Ordinance No. 15,836 ORDINANCE NO. 15,836
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A REIMBURSEMENT AGREEMENT WITH CASTLEROCK
COMMUNITIES, LLC, FOR PHASE #1 BAY CREEK PUBLIC IMPROVEMENT
DISTRICT; 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 Reimbursement Agreement with Castlerock Communities, LLC, for Phase
41 Bay Creek Public Improvement District. 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 27h day of June, 2024.
YT�ty DON CAPETI , M yor
EST:
ANGELA ACK ON, City Clerk %'mow
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APPROVED A, T FORM 11JtL`'
t
SCOTT L M ND,City Attorney
Bay Creek PID Reimbursement Agt.docx
EXHIBIT "A"
BAY CREEK PUBLIC IMPROVEMENT DISTRICT
PHASE #1 REIMBURSEMENT AGREEMENT
This Bay Creek Public Improvement District Reimbursement Agreement (this "Reimbursement
Agreement") is executed by and between the City of Baytown, Texas (the "City") and Castlerock
Communities, LLC a Delaware limited liability company, (the"Developer")(individually referred
to as a"Party"and collectively as the"Parties") to be effective as of June 27, 2024. (the"Effective
Date").
RECITALS
WHEREAS, capitalized terms used in this Reimbursement Agreement shall have the
meanings given to them in the Bay Creek Public Improvement District Service and Assessment
Plan, dated June 27, 2024; and
WHEREAS, on July 22,2021, the City Council passed and approved a resolution creating
the Bay Creek Public Improvement District (the "District") covering approximately 70 acres of
land described by metes and bounds in said Resolution (the "District Property"); and
WHEREAS, the purpose of the District is to finance public improvements (the "Phase #1
Improvements") as provided by Subchapter A of Chapter 372, Texas Local Government Code, as
amended (the "PID Act") that promote the interests of the City and confer a special benefit on the
Assessed Property within the District; and
WHEREAS, the District Property is being developed in accordance with that certain"Bay
Creek Development Agreement," executed by and between the Developer, and the City effective
October 14, 2021, (the "Development Agreement"); and
WHEREAS, the Developer has begun construction of certain public improvements within
Phase #1 of District (the "Phase #1 Improvements") and the City shall approve an ordinance (the
"Assessment Ordinance") levying assessments within Phase#I of the District(the"Assessments")
and will approve a service and assessment plan for Phase #1 of the District which sets forth the
Assessments against all property within Phase #1 of the District (the "Service and Assessment
Plan" or "SAP"); and
WHEREAS, the City and the Developer desire to enter into this reimbursement agreement
(the "Reimbursement Agreement") to reflect the amount of reimbursement due to the Developer
for the costs of the Phase#1 Improvements pursuant to the approved SAP and to express the City's
intent to reimburse the Developer for certain costs of the Phase #1 Improvements; and
WHEREAS, all revenue received and collected by the City from the collection of the
Assessments and Annual Installments (excluding Delinquent Collection Costs and Administrative
Expenses) (the"Assessment Revenue") shall be deposited first for the payment of debt service on
any bonds issued by the City with the pledge of Assessment (the "PID Bonds") and second, into
an assessment fund and accounts therein, that is segregated from all other funds of the City (the
"Reimbursement Fund"); and
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WHEREAS, the Assessment Revenue deposited into the Reimbursement Fund shall be
used to reimburse Developer and its assigns for the cost of the Phase #1 Improvements advanced
in a principal amount to be set forth in the SAP, plus interest as set forth herein; and
WHEREAS, the obligations of the City to use the Assessments hereunder is authorized by
the PID Act;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
COVENANTS OF THE PARTIES SET FORTH IN THIS REIMBURSEMENT
AGREEMENT AND FOR VALUABLE CONSIDERATION THE RECEIPT AND
ADEQUACY OF WHICH ARE ACKNOWLEDGED, THE PARTIES AGREE AS
FOLLOWS:
1. The recitals in the "WHEREAS" clauses of this Reimbursement Agreement are true and
correct, create obligations of the Parties, and are incorporated as part of this
Reimbursement Agreement for all purposes.
2. The City intends to levy Assessments to finance the cost of the Phase#1 Improvements and
to reimburse the Developer for the costs of such Phase #1 Improvements incurred by
Developer prior to the levy and or to pay directly the costs of the Phase#1 Improvements.
3. Strictly subject to the terms, conditions, and requirements and solely from the revenues as
herein provided and in accordance with the SAP, the City agrees to pay the Developer and
the Developer shall be entitled to receive from the City,the amount equal to the actual costs
of the Phase#1 Improvements paid by the Developer as set forth in the SAP, in accordance
with the terms of this Reimbursement Agreement, in a principal amount not to exceed the
amount hereafter set forth in the SAP (the "Reimbursement Obligation"), plus interest
accrued, as provided in Section 2(a) below. The City hereby covenants to create,
concurrently with the execution of this Reimbursement Agreement, a separate fund to be
designated the "Reimbursement Fund" containing accounts therein for each Improvement
Area of development. The Reimbursement Obligation is payable from Assessment
Revenue to be deposited in the Reimbursement Fund as described below and in accordance
with the Development Agreement and the SAP:
a. The Reimbursement Obligation is payable solely from: (i) Assessment Revenue
received and collected by the City from Assessments deposited in an account within
the Reimbursement Fund after the payment of debt service on any outstanding PID
Bonds (ii) the net proceeds (after funding reserve funds, payment of costs of
issuance, including the costs paid or incurred by the City and City Administrative
Expenses) of one or more series of PID Bonds issued by the City to fund all or a
portion of the Reimbursement Obligation in accordance with the terms of the
Development Agreement and the SAP and secured by the Assessment Revenue; or
(iii) a combination of items (i) and (ii) immediately above. The Assessment
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Revenue shall be received, collected and deposited into the applicable account of
the Reimbursement Fund subject to the following limitations:
i. Calculation of the Assessments and the first Annual Installment for a Lot or
Parcel in the District shall begin as shall be provided in the SAP.
ii. Assessments collected for the Reimbursement Obligation listed above shall
accrue simple interest annually at the rate set forth in the SAP, such rate to
be in compliance with Subsections 372.023(e)(1) and (e)(2) of the PID Act.
Such interest shall accrue upon levy of the Assessments only for the portion
of the Assessment that is not allocated to outstanding PID Bonds. If
accrued, interest shall begin and continue on the unpaid principal amount of
the Assessments as set forth in the SAP until the earlier of(i) the expiration
of the term set forth in the SAP, or(ii) the issuance of PID Bonds to fund a
portion of the Reimbursement Obligation, as reduced by annual payments
made pursuant to (iv) below.
iii. Assessment Revenue dedicated to the payment of all or a portion of the
Reimbursement Obligation and interest thereon, shall be deposited into the
applicable account of the Reimbursement Fund after the payment of debt
service on the outstanding PID Bonds.
iv. The Developer shall receive the Unpaid Balance in annual installments as
set forth in the SAP and in Section 3 below from the applicable account of
the Reimbursement Fund, for the time period set forth in the SAP or until
PID Bonds are issued to fund such Reimbursement Obligation, and as
allowed under Section 2(a) above.
4. The Reimbursement Obligation, as set forth in the SAP, plus the interest as described
above, if accruing, are collectively, the "Unpaid Balance." The Unpaid Balance is secured
by and payable solely from Assessment Revenue received and collected for such purpose
and deposited into the applicable account of the Reimbursement Fund subject to Section
3(a)(iii), and Section 5 herein. No other City funds, revenue, taxes, or income of any kind
shall be used to pay the Unpaid Balance, even if the Unpaid Balance is not paid in full by
the term of this Agreement, as set forth herein. Payment of Assessment Revenue from the
applicable account of the Reimbursement Fund after the payment of debt service on
outstanding PID Bonds, shall be made annually to the Developer subject to the term of this
Reimbursement Agreement as set forth in Section 22. The outstanding Unpaid Balance
and the Reimbursement Obligation shall be reduced by the amount of each annual payment
to the Developer from the applicable account of the Reimbursement Fund.
5. This Reimbursement Agreement shall not, under any circumstances, give rise to or create
a charge against the general credit or taxing power of the City or a debt or other obligation
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of the City payable from any source other than Assessment Revenue received, collected
and deposited into the Reimbursement Fund. The City covenants that it will comply with
the provisions of this Reimbursement Agreement, the Development Agreement, and the
PID Act, including provisions relating to the administration of the District and the
enforcement and collection of assessments, and all other covenants provided therein.
Notwithstanding its collection efforts, if the City fails to receive all or any part of the
Assessment Revenue or does not receive an amount in excess of the annual debt service
due on the outstanding PID Bonds, and, as a result, is unable to make transfers from the
Reimbursement Fund for payments to the Developer as required under this Reimbursement
Agreement,such failure and inability shall not constitute a Failure or Event of Default(both
defined below) by the City under this Reimbursement Agreement.
6. PID Bonds may be issued to fund the cost of Phase #1 Improvement Projects as set forth
in the SAP. If Assessments are levied concurrently with the issuance of PID Bonds, such
PID Bond proceeds shall reimburse or pay directly the costs of the Phase#1 Improvements,
as set forth in an indenture. If PID Bonds are issued to fund all or a portion of the
Reimbursement Obligation after the levy of the Assessments, the net proceeds of such PID
Bonds shall be used to pay the outstanding Reimbursement Obligation, as reduced by
payments made pursuant to Section 3 herein, due to the Developer under this
Reimbursement Agreement for the costs of the Phase #1 Improvements as set forth in the
SAP. However, no PID Bonds shall be issued unless the funds necessary to complete the
Phase#1 Improvements are deposited with the net proceeds of the applicable series of PID
Bonds on the closing date of such PID Bonds, or alternately, the Developer has expended
funds (verified by the City) for construction of the Phase #1 Improvements to be financed
with the PID Bonds in an amount that is greater than the deposit that would have otherwise
been required at the time such PID Bonds are issued. This Reimbursement Agreement shall
terminate on the earlier of (i) the issuance of PID Bonds to fund the Reimbursement
Obligation as reduced by payments made pursuant to Section 3 herein, (ii) the expiration
of the Assessments as set forth in the SAP, or(iii) termination of this Agreement pursuant
to an Event of Default or termination event herein or under the Development Agreement.
Notwithstanding the foregoing, the Developer shall only be entitled to repayment of the
costs of the Phase #1 Improvements in the amounts set forth in the SAP. The Developer
represents and warrants that it will not request payment with respect to any Phase #1
Improvements that is not part of the Phase #1 Improvements identified in the SAP and it
will follow all procedures set forth in the Development Agreement with respect to
certification for payments, including for payments of the Unpaid Balance from the
Reimbursement Fund.
7. The Developer has the right to convey, transfer, assign, mortgage, pledge, or otherwise
encumber, in whole or in part without the consent of(but with written notice to) the City,
the Developer's right, title, or interest in the revenue streams identified in this
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Reimbursement Agreement including, but not limited to, any right, title, or interest of the
Developer in and to payment of the Unpaid Balance (any of the foregoing, a "Transfer,"
and the person or entity to whom the Transfer is made, a "Transferee"). Notwithstanding
the foregoing, however, no Transfer shall be effective until five (5) days after Developer's
written notice of the Transfer is received by the City, including for each Transferee the
information required by Section 25 below. The City may rely on any notice of a Transfer
received from the Developer without obligation to investigate or confirm the validity or
occurrence of such Transfer. No conveyance, transfer, assignment, mortgage, pledge or
other encumbrance shall be made by the Developer or any successor or assignee of the
Developer that results in the City being an "obligated person" within the meaning of Rule
15c2-12 of the United States Securities and Exchange Commission without the express
written consent of the City. The Developer waives all rights or claims against the City for
any such funds provided to a third party as a result of a Transfer for which the City has
received notice. The City shall not be required to make payments pursuant to this
Reimbursement Agreement to more than two parties,nor shall it be required to execute any
consent or make any representations or covenants relating to such assignment.
8. The obligations of the City under this Reimbursement Agreement are non-recourse and
payable only from the Reimbursement Fund and such obligations do not create a debt or
other obligation payable from any other City revenues, taxes, income, or property. None
of the City or any of its elected or appointed officials or any of its officers or employees
shall incur any liability hereunder to the Developer or any other party in their individual
capacities by reason of this Reimbursement Agreement or their acts or omissions under this
Reimbursement Agreement.
9. Nothing in this Reimbursement Agreement is intended to constitute a waiver by the City
of any remedy the City may otherwise have outside this Reimbursement Agreement against
the Developer, any Transferee, or any other person or entity involved in the design,
construction or installation of the Phase #1 Improvements. The obligations of Developer
hereunder shall be those as a Party hereto and not solely as an owner of property in the
District. Nothing herein shall be constructed, nor is intended, to affect the City's or
Developer's rights and duties to perform their respective obligations under other
agreements, regulations and ordinances.
10. This Reimbursement Agreement is being executed and delivered, and is intended to be
performed in the State of Texas. Except to the extent that the laws of the United States may
apply to the terms hereof, the substantive laws of the State of Texas shall govern the
validity, construction, enforcement, and interpretation of this Reimbursement Agreement.
In the event of a dispute involving this Reimbursement Agreement, exclusive venue for
such dispute shall lie in any court of competent jurisdiction in Harris County, Texas.
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11. Any notice required or contemplated by this Reimbursement Agreement shall be signed by
or on behalf of the Party giving the Notice, and shall be deemed effective as follows: (i)
when delivered by a national company such as FedEx or UPS with evidence of delivery
signed by any person at the delivery address regardless of whether such person was the
named addressee; or (ii) 72 hours after the notice was deposited with the United States
Postal Service, Certified Mail, Return Receipt Requested. Any Party may change its
address by delivering written notice of such change in accordance with this section. All
Notices given pursuant to this Section shall be addressed as follows:
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: Castlerock Communities, LLC
Attn: Kirk Breitenwischer
2401 Fountain View Dr., Suite 215
Houston, Texas 77057
12. Notwithstanding anything herein to the contrary, nothing herein shall otherwise authorize
or permit the use by the City of the Assessments contrary to the provisions of the PID Act.
13. Remedies:
a. If either Party fails to perform an obligation imposed on such Party by this
Reimbursement Agreement(a"Failure")and such Failure is not cured after written
notice and the expiration of the cure periods provided in this section, then such
Failure shall constitute an"Event of Default." Upon the occurrence of a Failure by
a non-performing Party, the other Party shall notify the non-performing Party and
all Transferees of the non-performing Party in writing specifying in reasonable
detail the nature of the Failure. The non-performing Party to whom notice of a
Failure is given shall have at least 30 days from receipt of the notice within which
to cure the Failure; however, if the Failure cannot reasonably be cured within 30
days and the non-performing Party has diligently pursued a cure within such 30-
day period and has provided written notice to the other Party that additional time is
needed, then the cure period shall be extended for an additional 30 day period so
long as the non-performing Party cures such default within 90 days. Any
Transferee shall have the same rights as the Developer to enforce the obligations of
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the City under this Reimbursement Agreement and shall also have the right,but not
the obligation, to cure any alleged Failure by the Developer within the same time
periods that are provided to the Developer. The election by a Transferee to cure a
Failure by the Developer shall constitute a cure by the Developer.
b. Notwithstanding the foregoing, the following are Events of Default under this
Agreement:
i. 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) 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.
ii. The Developer shall fail to comply in any material respect with any term,
provision or covenant of this Reimbursement Agreement (other than the
payment of money to the City), and shall not cure such failure within ninety
(90) days after written notice thereof is given by the City to the Developer;
iii. The filing by Developer of a voluntary proceeding under present or future
bankruptcy, insolvency, or other laws respecting debtors, rights;
iv. The consent by Developer to an involuntary proceeding under present or
future bankruptcy, insolvency, or other laws respecting debtor's rights;
v. 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; OR
vi. 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) days.
vii. A Developer event of default under the Development Agreement.
viii. The Developer shall breach any material covenant or default in the
performance of any material obligation hereunder.
c. If the City is in Default, the Developer's sole and exclusive remedies shall be to:
(1)seek a writ of mandamus to compel performance by the City;or(2)seek specific
enforcement of this Reimbursement Agreement
d. If the Developer is in Default, the City may pursue any legal or equitable remedy
or remedies, including, without limitation, actual damages, and termination of this
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Agreement. The City shall not terminate this Reimbursement 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
Reimbursement Agreement upon a Developer Event of Default shall not prevent
the City from suing the Developer for specific performance, 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 Reimbursement 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.
e. 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.
f. The exercise of any remedy herein conferred or reserved shall not be deemed a
waiver of any other available remedy.
14. The Developer shall assume the defense of, and indemnify and hold harmless the City's
inspector, the City employees, officials, officers, representative and agents of the City and
each of them(each an"Indemnified Party") from and against, all actions, damages, claims,
loses or expense of every type and description to which they may be subject or put, by
reason of,or resulting from the breach of any provisions of this Reimbursement Agreement
by the Developer, the Developer's nonpayment under contracts between the Developer and
its consultants, engineers, advisors, contractors, subcontractors and suppliers in the
provision of the Phase #1 Improvements constructed by Developer, or any claims by
persons employed by the Developer relating to the construction of such projects.
Notwithstanding the foregoing, no indemnification is given hereunder for any action,
damage, claim, loss or expense directly attributable to the willful misconduct or gross
negligence of any Indemnified Party. The City does not waive its defenses and
immunities, whether governmental, sovereign, official or otherwise and nothing in this
Reimbursement Agreement is intended to or shall confer any right or interest in any person
not a party hereto.
15. To the extent there is a conflict between this Reimbursement Agreement and an indenture
securing PID Bonds issued to fund the Reimbursement Obligation or the SAP, the
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indenture securing such PID Bonds or the SAP shall control as the provisions relate to the
Assessments.
16. The failure by a Party to insist upon the strict performance of any provision of this
Reimbursement Agreement by the other Party,or the failure by a Party to exercise its rights
upon a Default by the other Party shall not constitute a waiver of such Party's right to insist
and demand strict compliance by such other Party with the provisions of this
Reimbursement Agreement.
17. The City does not waive or surrender any of its governmental powers, immunities,or rights
except to the extent permitted by law and necessary to allow the Developer to enforce its
remedies under this Reimbursement Agreement.
18. Nothing in this Reimbursement Agreement, express or implied, is intended to or shall be
construed to confer upon or to give to any person or entity other than the City and the
Developer and its assigns any rights, remedies, or claims under or by reason of this
Reimbursement Agreement, and all covenants, conditions, promises, and agreements in
this Reimbursement Agreement shall be for the sole and exclusive benefit of the City and
the Developer.
19. The City represents and warrants that this Reimbursement 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) and that the individual executing this Reimbursement Agreement on behalf
of the City has been duly authorized to do so. The Developer represents and warrants that
this Reimbursement Agreement has been approved by appropriate action of the Developer,
and that the individual executing this Reimbursement Agreement on behalf of the
Developer has been duly authorized to do so. Each Party respectively acknowledges and
agrees that this Reimbursement Agreement is binding upon such Party and is enforceable
against such Party, in accordance with its terms and conditions and to the extent provided
by law.
20. This Reimbursement Agreement represents the entire agreement of the Parties and no other
agreement, statement or promise made by any Party or any employee, officer or agent of
any Party with respect to any matters covered hereby that is not in writing and signed by
all the Parties to this Agreement shall be binding. This Reimbursement Agreement shall
not be modified or amended except in writing signed by the Parties. If any provision of
this Reimbursement Agreement is determined by a court of competent jurisdiction to be
unenforceable for any reason, then: (a) such unenforceable provision shall be deleted from
this Reimbursement Agreement; and (b) the remainder of this Reimbursement Agreement
shall remain in full force and effect and shall be interpreted to give effect to the intent of
the Parties.
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21. This Reimbursement Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
22. The term of this Reimbursement Agreement is the earlier of (i) the expiration of the
Assessments as set forth in the SAP, (ii) until the Unpaid Balance is paid in full in
accordance herewith, (iii) the issuance of one or more series of PID Bonds to fund the
Reimbursement Obligation, as reduced by payments made pursuant to Section 3 herein, or
(iv) termination pursuant to an Event of Default under this Agreement or under the
Development Agreement, whichever occurs first. If a series of PID Bonds does not fully
fund the Reimbursement Obligation as set forth in the Service and Assessment Plan, the
remaining amount of the Reimbursement Obligation remains outstanding and subject to
annual payments and or an additional series of PID Bonds. If the Developer defaults
under this Reimbursement Agreement or the Development Agreement, the Development
Agreement shall not terminate with respect to the costs of the Phase#1 Improvements that
have previously been approved by the City pursuant to a Certification for Payment (as
defined in the Development Agreement) prior to the date of default.
23. Each Party shall use good faith, due diligence and reasonable care in the performance of its
respective obligations under this Reimbursement Agreement, and time shall be of the
essence in such perfonmance;however,in the event a Party is unable,due to Force Majeure,
to perform its obligations under this Reimbursement Agreement, then the obligations
affected by the Force Majeure shall be temporarily suspended. Within fifteen(15)business
days after the occurrence of a Force Majeure, the Party claiming the right to temporarily
suspend its performance, shall give Notice to all the Parties, including a detailed
explanation of the Force Majeure and a description of the action that will be taken to
remedy the Force Majeure and resume full performance at the earliest possible time. For
purposes of this Reimbursement Agreement, "Force Majeure" means any act that (i)
materially and adversely affects the affected Party's ability to perform the relevant
obligations under this Reimbursement 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) 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;(f)epidemics or pandemics that result in a governmental action that stops or delays
construction or halts, impedes or delays the operations of the City; and (g) actions or
omissions of a governmental authority (including the actions of the City in its capacity as
a governmental authority) that were not caused by, voluntarily induced or promoted by the
affected Party (including the submission of incomplete or erroneous information to the
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City), or brought about by the breach of its obligations under this Reimbursement
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: (u) changes in market condition; (v) 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; or (w) the occurrence of any manpower, material or
equipment shortages.
24. Any amounts or remedies due pursuant to this Reimbursement Agreement are not subject
to acceleration.
25. Notice of Assignment. Notwithstanding anything to the contrary in this Agreement, the
following requirements shall apply in the event that the Developer effectuates a Transfer
of its rights to the Unpaid Balance pursuant to Section 7 herein to a Transferee:
i. within 30 days after the effective date of any such Transfer, the Developer
must provide written notice of same to the City;
ii. the notice must describe the extent to which any rights or benefits under this
Agreement have been Transferred;
iii. the notice must state the name, mailing address, and telephone contact
information of the Transferee;
iv. the notice must be signed by a duly authorized person representing the
Developer.
26. Statutory Verifications. The Developer makes the following representations and
covenants pursuant to Chapters 2252, 2271, 2274, and 2276, Texas Government Code, as
heretofore amended (the "Government Code"), in entering into this Reimbursement
Agreement. As used in such verifications, "affiliate" means an entity that controls, is
controlled by, or is under common control with the Developer within the meaning of SEC
Rule 405, 17 C.F.R. § 230.405, and exists to make a profit. Liability for breach of any such
verification during the term of this Reimbursement Agreement shall survive until barred
by the applicable statute of limitations, and shall not be liquidated or otherwise limited by
any provision of this Reimbursement Agreement, notwithstanding anything in this
Reimbursement Agreement to the contrary.
Not a Sanctioned Company. 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, Government Code. The foregoing
representation 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.
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No Boycott oflsrael. 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 will
not boycott Israel during the term of this Reimbursement Agreement. As used in the
foregoing verification, "boycott Israel" has the meaning provided in Section 2271.001,
Government Code.
No Discrimination Against Firearm Entities. 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 against a firearm entity or firearm trade
association during the term of this Reimbursement Agreement. As used in the foregoing
verification, "discriminate against a firearm entity or firearm trade association" has the
meaning provided in Section 2274.001(3), Government Code.
No Boycott of Energy Companies. 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
Reimbursement Agreement. As used in the foregoing verification, "boycott energy
companies" has the meaning provided in Section 2276.001(1), Government Code.
27. Form 1295. The Developer will provide a completed and notarized Form 1295 generated
by the Texas Ethics Commission's electronic filing application in accordance with the
provisions of Section 2252.908 of the Texas Government Code and the rules promulgated
by the Texas Ethics Commission (a "Form 1295"), in connection with entry into this
Agreement. Upon receipt of the Developer's Form 1295, the City agrees to acknowledge
the Developer's Form 1295 through its electronic filing application. The Developer and
the City understand and agree that, with the exception of information identifying the City
and the contract identification number, the City is not responsible for the information
contained in the Developer's Form 1295 and the City has not verified such information.
28. The Developer agrees to either(i) file a Texas Ethics Commission Disclosure of Interested
Parties form to the City or(ii)represent in writing that it is exempt from filing of such form,
no later than the date upon which the City Council approves this Reimbursement
Agreement.
29. Choice of Law. This Agreement shall be governed by the laws of the State of Texas.
30. Out of State Issuer. This Agreement may not be assigned to an out-of-state issuer of debt
and the City shall not participate in any third-party financing relating to the Assessment
Revenues received by the Developer pursuant to this Agreement.
31. Standing Letter. If requested by the Texas Attorney General, the Developer will file a
standing letter addressing the representations made in Section 26 of this Agreement in a
form acceptable to the Texas Attorney General.
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[SIGNATURE PAGES TO FOLLOW]
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Executed by Developer and City to be effective on the Effective Date.
ATTEST: CITY OF BAYTOWN
City Secretary Mayor
Signature page to Bav Creek PID Reimbursement Agreement
IM-#10350395.2
CASTLEROCK COMMUNITIES, LLC, a Delaware limited liability company
By:
Name:
Its:
Signature page to Bav Creek PID Reimbursement Agreement
lM-~10350395.2