Ordinance No. 15,103 ORDINANCE NO. 15,103
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS,AUTHORIZING A DEVELOPMENT AGREEMENT WITH KB HOME
LONE STAR INC., FOR BAYVIEW HEIGHTS; 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 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute a Development Agreement with KB Home Lone Star Inc., for
Bayview Heights. A copy of said agreement is attached hereto as Exhibit "A" and incorporated
herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 26"' day of May, 2022.
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ANGELA CKSON, City ti
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APPROVED AS TO FORM:
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TREVOR FANNING, Interim City Attorney
R:'Karen AndersonlORDINANCES\2022\2022.05.26\DevelopmentAgreementKBHomes-BayviewHeights.docx
EXHIBIT "A"
BAYVIEW HEIGHTS
DEVELOPMENT AGREEMENT
BETWEEN
KB HOME LONE STAR INC.
and
THE CITY OF BAYTOWN, TEXAS
Dated: May 26, 2022
TABLE OF CONTENTS
(continued)
Page
ARTICLE I
DEFINITIONS 2
ARTICLE II
THE DEVELOPMENT 8
Section 2.01. Scope of Agreement. ...............................................................................................8
Section 2.02. Proiect Overview—The Development.....................................................................8
ARTICLE III
PUBLIC IMPROVEMENT DISTRICT 8
Section3.01. Creation....................................................................................................................8
Section 3.02. Issuance of PID Bonds.............................................................................................9
Section 3.03. Apportionment and Levy of Assessments. ............................................................10
Section 3.04. Developer Cash Contribution. ..............................................................................10
Section 3.05. Transfer of Property. .............................................................................................11
ARTICLE IV
DEVELOPMENT 11
Section 4.01. Full Compliance with City Standards....................................................................11
Section 4.02. Development Standards. ........................................................................................11
Section 4.03. Property Acquisition..............................................................................................11
Section 4.04. Zoning of Property.................................................................................................12
Section4.05. Conflicts.................................................................................................................12
Section4.06. Replat.....................................................................................................................12
Section4.07. Bonding. ...............................................................................................................12
ARTICLE V
DEVELOPMENT CHARGES 12
Section 5.01. Plat Review Fees....................................................................................................12
Section 5.02. Plan Review and Permit Fees. ...............................................................................12
Section 5.03. Inspection Fees.......................................................................................................12
Section5.04. Impact Fees............................................................................................................12
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VI
DEVELOPMENT- SPECIFIC REQUIREMENTS 12
Section 6.01. Community Fencing...............................................................................................13
Section 6.02. Landscaping of Common Areas.............................................................................13
Section 6.03. Landscaping of Residential Lots............................................................................13
Section 6.04. Parks and Amenities. .............................................................................................13
Section6.05. Trail System...........................................................................................................13
Section 6.06. Signage and Monumentation. ................................................................................13
Section 6.07. Masonry,Architectural and Articulations. ............................................................13
Section6.08. Early Permits. ........................................................................................................13
Section6.09. Streetlights. ...........................................................................................................14
Section 6.10. Protruding Garage. ................................................................................................14
Section 6.11. Wastewater Collection System. ............................................................................14
Section 6.12. Detention and Drainage. .......................................................................................14
ARTICLE VII
CONSTRUCTION OF THE PUBLIC IMPROVEMENTS 14
Section 7.01. Designation of Construction Manager, Construction Engineers. ..........................14
Section 7.02. Construction Agreements. .....................................................................................15
Section 7.03. Project Scope Verification.....................................................................................17
Section 7.04. Joint Cooperation; Access for Planning and Development. ..................................17
Section 7.05. City Not Responsible.............................................................................................17
Section 7.06. Construction Standards and Inspection..................................................................17
Section 7.07. Public Improvements to be Owned by the City—Title Evidence..........................17
Section 7.08. Public Improvement Constructed on City Land or the Property. ..........................18
Section 7.09. Additional Requirements. ......................................................................................18
Section 7.10. Revisions to Scope and Cost of Public Improvements..........................................19
Section 7.11. City Police Powers.................................................................................................20
Section 7.12. Title and Mechanic's Liens....................................................................................20
Section7.13. City Consents.........................................................................................................20
Section 7.14. Right of the City to Make Inspection.....................................................................20
Section 7.15. Competitive Bidding. ............................................................................................21
ARTICLE VIII
PAYMENT OF PUBLIC IMPROVEMENTS 21
Section 8.01. Overall Requirements. ...........................................................................................21
Section 8.02. Remaining Funds after Completion of a Public Improvement..............................22
Section 8.03. Payment Process for Public Improvements. ..........................................................22
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TABLE OF CONTENTS
(continued)
Page
Section 8.04. Public Improvements Reimbursement from Assessment Fund In the Event
of a Non-Issuance of PID Bonds. ..........................................................................23
Section8.05. Rights to Audit.......................................................................................................24
ARTICLE IX
REPRESENTATIONS AND WARRANTIES 24
Section 9.01. Representations and Warranties of City. ...............................................................24
Section 9.02. Representations and Warranties of Developer.......................................................25
ARTICLE X
MAINTENANCE OF LANDSCAPE IMPROVEMENTS 26
Section 10.01. Mandatory Home Owners' Association.................................................................26
ARTICLE XI
TERMINATION EVENTS 27
Section 11.01. Developer Termination Events..............................................................................27
Section 11.02. City Termination Events........................................................................................27
Section 11.03. Termination Procedure...........................................................................................28
ARTICLE XII
TERM 28
ARTICLE XIII
DEFAULT AND REMEDIES 29
Section 13.01. Developer Default..................................................................................................29
Section 13.02.Notice and Cure Period..........................................................................................29
Section 13.03. City's Remedies.....................................................................................................30
Section13.04. City Default............................................................................................................30
Section 13.05. Developer's Remedies. ..........................................................................................31
Section 13.06. Limited Waiver of Immunity.................................................................................31
Section 13.07. Limitation on Damages..........................................................................................32
Section13.08. Waiver....................................................................................................................32
iii
TABLE OF CONTENTS
(continued)
Page
ARTICLE XIV
INSURANCE, INDEMNIFICATION AND RELEASE 32
Section 14.01. Insurance................................................................................................................32
Section 14.02. Waiver of Subrogation Rights. ..............................................................................33
Section 14.03. Additional Insured Status.......................................................................................33
Section 14.04. Certificates of Insurance. .......................................................................................33
Section14.05. Carriers...................................................................................................................34
Section 14.06. INDEMNIFICATION............................................................................................35
ARTICLE XV
GENERAL PROVISIONS 35
Section15.01. Notices. ..................................................................................................................35
Section 15.02. Make-Whole Provision. ....................................................................36
Section15.03. Assignment. ...........................................................................................................37
Section 15.04. Table of Contents, Titles and Headings.................................................................38
Section 15.05. Entire Agreement; Amendment.............................................................................38
Section15.06. Time.......................................................................................................................38
Section 15.07. Counterparts...........................................................................................................38
Section 15.08. Severability; Waiver. .............................................................................................38
Section 15.09. No Third-Party Beneficiaries.................................................................................39
Section 15.10.Notice of Assignment. ..........................................................................................39
Section 15.11. No Joint Venture....................................................................................................39
Section 15.12. Estoppel Certificates..............................................................................................40
Section 15.13. Independence of Action.........................................................................................40
Section 15.14. Limited Recourse...................................................................................................40
Section15.15. Exhibits..................................................................................................................40
Section 15.16. Survival of Covenants............................................................................................40
Section 15.17.No Acceleration. ....................................................................................................40
Section 15.18. Conditions Precedent.............................................................................................40
Section 15.19. No Reduction of Assessments. ..............................................................................40
Section 15.20. Anti-Boycott Verification......................................................................................40
Section 15.21. Iran, Sudan and Foreign Terrorist Organizations ..................................................41
Section15.22. Petroleum...............................................................................................................41
Section15.23. Firearms. ................................................................................................................41
Section 15.24. Governing Law. .....................................................................................................42
Section15.25. Conflict. .................................................................................................................42
Exhibit A—Property Description
Exhibit B—Public Improvements and Costs
Exhibit C—Landowner Consent
iv
TABLE OF CONTENTS
(continued)
Page
Exhibit D—Form of Payment Certificate
Exhibit E—Form of Disbursement Request
Exhibit F—Homebuyer Disclosure Program
Exhibit G—Development Standards
Exhibit H—Oversizing
Exhibit I—Concept Plan
Exhibit J—Phasing Plan
Exhibit K—Reserved
Exhibit L—Amenities
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BAYVIEW HEIGHTS
DEVELOPMENT AGREEMENT
This Bayview Heights Development Agreement(this "Agreement"), dated as of May 26,
2022 (the "Effective Date"), is entered into between KB Home Lone Star Inc., a Texas
Corporation(the"Developer"), and the City of Baytown,Texas(the"City"),a home-rule city and
municipal corporation, acting by and through its duly authorized representative.
Recitals:
WHEREAS, unless otherwise defined: (1) all references to "sections" shall mean sections
of this Agreement; (2) all references to "exhibits" shall mean exhibits to this Agreement, which
are incorporated as part of this Agreement for all purposes; and (3) all references to "ordinances"
or"resolutions" shall mean ordinances or resolutions adopted by the City Council of the City(the
"City Council");and
WHEREAS, the Developer intends to develop, in phases, approximately 57 acres of real
property depicted on Exhibit A attached hereto (the "Property") within the corporate limits of the
City as a single-family residential development, in accordance with the applicable City
Regulations (as defined herein), the Development Standards (as defined herein) and the Concept
Plan(as defined herein) (the "Project"); and
WHEREAS, in order to incentivize the development of the Property and encourage and
support economic development within the City and to promote employment, the City desires to
facilitate the development of the Property through the financing of certain Public Improvements
(as defined herein) and constructing additional public improvements within the Property; and
WHEREAS, in order to finance the Public Improvements, the City Council intends to
create a public improvement district that is coterminous with the boundaries of the Property (the
"PID") in accordance with Chapter 372 Texas Local Government Code, as amended (the "PID
Act"); and
WHEREAS, the City recognizes that financing of the Public Improvements confers a
special benefit to the Property within the PID; and
WHEREAS,the City intends to(upon satisfaction of the conditions and in accordance with
the terms set forth in this Agreement) adopt the Assessment Ordinance (as defined herein) and
adopt the Service and Assessment Plans (as defined herein) that provide for the construction and
financing of the Public Improvements pursuant to the Service and Assessment Plan, payable in
whole or in part by and from Assessments levied against property within the PID(whether through
a cash reimbursement or through the issuance of PID Bonds (as defined herein)); and
WHEREAS,upon satisfaction of the conditions and in accordance with the terms set forth
in this Agreement, the City intends to levy Assessments on all benefitted property located within
the PID and issue PID Bonds up to a maximum aggregate principal amount of$20,000,000 for
payment or reimbursement of the Public Improvements included in the Service and Assessment
Plan; and
1
WHEREAS, the payment and reimbursement for the Public Improvements shall be solely
from the installment payments of Assessments and/or proceeds of the PID Bonds, and the City
shall never be responsible for the payment of the Public Improvements or the PID Bonds from its
general fund or its ad valorem tax collections, past or future, or any other source of City revenue
or any assets of the City of whatsoever nature; and
WHEREAS, the City recognizes the positive impact that the construction and installation
of the Public Improvements for the PID will bring to the City in that the PID will promote state
and local economic development; stimulate business and commercial activity in the City; develop
and diversify the economy of the State; develop and expand commerce in the State, and eliminate
unemployment or underemployment in the State.
NOW, THEREFORE, for and in consideration of the mutual agreements, covenants, and
conditions contained herein, and other good and valuable consideration, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided or unless the
context otherwise requires, the terms defined in this Article have the meanings assigned to them
in the Recitals or this Article, and all such terms include the plural as well as the singular.
"Acceptance" means the process by which the City accepts a public improvement for
ownership and maintenance by the City, which includes the issuance by the City engineer of a
letter of acceptance that is transmitted to the planning and zoning commission for the grant of final
plat approval.
"Affiliates" means any other person directly controlling, directly controlled by, or under
direct common control with the Developer. As used in this definition, the term "control,"
`'controlling,"or"controlled by"shall mean the possession,directly,of the power either to(a)vote
fifty percent (50%) or more of the securities or interests having ordinary voting power for the
election of directors(or other comparable controlling body)of the Developer,or(b)direct or cause
the direction of management or policies of the Developer,whether through the ownership of voting
securities or interests,by contract or otherwise,excluding in each case,any lender of the Developer
or any affiliate of such lender.
"Agreement"has the meaning stated in the first paragraph of this Agreement.
"Annual Installments" means with respect to each parcel subject to Assessments, each
annual payment of the Assessments, including any applicable interest, as set forth and calculated
in the Service and Assessment Plan.
"Applicable Law" means any statute, law,treaty, rule,code, ordinance,regulation,permit,
interpretation, certificate, or order of any Governmental Authority, or any judgment, decision,
decree, injunction, writ, order, or like action of any court or other Governmental Authority.
Applicable Laws shall include, but not be limited to, City Regulations.
2
"Appraisal"means an appraisal of the property to be assessed in the PID by a licensed MAI
Appraiser, such Appraisal to include as-complete improvements, including the Public
Improvements to be financed in part with PID Bonds (i.e., "as-complete") and the construction
and installation of the Private Improvements, necessary to get a Final Lot Value.
"Assessed Property"means any lot or parcel within the PID against which an Assessment
is levied.
"Assessment Ordinance" means one or more of the City's ordinances approving a Service
and Assessment Plan and levying Assessments on the benefitted Property within each Phase of the
PID.
"Assessments"means those certain assessments levied by the City pursuant to the PID Act
and on benefitted parcels within the PID for the purpose of paying the costs of the Public
Improvements, which Assessments shall be structured to be amortized over thirty (30) years,
including interest, all as set forth in or modified by the Service and Assessment Plan.
"Assessment Revenues" means the revenues received by the City from the Assessments
levied within each Phase of the PID.
"Business Day"means any day other than a Saturday, Sunday or legal holiday in the State
of Texas observed as such by the City, or any national holiday observed by the City.
"City"means the City of Baytown, Texas.
"City Regulations" means provisions of the City's Code of Ordinances, ordinances not
codified, design standards, uniform and international building and construction codes, and other
policies duly adopted by the City, which shall be applied to the Development from time to time,
including at the time of permitting, including zoning.
"City Representative" means the City Manager or designee, which may include a third-
party inspector or representative.
"Closing Disbursement Request" means the Closing Disbursement Request described in
Section 8.03(d), the form of which is attached as Exhibit E.
"Commencement of Construction"shall mean that(i)the plans have been prepared and all
approvals thereof required by applicable governmental authorities have been obtained for
construction of the applicable improvement,or portion thereof,as the case may be,on the Property;
(ii) all necessary permits for the initiation of construction of the improvement, or portion thereof,
as the case may be, on the Property pursuant to the respective plans therefore having been issued
by all applicable governmental authorities; and(iii)grading of the Property for the construction of
the applicable improvement, or portion thereof, as the case may be, has commenced.
"Commencement of Construction" shall not mean demolition of the existing improvements, and
any such demolition is specifically excepted from constituting"Commencement of Construction."
"Completion of Construction" shall mean that(i)the construction of the applicable Public
Improvement,or portion or segment thereof, as the case may be, benefitting the Property has been
3
substantially completed pursuant to the City's determination; and(ii)the City has, with respect to
applicable Public Improvements, accepted the respective Public Improvements in accordance with
City Regulations and standard practice.
"Concept Plan"means that concept plan for the Development set forth in Exhibit I,as may
be amended or changed upon approval of the City.
"Construction Agreements" mean the contracts for the construction of the Public
Improvements.
"Cost Overruns" means those Public Improvement Project Costs that exceed the budget
cost set forth in the SAP(s)plus the Developer Cash Contribution.
"Cost Underruns"means Public Improvement Project Costs that are less than the budgeted
cost set forth in the Service and Assessment Plans.
"Developer" means KB Home Lone Star Inc., a Texas corporation, and its successors and
permitted assigns.
"Developer Cash Contribution" means that portion of the Public Improvement Project
Costs that the Developer is contributing to initially fund the Public Improvements for each series
of PID Bonds, as set forth in the Service and Assessment Plan.
"Development" means that single-family residential development consisting of
approximately 57 acres to be developed and constructed on the Property pursuant to the City
Regulations.
"Development Standards" means those development construction standards of the City as
well as those set forth in Sections 3.10 and 3.11 of the Uniform Land Development Code as it is
in effect as of the Effective Date hereof and in Exhibit G pursuant to which the Development must
be constructed.
"Director"means the Director of Planning and Development Services or his/her designee.
"Effective Date" means the date set forth in the first paragraph of this Agreement.
"End Buyer" means any developer, homebuilder, tenant, user, or owner of a Fully
Developed and Improved Lot.
"Estimated Build Out Value"means the estimated value of an assessed property with fully
constructed buildings, as provided by the Developer and confirmed by the City by considering
such factors as density, lot size, proximity to amenities, view premiums, location, market
conditions, historical sales, builder contracts, discussions with homebuilders, reports from third-
party consultants, or any other factors that, in the judgment of the City, may impact value.
"Event of Default" shall have the meaning ascribed thereto in Article XIII of this
Agreement.
4
"Final Lot Value"means the developed lot values established by an Appraisal.
"Force Majeure"means any act that(i)materially and adversely affects the affected Party's
ability to perform the relevant obligations under this Agreement or delays such affected Party's
ability to do so, (ii) is beyond the reasonable control of the affected Party, (iii) is not due to the
affected Party's fault or negligence and (iv) could not be avoided, by the Party who suffers it, by
the exercise of commercially reasonable efforts. "Force Majeure" shall include: (a) natural
phenomena, such as storms, floods, lightning and earthquakes; (b) pandemics (only to the extent
residential construction is halted or prohibited by order of a Governmental Authority), wars, civil
disturbances, revolts, insurrections, terrorism, sabotage and threats of sabotage or terrorism; (c)
transportation disasters, whether by ocean, rail, land or air; (d) strikes or other labor disputes that
are not due to the breach of any labor agreement by the affected Party; (e) fires; and(f) actions or
omissions of a Governmental Authority (including the actions of the City in its capacity as a
Governmental Authority) that were not voluntarily induced or promoted by the affected Party, or
brought about by the breach of its obligations under this Agreement or any Applicable Law or
failure to comply with City Regulations; provided, however, that under no circumstances shall
Force Majeure include any of the following events: (g) economic hardship; (h)changes in market
condition; (i)any strike or labor dispute involving the employees of the Developer or any Affiliate
of the Developer,other than industry or nationwide strikes or labor disputes;0)weather conditions
which could reasonably be anticipated by experienced contractors operating the relevant location;
(k)the occurrence of any manpower,material or equipment shortages except as such shortages are
related to a shutdown or other order by a Governmental Authority; or (1) any delay, default or
failure (financial or otherwise) of the general contractor or any subcontractor, vendor or supplier
of the Developer, or any construction contracts for the Project Improvement and Public
Improvements.
"Fully Developed and Improved Lot"means any lot in the Property,regardless of proposed
use,intended to be served by the Public Improvements and for which a final plat has been approved
by the City and recorded in the Real Property Records of Harris County, Texas.
"Governmental Authority"means any federal,state or local governmental entity(including
any taxing authority) or agency, court, tribunal, regulatory commission or other body, whether
legislative,judicial or executive(or a combination or permutation thereof).
"Home or Property Buyer Disclosure Program"means the disclosure program, as set forth
in a document substantially in the form of Exhibit F that establishes a mechanism to disclose to
each End Buyer the terms and conditions under which their lot is burdened by the PID.
"Impact Fees" means all utility impact fees relating to the Public Improvements in each
case assessed, imposed and collected by the City and Baytown Area Water Authority, if any, on
the Property in accordance with the City Regulations adopted by the City, as may be revised or
amended from time to time.
"Impositions" shall mean all taxes, assessments, use and occupancy taxes, sales taxes,
charges, excises, license and permit fees, and other charges by public or Governmental Authority,
which are or may be assessed, charged, levied, or imposed by any public or Governmental
Authority on any property owned by Developer or any Affiliate within City.
5
"Indenture(s)" means the applicable trust indenture pursuant to which PID Bonds are
issued.
"Landowner Consent" means a consent by the applicable owner(s) of the Property
consenting to the formation of the PID and the levy of Assessments substantially in the form
attached hereto as Exhibit C.
"Lot Type" means the classification of final building lots with similar characteristics (e.g.
general retail, light industrial, multi-family, single family residential, etc.), as set forth in the
Service and Assessment Plan.
"Net Bond Proceeds" means the proceeds of the PID Bonds issued pursuant to
Section 3.02,net of costs of issuance, capitalized interest, reserve funds and other financing costs,
that are deposited to the Project Fund for such PID Bonds.
"Parties" or"Party"means the City and the Developer as parties to this Agreement.
"Payment Certificate" means a Payment Certificate as set forth in Section 9.03, the form
of which is attached as Exhibit D.
"Phase" means a phase of development of the Property. The Development will consist of
two (2) Phases.
"Phasing Plan" means that plan for the development of the Property in phases as set forth
in Exhibit I.
"Phase 1" means the first phase of development in the PID, consisting of 74 single family
lots, as depicted on the Phasing Plan.
"Phase 2"means the second phase of development in the PID,consisting of approximately
125 single family lots , as depicted on the Phasing Plan.
"PID Act" means Chapter 372, Texas Local Government Code, as amended.
"PID Bonds" means one or more series of special assessment revenue bonds issued by the
City pursuant to the PID Act for the payment and/or reimbursement of the Public Improvement
Project Costs,including bonds issued to fund construction of the Public Improvements,and,if any,
issued to reimburse the Developer for a portion of the costs of the Public Improvements, not
previously funded with bond proceeds.
"PID" means the Bayview Heights Public Improvement District created by the City
Council pursuant to Resolution No. 2762.
"Plans and Specifications" means the plans and specifications for Public Improvements
approved by the City.
6
"Private Improvements" means those horizontal improvements described in the Plans and
Specifications submitted to the City as part of the zoning process, other than the Public
Improvements, being constructed in each Phase to get to a Final Lot Value.
"Project Fund"means the fund by that name created under each Indenture into which PID
Bond Proceeds shall be deposited.
"Property"means approximately 57 acres of real property located within the City described
in Exhibit A.
"Public Improvement Completion Date"means a date that is no later than twenty-four(24)
months after Commencement of Construction for the Public Improvements for each Phase.
"Public Improvement Financing Date" means the date the City either(i) approves a bond
purchase agreement and sells the first series of PID Bonds for Phase 1 and Phase 2 of the Property,
or(ii) levies Assessments on the Property and enters into a Reimbursement Agreement, such date
to be no later than February 1, 2023, which date may be extended by written agreement of the
Developer and the City.
"Public Improvement Project Costs"means the estimated cost of the Public Improvements
to be constructed to benefit the land within the PID as set forth in Exhibit B, as may be amended
pursuant to this Agreement, such costs to be eligible"project costs," as defined in the PID Act.
"Public Improvements" means public improvements to be designed and constructed or
caused to be developed or constructed inside and outside the PID by the Developer to benefit the
PID and the Property, which will include improvements described in Exhibit B.
"Reimbursement Agreement(s)" means the agreement(s) between the City and the
Developer in which Developer agrees to fund the certain costs of Public Improvements and the
City agrees to reimburse the Developer for a portion of such costs of the Public Improvements
from the proceeds of Assessments pursuant to the SAP(s) or from future PID Bond proceeds, if
any.
"Reimbursement Cap" means the total amount of reimbursement and/or payment to the
Developer for the Public Improvement Project Costs from any source, including the proceeds of
PID Bonds, or Assessment Revenues; such amount shall be no more than $20,000,000. The
Reimbursement Cap does not include any payments made by the City for the costs of oversizing,
if any.
"Service and Assessment Plan" or "SAP" means the Service and Assessment Plan(s)
drafted pursuant to the PID Act for the PID and any amendments or updates thereto, adopted and
approved by the City that identifies and allocates the Assessments on benefitted parcels within the
PID and sets forth the method of assessment,the parcels assessed,the amount of the Assessments,
the Public Improvements and the method of collection of the Assessment.
"Trustee"means the trustee under the Indenture.
7
ARTICLE II
THE DEVELOPMENT
Section 2.01. Scope of Agreement. This Agreement establishes provisions for the
apportionment, levying, and collection of Assessments on the Property within the PID, the
construction of the Public Improvements,reimbursement,acquisition,ownership and maintenance
of the Public Improvements, and the issuance of PID Bonds for the financing of the Public
Improvements benefitting the property within the PID.
Section 2.02. Proiect Overview—The Development.
(a) The Developer will undertake or cause the undertaking of the design, development,
construction, maintenance, management, use and operation of the Development, and will
undertake the design, development and construction of the Public Improvements. The
Development will consist of the following elements:
(i) Not more than 250 single family homes;
(ii) Amenities including parks, open space, and trails as depicted and attached as
Exhibits L as may be amended or modified if approved by the City.
(b) Subject to the terms and conditions set forth in this Agreement, the Developer shall
plan, design, construct, and complete or cause the planning, designing, construction and
completion of the Public Improvements to the City's standards and specifications and subject to
the City's approval as provided herein and in accordance with City Regulations,the Concept Plan,
the Development Standards and Applicable Law.
(c) Upon completion and acceptance by the City, the City shall own and maintain all
of the Public Improvements except for those maintained by the HOA pursuant to this or other
agreement.
ARTICLE III
PUBLIC IMPROVEMENT DISTRICT
Section 3.01. Creation. The Developer has submitted a petition to the City to create a
PID; such petition contains a list of the Public Improvements to be funded or acquired with the
PID Bond Proceeds and the estimated or actual costs of such Public Improvements. Such petition
also allows for the City's levy of Assessments for maintenance purposes and for administration of
the PID. Having accepted the petition,the City shall hold a public hearing to consider the creation
of the PID in accordance with the PID Act. Developer agrees that the City may require at any time
a professional services agreement, in a form mutually acceptable to the Parties, that obligates
Developer to fund the costs of the City's professionals relating to the preparation for and issuance
of PID Bonds,which amount shall be agreed to by the Parties and considered a cost payable from
PID Bond Proceeds. The Developer agrees to enter into such agreement upon request by the City.
8
Section 3.02. Issuance of PID Bonds.
(a) Subject to the terms and conditions set forth in this Article III, the City intends to
authorize the issuance of PID Bonds in one or more series (each to coincide with the Developer's
phased development of the Property) up to an aggregate principal amount of $20,000,000 to
reimburse or acquire the completed Public Improvements benefitting the Property. The Public
Improvements to be constructed and funded in connection with the PID Bonds are detailed in
Exhibit B, which may be amended from time to time upon approval of the City Representative,
and in the Service and Assessment Plan for the PID or any updates thereto. The PID Bond
Proceeds from the sale of each series of PID Bonds will be used to reimburse or acquire the Public
Improvements. Notwithstanding the foregoing, the issuance of PID Bonds is a discretionary
governmental action by the City Council and subject to its ongoing discretion and decision and is
further conditioned upon the adequacy of the bond security and the financial ability and obligation
of the Developer to pay the Developer Cash Contribution, if any, and perform its obligations
hereunder.
(b) The Developer shall complete all Public Improvements within each Phase in the
PID and such Public Improvements shall be completed by the Public Improvement Completion
Date.
(c) The issuance of PID Bonds is subject to the discretion of the City Council,and each
series of PID Bonds shall be issued with the terms deemed appropriate by the City Council at the
time of issuance, if at all.
(d) The following conditions must be satisfied prior to the City's consideration of the
sale of PID Bonds:
(i) The maximum aggregate par amount of the PID Bonds to be issued by the City
shall not exceed $20,000,000.
(ii) The maximum "tax equivalent rate" for the projected annual assessment for each
Phase shall be no greater than $0.85 per $100 of assessed value at the time of the levy of the
Assessment on each Phase based on the Estimated Build Out Value of each parcel; such rate limit
for each Phase is determined at the time of the levy of the Assessments applied on an individual
Assessed Property basis by Lot Type based on Estimated Build Out Value, as will be set forth in
more detail in the Service and Assessment Plan.
(iii) The total assessment value to lien ratio is at least 3:1 at the time of the levy of
assessments,and the total assessment value to lien ratio of each series of PID Bonds for each Phase
is at least 3:1 at the time of the issuance of PID Bonds for each Phase; such values shall be
confirmed by Appraisal from licensed MAI appraiser.
(iv) The Developer or its Affiliates shall own all property within a Phase of the PID
prior to the levy of Assessments for such Phase.
(v) Fully Developed and Improved Lots have been delivered or the Developer must
provide evidence reasonably acceptable to the City of an executed loan document and/or private
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equity in an amount sufficient to complete any Private Improvements necessary to achieve a Fully
Developed and Improved Lot.
(vi) No Event of Default by the Developer has occurred and remains uncured or no
event has occurred which but for notice, the lapse of time or both, would constitute an Event of
Default by the Developer pursuant to this Agreement;
(vii) The Public Improvements for the applicable Phase for which the PID Bonds are
being issued must have reached Completion of Construction by the Public Improvement
Completion Date and have been accepted by the City;
(viii) The amenities described in Section 2.02 and set forth in Exhibit L within the Phase
for which PID Bonds are being issued must have begun Commencement of Construction, and a
preliminary plat for the applicable Phase must have been filed with the City;
(e) In no event shall the Developer be paid and/or reimbursed for all Public
Improvement Project Costs in an amount in excess of the Reimbursement Cap; and
(f) In no event shall the City issue PID Bonds if the issuance of such PID Bonds is
prohibited by Applicable Law or an election is required by Applicable Law.
Section 3.03. Apportionment and Levy of Assessments.
(a) The City intends to levy Assessments on property located within the PID in
accordance herewith and with the Service and Assessment Plans (as such plans are amended,
supplemented or updated from time to time) and the Assessment Ordinances on or before such
time as each series of PID Bonds are issued. The City's apportionment and levy of Assessments
shall be made in accordance with the PID Act.
(b) Concurrently with the levy of the Assessments on each Phase, the Developer and
its Affiliates shall execute and deliver a Landowner Consent in the form attached as Exhibit C for
all land owned or controlled by Developer or its Affiliates within such Phase, or otherwise
evidence of consent to the creation of the PID and the levy of Assessments therein and shall record
evidence and notice of the Assessments in the real property records of Harris County. The City
shall not levy Assessments on property within the PID without an executed Landowner Consent
from each landowner within the PID whose property is being assessed.
Section 3.04. Developer Cash Contribution. At closing on any series of PID Bonds
intended to fund construction of Public Improvements that have not already been constructed by
the Developer, Developer shall deposit into a designated account with the Trustee under the
applicable Indenture a pro-rata amount of the Developer Cash Contribution. If the Public
Improvements relating to each series of PID Bonds have already been constructed and the PID
Bonds are intended to acquire or reimburse the Public Improvements, then Developer shall not be
required to deposit the Developer Cash Contribution as provided in this paragraph for such series.
The amount of the Developer Cash Contribution for each series of PID Bonds shall be equal to the
difference between the costs of the Public Improvements and the Net Bond Proceeds available to
fund such costs of the Public Improvements related to such series of PID Bonds, as set forth in the
SAP.
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Section 3.05. Transfer of Property. The Developer shall not sell property within a Phase
of the PID prior to the City's levy of Assessments in such Phase of the PID unless the Developer
provides the City with an executed consent to the creation of the PID and the levy of Assessments,
in a form reasonably acceptable to the City and its counsel with respect to the purchased property.
In addition, evidence of any transfer of Property in the PID prior to the levy of Assessments on
such property shall be provided to the City prior to the levy of Assessments on such property. For
a transfer of land by the Developer prior to the levy of Assessments,the City shall require consent
of each of the owners of Assessed Property to the levy of Assessments on each property and to the
creation of the PID. The Developer understands and acknowledges that evidence of land transfer,
the execution of the Landowner Consent, appraisal district certificate and property record
recording will be required from each owner of Assessed Property in order to levy the Assessments
and issue PID Bonds. The Developer shall provide all necessary documentation to the City with
respect to any land transfers.
ARTICLE IV
DEVELOPMENT
Section 4.01. Full Compliance with City Standards. Development and use of the Property
by Developer and its Affiliates, including, without limitation, the construction, installation,
maintenance, repair, and replacement of all buildings and all other improvements and facilities of
any kind whatsoever on and within the Property, shall be in compliance with the then current
applicable City Regulations, the Development Standards, and the Concept Plan.
Section 4.02. Development Standards. As consideration for the City's obligations under
this Agreement and in consideration for the issuance of the PID Bonds, the Developer agrees that
its development and use of the Property, including, without limitation, the construction,
installation, maintenance, repair, and replacement of all buildings and all other improvements and
facilities of any kind whatsoever on and within the Property, shall be in compliance with the City
Regulations, the Development Standards, and the Concept Plan.
Section 4.03. Property Acquisition. The Parties acknowledge that, if required, the
Developer is responsible for the acquisition of certain off-site property rights and interests to allow
the Public Improvements to be constructed to serve the Property. Developer shall use
commercially reasonable efforts to obtain all third-party rights-of-way, consents, or easements, if
any,needed to construct the off-site Public Improvements. The Developer shall provide evidence
of costs, maps, locations and size of infrastructure to the City and obtain the City's consent prior
to such acquisition of third-party rights-of-way, consents, or easements needed to construct the
off-site Public Improvements. If the Developer is unable to obtain such third-party rights-of-way,
consents, or easements, the City agrees to take reasonable steps to secure same (subject to City
Council authorization after a finding of public necessity), at Developer's cost, through the use of
the City's power of eminent domain. Developer shall be responsible for funding all reasonable
and necessary legal proceeding/litigation costs,attorney's fees and related expenses,and appraiser
and expert witness fees actually incurred by the City in the exercise of its eminent domain powers,
such costs to be paid by the Developer pursuant to the Professional Services Agreement
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Section 4.04. Zoningof f Property. The Property is currently within the corporate limits of
the City and is zoned Single Family Estate (SFE). The Developer has rezoned the Property to
Single Family 2 (SF2).
Section 4.05. Conflicts. In the event of any conflict between this Agreement and any City
Regulation, the Development Standards, and the Concept Plan, this Agreement,the Development
Standards, and the Concept Plan shall control.
Section 4.06. ROW. The Developer may submit a replat for all or any portion of the
Property. Any replat shall be in conformance with City Regulations, the Development Standards
and the Concept Plan and may require a prepayment of Assessments as set forth in the applicable
SAP.
Section 4.07. Bonding. The Developer shall be prohibited from bonding to final plat.
ARTICLE V
DEVELOPMENT CHARGES
Section 5.01. Plat Review Fees. Development of the Property shall be subject to payment
to the City of the reasonable fees and charges applicable to the City's preliminary and final plat
review and approval process according to the fee schedule adopted by the City Council and in
effect at the time of platting.
Section 5.02. Plan Review and Permit Fees. Development of the Property shall be subject
to payment to the City of the reasonable fees and charges applicable to the City's review of Plans
and Specifications and issuance of permits (including building permits) for construction of the
Public Improvements according to the fee schedule adopted by the City Council at the time of plan
review and permit issuance.
Section 5.03. Inspection Fees. Development of the Property shall be subject to the
payment to the City of inspection fees according to the fee schedule adopted by the City Council
at the time of inspection.
Section 5.04. Impact Fees. All Impact Fees associated with the Development shall be
paid pursuant to the City Regulations as well as those of the Baytown Area Water Authority, if
any.
ARTICLE VI
DEVELOPMENT SPECIFIC REQUIREMENTS
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Section 6.01. Community Fencing_ Fencing in the Development will consist of 6' high
cedar fencing at the rear and side perimeters of all lots, except that the Developer shall provide
wrought-iron decorative view fencing along any lots bordering detention ponds.
Section 6.02. Landscaping of Common Areas. Landscaping will include irrigated
planting beds and hardwood trees native to the area with irrigation throughout the Development.
Section 6.03. Landscaping of Residential Lots. On each residential lot, the Developer
shall provide landscaping in accordance with the Unified Land Development Code.
Section 6.04. Parks and Amenities. The Developer will provide two separate detention
areas and a minimum of two water features (for example, fountain-type design). The Developer
shall (i) provide open space along the north and south sections of the connector road running
through the Development as shown in the Concept Plan; (ii) construct a 0.4 acre park amenity as
shown in the Concept Plan, (iii) construct a decorative pergola located in the open spaces shown
on the Concept Plan, (iv) create a community "orchard row" of edible fruit trees as shown on the
Concept Plan, and(v)provide workout stations in the open space or near detention ponds.
Section 6.05. Trail System. The Developer shall provide a pedestrian walking trail,
approximately 8' wide as shown in the Concept Plan,including trail head signage near the entrance
to the community. The trail will be delivered at the time of Completion of Construction of the
Public Improvements within the Phase of development in which it is located. As illustrated in the
Concept Plan, the Developer shall also provide a sidewalk and walking trail along the south
connector road to Hunt Road as well as a sidewalk and walking trail along the entry road to North
Main Street. The Developer shall provide benches throughout the development.
Section 6.06. Signage and Monumentation. The Developer shall provide entry
monumentation generally consisting of stone or other masonry materials with up-lighting and
irrigated landscaping a minimum of six feet tall and a maximum of fifteen feet tall.
Section 6.07. Masonry, Architectural and Articulations. All structures within the
Development shall comply with the masonry, architectural and articulation standards of Section
3.11 of the Unified Land Development Code, which is attached hereto in Exhibit G.
Section 6.08. Early Permits. The City agrees to allow the Developer to permit three (3)
early model homes and three (3) early production homes, such that the Developer may obtain
building permits and commence construction of such homes prior to full acceptance of the Public
Improvements. Such early model homes and early production homes shall include complete
paving and fire protection via charged fire plugs. Under no circumstances will the early model
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homes or early production homes be permitted to connect to water or sewer utilities until the
subdivision improvements are accepted by the City.
Section 6.09. Streetlights. The Developer shall provide black powder coated streetlights
throughout the development.
Section 6.10. Protruding Garage. No more than 20% of the approved Fully Developed
and Improved Lots will be built with a home that has a garage that protrudes forward towards the
street past the remaining front fagade of the primary structure.
Section 6.11. Wastewater Collection System. The Development shall use a full gravity-
based collection system, not a sanitary sewer lift station. The City will accept the limited use of
oversized sewer lines in the system, as determined by the City and set forth in Exhibit H.
Section 6.12. Detention and Drainage. If the City allows pumped detention, the pumped
detention requirements of the Harris County Flood Control District Policy Criteria and Procedure
Manual must be followed. Specifically, Section 6.15.4 of such manual requires that the minimum
detention volume is to be no less than .75 acre-feet per acre. If a pumped detention system is
necessary for the proper operation of the detention facilities, the ownership and maintenance of
such facilities shall be the responsibility of the Developer or the HOA.
ARTICLE VII
CONSTRUCTION OF THE PUBLIC IMPROVEMENTS
Section 7.01. Designation of Construction Manager, Construction Engineers.
(a) Prior to construction of any Public Improvement, Developer shall make, or cause
to be made, application for any necessary permits and approvals required by City and any
applicable Governmental Authority to be issued for the construction of the Public Improvements
and shall obtain or obligate each general contractor, architect, and consultant who work on the
Public Improvements to obtain all applicable permits, licenses, or approvals as required by
Applicable Law. The Developer shall require or cause the design, inspection, and supervision of
the construction of the Public Improvements to be undertaken in accordance with City Regulations
and Applicable Law.
(b) The Developer shall design and construct or cause the design and construction of
the Public Improvements,together with and including the acquisition, at its sole costs, of any and
all easements or fee simple title to such land necessary to provide for and accommodate the Public
Improvements.
(c) Developer shall comply, or shall require its contractors to comply, with all local
and state laws and regulations regarding the design and construction of the Public Improvements
applicable to similar facilities constructed by City, including, but not limited to, the requirement
for payment,performance and one-year maintenance bonds for the Public Improvements.
(d) Upon Completion of Construction of any portion of the Public Improvements,
Developer shall provide City with a final cost summary of all Public Improvement Project Costs
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incurred and paid associated with the construction of that portion of the Public Improvements and
provide proof that all amounts owing to contractors and subcontractors have been paid in full
evidenced by the "all bills paid" affidavits and lien releases executed by Developer and/or its
contractors with regard to that portion of the Public Improvements. Evidence of payment to the
applicable contractors and subcontractors shall be provided prior to the reimbursement of the costs
of any portion of the Public Improvements.
(e) Developer agrees to require the contractors and subcontractors that construct the
Public Improvements to provide payment,performance and one-year maintenance bonds in forms
satisfactory to the City Attorney. Any surety company through which a bond is written shall be a
surety company duly authorized to do business in the State of Texas, provided that the City
Attorney has the right to reasonably reject any surety company regardless of such company's
authorization to do business in Texas. Evidence of payment and performance bonds shall be
delivered to the City prior to Commencement of Construction of any such Public Improvements.
(f) Unless otherwise approved in writing by the City, all Public Improvements shall be
constructed and dedicated to the City in accordance with City Regulations and Applicable Law.
(g) The Developer shall dedicate or convey by final plat or separate instrument,without
cost to the City and in accordance with the Applicable Law, all property rights necessary for the
construction, operation, and maintenance of the road, water, drainage, and sewer Public
Improvements, at the completion of the Public Improvements and acceptance by the City.
Section 7.02. Construction Agreements. The Construction Agreements shall be let in the
name of the Developer, but all Construction Agreements for Public Improvements shall contain
specifications that comply with City Regulations. The Developer's engineers shall prepare and
provide, or cause the preparation and provision of all contract specifications and necessary related
documents. The Developer shall provide all construction documents for the Public Improvements
and shall acknowledge that the City has no obligations and liabilities thereunder. The Developer
shall include a provision in the construction documents for the Public Improvements that the
contractor will indemnify the City and its officers and employees against any costs or liabilities
thereunder. The Developer shall include a provision in the construction documents for the Public
Improvements that the contractor will indemnify the City and its officers and employees against
any costs or liabilities thereunder, as follows:
CITY OF BAYTOWN, TEXAS ("CITY") SHALL NOT BE LIABLE OR
RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, HELD
HARMLESS AND RELEASED BY CONTRACTOR FROM AND AGAINST
ANY AND ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR
LIABILITY OF ANY CHARACTER, TYPE, OR DESCRIPTION,
INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND
ATTORNEY'S FEES,FOR ANY LOSS,DAMAGE,INJURY OF ANY KIND
OR CHARTER, INCLUDING DEATH, TO ANY PERSON, ENTITY, OR
PROPERTY ARISING OUT OF OR OCCASIONED BY, DIRECTLY OR
INDIRECTLY, THE PERFORMANCE OF CONTRACTOR UNDER THIS
CONTRACT, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY UNDER
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TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE
PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS INDEMNI-
FICATION ARE SOLELY FOR THE BENEFIT OF THE PARTIES
HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
ENTITY. IT IS THE EXPRESS INTENT OF THE PARTIES TO THIS
CONTRACT THAT THE INDEMNITY PROVIDED FOR IN THIS
CONTRACT IS AN INDEMNITY EXTENDED BY CONTRACTOR TO
INDEMNIFY AND PROTECT CITY FROM THE CONSEQUENCES OF
THE CONTRACTOR'S ACTS, INCLUDING NEGLIGENCE, WHETHER
SUCH ACTS OR NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF
ANY SUCH INJURY, DEATH, OR DAMAGE. CONTRACTOR AGREES
TO INDEMNIFY, DEFEND, AND SAVE CITY HARMLESS FROM ALL
CLAIMS GROWING OUT OF ANY DEMANDS OF SUBCONTRACTORS,
LABORERS, WORKMEN, MECHANICS, MATERIALMEN, OR
SUPPLIERS OF MACHINERY AND PARTS THEREOF, EQUIPMENT,
POWER TOOLS,OR SUPPLIES OBTAINED IN FURTHERANCE OF THE
PERFORMANCE OF THIS CONTRACT
The Developer or its designee (which shall be the Developer's Engineer) shall administer
the contracts. The Public Improvement Project Costs, which are estimated in Exhibit B, shall be
paid by the Developer or caused to be paid by the Developer, or from the proceeds of PID Bonds
and/or the Developer Cash Contribution in accordance with the Indentures, or reimbursed by the
Assessments levied pursuant to the terms of a Reimbursement Agreement.
(a) The following requirements apply to Construction Agreements for Public
Improvements:
(i) Plans and Specifications shall comply with all Applicable Law and City
Regulations, and all Plans and Specifications shall be reviewed and approved by the City prior to
the issuance of permits in accordance with Applicable Law and City Regulations;
(ii) Each Construction Agreement shall provide that the contractor is an independent
contractor, independent of and not the agent of the City, and that the contractor is responsible for
retaining, and shall retain, the services of necessary and appropriate architects and engineers; and
(iii) Each Construction Agreement for improvements not yet under construction shall
provide that the Contractor shall indemnify the City, its officers and employees for any costs or
liabilities thereunder and for the negligent acts or omissions of the Contractor. The wording of
such indemnity must be reviewed and approved by the City Attorney.
(iv) City's Role. The City shall have no responsibility for the cost of planning, design,
engineering construction, furnishing/equipping the Public Improvements (before, during or after
construction) except to the extent of the reimbursement or funding of the Public Improvements
Project Costs as set forth in this Agreement. The Developer will not hold the City responsible for
any costs of the Public Improvements other than the reimbursements or funding described in this
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Agreement. The City shall have no liability for any claims that may arise out of design or
construction of the Public Improvements, and the Developer shall cause all of its contractors,
architects,engineers,and consultants to agree in writing that they will look solely to the Developer,
not to the City, for payment of all costs and valid claims associated with construction of the Public
Improvements.
Section 7.03. Project Scope Verification. The Developer will from time to time, as
reasonably requested by the City Representative, verify to the City Representative that the Public
Improvements are being constructed in accordance with the Plans and Specifications approved by
the City. To the extent the City has concerns about such verification that cannot be answered by
the Developer, to the City's reasonable satisfaction, the Developer will cause the appropriate
architect, engineer or general contractor to consult with the Developer and the City regarding such
concerns.
Section 7.04. Joint Cooperation; Access for Planning and Development. During the
planning, design, development and construction of the Public Improvements, the parties agree to
cooperate and coordinate with each other, and to assign appropriate, qualified personnel to this
Project.The City staff will make reasonable efforts to accommodate urgent or emergency requests
during construction. In order to facilitate a timely review process, the Developer shall cause the
architect,engineer,and other design professionals to attend City meetings if requested by the City.
Section 7.05. City Not Responsible. By performing the functions described in this
Article, the City shall not, and shall not be deemed to, assume the obligations or responsibilities
of the Developer,whose obligations under this Agreement and under Applicable Law shall not be
affected by the City's exercise of the functions described in this Article. The City's review of any
Plans and Specifications is solely for the City's own purposes, and the City does not make any
representation or warranty concerning the appropriateness of any such Plans and Specifications
for any purpose. The City's approval of (or failure to disapprove) any such Plans and
Specifications, including the site plan, submitted with such Plans and Specifications and any
revisions thereto, shall not render the City liable for same, and the Developer assumes and shall
be responsible for any and all claims arising out of or from the use of such Plans and Specifications.
The Developer shall not, however, be liable for any claims arising out of the operation and
maintenance of the Public Improvements after acceptance by the City, subject to any claims
relating to the construction of the Public Improvements.
Section 7.06. Construction Standards and Inspection. The Public Improvements will be
installed within the public rights-of-way or in easements granted to the City. Such easements may
be granted at the time of final platting in the final plat or by separate instrument. The Public
Improvements shall be constructed and inspected in accordance with applicable state law,and City
Regulations, and all other applicable development requirements, including those imposed by any
other governing body or entity with jurisdiction over the Public Improvements, and this
Agreement,provided,however,that if there is any conflict among the regulations of the governing
body or entity with jurisdiction over the Public Improvement being constructed,the more stringent
requirements shall control.
Section 7.07. Public Improvements to be Owned by the City — Title Evidence. The
Developer shall furnish to the City a preliminary title report for land with respect to the Public
17
Improvements, including any related rights-of-way, easements, and open spaces, if any, to be
acquired and accepted by the City from the Developer and not previously dedicated or otherwise
conveyed to the City,for review and approval at least thirty(30)calendar days prior to the transfer
of title of a Public Improvement to the City. The City Representative shall approve the preliminary
title report unless it reveals a matter which,in the reasonable judgment of the City,could materially
affect the City's use and enjoyment of any part of the property or easement covered by the
preliminary title report. In the event the City Representative does not approve the preliminary title
report,the City shall not be obligated to accept title to the Public Improvement until the Developer
has cured such objections to title to the satisfaction of the City Representative.
Section 7.08. Public Improvement Constructed on City Land or the Property. If the Public
Improvement is on land owned by the City, the City hereby grants to the Developer a temporary
easement to enter upon such land for purposes related to construction (and maintenance pending
acquisition and acceptance) of the Public Improvement. If the Public Improvement is on land
owned by the Developer, the Developer shall dedicate easements by plat or shall execute and
deliver to the City such access and maintenance easements as the City may reasonably require in
recordable form,and the Developer hereby grants to the City a permanent access and maintenance
easement (pending acquisition and acceptance) to enter upon such land for purposes related to
inspection and maintenance of the Public Improvement. The grant of the permanent easement
shall not relieve the Developer of any obligation to grant the City title to property and/or easements
related to the Public Improvement as required by this Agreement or as should in the City's
reasonable judgment be granted to provide for convenient access to and routine and emergency
maintenance of such Public Improvement. The provisions for inspection and acceptance of such
Public Improvement otherwise provided herein shall apply.The grant of any easements to the City
must be in a form reasonably acceptable to the City Attorney.
Section 7.09. Additional Requirements.
In connection with the design and construction of the Public Improvements, the Developer
shall take or cause the following entities or persons to take the following actions and to undertake
the following responsibilities:
(a) The Developer shall provide to the City electronic copies of the Plans and
Specifications for the Public Improvements(including revisions) as such Plans and Specifications
are currently in existence and as completed after the date hereof and shall provide the City one
complete set of record drawings(in electronic format)for the Public Improvements,in accordance
with Applicable Law;
(b) The Developer or such person selected by and contracting with the Developer for
the construction of the Public Improvements shall provide the City with a copy of any written
construction schedule outlining the major items of work of each major construction contractor
relating to the Public Improvements, and any revisions to such schedule;
(c) The Developer shall provide construction documents, including the Plans and
Specifications to the City, signed and sealed by one or more registered professional architects or
engineers licensed in the State of Texas at the time the construction documents are submitted to
the City for approval;
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(d) The Developer shall provide the City with reasonable advance notice of any
regularly-scheduled construction meetings regarding the Public Improvements, and shall permit
the City to attend and observe such meetings as the City so chooses in order to monitor the Project,
and shall provide the City with copies of any written construction schedules as are discussed and
reviewed at any such regularly-scheduled construction meeting;
(e) The Developer or any general contractor shall comply with, and shall require that
its agents and subcontractors comply with, all Applicable Laws regarding the use, removal,
storage, transportation, disposal and remediation of hazardous materials;
(f) The Developer or any general contractor shall notify and obtain the City's approval
for all field changes that directly result in changes to the portion of the Plans and Specifications
for the Public Improvements that describe the connection of such improvements with City streets,
storm sewers and utilities;
(g) Upon notice from the City,the Developer shall or shall cause any general contractor
to promptly repair, restore or correct, on a commercially reasonable basis, all damage caused by
the general contractor or its subcontractors to property or facilities of the City during construction
of the Public Improvements and to reimburse the City for out-of-pocket costs actually incurred by
the City that are directly related to the City's necessary emergency repairs of such damage;
(h) Prior to City acceptance, the Developer shall promptly cause the correction of
defective work and shall cause such work to be corrected in accordance with the construction
contracts for the Public Improvements and with City Regulations;
(i) If the Developer performs any soil, construction, and materials testing during
construction of the Public Improvements, the Developer shall make available copies of the results
of all such tests available for the City to review in the offices of the Developer or another mutually
agreeable location convenient to the City;
0) If any of the foregoing entities or persons shall fail in a respect to perform any of
its obligations described above (or elsewhere under this Agreement), the Developer shall use its
good faith efforts to enforce such obligations against such entities or persons, or the Developer
may cure any failure of performance as provided herein;
(k) The Developer shall provide any other information or documentation or services
required by City Regulations; and
(1) The Developer shall allow the City Representative to conduct reasonable pre-final
and final inspections of the Public Improvements. Upon acceptance by the City of the Public
Improvements,the City shall become responsible for the maintenance of the Public Improvements
and making any bond or warranty claim, if applicable, except for those Public Improvements
required to be maintained by the HOA pursuant to this or other agreement.
Section 7.10. Revisions to Scope and Cost of Public Improvements.
(a) The Public Improvement Project Costs, as set forth in Exhibit B, may be modified
or amended from time to time upon the approval of the City Representative,provided that the total
19
cost of the Public Improvements shall not exceed such amounts as set forth in the applicable SAP
plus the Developer Cash Contribution. Should the Public Improvements be amended by the City
Council in an SAP pursuant to the PID Act, the City Representative shall be authorized to make
corresponding changes to the applicable Exhibits attached hereto and shall keep official record of
such amendments.
(b) Should the Public Improvement Project Costs exceed the amounts set forth in the
SAPs, the Developer must make a Developer Cash Contribution at the time of each PID Bond
issuance such that the net proceeds of each series of PID Bonds plus the Developer Cash
Contribution is sufficient to fund the Public Improvement Project Costs for which the PID Bonds
are being issued.
Section 7.11. City Police Powers. The Developer recognizes the authority of the City
pursuant to the Texas Constitution together with the City's charter and ordinances to exercise its
police powers in accordance with Applicable Laws to protect the public health,safety,and welfare.
The City retains its police powers over the Developer's or its general contractor's construction
activities on or at the Property, and the Developer recognizes the City's authority to take
appropriate enforcement action in accordance with Applicable Law to provide such protection.No
lawful action taken by the City pursuant to these police powers shall subject the City to any liability
under this Agreement, including, without limitation, liability for costs incurred by any general
contractor or the Developer, and as between the Developer and the City, any such costs shall be
the sole responsibility of the Developer and any of its general contractors and shall not be
reimbursable from PID Bond Proceeds.
Section 7.12. Title and Mechanic's Liens.
(a) Title. The Developer agrees that the Public Improvements shall not have a lien or
cloud on title upon their dedication to and acceptance by the City.
(i) Mechanic's Liens. Developer shall not create nor allow or permit any liens,
encumbrances, or charges of any kind whatsoever against the Public Improvements arising from
any work performed by any contractor by or on behalf of the Developer. The Developer shall not
permit any claim of lien made by any mechanic, materialman, laborer, or other similar liens to
stand against the Public Improvements for work or materials furnished to the Developer in
connection with any construction, improvements, renovation, maintenance or repair thereof made
by the Developer or any contractor, agent or representative of the Developer. The Developer shall
cause any such claim of lien to be fully discharged no later than thirty (30) days after the
Developer's receipt of written notice of the filing thereof.
Section 7.13. City Consents.Any consent or approval by or on behalf of the City required
in connection with the design, construction, improvement, or replacement of the Public
Improvements or otherwise under this Agreement shall not be unreasonably withheld, delayed, or
conditioned. Any review associated with any determination to give or withhold any such consent
or approval shall be conducted in a timely and expeditious manner with due regard to the cost to
the Developer associated with delay.
Section 7.14. Right of the City to Make Inspection.
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(a) At any time during the construction of the Public Improvements,the City shall have
the right to enter the Property for the purpose of inspection of the progress of construction on the
Public Improvements; provided, however, the City Representative shall comply with reasonable
restrictions generally applicable to all visitors to the Development that are imposed by the
Developer or its general contractor or subcontractors. The Developer shall pay the City's costs for
the retention of a third-party inspector.
(b) Inspection of the construction of all Public Improvements shall be by the City
Representative or his/her designee. In accordance with Sections 5.03,the Developer shall pay the
inspection fee which may be included as a Public Improvement Project Cost.
(c) City may enter the Property in accordance with customary City procedures and
Applicable Law to make any repairs or perform any maintenance of Public Improvements which
the City has accepted for maintenance. If, during construction of the Public Improvements, the
Developer is in default under this Agreement beyond any applicable cure period or in the event of
an emergency which is not being timely addressed, the City may enter the Property to make any
repairs to the Public Improvements that have not been accepted for maintenance by the City, of
every kind or nature,which the Developer is obligated under this Agreement to repair or maintain
but which the Developer has failed to perform after the expiration of ten(10) Business Days after
notice is given by the City (other than in the case of an emergency in which notice is impossible
or impractical). The Developer shall be obligated to reimburse the City the reasonable costs
incurred by the City for any such repairs. Nothing contained in this paragraph shall be deemed to
impose on the City any obligation to actually make repairs or alterations on behalf of the
Developer.
Section 7.15. Competitive Bidding. The construction of the Public Improvements(which
are funded from Assessments) is anticipated to be exempt from competitive bidding pursuant to
Texas Local Government Code Section 252.022(a)(9). In the event that the actual costs of the
Public Improvement do not meet the parameters for exemption from the competitive bid
requirement,then either competitive bidding or alternative delivery method may be utilized by the
City as allowed by Applicable Law.
ARTICLE VIII
PAYMENT OF PUBLIC IMPROVEMENTS
Section 8.01. Overall Requirements.
(a) The City shall not be obligated to provide funds for any Public Improvement except
from the proceeds of the PID Bonds or from Assessments pursuant to a Reimbursement
Agreement. The City makes no warranty, either express or implied, that the proceeds of the PID
Bonds available for the payment or reimbursement of the Public Improvement Project Costs or for
the payment of the cost to construct or acquire a Public Improvement by the City will be sufficient
for the construction or acquisition of all of the Public Improvements. Any costs of the Public
Improvements in excess of the available PID Bond Proceeds or Assessments pursuant to a
Reimbursement Agreement shall not be paid or reimbursed by the City. The Developer
acknowledges and agrees that any lack of availability of monies in the Project Funds established
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under the Indentures to pay the costs of the Public Improvements shall in no way diminish any
obligation of the Developer with respect to the construction of or contributions for the Public
Improvements required by this Agreement, or any other agreement to which the Developer is a
party, or any governmental approval to which the Developer or Property is subject.
(b) Upon written Acceptance of a Public Improvement, the City shall be responsible
for all operation and maintenance, subject to any applicable maintenance-bond period, of such
Public Improvement, including all costs thereof and relating thereto, except for those Public
Improvements required to be maintained by the HOA pursuant to this or other agreement.
(c) The City's obligation with respect to the reimbursement or payment of the Public
Improvement Project Costs as finally set forth in the Service and Assessment Plan,shall be limited
to the lower of actual costs or the available PID Bond Proceeds or Assessment revenues, and shall
be payable solely from amounts on deposit in the Project Funds from the sale of the PID Bonds as
provided herein and in the Indentures,or Assessments collected for the reimbursement or payment
of such costs pursuant to Reimbursement Agreement. The Developer agrees and acknowledges
that it is responsible for all costs and all expenses related to the Public Improvements in excess of
the available PID Bond Proceeds and that the Developer Cash Contribution must be deposited at
the time of the issuance of PID Bonds.
(d) The City shall have no responsibility whatsoever to the Developer with respect to
the investment of any funds held in the Project Fund by the Trustee under the provisions of the
Indenture, including any loss of all or a portion of the principal invested or any penalty for
liquidation of an investment. Any such loss may diminish the amounts available in the Project
Fund to pay or reimburse the Public Improvement Project Costs in the PID. The obligation of
Developer to pay the Assessments is not in any way dependent on the availability of amounts in
the Project Fund to pay for all or any portion of the Public Improvements Project Costs hereunder.
Section 8.02. Remaining Funds after Completion of a Public Improvement. If, upon the
Completion of Construction of a Public Improvement and payment or reimbursement for such
Public Improvement, there are Cost Underruns, any remaining budgeted cost(s)may be available
to pay Cost Overruns on any other Public Improvement with the approval of the City
Representative, such approval not to be unreasonably withheld, at completion of the Public
Improvements for each Phase and provided that all Public Improvements for such Phase, as set
forth in the Service and Assessment Plan, are undertaken at least in part. The elimination of a
category of Public Improvements in a Phase as set forth in the Service and Assessment Plan will
require an amendment to the Service and Assessment Plan. Upon receipt of all acceptance letters
from the City for the Public Improvements within an improvement category as set forth in the
Service and Assessment Plan, any Cost Underruns from that category may be released to pay for
Cost Overruns in another improvement category, as approved by the City.
Section 8.03. Payment Process for Public Improvements.
(a) The City shall authorize payment or reimbursement of the Public Improvement
Project Costs from PID Bond Proceeds or from Assessments collected in the PID as set forth in
Section 8.04 below. The Developer shall submit a Payment Certificate to the City (no more
frequently than monthly)for Public Improvement Project Costs as approved by the City. The form
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of the Payment Certificate is set forth in Exhibit D,as may be modified by the applicable Indenture
or Reimbursement Agreement. The City shall review the sufficiency of each Payment Certificate
with respect to compliance with this Agreement, compliance with the Applicable Law, and
compliance with the SAP, and Plans and Specifications. The City shall review each Payment
Certificate within thirty (30) Business Days of receipt thereof and upon approval, certify the
Payment Certificate pursuant to the provisions of the applicable Indenture or Reimbursement
Agreement, and payment shall be made to the Developer or its designee pursuant to the terms of
the applicable Indenture or Reimbursement Agreement, provided that funds are available under
the applicable Indenture or Reimbursement Agreement. Notwithstanding the foregoing, the City
shall review the first Payment Certificate within forty-five(45) Business Days of receipt thereof.
If a Payment Certificate is approved only in part, the City shall specify the extent to which the
Payment Certificate is approved and payment for such partially approved Payment Certificate shall
be made to the Developer pursuant to the terms of the applicable Indenture or Reimbursement
Agreement, provided that funds are available under the applicable Indenture or Reimbursement
Agreement.
(b) If the City requires additional documentation, timely disapproves, or questions the
correctness or authenticity of the Payment Certificate,the City shall deliver a detailed notice to the
Developer within thirty(30) Business Days of receipt thereof. Payment with respect to disputed
portion(s) of the Payment Certificate shall not be made until the Developer and the City have
jointly settled such dispute or additional information has been provided to the City's reasonable
satisfaction.
(c) The City shall reimburse the Public Improvement Project Costs as set forth in
Exhibit B and the SAP, from funds available pursuant to the applicable Indenture or
Reimbursement Agreement.
(d) Reimbursement to the Developer and the City for administrative costs relating to
the creation of the PID,the levy of assessments and issuance of the PID Bonds may be distributed
at closing of the applicable series of PID Bonds pursuant to a Closing Disbursement Request, in
the form attached as Exhibit E.
Section 8.04. Public Improvements Reimbursement from Assessment Fund In the Event
of a Non-Issuance of PID Bonds.
(a) The City intends to levy Assessments by the Public Improvement Financing Date
and may issue PID Bonds at a later date upon completion of the Public Improvement in each Phase
to reimburse the Public Improvement Project Costs as set forth in the SAP. Reimbursement for
the costs of Public Improvements that have reached Completion of Construction shall be made on
an annual basis from Assessments levied by the City pursuant to the SAP. Such reimbursement
shall be made pursuant to the terms and provisions of one or more Reimbursement Agreements.
Such Reimbursement Agreements shall set forth the terms of the annual reimbursement for the
costs of the Public Improvements. These Reimbursement Agreement obligations may, in the
City's discretion, be reimbursed through the issuance of PID Bonds by the City once the
parameters set forth in Section 3.02(d) can be met. The levy of Assessments and the issuance of
any PID Bonds to fund obligations under a Reimbursement Agreement is a governmental function
of the City and is subject to the City's discretion and shall be determined by the City from time to
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time. In any event, the issuance of PID Bonds to Fund any obligations under a Reimbursement
Agreement,if the City determines to issue such PID Bonds, shall occur no later than one year after
the Public Improvement Financing Date or the City shall not issue such PID Bonds.
(b) Reimbursement or payment of the costs of the Public Improvements shall only be
made from the levy of Assessments within the PID as set forth herein.
(c) The term, manner and place of payment or reimbursement to the Developer under
this Section shall be set forth in the Reimbursement Agreement.
(d) Reimbursement or payment shall be made only for the costs of the Public
Improvements as set forth in this Agreement, the Service and Assessment Plan or in the
Reimbursement Agreement, as approved by the City. Any additional public improvements other
than the Public Improvements constructed by the Developer and dedicated to the City, shall not be
subject to payment or reimbursement under the terms of this Agreement.
Section 8.05. Rights to Audit.
(a) The City shall have the right to audit, upon reasonable notice and at the City's own
expense, records of the Developer with respect to the expenditure of funds to pay Public
Improvement Project Costs. Upon written request by the City, the Developer shall give the City
or its agent access to those certain records controlled by, or in the direct or indirect possession of,
the Developer (other than records subject to legitimate claims of attorney-client privilege) with
respect to the expenditure of Public Improvement Project Costs,and permit the City to review such
records in connection with conducting a reasonable audit of such fund and account. The Developer
shall make these records available to the City electronically or at a location that is reasonably
convenient for City staff.
(b) The City and the Developer shall reasonably cooperate with the assigned
independent auditors (internal or external) in this regard, and shall retain and maintain all such
records for at least three (3) years from the date of Completion of Construction of the Public
Improvements. All audits must be diligently conducted, and once begun, no records pertaining to
such audit shall be destroyed until such audit is completed.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
Section 9.01. Representations and Warranties of City.
The City makes the following representations and warranties for the benefit of the
Developer:
(a) Due Authority;No Conflict. The City represents and warrants that this Agreement
has been approved by official action by the City Council of the City in accordance with all
applicable public notice requirements (including, but not limited to,notices required by the Texas
Open Meetings Act). The City has all requisite power and authority to execute this Agreement
and to carry out its obligations hereunder and the transactions contemplated hereby. This
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Agreement has been,and the documents contemplated hereby will be,duly executed and delivered
by the City and constitute legal, valid and binding obligations enforceable against the City in
accordance with the terms subject to principles of governmental immunity and the enforcement of
equitable rights. The consummation by the City of the transactions contemplated hereby is not in
violation of or in conflict with, nor does it constitute a default under, any of the terms of any
agreement or instrument to which the City is a Party, or by which the City is bound, or of any
provision of any Applicable Law, ordinance, rule or regulation of any governmental authority or
of any provision of any applicable order, judgment or decree of any court, arbitrator or
governmental authority.
(b) Due Authority; No Litigation. No litigation is pending or, to the knowledge of the
City, threatened in any court to restrain or enjoin the construction of or the Public Improvements
or the City's payment and reimbursement obligations under this Agreement, or otherwise
contesting the powers of the City or the authorization of this Agreement or any agreements
contemplated herein.
Section 9.02. Representations and Warranties of Developer.
The Developer makes the following representations, warranties and covenants for the
benefit of the City:
(a) Due Organization and Ownership. The Developer is a Texas corporation validly
existing under the laws of the State of Texas and is duly qualified to do business in the State of
Texas; and that the person executing this Agreement on behalf of it is authorized to enter into this
Agreement.
(b) Due Authority: No Conflict. The Developer has all requisite power and authority
to execute and deliver this Agreement and to carry out its obligations hereunder and the
transactions contemplated hereby. This Agreement has been, and the documents contemplated
hereby will be,duly executed and delivered by the Developer and constitute the Developer's legal,
valid and binding obligations enforceable against the Developer in accordance with their terms.
The consummation by the Developer of the transactions contemplated hereby is not in violation of
or in conflict with,nor does it constitute a default under,any term or provision of the organizational
documents of the Developer, or any of the terms of any agreement or instrument to which the
Developer is a Party, or by which the Developer is bound, or of any provision of any Applicable
Law, ordinance, rule or regulation of any governmental authority or of any provision of any
applicable order,judgment or decree of any court, arbitrator or governmental authority.
(c) Consents. No consent, approval, order or authorization of, or declaration or filing
with any governmental authority is required on the part of the Developer in connection with the
execution and delivery of this Agreement or for the performance of the transactions herein
contemplated by the respective Parties hereto.
(d) Litigation/Proceedings. To the best knowledge of the Developer, after reasonable
inquiry, there are no pending or, to the best knowledge of the Developer, threatened, judicial,
municipal or administrative proceedings, consent decrees or, judgments which might affect the
Developer's ability to consummate the transaction contemplated hereby,nor is there a preliminary
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or permanent injunction or other order,decree,or ruling issued by a governmental entity,and there
is no statute, rule,regulation, or executive order promulgated or enacted by a governmental entity,
that is in effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation
of the transactions contemplated by this Agreement.
(e) Legal Proceedings. There is no action,proceeding, inquiry or investigation, at law
or in equity, before any court, arbitrator, governmental or other board or official, pending or, to
the knowledge of the Developer, threatened against or affecting the Developer, any of the
principals of the Developer and any key person or their respective Affiliates and representatives,
the outcome of which would (a) adversely affect the validity or enforceability of, or the authority
or ability of the Developer under,this Agreement to perform its obligations under this Agreement,
or (b) have a material and adverse effect on the consolidated financial condition or results of
operations of the Developer or on the ability of the Developer to conduct its business as presently
conducted or as proposed or contemplated to be conducted.
(f) Ownership. The Developer represents that it or one or more Affiliates will be the
sole owners of the Property within the PID at the time of their creation and will be the sole owners
at the time of the levy of Assessments for each Phase. The Developer shall consent to the levy of
Assessments in substantially the form of the Landowner Consent attached hereto as Exhibit C,and
shall not transfer title of any land within the PID prior to the levy of Assessments within each
Phase.
ARTICLE X
MAINTENANCE OF LANDSCAPE IMPROVEMENTS
Section 10.01. Mandatory Home Owners' Association.
(a) The Developer will create a mandatory homeowners' association("HOA")over the
portion of the Property then being developed as single family homes (the "Single Family
Property"), which HOA, through its conditions and restrictions filed of record in the property
records of Harris County, shall be required to assess and collect from owners annual fees in an
amount calculated to maintain the open spaces, common areas, right-of-way irrigation systems,
raised medians and other right-of-way landscaping, detention areas, pumped detention systems,
drainage areas, screening walls, trails, lawns, landscaped entrances to the Single Family Property
and any other common improvements or appurtenances within the Property(the"HOA Maintained
Improvements"). Maintenance of any Public Improvements by the HOA or the maintenance of
any HOA Maintained Improvements that are located on City-owned land, shall be pursuant to a
maintenance agreement between the HOA and the City(the "HOA Maintenance Agreement").
(b) While the Parties anticipate that the HOA established to maintain and operate the
HOA Maintained Improvements, will adequately perform such duties, in the event that the City
determines that the HOA is not adequately performing the duties for which it was created, which
non-performance shall be evidenced by violations of the HOA Maintenance Agreement,applicable
deed restrictions and/or applicable City ordinances, the City reserves the right to levy an
assessment each year equal to the actual costs of operating and maintaining the HOA Maintained
Improvements that are owned by the City. The City agrees that it will not levy such assessments
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without first giving the HOA written notice of the deficiencies and providing the HOA with sixty
(60) days in which to cure the deficiencies.
(c) Covenants,conditions and restrictions for the HOA must be filed in each Phase and
the HOA Maintenance Agreement must be approved and executed before any Assessments are
levied by the City on the Property.
ARTICLE XI
TERMINATION EVENTS
Section 11.01. Developer Termination Events.
(a) The Developer may terminate this Agreement as to a Phase of Development if the
City does not levy Assessments and enter into a Reimbursement Agreement pursuant to Section
8.04 for such phase of the Development.
(b) The Developer may terminate this Agreement if it does not close on all of the
Property by the earlier of (i) December 31, 2022 or (ii) the date on which the City levies
Assessments on the Property.
Section 11.02. City Termination Events.
(a) The City may terminate this Agreement in each Phase if the City determines not to
levy Assessments and enter into a Reimbursement Agreement for such Phase of the Development
by the Public Financing Deadline.
(b) The City may terminate this Agreement and any Reimbursement Agreement with
respect to the applicable Phase and any remaining Phase,upon an uncured Event of Default by the
Developer pursuant to Article XIII herein, subject to the notice and cure provisions of Section
13.02.
(c) The City may terminate this Agreement and any Reimbursement Agreement, if
Commencement of Construction of the private horizontal improvements(private water, sewer and
road improvements) within the first Phase of the Development necessary to obtain developed lots,
has not occurred within three (3) years of the Effective Date, subject to the notice and cure
provisions of Section 13.02.
(d) The City may terminate this Agreement or any Reimbursement Agreement with
respect to any Phase, at any time if the Public Improvements to be constructed in such Phase have
not reached Completion of Construction by the applicable Public Improvement Completion Date,
as may have been extended pursuant to the terms of this Agreement or by other written agreement
of the Parties.
(e) The City may terminate this Agreement with respect to the applicable Phase and
any remaining Phase if the Developer does not pay the Developer Cash Contribution at closing of
the applicable series of PID Bonds.
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Section 11.03. Termination Procedure. If either Party determines that it wishes to terminate
this Agreement pursuant to this Article, such Party must deliver a written notice to the other Party
specifying in reasonable detail the basis for such termination and electing to terminate this
Agreement. Upon such a termination, the Parties hereto shall have no duty or obligation one to
the other under this Agreement, provided, however, that as of the date of termination, with the
exception of any of Developer's Public Improvement Project Costs that were previously advanced
or incurred as of the date of termination, provided that a Payment Certificate for such Public
Improvement Project Costs is submitted within sixty(60) days of the termination and is approved
by the City pursuant to its normal and usual process for approving such Payment Certificate. The
City must approve such Payment Certificate within thirty(30) days or submit to the Developer its
objections/issues with such Payment Certificate and reasonably consult with the Developer to cure
any insufficiencies in the Payment Certificate within an additional thirty(30) days.
ARTICLE XII
TERM
This Agreement shall terminate upon the earlier of. (i) the expiration of the Assessments
levied to reimburse the Public Improvements, (ii) (a)the date on which the City and the Developer
discharge all of their obligations hereunder, including Completion of Construction and acceptance
of the Public Improvements, and (b)all PID Bond Proceeds or Assessment revenues pursuant to a
Reimbursement Agreement have been expended for reimbursement of all of the Public
Improvements and the Developer has been reimbursed for all completed and accepted Public
Improvements up to the Reimbursement Cap but in the amount set forth in the Service and
Assessment Plan,(iii)an Event of Default under Article XIII pursuant to which the non-defaulting
Party exercises its right to terminate this Agreement, or(iv)the occurrence of a termination event
under Article XI pursuant to which a Party has exercised its right to terminate this Agreement.
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ARTICLE XIII
DEFAULT AND REMEDIES
Section 13.01. Developer Default.
Each of the following events shall be an "Event of Default" by the Developer under this
Agreement, once the applicable time to cure, if any, as expired:
(a) The Developer shall fail to pay to the City any monetary sum hereby required of it
as and when the same shall become due and payable and shall not cure such default within thirty
(30)calendar days after the later of the date on which written notice thereof is given by the City to
the Developer, as provided in this Agreement. The Developer shall fail in any respect to maintain
any of the insurance or bonds required by this Agreement; provided, however, that if a contractor
fails to maintain any of the insurance or bonds required by this Agreement, the Developer shall
have thirty(30)calendar days to cure from the date of expiration of such insurance or bonds.
(b) The Developer shall fail to comply with any term, provision or covenant of this
Agreement (other than the payment of money to the City), and shall not cure such failure within
sixty(60) calendar days after written notice thereof is given by the City to the Developer;
(c) The filing by Developer of a voluntary proceeding under present or future
bankruptcy, insolvency, or other laws respecting debtors, rights;
(d) The consent by Developer to an involuntary proceeding under present or future
bankruptcy, insolvency, or other laws respecting debtor's rights;
(e) The entering of an order for relief against Developer or the appointment of a
receiver, trustee, or custodian for all or a substantial part of the property or assets of Developer in
any involuntary proceeding, and the continuation of such order,judgment or degree unstayed for
any period of ninety(90) consecutive days;
(f) The failure by Developer or any Affiliate to pay Impositions and Assessments on
property owned by the Developer and/or any Affiliates within the PID if such failure is not cured
within thirty(30) calendar days after written notice by the City; OR
(g) Any representation or warranty confirmed or made in this Agreement by the
Developer was untrue as of the Effective Date.
Section 13.02. Notice and Cure Period.
(a) Before any Event of Default under this Agreement shall be deemed to be a breach
of this Agreement, the Party claiming such Event of Default shall notify, in writing, the Party
alleged to have failed to perform the alleged Event of Default and shall demand performance(with
the exception of 13.01(f) above). Except with respect to cure periods set forth in 13.01 above,
which shall be controlling, no breach of this Agreement may be found to have occurred if
performance has commenced to the reasonable satisfaction of the complaining Party within thirty
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(30) calendar days of the receipt of such notice (or thirty (30) calendar days in the case of a
monetary default), with completion of performance within ninety(90) calendar days.
(b) Notwithstanding any provision in this Agreement to the contrary, if the
performance of any covenant or obligation to be performed hereunder by any Party is delayed by
Force Majeure,the time for such performance shall be extended by the amount of time of the delay
directly caused by and relating to such uncontrolled circumstances. The Party claiming delay of
performance as a result of any of the foregoing Force Majeure.events shall deliver written notice
of the commencement of any such delay resulting from such Force Majeure event and the length
of the Force Majeure event is reasonably expected to last not later than seven (7) days after the
claiming Party becomes aware of the same, and if the claiming Party fails to so notify the other
Party of the occurrence of a Force Majeure event causing such delay, the claiming Party shall not
be entitled to avail itself of the provisions for the extension of performance contained in this
Article. The number of days a Force Majeure event is in effect shall be determined by the City
based upon commercially reasonable standards.
Section 13.03. City's Remedies.
With respect to the occurrence of an Event of Default, the City may pursue the following
remedies:
(a) The City may pursue any legal or equitable remedy or remedies, including, without
limitation, specific performance, damages, and termination of this Agreement. The City shall not
terminate this Agreement unless it delivers to the Developer a second notice expressly providing
that the City will terminate within thirty(30) additional days. Termination or non-termination of
this Agreement upon a Developer Event of Default shall not prevent the City from suing the
Developer for specific performance, damages, actual damages, excluding punitive, special and
consequential damages, injunctive relief or other available remedies with respect to obligations
that expressly survive termination. In the event the Developer fails to pay any of the expenses or
amounts or perform any obligation specified in this Agreement, then to the extent such failure
constitutes an Event of Default hereunder, the City may, but shall not be obligated to do so, pay
any such amount or perform any such obligations and the amount so paid and the reasonable out
of pocket costs incurred by the City in said performance shall be due and payable by the Developer
to the City within thirty(30) days after the Developer's receipt of an itemized list of such costs.
(b) No remedy herein conferred or reserved is intended to be exclusive of any other
available remedy or remedies,but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder now or hereafter existing at law or in equity.
(c) The exercise of any remedy herein conferred or reserved shall not be deemed a
waiver of any other available remedy.
Section 13.04. City Default.
Each of the following events shall be an Event of Default by the City under this Agreement:
(a) So long as the Developer has complied with the terms and provisions of this
Agreement, the City shall fail to pay to the Developer any monetary sum hereby required of it and
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shall not cure such default within thirty(30)calendar days after the receipt of written notice thereof
by the City from the Developer.
(b) The City shall fail to comply in any material respect with any term, provision or
covenant of this Agreement, other than the payment of money, and shall not cure such failure
within ninety(90) calendar days after written notice thereof is given by the Developer to the City.
Section 13.05. Developer's Remedies.
(a) Upon the occurrence of any Event of Default by the City,the Developer may pursue
any legal remedy or remedies, specifically including damages as set forth below (specifically
excluding specific performance and other equitable remedies), and termination of this Agreement;
provided, however, that the Developer shall have no right to terminate this Agreement unless the
Developer delivers to the City a second notice which expressly provides that the Developer will
terminate within thirty(30)days if the default is not addressed as herein provided.
(b) No remedy herein conferred or reserved is intended to be inclusive of any other
available remedy or remedies,but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder now or hereafter existing.
(c) The exercise of any remedy herein conferred or reserved shall not be deemed a
waiver of any other available remedy.
Section 13.06. Limited Waiver of Immunity.
(a) The City and the Developer hereby acknowledge and agree that to the extent this
Agreement is subject to the provisions of Subchapter I of Chapter 271, Texas Local Government
Code, as amended, and the City's immunity from suit is waived only as set forth in such statute.
(b) Should a court of competent jurisdiction determine the City's immunity from suit
is waived in any manner other than as provided in Subchapter I of Chapter 271, Texas Local
Government Code, as amended, the Parties hereby acknowledge and agree that in a suit against
the City for breach of this Agreement:
(i) The total amount of money awarded is limited to actual damages in an amount not
to exceed the balance then due and owed by City under this Agreement or any Reimbursement
Agreement and is payable solely from Assessment revenues;
(ii) The recovery of damages against City or the Developer may not include
consequential damages or exemplary damages;
(iii) The Parties may not recover attorney's fees; and
(iv) The Parties are not entitled to specific performance or injunctive relief against the
City.
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Section 13.07. Limitation on Damages. In no event shall any Party have any liability under
this Agreement for any exemplary or consequential damages.
Section 13.08. Waiver. Forbearance by the non-defaulting Party to enforce one or more of
the remedies herein provided upon the occurrence of an Event of Default by the other Party shall
not be deemed or construed to constitute a waiver of such default.One or more waivers of a breach
of any covenant, term or condition of this Agreement by either Party hereto shall not be construed
by the other Party as a waiver of a different or subsequent breach of the same covenant, term or
condition. The consent or approval of either Party to or of any act by the other Party of a nature
requiring consent or approval shall not be deemed to waive or render unnecessary the consent to
or approval of any other subsequent similar act.
ARTICLE XIV
INSURANCE, INDEMNIFICATION AND RELEASE
Section 14.01. Insurance.
With no intent to limit any contractor's liability or obligation for indemnification, the
Developer shall maintain or cause to be maintained, by the persons constructing the Public
Improvements, certain insurance, as provided below, in full force and effect at all times during
construction of the Public Improvements and shall require that the City is named as an additional
insured under such contractor's insurance policies.
(a) With regard to the obligations of this Agreement, the Developer shall obtain and
maintain in full force and effect at its expense,or shall cause each contractor to obtain and maintain
at their expense, the following policies of insurance and coverage:
(i) Commercial general liability insurance insuring the City, contractor and the
Developer against liability for injury to or death of a person or persons and for damage to property
occasioned by or arising out of the activities of Developer, the contractor, the City and their
respective officers, directors, agents, contractors, or employees, in the amount of one million
dollars($1,000,000)per occurrence or a limit equal to the amount of the contract amount, and two
million dollars($2,000,000)general aggregate bodily injury and property damage. The contractor
may procure and maintain a Master or Controlled Insurance policy to satisfy the requirements of
this section, which may cover other property or locations of the contractor and its affiliates, so
long as the coverage required in this section is separate;
(ii) Workers' Compensation insurance as required by law;
(iii) Business automobile insurance covering all operations of the contractor pursuant
to the Construction Agreements involving the use of motor vehicles, including all owned, non-
owned and hired vehicles with minimum limits of not less than one million dollars ($1,000,000)
combined single limit for bodily injury, death and property damage liability.
(iv) To the extent available, each policy shall be endorsed to provide that the insurer
waives all rights of subrogation against the City;
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(v) Each policy of insurance, with the exception of Workers' Compensation and
professional liability,shall be endorsed to include the City(including its former,current,and future
officers, directors, agents, and employees) as additional insureds;
(vi) Each policy, with the exception of workers' compensation and professional
liability, shall be endorsed to provide the City sixty (60) days' written notice prior to any
cancellation, termination or material change of coverage; and
(vii) The Developer shall cause each contractor to deliver to the City the policies,copies
of policy endorsements, and/or certificates of insurance evidencing the required insurance
coverage before the Commencement of Construction of the Public Improvements and within ten
(10) days before expiration of coverage, or as soon as practicable, deliver renewal policies or
certificates of insurance evidencing renewal and payment of premium. On every date of renewal
of the required insurance policies, the contractor shall cause a certificate of insurance and policy
endorsements to be issued evidencing the required insurance herein and delivered to the City. In
addition, the contractor shall within ten(10) Business Days after written request provide the City
with the certificates of insurance and policy endorsements for the insurance required herein(which
request may include copies of such policies).
Section 14.02. Waiver of Subrogation Rights. The commercial general liability, workers'
compensation, business auto and excess liability insurance required pursuant to this Agreement
shall provide for waivers of all rights of subrogation against the City.
Section 14.03. Additional Insured Status. With the exception of worker's compensation
insurance and any professional liability insurance, all insurance required pursuant to this
Agreement shall include and name the City as an additional insured using additional insured
endorsements that provide the most comprehensive coverage to the City under Texas law,
including products/completed operations.
Section 14.04. Certificates of Insurance.
Certificates of insurance and policy endorsements in a form satisfactory to City shall be
delivered to City prior to the commencement of any work or services on the Public Improvements.
All required policies shall be endorsed to provide the City with sixty(60)days advance notice of
cancellation or non-renewal of coverage. The Developer shall provide sixty (60) days written
notice of any cancellation, non-renewal or material change in coverage for any of the required
insurance in this Article.
On every date of renewal of the required insurance policies,the Developer shall cause(and
cause its contractors) to provide a certificate of insurance and policy endorsements to be issued
evidencing the required insurance herein and delivered to the City. In addition, the Developer
shall, within ten (10) Business Days after written request, provide the City with certificates of
insurance and policy endorsements for the insurance required herein (which request may include
copies of such policies). The delivery of the certificates of insurance and the policy endorsements
(including copies of such insurance policies) to the City is a condition precedent to the payment
of any amounts to the Developer by the City.
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Section 14.05. Carriers. All policies of insurance required to be obtained by the Developer
and its contractors pursuant to this Agreement shall be maintained with insurance carriers that are
satisfactory to and as reasonably approved by City, and lawfully authorized to issue insurance in
the state of Texas for the types and amounts of insurance required herein.All insurance companies
providing the required insurance shall be authorized to transact business in Texas and rated at least
"A"by AM Best or other equivalent rating service.All policies must be written on a primary basis,
non-contributory with any other insurance coverage and/or self-insurance maintained by the City.
All insurance coverage required herein shall be evidenced by a certificate of insurance and policy
endorsements submitted by the Developer's and its contractors' insurer or broker. Certificates of
insurance and policy endorsements received from any other source will be rejected.
34
Section 14.06. INDEMNIFICATION.
DEVELOPER AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY AND ITS
RESPECTIVE OFFICERS,AGENTS AND EMPLOYEES, HARMLESS AGAINST ANY AND
ALL CLAIMS, LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES
FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER
HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR
PENALTIES IS SOUGHT,SUFFERED BY ANY PERSON OR PERSONS,THAT MAY ARISE
OUT OF OR BE OCCASIONED BY DEVELOPER'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT,
GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF
THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, INVITEES,
SUBCONTRACTORS, OR SUB-SUBCONTRACTORS AND THEIR RESPECTIVE
OFFICERS,AGENTS, OR REPRESENTATIVES,OR ANY OTHER PERSONS OR ENTITIES
FOR WHICH THE CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE
OF THIS CONTRACT. THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL
NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE
CITY AND ITS OFFICERS,AGENTS,EMPLOYEES OR SEPARATE CONTRACTORS. THE
CITY DOES NOT WAIVE ANY GOVERNMENTAL IMMUNITY OR OTHER DEFENSES
AVAILABLE TO IT UNDER TEXAS OR FEDERAL LAW. THE PROVISIONS OF THIS
PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE
NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR
OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
DEVELOPER, AT ITS OWN EXPENSE, IS EXPRESSLY REQUIRED TO DEFEND
CITY AGAINST ALL SUCH CLAIMS. CITY RESERVES THE RIGHT TO PROVIDE A
PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, CITY IS UNDER NO
OBLIGATION TO DO SO. ANY SUCH ACTION BY CITY IS NOT TO BE CONSTRUED AS
A WAIVER OF DEVELOPER'S OBLIGATION TO DEFEND CITY OR AS A WAIVER OF
DEVELOPER'S OBLIGATION TO INDEMNIFY CITY PURSUANT TO THIS
AGREEMENT. DEVELOPER SHALL RETAIN DEFENSE COUNSEL WITHIN SEVEN (7)
BUSINESS DAYS OF CITY'S WRITTEN NOTICE THAT CITY IS INVOKING ITS RIGHT
TO INDEMNIFICATION UNDER THIS AGREEMENT. IF DEVELOPER FAILS TO RETAIN
COUNSEL WITHIN THE REQUIRED TIME PERIOD, CITY SHALL HAVE THE RIGHT TO
RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF AND DEVELOPER SHALL BE
LIABLE FOR ALL COSTS INCURRED BY THE CITY.
ARTICLE XV
GENERAL PROVISIONS
Section 15.01. Notices.
Any notice, communication or disbursement required to be given or made hereunder shall
be in writing and shall be given or made by facsimile or other electronic transmittal,hand delivery,
overnight courier, or by United States mail, certified or registered mail, return receipt requested,
postage prepaid, at the addresses set forth below or at such other addresses as may be specified in
35
writing by any Party hereto to the other parties hereto. Each notice which shall be mailed or
delivered in the manner described above shall be deemed sufficiently given, served, sent and
received for all purpose at such time as it is received by the addressee (with return receipt, the
delivery receipt or the affidavit of messenger being deemed conclusive evidence of such receipt)
at the following addresses:
To the City: City Manager
2401 Market Street
Baytown, TX 77520
With a copy to: Attn: City Attorney
City of Baytown
2401 Market Street
Baytown, TX 77520
To the Developer: KB Home Houston&Dallas
Attn: Ryan Haden
11314 Richmond Ave.
Houston, TX 77082
Section 15.02. Make-Whole Provision. If in any calendar year the City issues debt
obligations that would be qualified tax-exempt obligations but for the issuance or proposed
issuance of PID Bonds, the Developer shall pay to the City a fee to compensate the City for the
interest savings the City would have achieved had the debt issued by the City been qualified tax-
exempt obligations(the"PID Bond Fee"). Prior to issuance of any PID Bonds,the City's financial
advisor shall calculate the PID Bond Fee based on the issued and planned debt issuances for the
City and shall notify the Developer of the total amount due prior to the issuance of the PID Bonds.
The Developer agrees to pay the PID Bond Fee to the City within ten (10) Business Days after
receiving notice from the City of the amount of PID Bond Fee due to the City. If the City has not
forgone the ability to issue a series of obligations as qualified tax exempt obligations, the PID
Bond Fee shall be held in a segregated account of the City, and if the total amount of debt
obligations sold or entered into by the City in the calendar year in which the PID Bonds are issued
are less than the bank qualification limits (currently$10 million per calendar year), then the PID
Bond Fee shall be returned to the Developer. The City shall not be required to sell any series of
PID Bonds until the Developer has paid the estimated PID Bond Fee.
If the City is planning to issue debt obligations as qualified tax-exempt obligations prior to
the issuance of PID Bonds in any calendar year, the City may (but is not obligated to) notify the
Developer that it is planning to issue qualified tax-exempt obligations that may limit the amount
of debt that the City can issue in a calendar year. In connection with the delivery of such notice,
the City's financial advisor shall provide a calculation of the interest savings that the City would
achieve by issuing the obligations the City plans to issue in the year as qualified tax-exempt
obligations as opposed to non-qualified tax-exempt obligations. If following the receipt of such
notice the Developer asks the City to forego designating the obligations as qualified tax-exempt
obligations in order to preserve capacity for PID Bonds, the Developer shall pay to the City a fee
36
to compensate the City for the interest savings the City would have achieved had the debt issued
by the City been qualified tax-exempt obligations. The Developer agrees to pay the PID Bond Fee
to the City within ten (10) Business Days after receiving notice from the City of the amount of
PID Bond Fee due to the City. Upon receipt of the PID Bond Fee,the City agrees not to designate
the obligations planned for issuance as qualified tax-exempt obligations. Such payment is
compensation to the City for choosing to forego the designation of obligations as qualified tax-
exempt obligations, and the PID Bond Fee may be used for any lawful purpose of the City. The
City shall include language similar to this Section 15.04 in any agreement it enters into with a
developer or landowner where the issuance of public improvement district bonds is contemplated.
Section 15.03. Assignment.
(a) This Agreement shall be binding upon and inure to the benefit of the successors
and assigns of the Parties. The obligations, requirements or covenants to develop the Property,
including construction of the Public Improvements may be assigned to an Affiliate without the
prior written consent of the City. The obligations, requirements or covenants to the development
of the Property, including construction of the Public Improvements shall not be assigned to any
non-Affiliate without the prior written consent of the City Council, which consent shall not be
unreasonably withheld,conditioned or delayed if the assignee demonstrates the financial ability to
perform in the reasonable judgment of the City Council. Each assignment shall be in writing
executed by Developer and the assignee and shall obligate the assignee to be bound by this
Agreement to the extent this Agreement applies or relates to the obligations,rights,title or interests
being assigned. No assignment by Developer shall release Developer from any liability that
resulted from an act or omission by Developer that occurred prior to the effective date of the
assignment unless the City approves the release in writing. Developer shall maintain written
records of all assignments made by Developer to assignee, including a copy of each executed
assignment and the assignee's notice information as required by this Agreement,and,upon written
request from the City, any Party or assignee, shall provide a copy of such records to the requesting
person or entity, and this obligation shall survive the assigning Party's sale, assignment, transfer
or other conveyance of any interest in this Agreement or the Property. The City shall not be
required to make any representations or execute any consent with respect to an assignment to an
Affiliate and shall not be required to make any representations with respect to any assignment to
a non-Affiliate.
(b) Developer may assign any receivables or revenues due pursuant to this Agreement
or any Reimbursement Agreement to a third party without the consent of, but upon written notice
to the City. Provided, however, that notwithstanding the above, the City shall not be required to
make partial payments to more than two parties as a result of an assignment and shall not execute
any consent or other representations with respect thereto.
(c) The Developer and assignees have the right, from time to time, to collaterally
assign, pledge, grant a lien or security interest in, or otherwise encumber any of their respective
rights,title,or interest under this Agreement for the benefit of their respective lenders without the
consent of, but with prompt written notice to, the City. The collateral assignment, pledge, grant
of lien or security interest,or other encumbrance shall not,however,obligate any lender to perform
any obligations or incur any liability under this Agreement unless the lender agrees in writing to
perform such obligations or incur such liability. Provided the City has been given a copy of the
37
documents creating the lender's interest, including notice information for the lender, then that
lender shall have the right,but not the obligation, to cure any default under this Agreement within
thirty (30) days written notice to the lender, not to be unreasonably withheld. A lender is not a
party to this Agreement unless this Agreement is amended, with the consent of the lender, to add
the lender as a Party. Notwithstanding the foregoing, however, this Agreement shall continue to
bind the Property and shall survive any transfer, conveyance, or assignment occasioned by the
exercise of foreclosure or other rights by a lender,whether judicial or non judicial. Any purchaser
from or successor owner through a lender of any portion of the Property shall be bound by this
Agreement and shall not be entitled to the rights and benefits of this Agreement with respect to the
acquired portion of the Property until all defaults under this Agreement with respect to the acquired
portion of the Property have been cured. The City shall not be required to make partial payments
to more than two parties as a result of an assignment and shall not execute any consent or other
representations with respect thereto.
(d) The City shall not be required to acknowledge the receipt of any Assignment by the
Developer; however, to the extent the City does acknowledge receipt of any assignment pursuant
to this Section, such acknowledgment does not evidence the City's agreement, acceptance or
acknowledgment of the content of the assignment documents or any rights accruing thereunder; it
is solely an acknowledgment of receipt of the notice via mail, express mail or email.
(e) The City does not and shall not consent to nor participate in any third-party
financing based upon the Developer's assignment of its right to receive funds pursuant to this
Agreement or any Reimbursement Agreement.
Section 15.04. Table of Contents; Titles and Headings. The titles of the articles, and the
headings of the sections of this Agreement are solely for convenience of reference, are not a part
of this Agreement, and shall not be deemed to affect the meaning, construction,or effect of any of
its provisions.
Section 15.05. Entire Agreement; Amendment. This Agreement is the entire agreement
between the Parties with respect to the subject matter covered in this Agreement. There is no other
collateral oral or written agreement between the Parties that in any manner relates to the subject
matter of this Agreement. This Agreement may only be amended by a written agreement executed
by all Parties.
Section 15.06. Time. In computing the number of calendar days for purposes of this
Agreement, all days will be counted, including Saturdays, Sundays, and legal holidays. If the
final day of any time period(with respect to calendar days or Business Days) falls on a Saturday,
Sunday,or legal holiday(as observed by the City), then the final day will be deemed to be the next
day that is not a Saturday, Sunday, or legal holiday (as observed by the City).
Section 15.07. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, and all of which will together
constitute the same instrument.
Section 15.08. Severability; Waiver.
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If any provision of this Agreement is illegal, invalid, or unenforceable, under present or
future laws, it is the intention of the parties that the remainder of this Agreement not be affected
and, in lieu of each illegal, invalid, or unenforceable provision, a provision be added to this
Agreement which is legal, valid, and enforceable and is as similar in terms to the illegal, invalid,
or enforceable provision as is possible.
Any failure by a Party to insist upon strict performance by the other party of any material
provision of this Agreement will not be deemed a waiver or of any other provision, and such Party
may at any time thereafter insist upon strict performance of any and all of the provisions of this
Agreement.
Section 15.09. No Third-Party Beneficiaries. The City and the Developer intend that this
Agreement shall not benefit or create any right or cause of action in or on behalf of any third-party
beneficiary, or any individual or entity other than the City, the Developer or assignees of such
Parties.
Section 15.10. Notice of Assignment. Developer shall not transfer any portion of the
Property prior to the levy of Assessments, except as provided in Section 3.05. Subject to
Section 15.03 herein, the requirements set forth below shall apply in the event that the Developer
sells, assigns, transfers or otherwise conveys the Property or any part thereof and/or any of its
rights,benefits or obligations under this Agreement. Developer must provide the following:
(a) Within thirty (30) days after the effective date of any such sale, assignment,
transfer, or other conveyance, the Developer must provide written notice of same
to the City;
(b) the notice must describe the extent to which any rights or benefits under this
Agreement have been sold, assigned, transferred, or otherwise conveyed;
(c) the notice must state the name, mailing address, and telephone contact information
of the person(s) acquiring any rights or benefits as a result of any such sale,
assignment,transfer, or other conveyance;
(d) the notice must be signed by a duly authorized person representing the Developer
and a duly authorized representative of the person that will acquire any rights or
benefits as a result of the sale, assignment transfer or other conveyance.
Section 15.11. No Joint Venture. Nothing contained in this Agreement or any other
agreement between the Developer and the City is intended by the Parties to create a partnership or
joint venture between the Developer, on the one hand, and the City, on the other hand, and any
implication to the contrary is hereby expressly disavowed. It is understood and agreed that this
Agreement does not create a joint enterprise, nor does it appoint either Party as an agent of the
other for any purpose whatsoever.Neither Party shall in any way assume any of the liability of the
other for acts of the other or obligations of the other. Each Party shall be responsible for any and
all suits,demands,costs or actions proximately resulting from its own individual acts or omissions.
39
Section 15.12. Estoppel Certificates. From time to time within fifteen(15) Business Days
of a written request of the Developer or any future Developer, and upon the payment of a$100.00
fee to the City, the City Manager, or his/her designee is authorized, in his official capacity and to
his reasonable knowledge and belief, with no duty of inquiry, to execute a written estoppel
certificate in form approved by the City Attorney,identifying any obligations of a Developer under
this Agreement that are in default. No other representations in the Estoppel shall be made by the
City.
Section 15.13. Independence of Action. It is understood and agreed by and among the
Parties that in the design, construction and development of the Public Improvements and any of
the related improvements described herein, and in the Parties' satisfaction of the terms and
conditions of this Agreement, that each Party is acting independently, and the City assumes no
responsibility or liability to any third parties in connection to the Developer's obligations
hereunder.
Section 15.14. Limited Recourse. No officer, director, employee, agent, attorney or
representative of the Developer shall be deemed to be a Party to this Agreement or shall be liable
for any of the contractual obligations created hereunder. No elected official of the City and no
agent, attorney or representative of the City shall be deemed to be a Party to this Agreement or
shall be liable for any of the contractual obligations created hereunder.
Section 15.15. Exhibits. All exhibits to this Agreement are incorporated herein by
reference for all purposes wherever reference is made to the same.
Section 15.16. Survival of Covenants. Any of the representations, warranties, covenants,
and obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a
period of time following the termination of this Agreement shall survive termination.
Section 15.17. No Acceleration. All amounts due pursuant to this Agreement and any
remedies under this Agreement are not subject to acceleration.
Section 15.18. Conditions Precedent. This Agreement is expressly subject to, and the
obligations of the Parties are conditioned upon, the City levy of the Assessments and the issuance
of the PID Bonds or approval of a Reimbursement Agreement.
Section 15.19. No Reduction of Assessments. Following the issuance of each series of PID
Bonds, the Developer agrees not to take any action or actions to reduce the total amount of the
Assessments levied in payment of such PID Bonds. The Developer agrees not to take any action
or actions to reduce the total amount of such Assessments to be levied as of the effective date of
this Agreement.
Section 15.20. Anti-Boycott Verification._The Developer hereby verifies that it and its
parent company,wholly-or majority-owned subsidiaries,and other affiliates,if any,do not boycott
Israel and, to the extent this Agreement is a contract for goods or services, will not boycott Israel
during the term of this Agreement. The foregoing verification is made solely to comply with
Section 2271.002, Texas Government Code, and to the extent such Section does not contravene
applicable Federal law. As used in the foregoing verification, `boycott Israel' means refusing to
deal with, terminating business activities with, or otherwise taking any action that is intended to
40
penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with
a person or entity doing business in Israel or in an Israeli-controlled territory,but does not include
an action made for ordinary business purposes. The Developer understands `affiliate' to mean an
entity that controls, is controlled by, or is under common control with the Developer and exists to
make a profit.
Section 15.21. Iran, Sudan and Foreign Terrorist Organizations. The Developer represents
that neither it nor any of its parent company, wholly- or majority-owned subsidiaries, and other
affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and
posted on any of the following pages of such officer's internet website:
https:Hcomptroller.texas.gov/purchasing/docs/sudan-Iist.pdf, https://comptroller.texas.gov/purchasing/docs/iran-1ist.pdf, or
https://comptroller.texas.gov/purchasing/docs/fto-list.pdf. The foregoing representation is made solely to
comply with Section 2252.152, Texas Government Code, and to the extent such Section does not
contravene applicable Federal law and excludes the Developer and each of its parent company,
wholly- or majority-owned subsidiaries, and other affiliates, if any, that the United States
government has affirmatively declared to be excluded from its federal sanctions regime relating to
Sudan or Iran or any federal sanctions regime relating to a foreign terrorist organization. The
Developer understands "affiliate" to mean any entity that controls, is controlled by, or is under
common control with the Developer and exists to make a profit.
Section 15.22. Petroleum
To the extent this Agreement constitutes a contract for goods or services for which a written
verification is required under Section 2274.002 (as added by Senate Bill 13 in the 87th Texas
Legislature, Regular Session), Texas Government Code, as amended, the Developer hereby
verifies that it and its parent company,wholly-or majority-owned subsidiaries,and other affiliates,
if any, do 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 Issuer to comply with such
Section and to the extent such Section does not contravene applicable Texas or federal law. As
used in the foregoing verification, "boycott energy companies" 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. The Developer understands "affiliate" to mean an entity
that controls, is controlled by, or is under common control with the Developer within the meaning
of SEC Rule 133(f), 17 C.F.R. §230.133(f), and exists to make a profit.
Section 15.23. Firearms. To the extent this Purchase Contract constitutes a contract for
goods or services for which a written verification is required under Section 2274.002(as added by
Senate Bill 19 in the 87th Texas Legislature, Regular Session), Texas Government Code, as
amended,the Developer hereby verifies that it and its parent company,wholly-or majority-owned
subsidiaries, and other affiliates, if any, do not have a practice,policy, guidance, or directive that
discriminates against a firearm entity or firearm trade association and will not discriminate during
the term of this Agreement against a firearm entity or firearm trade association. The foregoing
41
verification is made solely to enable the Issuer to comply with such Section and to the extent such
Section does not contravene applicable Texas or federal law.As used in the foregoing verification,
`discriminate against a firearm entity or firearm trade association' (A) 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. As used in the foregoing verification, (b) `firearm entity' means a
manufacturer, distributor, wholesaler, supplier, or retailer of firearms (i.e., weapons that expel
projectiles by the action of explosive or expanding gases), firearm accessories (i.e., 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 (i.e., a loaded cartridge case, primer, bullet, or propellant powder with or without
a projectile) or a sport shooting range (as defined by Section 250.001, Texas Local Government
Code),and(c) `firearm trade association' means a person,corporation,unincorporated association,
federation,business league,or business organization that(i)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. The Developer understands "affiliate"to mean an entity
that controls, is controlled by, or is under common control with the Developer within the meaning
of SEC Rule 133(f), 17 C.F.R. §230.133(f), and exists to make a profit.
Section 15.24. Governing Law. The Agreement shall be governed by the laws of the State
of Texas without regard to any choice of law rules; and, subject to Section 13.6 herein, venue for
any action concerning this Agreement and the Reimbursement Agreement shall be in the State
District Court of Harris County, Texas. The Parties agree to submit to the personal and subject
matter jurisdiction of said court.
Section 15.25. Conflict. In the event of any conflict between this Agreement and any
Indenture authorizing the PID Bond, the Indenture controls. In the event of any conflict between
this Agreement and the Reimbursement Agreement, the Reimbursement Agreement shall control,
except that in all cases, Applicable Law shall control.
42
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
43
CITY OF BAYTOWN
By:
Name:
Title: City Manager
ATTEST:
City Clerk
[SIGNATURES CONTINUE ON NEXT PAGE]
Signature Page
DM48176046.2
RESPECTFULLY SUBMITTED,on this day of ,2022.
KB Homes Lone Star, Inc. a Texas
corporation
By:
Name: Marc A. Tindall
Its: Senior Vice President -Land
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the day of , 2022
by Marc Tindall,Senior Vice President of KB Homes Lone Star,Inc. on behalf of said entity.
Notary Public, State of Texas
Signature Page
DM-#8176046.2
EXHIBIT A
.. f vx iI •.:- T � �� .z:�.
• - Y L. f �
•••. ••.•f' -. -_. - _- _ - _ -[yy`- -L NSF%W O TITLE SURVEY
a. .A'1- OF
57.188IICRES
I�.KI,OOS 8OUI1R!F!!T)
Exhibit A
DM-#8176046.2
Error!Unknown document property name.
Revised April 14,2022
Revised February 28,2022
December 3,2021
Job No. 1750-3561
DESCRIPTION OF
57.186 ACRES
2,491,008 SQUARE FEET
Being 57.186 acres(2,491,008 square feet)of land located in the William C&Charles
Boswell Survey,Abstract 1562, Harris County,Texas, more particularly being a portion of that
certain called 63.2292 acre tract conveyed to Iglesia Cristo Viene of Baytown, Inc. by an
instrument of record in File Number 20060075104,of the Official Public Records of Real Property
of Harris County,Texas(H.C.O.P.R.R.P.),said 63.2292 acre tract being a portion of Block 19,of
Highland Farms, a subdivision of record in Volume 10, Page 47 of the Map Records of Harris
County,Texas, (H.C.M.R.),said 57.186 acres being more particularly described by metes and
bounds as follows(all bearings referenced to the Texas Coordinate System,South Central Zone,
NAD83(Epoch 2010.00));
COMMENCING for reference at a 5/8-inch iron rod with cap stamped"LJA SURVEY"set
for the southeast corner of said 63.2292 acre tract and being on the north line of that certain called
26.6977 acre tract conveyed to George Gilman by an instrument of record in File Number
G129965,H.C.O.P.R.R.P.,the southwest corner of that certain called 0.405 acre tract awarded
to Harris County for road widening purposes in File Number H790215, H.C.O.P.R.R.P., the
northwest corner of that certain called 0.185 acre tract conveyed to Harris County for road
widening purposes in File Number H560811,H.C.O.P.R.R.P.,said point lying on the west right-
of-way line of North Main Street(called 100'wide);
Thence,South 77°42'17'West,departing said west right-of-way line and with the south
line of said 63.2292 acre tract and the north line of said 26.6977 acre tract,355.64 feet to a 5/8-
inch iron rod with cap stamped"LJA SURVEY"set for the POINT OF BEGINNING of the herein
described tract;
Thence,South 77°42' 17'West,continuing along said common line,2,588.54 feet to a
1/2-inch iron pipe found for the most southerly southwest comer of said 63.2292 acre tract and
the northwest comer of said 26.6977 acre tract,said point lying on the east line of that certain
Page 1 of 4
S:1Sectors\Serve)MrojectslLJAS00111750135611LEGALS157186ac Residential M&B Revised docx
Exhibit A
DM-#8176046.2
Error!Unknown document property name.
57.186 Acres
Revised April 14,2022
Revised February 28,2022
December 3,2021
Job No.1750-3561
called 5 acre tract conveyed to Norman E.Perkins and wife Barbara Perkins by an instrument of
record in File Number E417217,H.C.O.P.R.R.P.;
Thence,North 12°15'31"West,along a west line of said 63.2292 acre tract and the east
line of said 5 acre tract,364.85 feet to a 1/2-inch iron rod found for the northeast corner of said 5
acre tract and an interior corner of said 63.2-292 acre tract;
Thence,South 76°42'17"West,along the north line of said 5 acre tract and a south line
of said 63.2292 acre tract,299.80 feet to a 1/2-inch iron pipe found marking the most westerly
southwest comer of said 63.2292 acre tract and the northwest comer of said 5 acre tract,said
point lying on the east line of that certain tract described as all of Reserve"G"of San Jacinto
Crossing conveyed to James M.Terrell by an instrument of record in File Number W006959,
H.C.O.P.R.R.P.,from which a found 1/2-inch iron rod bears South 68°31'30"East,11.15 feet;
Thence,North 121 37'34"West,along the east line of said James M.Terrell tract and the
west line of said 63.2292 acre tract, 508.37 feet to a 1-inch iron pipe found for the northwest
corner of said 63.2292 acre tract and the southwest corner of that certain called 23,44692 acre
tract conveyed to Goose Creek Junior College District,by an instrument of record in Volume 6540,
Page 374 of the Deed Records of Hams County,Texas,(H.C.D.R.),said point lying on the east
line of that certain residue of a called 7.1268 acre tract conveyed to James M. Terrell by an
instrument of record in File Number W006961,H.C.O.P.R.R.P.;
Thence, North 77'45'36"East,departing said east line and along the north line of said
63.2292 acre tract and the south line of said 23.44692 acre tract,2,949.76 feet to a 2-inch iron
pipe with cap found for the southeast corner of said 23.44692 acre tract and the southwest corner
of that certain called 3.20 acre tract conveyed to Lee College District by an instrument of record
in Volume 7007,Page 306,H.C.D.R.;
Page 2 of 4
S:\Sectors\SurveylProjects\LJA5001\1750\3561\LEGALSl57.186ac Residential M&B Revised.docx
Exhibit A
DM-#8176046.2
Error!Unknown document property name.
57.186 Acres
Revised April 14,2022
Revised February 28,2022
December 3,2021
Job No.1750-3561
Thence,North 77"08'29"East,along the south line of said 3.20 acre tract and the north
line of said 63.2292 acre tract, 97.30 feet to a point for corner, the beginning of a curve,from
which a 5/8-inch iron rod with cap stamped"LJA SURVEY"set for the northeast corner of said
63.2292 acre tract bears North 77"08'29"East,355.13 feet;
Thence,departing said common line, 15.22 feet along the arc of a non-tangent curve to
the right,having a radius of 2457.02 feet,a central angle of 00"21'18",and a chord which bears
South 02"15'12"East,15.22 feet to a 5/8-inch iron rod with cap stamped"WA SURVEY"set for
comer;
Thence,South 02"04'40"East,357.57 feet to a 5/8-inch iron rod with cap stamped"LJA
SURVEY"set for corner;
Thence,North 80"01'07"East,331.59 feet to a 5/8-inch iron rod with cap stamped"LJA
SURVEY"set for corner,the beginning of a curve;
Thence,35.82 feet along the arc of a tangent curve to the left,having a radius of 25.00
feet,a central angle of 82"05'45",and a chord which bears North 38°58'15"East,32.83 feet to
a 5/8-inch iron rod with cap stamped "LJA SURVEY" set for corner on the east line of the
aforementioned 63.2292 acre tract and the west right-of-way line of the aforementioned North
Main Street;
Thence, South 02'04'40" East, along the east line of said 63.2292 acre tract and the
west right-of-way line of said North Main Street, 131.25 feet to a 5/8-inch iron rod with cap
stamped"WA SURVEY"set for corner,the beginning of a curve;
Thence,departing said common line,42.72 feet along the arc of a curve to the left,having
a radius of 25.00 feet,a central angle of 97"54'09",and a chord which bears North 51"01'48"
West,37.71 feet to a 5/8-inch iron rod with cap stamped"LJA SURVEY"set for comer;
Page 3 of 4
S:1SwtorslSurveylProiectsU.lAS001\7750\356lUGALSl57.186ac Residential MSB Revlsed.doex
Exhibit A
DM-#8176046.2
Error!Unknown document property name.
57.186 Acres
Revised April 14,2022
Revised February 28,2022
December 3,2021
Job No.1750-3561
Thence,South 80°01'07"West,324.65 feet to a 5/8-inch iron rod with cap stamped"UA
SURVEY"set for corner;
Thence,South 02°04'40"East,426.48 feet to the POINT OF BEGINNING and containing
57.186 acres(2,491,008 square feet)of land.
q�OF ;R
vJr e�o��pF
».i..
CUMEN D. WEISHUHN 4 WA Surveying,Inc
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9 SU � o R
Page 4 of 4
S.1Sectors\Survey\Projects\UAS001\1750\3561\LEGALSl57.186ac Residential M&B Revised.docx
Exhibit A
DM-#8176046.2
Error!Unknown document property name.
EXHIBIT B
PUBLIC IMPROVEMENT PROJECTS AND COSTS
Public Improvements and their costs are estimates and final Public Improvements and their costs
shall be as set forth in the applicable Service and Assessment Plan. The Service and Assessment
Plan will also include costs of issuance for the PID Bonds.
Exhibit B
SUMMARY OF ROUGH PRELIMINARY PROBABLE COST
TO SERVE Baytown North Main St Tract with Pumped Detention
LJA Engineering,Ina .v..r
21IDfl022
Total Ph—1 Ph-2 Ph-3
Dr_aedsllon
Total Lots � 81 g4 3
Water.Sewer and Drolnaoe and Paving
VMer t 696.9000 S 312,65000 $ 255,110.00 f 119,2*W
Sangaly S 743.10000 f 332,5WO0 $ 315,900,00 S 94700D0
Storm E 1,530,640DO S W4,99000 S 646A5000 $ 79,00Go0
WS&D Nim Dents f 88,115D0 S A19500 f 34,200A0 $ 23,720DO
Pevinp S 2,219$1000 S I,I94785DO S 868,3251D E 156,2WD0
PrAng Mlsc.Items f 84,moo f 35,9WOO S 31,10000 $ 17,am00
Hurd Road Comtecdon $ 182,68000 $ $ 182,6WW $ -
TOTAL WATER,SANITARY SEWER ACID DRAINAGE&PAYING t S,634B15A0 t 2,711,029D0 S 2,333,9a0l f 419,93000
Pre Let Ont WSaO t 15,398 S ISM6 S l9,SN t $074
P4 Lot Cut Parhts t 12,5% t 15,194 t ism t 3,270
Detention
DatenUan $ 810,775.00 f 810,72500 S - S
DHentlon Use.gene $ 76L05000 S 76,05000 S - f -
22Acm Tract ClaningaOndtOhtg f 119,000.00 f I19,000DO
Stor ater PtanPStslon f SMA0000 S - f 850,DHO f -
TOTAL DEIENnOi t 1,055,775.E t I,OOS"m S 859,06gt6 f
Prt Let Cnt Detrn6aa t 9,32E t 12,07 $ 13ML25 S -
Wastewater Facilities
LM Station $ 650A00.00 $ 6A0ID00 S t -
Foncanaln f 73,55000 S 73,55000 f S -
TOTAL WA6TLWATER FACILITIES i 723AOA t 727,%Oa0 S S
t 3AM f 2"3 t t
GRAND TOTAL S 8,114,HOA0 S 4.440,34SDD t 3,133,965.o0 t 49,93a00
GRAND TOTAL PER LOI t 40081 t 54019 f 49,749 t 9,244
THIS DOCUMENT IS ISSUED
Ndw FOR INTERIM REVIEW AND
71rse Wsbatnb=donewtnbmefiondanaxtpx eMpd maryaWmtsbawonubtdyombmsforgmntitra IS NOT TO BE USED FOR
CONSTRUCTION, BIDDING.
OR PERMITTING PURPOSES
ANDREW BOWMAN
TEXAS PE.0132420
ISSUED OW
02/10/22
Exhibit B
EXHIBIT C
LANDOWNER CONSENT
CONSENT AND AGREEMENT OF LANDOWNERS
This Consent and Agreement of Landowner is issued by , as the landowner
(the "Landowner") who holds record title to all property located within The Baytown Heights
Public Improvement District(the "PID") created by the City of Baytown pursuant to a petition of
Landowner. Capitalized terms used herein and not otherwise defined shall have the meaning given
to such terms in the City's ordinance levying assessments on property within the PID, dated
, 2021, including the Service and Assessment Plan and Assessment Roll attached
thereto (the "Assessment Ordinance"). [TO BE EXECUTED PRIOR TO THE LEVY OF
ASSESSMENTS FOR EACH SERIES OF BONDS WITH EACH PID]'
Landowner hereby declare and confirm that they hold record title to all property in the PID
which are subject to the Assessment Ordinances, as set forth on Exhibit A. Further, Landowner
hereby ratifies, declares, consents to, affirms, agrees to and confirms each of the following:
1. The creation and boundaries of the PID, the boundaries of each Assessed Property,
and the Public Improvements for which the Assessments are being made, as set
forth in the Service and Assessment Plan.
2. The determinations and findings as to benefits by the City in the Assessment
Ordinance and the Service and Assessment Plan.
3. The Assessment Ordinance and the Service and Assessment Plan and Assessment
Roll.
4. The right, power and authority of the City Council to adopt the Assessment
Ordinances and the Service and Assessment Plans and Assessment Roll.
5. Each Assessment levied on each Assessed Property as shown in the Service and
Assessment Plan (including interest and Administrative Expenses as identified in
the Service and Assessment Plan and as updated from time to time as set forth in
the Service and Assessment Plan).
6. The Authorized Improvements specially benefit the Assessed Property in an
amount in excess of the Assessment levied on each Assessed Property, as such
Assessments are shown on the Assessment Roll.
7. Each Assessment is final, conclusive and binding upon such Landowners,
regardless of whether such Landowners may be required to pay Assessments under
certain circumstances pursuant to the Service and Assessment Plan.
8. The then-current owner of each Assessed Property shall pay the Assessment levied
on the Assessed Property owned by it when due and in the amount required by and
stated in the Service and Assessment Plan and the Assessment Ordinance.
Exhibit C
9. Delinquent installments of the Assessment shall incur and accrue interest,penalties,
and attorney's fees as provided in the PID Act.
10. The "Annual Installments" of the Assessments may be adjusted, decreased and
extended in accordance with the Service and Assessment Plan,and the then-current
owner of each Assessed Property shall be obligated to pay its revised amounts of
the Annual Installments, when due, and without the necessity of further action,
assessments or reassessments by the City.
11. All notices required to be provided to it under the PID Act have been received and
to the extent of any defect in such notice, Landowners hereby waive any notice
requirements and consents to all actions taken by the City with respect to the
creation of the PID and the levy of the Assessments.
12. That the resolution creating the PID, the Ordinance levying the Assessments, the
Service and Assessment Plan and a Notice of Creation of Special Assessment
District and Imposition of Special Assessment to be provided by the City, shall be
filed in the records of the County Clerk of Harris County, with copies of the
recorded documents delivered to the City promptly after receipt thereof by the
recording party, as a lien and encumbrance against the Assessed Property.
13. Each Assessed Property owned by the Landowner identified in the Service and
Assessment Plan and Assessment Roll are wholly within the boundaries of the PID.
14. There are no Parcels owned by the Landowners within the boundaries of the PID
that are not identified in the Service and Assessment Plan and the Assessment Roll.
15. Each Parcel owned by the Landowners identified in the Service and Assessment
Plan and Assessment Roll against which no Assessment has been levied was Non-
Benefited Property as of , 20 .
Originals and Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes.
[Execution page follows]
Exhibit C
IN WITNESS WHEREOF, the undersigned has caused this Agreement and Consent of
Landowner to be executed as of , 20[22].
By:
COUNTY OF HARRIS §
This instrument was acknowledged before me on the day of ,
20 by as, company on behalf of said
company.
Notary Public, State of Texas
Exhibit C
EXHIBIT D
FORM OF PAYMENT CERTIFICATE
PAYMENT CERTIFICATE NO.
Reference is made to that certain Indenture of Trust by and between the City and the Trustee dated
as of (the "Indenture") relating to the "City of Baytown, Texas, Special
Assessment Revenue Bonds, Series 20_ (The Baytown Heights Public Improvement District
Project)" (the "Bonds"). Unless otherwise defined, any capitalized terms used herein shall have
the meanings ascribed to them in the , Texas
(the "Developer") and requests payment to the Developer (or to the person designated by the
Developer) from:
the Public Improvement Account of the Project Fund
from , N.A., (the "Trustee"), in the amount of
($ ) for the reimbursement of the costs of labor, materials, fees, and/or other
general costs related to the creation, acquisition, or construction of certain Public Improvements
providing a special benefit to property within the Baytown Heights Public Improvement District.
In connection with the above referenced payment, the Developer represents and warrants to the
City as follows:
1. The undersigned is a duly authorized officer of the Developer, is qualified to execute this
Certificate for Payment Form on behalf of the Developer, and is knowledgeable as to the matters
set forth herein.
2. The itemized payment requested for the below referenced Public Improvements has not
been the subject of any prior payment request submitted for the same work to the City or, if
previously requested, no disbursement was made with respect thereto.
3. The itemized amounts listed for the Public Improvements below is a true and accurate
representation of the Public Improvements associated with the creation, acquisition, or
construction of said Public Improvements and such costs (i) are in compliance with the
Development Agreement,and(ii)are consistent with and within the cost identified for such Public
Improvements as set forth in the Service and Assessment Plan.
4. The Developer is in compliance with the terms and provisions of the Development
Agreement, the Indenture, and the Service and Assessment Plan.
5. The Developer has timely paid all ad valorem taxes and Annual Installments of Public
Assessments it owes or an entity the Developer controls owes, located in the Baytown Heights
Public Improvement District and has no-outstanding delinquencies for such Public Assessments.
Exhibit D
6. All conditions set forth in the Indenture and the Development Agreement for the payment
hereby requested have been satisfied.
7. The work with respect to Public Improvements referenced below has been completed, and
the City has inspected and accepted such Public Improvements.
8. The Developer agrees to cooperate with the City in conducting its review of the requested
payment, and agrees to provide additional information and documentation as is reasonably
necessary for the City to complete said review.
Payments requested are as follows:
Payee/Description Total Cost Public Budgeted Cost of Amount requested Amount requested
of Public Improvement Public be paid from the to be paid from the
Improvement Improvement Public Improvement Developer
Account Improvement
Account
Attached hereto are receipts, purchase orders, change orders, and similar instruments which
support and validate the above requested payments. Also attached hereto are"bills paid" affidavits
and supporting documentation in the standard form for City construction projects.
Pursuant to the Development Agreement, after receiving this payment request, the City has
inspected the Public Improvements and confirmed that said work has been completed in
accordance with approved plans and all applicable governmental laws, rules, and regulations and
has accepted such Public Improvements.
Payments requested hereunder shall be made to the Developer as directed below:
a. Payment instructions
I hereby declare that the above representations and warranties are true and correct.
By:
Name:
Title:
Exhibit D
Exhibit D
APPROVAL OF REQUEST
The City is in receipt of the attached Certificate for Payment, acknowledges the Certificate for
Payment, and finds the Certificate for Payment to be in order. After reviewing the Certificate for
Payment, the City approves the Certificate for Payment and authorizes and directs payment of the
amounts set forth below by Trustee from the Project Fund to the Developer as directed on such
Certificate for Payment. The City's approval of the Certificate for Payment shall not have the
effect of estopping or preventing the City from asserting claims under the Development
Agreement, the Reimbursement Agreement, the Indenture, the Service and Assessment Plan, or
any other agreement between the parties or that there is a defect in the Public Improvements.
Amount of Payment Amount to be Paid by Trustee from Amount to be paid by Trustee from
Certificate Request Improvement Account Developer Improvement Account
CITY OF BAYTOWN, TEXAS
By:
Name:
Title:
Date:
Exhibit D
EXHIBIT E
FORM OF CLOSING DISBURSEMENT REQUEST
The undersigned is an agent for , (the "Developer") and requests
payment from:
[the Cost of Issuance Account of the Project Fund][the Improvement Account of the Project
Fund]from ,(the"Trustee")in the amount of DOLLARS
($ ) for costs incurred in the establishment, administration, and operation of the
Baytown Heights Public Improvement District (the "District"), as follows:
Closing Costs Description Cost PID Allocated Cost
TOTAL
In connection to the above referenced payments,the Developer represents and warrants to
the City as follows:
1. The undersigned is a duly authorized officer of the Developer, is qualified to
execute this Closing Disbursement Request on behalf of the Developer, and is
knowledgeable as to the matters set forth herein.
2. The payment requested for the above referenced establishment,administration,and
operation of the District at the time of the delivery of the Bonds has not been the subject
of any prior payment request submitted to the City.
3. The amount listed for the below itemized costs is a true and accurate representation
of the Actual Costs incurred by Developer with the establishment of the District at the time
of the delivery of the Bonds, and such costs are in compliance with and within the costs as
set forth in the Service and Assessment Plan.
4. The Developer is in compliance with the terms and provisions of the Development
Agreement, the Indenture, and the Service and Assessment Plan.
5. All conditions set forth in the Indenture for the payment hereby requested have been
satisfied.
6. The Developer agrees to cooperate with the City in conducting its review of the
requested payment, and agrees to provide additional information and documentation as is
reasonably necessary for the City to complete said review.
Exhibit E
Payments requested hereunder shall be made to the Developeras directed below:
b. Payment instructions
I hereby declare that the above representations and warranties are true and correct.
By:
Name:
Title:
Date:
APPROVAL OF REQUEST
The City is in receipt of the attached Closing Disbursement Request, acknowledges the Closing
Disbursement Request, and finds the Closing Disbursement Request to be in order. After
reviewing the Closing Disbursement Request, the City approves the Closing Disbursement
Request to the extent set forth below and authorizes and directs payment by Trustee in such
amounts and from the accounts listed below, to the Developer or other person designated by the
Developer herein.
Exhibit E
Closing Costs Amount to be Paid by Trustee from Amount to be paid by Trustee from
Cost of Issuance Account Improvement Account
CITY OF BAYTOWN,TEXAS
By:
Name:
Title:
Date:
Exhibit E
EXHIBIT F
HOME OR PROPERTY BUYER DISCLOSURE PROGRAM
The Developer (as defined in the Service and Assessment Plan) for the Baytown Heights Public
Improvement District(the "PID") shall facilitate notice to prospective homebuyers in accordance
with the following minimum requirements:
1. Record notice of the PID in the appropriate land records for the Property.
2. Require homebuilders to attach the Recorded Notice of the Authorization and
Establishment of the PID and the final Assessment Roll for such Assessed Parcel (or if the
Assessment Roll is not available for such Assessed Parcel,then a schedule showing the maximum
30-year payment for such Assessed Parcel) in an addendum to each residential homebuyer's
contract on brightly colored paper.
3. Collect a copy of the addendum signed by each buyer from homebuilders and provide to
the City.
4. Require signage indicating that the Property for sale is located in a special assessment
district and require that such signage be located in conspicuous places in all model homes.
5. Prepare and provide to homebuilders an overview of the existence and effect of the PID
for those homebuilders to include in each sales packet of information that it provides to prospective
homebuyers.
6. Notify homebuilders who estimate monthly ownership costs of the requirement that they
must include special assessments in estimated Property taxes.
7. Notify Settlement Companies through the homebuilders or cause the homebuilders to
notify settlement companies that they are required to include special taxes on HUD 1 forms and
include in total estimated taxes for the purpose of setting up tax escrows.
8. Include notice of the PID in the homeowner association documents in conspicuous bold
font.
The Developer shall regularly monitor the implementation of this disclosure program and shall
take appropriate action to require these notices to be provided when one of them discovers that
any requirement is not being complied with.
Exhibit F
Exhibit F
EXHIBIT G
DEVELOPMENT STANDARDS
DIVISION 4.-RESIDENTIAL ZONES
Sec.3.11-Applicability,lots under 43,660 square feet.
Any building on a lot smaller than 43,560 square feet,with the exception of manufactured housing,or a
building containing two or more dwelling units shall comply with the masonry,architectural and site design
standards listed In this section
(a) Masonry Buildings in subdivisions platted after April 13,2013,shall have all exterior wails
constructed using masonry materials covering at least 60 percent of said walls,exclusive
of doors and windows.
(1) A combination of at least three materials shall be used,two of which shall be
masonry.
(2) Materials shall tie used consistently on the same building plane The minimum offset
to establish a new building plane is six inches
(b) Architectural.New residential dwellings shall be constructed using at least two of the
following design features to provide visual relief along the front of the residence as
depicted in figure 3-3:1)dormers;2)gables;3)recessed entries with a three-foot
minimum;4)covered front porches,5)cupolas;6)pillars or posts;7)bay windows with a
24-inch minimum projection;or 8)other equivalent design feature approved by the director
e118r2021 APPENDIX A-UNIFIED LAND DEVELOPMENT CODE I Code of Ordmances 16aytown TX I Mmicode library
s
liable Dormers Recessed Entry
x�•r r
,
ewla Coveredporch pllla vTosts
J
Ij
Bay Windom
Figure".Style Elements
Exhibit G
(1) Front facing windows shall be provided with trim or shall be recessed The windows
shall not be flush with exterior wall treatment and shall be provided with an
architectural surround at the jamb
(2) Roofs shall have a minimum pitch of 12 4 Mansard roofs shall be allowed
(c) Site design
(1) Sidewalks in conformance withS.hapter 122 of the Code of Ordinances shall be
Installed from property line to property line at the expense of the property owner in
all adjacent rights-of-way prior to the Issuance of a certificate of occupancy for a
new residential budding
(2) Entrances to attached garages shall have a 25-foot setback from the front property
line and shall not exceed 35 feet in width or occupy more than 40 percent of the total
building frontage.whichever is greater.The 25-foot setback does not apply to
attached side entry garages.
r
r �� J
Figure 3-4 Garage Setback Options
(3) Mechanical equipment shall not be located in the front yard Mechanical equipment
may be allowed in the street side yard setback if screened from view of the public
nght-of-way.
(Ord No 11.866.§2(Exh.A),2-23-12)
Sec.3.115-Residential accessory structures.
(a) For a tract of land two acres or smaller.
(1) The sum of all barns and stables shall not exceed the gross square footage of the primary
structure on the same lot.and
(2) The sum of all other residential accessory structures shall not exceed 75 percent of the
gross square footage of the primary structure on the same lot.
(b) For a tract of land larger than two acres
(1) The sum of all barns and stables may exceed the gross square footage of the primary
structure on the same lot:and
(2) The sum of all other residential accessory structures shall not exceed the gross square
footage of the primary structure on the same lot
( 4.0 ,§4,6-11-20)
Exhibit G
EXHIBIT H
OVERSIZING
CD
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n v.saa r.
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'
`E tee•.ren �_r--s--
�' 1'y »�r fa s%rl•-rase __—__ e».v.r
Exhibit H
EXHIBIT I
CONCEPT PLAN
ENTRYMONUMENT
B'SIDEWALK. ENHANCED LANDSCAPING
FOUNTAIN AT POND.TYP. 8'SIDEWALK
POCISET--PARK 8•SIDEWALK - t•,
4 YYWXJCF,'TIRON 8 S DEWALK "MERCIAL
9 PARK BENCH
TRASH RECEPTACLE
PETWASTESTATION
SOCCER GOALS -
EWUNCEOLANDSWINO
PERGOLA
FRUIT ORCHARD
S SIDEWALK
$SIDEWALK .�
'8'SIDEWALK
sue°
COMMFRCW
BAMEWLKING TRAILNEIG SIGN
TS
WALKING TRAIL 6IGN
S.
PARKBENCH
TKASN RECEPTACLE Z
_ PET WASTE'STATION
9 SIDEWALK
8'SIDEWAIIf
.1"^'�il .�� ��w� CSiDEWIµK� _.-.'_ tc+r lwwa•
+}AUNT RV-
t�
ILLUSTRATIVE MASTERPLAN
BAYVIEW HEIGHTS
K E3 HOME mnmAPRIL 25,2022
Exhibit I
DM-#8176046.2
Error!Unknown document property name.
EXHIBIT J
PHASING PLAN
„_*-bN 1 i 11 LOFS
rt;.r..v z�179 la
Exhibit J
Exhibit K
EXHIBIT L
AMENITIES
r
IWAYN'tmv IIMcrI O'S
AL WALKING TRAIL
I`
BAYVIEW HEIGHTS kb
:3f KS HOME
o'�.l::...�.��.�....e. HOME
AFRR i7,M�2�a
Exhibit L
PARK PLAN.
PARK PERSPECTIVE
== a v^a BAYVIEW HEIGHTS
kb`;
" .s"•�^�.''a.'^ 'o" KB H O M E HOME:
MWL 25.2M -..... _
Exhibit L