LIABILITIES, DAMAGES, CLAIMS,
LAWSUITS, JUDGMENTS, ATTORNEY FEES, COSTS, EXPENSES, AND
DEMANDS ARISE OUT OF A CLAIM BY THE STATE OF TEXAS THAT THE CITY
HAS BEEN PAID ERRONEOUSLY, HAS BEEN OVER -PAID OR HAS BEEN
INCORRECTLY ALLOCATED SALES AND USE TAX ATTRIBUTED SOLELY TO
THE SALE OF TAXABLE ITEMS BY HOME DEPOT AND/OR HOME DEPOT
AFFILIATES CONSUMMATED ON THE PROPERTY DURING THE TERM OF THIS
AGREEMENT, IT BEING THE INTENTION OF THE PARTIES THAT HOME DEPOT
SHALL BE RESPONSIBLE FOR THE REPAYMENT OF ANY ANNUAL SALES TAX
GRANTS PAID TO HOME DEPOT HEREIN BY THE CITY THAT RELATE TO
SALES AND USE TAX RECEIPTS THAT THE STATE OF TEXAS HAS FINALLY
DETERMINED, AFTER ALL APPEALS THEREOF HAVE BEEN EXHAUSTED,
WERE ERRONEOUSLY PAID, DISTRIBUTED, OR ALLOCATED TO OR
COLLECTED BY THE CITY. THE INDEMNIFICATION SHALL APPLY ONLY TO
ANY LIABILITY RESULTING FROM ERRORS OR OMISSIONS OF HOME DEPOT
AND/OR HOME DEPOT AFFILIATES AND SHALL NOT APPLY TO ANY LIABILITY
RESULTING FROM ERRORS OR OMISSIONS OF THE CITY, THE STATE OF
TEXAS OR ANY OTHER PERSON OR ENTITY. THE PROVISIONS OF THIS
SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. THE
PROVISIONS OF THIS SECTION ARE SOLELY FOR THE BENEFIT OF THE
PARTIES HERETO AND DO NOT CREATE ANY OBLIGATIONS FROM OR
GRANT ANY CONTRACTUAL OR OTHER RIGHTS TO ANY OTHER PERSON OR
ENTITY, OTHER THAN OBLIGATIONS, IF ANY, THAT ARISE FROM HOME
DEPOT TO THE CITY TO PERFORM OBLIGATIONS CREATED BY THIS
SECTION.
15. Invalidation. Invalidation of any one of the provisions of this Agreement by
judgment or court order shall in no way affect any of the other provisions, which shall remain
in full force and effect.
16. Facsimile. A telecopied or electronic facsimile of a duly executed counterpart
of this Agreement shall be sufficient to evidence the binding agreement of each party to the
terms herein.
17. Severability. In the event any provision of this Agreement shall be determined
by any court of competent jurisdiction to be invalid or unenforceable, this Agreement shall, to
the extent reasonably possible, remain in force as to the balance of its provisions as if such
invalid provision were not a part hereof.
18. Authpj& to Execute Agreement. This Agreement shall become a binding
obligation on the signatories upon execution by all signatories hereto. The City warrants and
represents that (1) it has all requisite power and authority under the Constitution and laws of
the State of Texas to enter into and perform its obligations under this Agreement, and (2) the
individual executing this Agreement on behalf of the City has full authority to execute this
Agreement and bind the City to the same. Home Depot warrants and represents that the
individual executing this Agreement on its behalf has full authority to execute this Agreement
and bind Home Depot to same.
19. Com lip ance with Chapter 2264, Texas Government Code, Home Depot
certifies that it does not and will not knowingly employ an undocumented worker in
accordance with Chapter 2264 of the Texas Government Code, as amended. If during the
term of this Agreement, Home Depot, or its successors, heirs, assigns, grantees, trustees,
representatives, and all others holding any interest in the Property now or in the future, is
convicted of a violation under 8 U.S.C. § 1324a(f), Home Depot shall repay the amount of the
public subsidy provided under this Agreement plus interest, at the rate of eight percent (8%),
not later than the 120th day after the date the City notifies Home Depot of the violation.
20. Amendment. This Agreement may only be amended by a written agreement
executed by the Parties.
21. Recitals. The recitals in this Agreement are true and correct, represent
representations and warranties of the Parties, and are incorporated as part of this Agreement
for all purposes.
22. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original instrument, but all of the counterparts shall constitute one
and the same instrument.
23. Exhibits. All exhibits to this Agreement are incorporated herein by reference
for all purposes wherever reference is made to the same.
24. Survival of Covenants. Any covenants of the Parties that are to be performed
after termination of this Agreement shall survive termination of this Agreement.
25. Assignment. This Agreement may not be assigned by Home Depot, in whole
or in part, without the prior written consent of the City, which shall not be unreasonably
withheld, delayed or conditioned; provided, however, Home Depot may assign this
Agreement to any affiliate of Home Depot without the prior consent of the City. Any attempted
assignment by Home Depot in violation of the terms and provisions of this section shall be
void.
26. No Covenant to Build or Operate. Notwithstanding any other provision of this
Agreement, the City acknowledges that Home Depot has not yet purchased the Property,
and that nothing contained within this Agreement, either express or implied, shall be deemed
as a covenant on the part of Home Depot to build or operate a Home Depot store on the
Property. The City further acknowledges that its sole remedy for Home Depot's failure to build
or operate a Home Depot store on the Property shall be to terminate this Agreement as
permitted under this Agreement.
27. Statutory Representations.
(a) No Bow Pursuant to Chapter 2270, Texas Government Code, Home Depot
certifies that it does not currently boycott Israel; and (b) will not boycott Israel during the term
of this Agreement. Home Depot acknowledges that this Agreement may be terminated and
payment withheld if this certification is inaccurate. Home Depot further certifies that it is not
identified on any list referenced by Texas Government Code Section § 2252.152.
(b) Energy Companies. In accordance with Section 2274.001(1), Texas
Government Code, as enacted by Acts 2021, 87th Leg., Ch. 529 (Senate Bill 13), Home
Depot hereby verifies that it does not boycott energy companies and will not boycott energy
companies during the term of this Agreement. The foregoing verification is made solely to
enable the City to comply with such Section and to the extent such Section does not
contravene applicable Federal or Texas law. As used in the foregoing verification, "boycott
energy companies," a term defined in Section 2274.001(1), Texas Government Code (as
enacted by such Senate Bill) by reference to Section 809.001, Texas Government Code (also
as enacted by such Senate Bill), shall mean, without an ordinary business purpose, refusing
to deal with, terminating business activities with, or otherwise taking any action that is
intended to penalize, inflict economic harm on, or limit commercial relations with a company
because the company (a) engages in the exploration, production, utilization, transportation,
sale, or manufacturing of fossil fuel -based energy and does not commit or pledge to meet
environmental standards beyond applicable federal and state law; or (b) does business with
a company described by (a) above.
(c) Firearms Companies. In accordance with Section 2274.001(2), Texas
Government Code, as enacted by Acts 2021, 87th Leg., Ch. 530 (Senate Bill 19), Home
Depot hereby verifies that it does not have a practice, policy, guidance, or directive that
discriminates against a firearm entity or firearm trade association and will not discriminate
against a firearm entity or firearm trade association during the term of this Agreement. The
foregoing verification is made solely to enable the City to comply with such Section and to
the extent such Section does not contravene applicable Federal or Texas law. As used in the
foregoing verification and the following definitions: (a) "discriminate against a firearm entity
or firearm trade association", a term defined in Section 2274.001(3), Texas Government
Code (as enacted by such Senate Bill), means, with respect to the firearm entity or firearm
trade association, to (i) refuse to engage in the trade of any goods or services with the firearm
entity or firearm trade association based solely on its status as a firearm entity or firearm
trade association, (ii) refrain from continuing an existing business relationship with the firearm
entity or firearm trade association based solely on its status as a firearm entity or firearm
trade association, or (iii) terminate an existing business relationship with the firearm entity or
firearm trade association based solely on its status as a firearm entity or firearm trade
association and (B) does not include (i) the established policies of a merchant, retail seller,
or platform that restrict or prohibit the listing or selling of ammunition, firearms, or firearm
accessories and (ii) a company's refusal to engage in the trade of any goods or services,
decision to refrain from continuing an existing business relationship, or decision to terminate
an existing business relationship (aa) to comply with federal, state, or local law, policy, or
regulations or a directive by a regulatory agency or (bb) for any traditional business reason
that is specific to the customer or potential customer and not based solely on an entity's or
association's status as a firearm entity or firearm trade association; (b) "firearm entity", a term
defined in Section 2274.001(6), Texas Government Code (as enacted by such Senate Bill),
means a manufacturer, distributor, wholesaler, supplier, or retailer of firearms (defined in
Section 2274.001(4), Texas Government Code, as enacted by such Senate Bill, as weapons
that expel projectiles by the action of explosive or expanding gases), firearm accessories
(defined in Section 2274.001(5), Texas Government Code, as enacted by such Senate Bill,
as devices specifically designed or adapted to enable an individual to wear, carry, store, or
mount a firearm on the individual or on a conveyance and items used in conjunction with or
mounted on a firearm that are not essential to the basic function of the firearm, including
detachable firearm magazines), or ammunition (defined in Section 2274.001(1), Texas
Government Code, as enacted by such Senate Bill, as a loaded cartridge case, primer,
bullet, or propellant powder with or without a projectile) or a sport shooting range (defined in
Section 250.001, Texas Local Government Code, as a business establishment, private club,
or association that operates an area for the discharge or other use of firearms for silhouette,
skeet, trap, black powder, target, self-defense, or similar recreational shooting); and (c)
"firearm trade association", a term defined in Section 2274.001(7), Texas Government Code
(as enacted by such Senate Bill), means any person, corporation, unincorporated
association, federation, business league, or business organization that (1) is not organized or
operated for profit (and none of the net earnings of which inures to the benefit of any private
shareholder or individual), (ii) has two or more firearm entities as members, and (iii) is exempt
from federal income taxation under Section 501(a), Internal Revenue Code of 1986, as an
organization described by Section 501(c) of that code."
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
City of Anna, Texas
By:
y Henderson, Interim City Manager
IN WITNESS WHEREOF:
STATE OF TEXAS
COUNTY OF COLLIN
S�
Before me, the undersigned notary public, on the I day of lu Q t"Ck 20 2-3,
appeared Ryan Henderson, known to me (or proved to me) to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed the same in
his capacity as Interim City Manager of the City of Anna, Texas.
Zry Public, State of Texas
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4Pr?(i�.,, JEOVANNA RU610
is�AA77 0o Notary Public, State of Texas
°;x"'+•`�E Comm. Expires 10-03-2026
%i,°d Notary ID 133995676
[Signature Page to Economic Development Incentive Agreement]
Home Depot U.S.A., Inc.
By:
Joh Ches avage, its Senior o porate Counsel
IN WITNESS WHEREOF:
STATE OF GEORGIA
COUNTY OF COBB
Before me, the undersigned notary public, on the SQ. day of I I LCr-cam
20,)� ?>, appeared John Chescavage known to me (or proved to me) to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that he/
she executed the same in his/her capacity as Senior Corporate Counsel of Home Depot
U.S.A., Inc.
�r y DEATRA HINES-BEY
8 NOTARY PUBLIC
( COBB COUNTY
*Notaryc, ate of s- a STATE Of GEORGIA
'� My Comm. Fxgree Dec. 25. 2026
[Signature Page to Economic Development Incentive Agreement]
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DocuSign Envelope ID: FA55BF40-7A4D-423E-8330-EC9441 E7A2CC
DELEGATION OF AUTHORITY
I, Teresa Wynn Roseborough, Executive Vice President, General Counsel and Corporate
Secretary of The Home Depot, Inc. (the "Company") and its wholly owned subsidiary, Home
Depot U.S.A., Inc., do hereby designate each Vice President and Deputy General Counsel and
each of Suzanne Russo, John Chescavage and Michael A. Dalton as my designees and authorize
each of them acting either alone or together to execute and deliver, or cause to be executed and
delivered, any and all contracts, assignments, easements, conveyances, deeds, leases, subleases,
agreements, certificates, instruments, or any other documents on behalf of the Company and each
of its direct and indirect subsidiaries related to real property owned or leased or to be acquired or
leased by the Company or its direct and indirect subsidiaries (the "Documents") and to take, or
cause to be taken, any and all actions in connection therewith as such individual or individuals
may consider necessary or desirable, with such necessity or desirability being conclusively
evidenced by the actions so taken. Further, I hereby ratify and approve all previous actions taken
with respect to the execution and delivery of such Documents in the name of and on behalf of the
Company and its direct and indirect subsidiaries.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of Janu 2021.
hDmuuft.W by:
It.r�Sa �yln.ln. �bSt,�bV'b���f�
Teresa Wynn Roseborough
Executive Vice President, General
Counsel and Corporate Secretary
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