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Ordinance No. 12,528ORDINANCE NO. 12,528 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT WITH THE BAYTOWN REDEVELOPMENT AUTHORITY AND THE REINVESTMENT ZONE NUMBER ONE, CITY OF BAYTOWN, TEXAS, FOR THE JOHN MARTIN ROAD IMPROVEMENT PROJECT; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute and the City Clerk to attest to a Development Agreement with the Baytown Redevelopment Authority and the Reinvestment Zone Number One, City of Baytown, Texas, for the John Martin Road Improvement Project. A copy of said amendment 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 the City Council of the City of Baytown this the 24th day of April, 2014. v to f -0 DONCARLOS, APPROVED AS TO FORM: 4 CRYNACIO RAMIREZ, SR., Oty Attorney R"Karen\Ftles\City Councff 0rdinances\2014\Apn1 24%TIRMeveloperAgreement doc Exhibit "A" DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT (this "Agreement"), dated 2014, is made by and between REINVESTMENT ZONE NUMBER ONE, CITY OF BAYTOWN, TEXAS ("Baytown Zone"), a tax increment reinvestment zone created by the City of Baytown, Texas (the "City") pursuant to Chapter 311 of the Texas Tax Code, as amended, acting by and through its governing body, the Board of Directors (the "Zone Board"), BAYTOWN REDEVELOPMENT AUTHORITY ("Baytown Authority"), a local government corporation created and organized under the provisions of the Texas Transportation Corporation Act, Chapter 431, Transportation Code, and authorized and approved by the City under Resolution No. 1516 adopted on October 25, 2001, acting by and through its governing body, the Board of Directors (the "Baytown Board"), and THE CITY OF BAYTOWN, TEXAS (the "City"), a Texas home - rule city. RECITALS WHEREAS, by Ordinances No. 9197 and by Resolution No. 1516 the City Council of the City created the Baytown Zone in the City pursuant to Chapter 311 of the Texas Tax Code, as amended, and pursuant to a Preliminary Project Plan and Preliminary Reinvestment Zone Financing Plan, and appointed its Board of Directors; and WHEREAS, by Ordinance No. 9275, the City Council of the City enlarged the Baytown Zone in the City pursuant to Chapter 311 of the Texas Tax Code, as amended (collectively with Ordinance No. 9197, the "TIRZ Ordinance"); and WHEREAS, the Zone Board adopted a final Project Plan and Reinvestment Zone Financing Plan (the "Project Plan") and submitted the final Project Plan to the City Council of the City for approval; and WHEREAS, the City Council approved the final Project Plan by Ordinance No. 9290; and WHEREAS, the City authorized the creation of the Baytown Authority to aid, assist and act on behalf of the City in the performance of the City's governmental functions with respect to the common good and general welfare of Baytown and neighboring areas as described in the TIRZ Ordinance; and WHEREAS, the City, the Baytown Zone and the Baytown Authority have entered into that certain Agreement dated November 24, 2001, and approved as Ordinance No. 9271 (the "Baytown Agreement"), pursuant to which the City and the Baytown Zone contracted with the Baytown Authority to administer the Baytown Zone Rr� iva including, but not limited to, the power to engage in activities relating to the acquisition and development of land, to construct and improve infrastructure in Baytown, to enter into development agreements with Developer/ builders in Baytown, and to issue, sell or deliver its bonds, notes or other obligations in accordance with the terms of the Baytown Agreement upon the approval of the City Council of the City; and WHEREAS, the Baytown Agreement further provides that the Baytown Authority must obtain the prior approval of the City for any project approved in the Baytown Zone's Project Plan that is constructed or caused to be constructed by the Baytown Authority; and WHEREAS, the Texas Tax Code provides that the Baytown Zone may enter into agreements as the Zone Board considers necessary or convenient to implement the Project Plan and achieve its purposes; and WHEREAS, the Baytown Board and the Zone Board have determined that it is in the best interest of the Baytown Zone and the Baytown Authority to contract with the City to provide for the efficient and effective implementation of certain aspects of the Project Plan; and WHEREAS, the City desires to facilitate development in the Baytown Zone by constructing improvements to John Martin Road (the "Public Improvements") prior to the time that the Baytown Authority can issue its bonds or incur other obligations to pay the costs of the Public Improvements (as defined herein); and WHEREAS, the City is willing to act as project manager for the Public Improvements; NOW THEREFORE, AGREEMENT For and in consideration of the mutual promises, covenants, obligations, and benefits of this Agreement, the Baytown Zone, the Baytown Authority, and the City, contract and agree as follows: ARTICLE 1 GENERAL TERMS 1.1 Definitions. The terms "Agreement," "City," "Baytown Agreement," "Baytown Board," "Baytown Authority," "Baytown Zone," and "Zone Board" have the above meanings, and the following terms have the following meanings: "Act" shall mean the Tax Increment Financing Act, Chapter 311, Texas Tax Code, as amended. 474312 -2- "Authority Bonds" shall mean the Baytown Authority's tax increment revenue bonds issued in one or more series pursuant to Section 6.1(F) of this Agreement. "Available Tax Increment" shall mean funds in the Tax Increment Revenue Fund, including eligible funds provided under the interlocal agreement between the Baytown Zone, the City and Harris County. "Baytown" shall mean all of the property located within the boundaries of the Baytown Zone. "City Advance" shall mean any funds advanced for eligible improvements by the City pursuant to Section 6.1 of this Agreement and shall include any interest payable thereon as prescribed in this Agreement. "Completion" shall mean completion of construction of the Public Improvements in accordance with the Plans and Specifications. Completion shall be approved by the City and certified as to final completion by the City's engineer. "Effective Date" means the effective date of this Agreement, being the date of this Agreement written above. "Parties" or "Party" shall mean the City, the Baytown Zone, and the Baytown Authority. "Plans and Specifications" shall mean the designs, plans and specifications for the Public Improvements prepared or to be prepared by the City's engineer in accordance with the Project Plan. "Pledged Available Tax Increment" shall mean the Available Tax Increment not otherwise payable by the Authority under another Development Agreement, regardless of when such agreement is executed. "Project Costs" shall mean the costs of the Public Improvement, including, without limitation, all costs of design, engineering, materials, labor, construction, and inspection, and all payments arising under any contracts entered into by the City pursuant to this Agreement, all costs incurred in connection with obtaining governmental approvals, certificates or permits (including any building permit fees) required as a part of any contracts entered into in accordance with this Agreement and all related legal fees incurred in connection therewith. 4M12 -3- "Project Plan" means the Project Plan and Reinvestment Zone Financing Plan for Reinvestment Zone Number One, City of Baytown, as approved by the City Council on December 13, 2001, and as thereafter amended and approved by the City Council. "Public Improvements" shall have the meaning provided in Article 3 of this Agreement. "State" shall mean the State of Texas. "Tax Increment Revenue Fund" shall mean the special fund established by the Baytown Authority and funded with payments made by the City and any other participating Taxing Units, pursuant to the Baytown Agreement. "Taxing Unit" shall mean individually and collectively, the City and any other taxing units participating in the Baytown Zone. 1.2 Singular and Plural. Words used herein in the singular, where the context so permits, also include the plural and vice versa. The definitions of words in the singular herein also apply to such words when used in the plural where the context so permits and vice versa. ARTICLE 2 REPRESENTATIONS 2.1 Representation of Baytown Authority. The Baytown Authority hereby represents to the Parties that: (A) The Baytown Authority is duly authorized, created and existing in good standing under the laws of the State and is duly qualified and authorized to carry on the governmental functions and operations as contemplated by this Agreement. (B) The Baytown Authority has the power, authority and legal right to enter into and perform this Agreement and the execution, delivery and performance hereof (i) have been duly authorized, (ii) to the best of its knowledge, will not violate any applicable judgment, order, law or regulation, and (iii) do not constitute a default under, or result in the creation of, any lien, charge, encumbrance or security interest upon any assets of the Baytown Authority under any agreement or instrument to which the Baytown Authority is a party or by which the Baytown Authority or its assets may be bound or affected. (C) The Public Improvements and the Project Costs are components of or are consistent with the Project Plan. 479312 -4- (D) This Agreement has been duly authorized, executed and delivered by the Baytown Authority and, constitutes a legal, valid and binding obligation of the Baytown Authority, enforceable in accordance with its terms except to the extent that (i) the enforceability of such instruments may be limited by bankruptcy, reorganization, insolvency, moratorium or other similar laws of general application in effect from time to time relating to or affecting the enforcement of creditors' rights and (ii) certain equitable remedies including specific performance may be unavailable. (E) The execution, delivery and performance of this Agreement by the Baytown Authority does not require the consent or approval of any person which has not been obtained. (F) The Baytown Authority has an exemption from the payment of sales and use taxes pursuant to the statute under which the Baytown Authority was created. 2.2 Representation of Baytown Zone. The Baytown Zone hereby represents to the Parties that. (A) The Baytown Zone is duly authorized, created and existing in good standing under the laws of the State and is duly qualified and authorized to carry on the governmental functions and operations as contemplated by this Agreement. (B) The Baytown Zone has the power, authority and legal right to enter into and perform this Agreement and the execution, delivery and performance hereof (i) have been duly authorized, (ii) to the best of its knowledge, will not violate any applicable judgment, order, law or regulation, and (iii) do not constitute a default under, or result in the creation of, any lien, charge, encumbrance or security interest upon any assets of the Baytown Zone under any agreement or instrument to which the Baytown Zone is a party or by which the Baytown Zone or its assets may be bound or affected. (C) The Public Improvements and the Project Costs are components of or are consistent with the Project Plan. (D) This Agreement has been duly authorized, executed and delivered by the Baytown Zone and constitutes a legal, valid and binding obligation of the Baytown Zone, enforceable in accordance with its terms except to the extent that (i) the enforceability of such instruments may be limited by bankruptcy, reorganization, insolvency, moratorium or other similar laws of general application in effect from time to time relating to or affecting the enforcement of creditors' rights and (ii) certain equitable remedies including specific performance may be unavailable. 479312 -5- (E) The execution, delivery and performance of this Agreement by the Baytown Zone does not require the consent or approval of any person which has not been obtained. 2.3 Representation of the City. The City hereby represents to the Parties that: (A) The City is a Texas home -rule City duly incorporated under the laws of the State and is duly qualified and authorized to carry on the governmental functions and operations as contemplated by this Agreement. (B) The City has the power, authority and legal right to enter into and perform this Agreement and the execution, delivery and performance hereof (i) have been duly authorized, (ii) to the best of its knowledge, will not violate any applicable judgment, order, law or regulation, and (iii) do not constitute a default under, or result in the creation of, any lien, charge, encumbrance or security interest upon any assets of the City under any agreement or instrument to which the City is a party or by which the City or its assets may be bound or affected. (C) This Agreement has been duly authorized, executed and delivered by the City and, constitutes a legal, valid and binding obligation of the City, enforceable in accordance with its terms except to the extent that (i) the enforceability of such instruments may be limited by bankruptcy, reorganization, insolvency, moratorium or other similar laws of general application in effect from time to time relating to or affecting the enforcement of creditors' rights and (ii) certain equitable remedies including specific performance may be unavailable. (D) The execution, delivery and performance of this Agreement by the City does not require the consent or approval of any person which has not been obtained. (E) The City has an exemption from the payment of sales and use taxes pursuant to state law. 474312 -6- ARTICLE 3 THE PUBLIC IMPROVEMENTS 3.1 Public Improvements. The Public Improvements shall be design, construction and installation of improvements to John Martin Road from Interstate 10 to Hunt Road, and related appurtenances to facilitate development within the Baytown Zone, such infrastructure being more particularly described in the Plans and Specifications. 3.2 Project Costs. The estimated Project Costs of the Public Improvements are $2,500,000. The Public Improvements will be developed pursuant to the Plans and Specifications as soon as practicable following the effective date of this Agreement. The Project Costs may be modified with written approval of the Parties. 3.3 Obligation. The Public Improvements shall be designed, acquired, constructed and implemented in accordance with the Plans and Specifications. ARTICLE 4 DESIGN AND CONSTRUCTION 4.1 Design of the Public Improvements. The City shall prepare or cause to be prepared the Plans and Specifications for the Public Improvements. 4.2 Construction Manager. The City agrees to cause to be designed and constructed the Public Improvements and to provide and furnish, or cause to be provided and furnished, all materials and services as and when required in connection with the construction of the Public Improvements. The City will obtain all necessary permits and approvals from all other governmental officials and agencies having jurisdiction, provide supervision of all phases of construction of the Public Improvements, provide periodic reports as requested and required by the Baytown Authority of such construction to the Baytown Authority, and cause the construction to be performed in accordance with the Plans and Specifications. 4.3 Accounting Upon Completion. Within 90 days after the final completion of the construction of the Public Improvements and acceptance of the same by the City Council of the City of Baytown, the City shall provide the Parties with a final cost summary of all costs associated with the Public Improvements. 4.4 Cooperation. The Parties agree that they will cooperate with each other and provide all necessary information to the Baytown Authority and its consultants in order to assist the Baytown Authority in complying with the Baytown Agreement, 479312 -7- including, without limitation, the completion of the audit and construction audit required therein. ARTICLE 5 DUTIES AND RESPONSIBILITIES OF THE BAYTOWN AUTHORITY 5.1 Baytown Authority Contributions. The Baytown Authority shall pay or reimburse to the City the Project Costs in the amount of the actual costs of the Public Improvements as more particularly described in and as provided by Articles 3 and 4. The total, actual Project Costs of the Public Improvements, for which the Baytown Authority shall be responsible under the terms of this Agreement, is estimated in Section 3.2. Attached hereto as Exhibit A is a description of the engineering estimates of the Public Improvements. The Project Costs shall be financed and funded in accordance with Article 6 hereof. In the event a portion of the Public Improvements is determined to be ineligible under the Act, the Project Costs shall be reduced by the amount of such ineligible Public Improvements. If the Baytown Authority has already repaid the City for such ineligible Public Improvements in accordance with this Agreement, the Parties agree that the City shall reimburse the Baytown Authority for such repayment within 30 days of receipt of an invoice from the Baytown Authority and all such sums shall bear interest at the rate established in section 6.1(D) from the date past due until the date of such reimbursement. Should the City fail to timely pay such amount, the Baytown Authority may, in its sole discretion, withhold the amount due, including accrued interest, from future payments. 5.2 Project Costs. The Baytown Authority shall reimburse the entire Project Costs in accordance with this Agreement, up to the amount of the City Advance. ARTICLE 6 PUBLIC IMPROVEMENTS FINANCING AND FUNDING 6.1 City Advance. (A) After completion of the Public Improvements, the Baytown Authority, at its expense, shall hire a certified public accountant to calculate the amount due the City and shall prepare and submit a report to the Baytown Board and send a copy to the City Manager. Interest (as defined in Subsection 6.1(D)) on the City Advance made pursuant to this Subsection shall accrue from the date of payment of the applicable Project Costs until two years after the completion of the Public Improvements; provided that, in any event, interest shall accrue for no more than three and one-half years. At such time as funds are available to pay all or any portion of the City Advance made hereunder, the Baytown Authority, at its expense, shall hire a certified public accountant to calculate the amount due the City and shall prepare and submit a report to the Baytown Board and send a copy to the City Manager certifying 479312 -8- (1) the amount due the City for the City Advance being repaid with interest calculated thereon as specified herein and (2) that funds are available to make such payment. Upon receipt of such report, the Baytown Board shall promptly authorize and make payment to the City. (B) If, upon Completion of the Public Improvements, as described in Section 4.3 of this Agreement, the Baytown Authority does not have sufficient funds to reimburse to the City the unpaid balance of the Project Costs, the City shall be deemed to have advanced to the Baytown Authority an amount equal to the difference between (i) the amount of the Project Costs which has been previously paid by the Baytown Authority to the City and (ii) the final cost of the Public Improvements as evidenced by documentation approved by the Baytown Board in accordance with Section 4.3. (C) The Baytown Authority shall begin repaying the City Advance, and shall continue such repayment until repaid in full, on the earliest date that funds are available from any of the following sources: (1) proceeds from the sale of applicable Baytown Authority Bonds; or (2) the Pledged Available Tax Increment Fund. (D) Interest on the City Advance shall accrue at the prime rate of JPMorgan Chase Bank, National Association. Interest shall be calculated on the basis of a year of 360 days and the actual days elapsed (including the first day but excluding the last day) occurring in the period for which such interest is payable, unless such calculation would result in a usurious rate, in which case interest shall be calculated on the per annum basis of a year of 365 or 366 days, as applicable, and the actual days elapsed (including the first day but excluding the last day). In no case shall the interest rate exceed one percent per month. (E) The Baytown Authority's obligation to pay a City Advance is limited to the City's Pledged Available Tax Increment. The rights of the City in and to its Pledged Available Tax Increment granted herein are subject only to (i) the rights of any holders of bonds, notes or other obligations that have been heretofore or are hereafter issued by the City or any other participating taxing unit that are payable from and secured by a general levy of ad valorem taxes throughout the taxing jurisdiction of the City or any other participating taxing unit, (ii) the rights of any of the holders of bonds and notes that are hereafter issued or incurred by the Baytown Authority and which are secured by a pledge of the Pledged Available Tax Increment Fund the proceeds of which are used to fully pay the Project Costs, including all City Advance and accrued interest thereon as set forth in this Agreement, and (iii) the rights of any of the holders of notes that are hereafter issued or incurred by the Baytown Authority, 479312 -9- which are secured by a pledge, all or a part, of the Pledged Available Tax Increment Fund, the proceeds of which are used solely to fund the annual operating and administration budget of the Baytown Authority approved by the Baytown Board and the City Council of the City. Except in the event that sufficient tax increment increase does not occur within the term of the Baytown Zone to generate sufficient revenue to repay the City Advance, it shall be the obligation of the Baytown Authority to repay the City Advance and accrued interest thereon as set forth in this Agreement from the City's Pledged Available Tax Increment until such time as the City Advance and accrued interest thereof incurred pursuant to this Agreement, have been fully repaid or provision for payment thereon to the City shall have been made in accordance with their terms. The City Advance constitutes a special obligation of the Baytown Authority payable solely from the Pledged Available Tax Increment as and to the extent provided in this Agreement. The City Advance does not give rise to a charge against the general credit or taxing powers of the Baytown Authority, the Baytown Zone, the City, Harris County, or any other Taxing Unit and is not payable except as provided in this Agreement. The City, its successors and assigns, shall not have the right to demand payment thereof out of any funds of the Baytown Authority other than the Pledged Available Tax Increment or sources described in Section 6.1(C). (F) The Baytown Authority will evaluate and consider bond issues to reimburse the City upon the following circumstances: 1) Projected incremental revenue generates 1.25 times coverage for the bonds over projected annual debt service; 2) Projected incremental revenue will be calculated by multiplying estimated or certified incremental value from the appraisal district by the participant(s) tax rate(s) divided by 100 times one minus a reasonable historical tax collection factor times one minus the City set aside percentage; 3) A reserve fund equal to maximum annual debt service must be funded from the bond proceeds; 4) Adequate cash or capitalized interest must be set aside to assure payment of the bonds through the date of the next increment payment; or 5) The minimum bond size will be that size that after funding the Reserve Fund, any capitalized interest and any costs of issuance will allow for a reimbursement to developers and the City when acting in such capacity of at least $1.5 million, plus developer interest. (G) The Baytown Authority shall not issue obligations in accordance with this Article unless the resulting debt service requirements on all Baytown Zone obligations may be paid in full when due from all money then on deposit in or thereafter required to be deposited to the Tax Increment Revenue Fund during the term of such Baytown Zone obligations, assuming that (a) the rates at which property taxes 4M12 -10- are levied by all taxing units required to make deposits to the Tax Increment Revenue Fund do not change from the rates at which they most recently levied property taxes, (b) the assessed value of taxable property (net of exemptions) within the Baytown Zone does not change from the amount then most recently estimated or certified by the Harris County Appraisal District, (c) all amounts deposited (or required to be deposited) to the Tax Increment Revenue Fund bear interest at the City's investment rate until expended, (d) proceeds of such obligations are deposited to and set aside as capitalized interest in the amount approved by the City Manager, and (e) the Tax Increment Revenue Fund is expended in each year to pay administrative expenses of the Baytown Zone in an amount equal to the product of (i) the total amount of such expenses budgeted in the Baytown Zone's most recent operating budget and (ii) a fraction, the numerator of which is the current Pledged Available Tax Increment and the denominator of which is the total current Tax Increment. (H) The Baytown Authority shall provide to the City, upon the written request of the City, all information in its possession relevant to the computation of the funds for payment of the Project Costs under this Section. (I) The Baytown Zone and the Baytown Authority shall endeavor to cause each Taxing Unit to collect all ad valorem taxes due on property located within the Baytown Zone and shall endeavor to cause such Taxing Units to deposit all tax increments due with the City for transfer to the Tax Increment Revenue Fund pursuant to the Baytown Agreement. ARTICLE 7 [RESERVED] ARTICLE 8 DEFAULT If a Party does not perform its obligations hereunder in compliance with this Agreement in all material respects, in addition to the other rights given the City under this Agreement, the other Parties may enforce specific performance of this Agreement for any such default if such default is not cured or is not commenced and diligently pursued within 90 days after receipt by the non-performing Party of a written notice detailing the event of default. Failure of a project to generate sufficient tax increment increase to repay City Advance is not a default on the part of the Baytown Authority or the Baytown Zone. ARTICLE 9 GENERAL 4M12 -11- 9.1 Inspections, Audits. The City shall allow the other Parties access to documents and records in the City's possession, custody or control that the other Parties deem necessary to assist them in determining the City' compliance with this Agreement. 9.2 City Operations and Employees. No personnel supplied or used by the City in the performance of this Agreement shall be deemed employees, agents or contractors of the other Parties for any purpose whatsoever. The City shall be solely responsible for the compensation of all such personnel, for withholding of income, social security and other payroll taxes and for the coverage of all workers' compensation benefits. Under no circumstance shall the other Parties be deemed responsible for compensation of the above. 9.3 Personal Liability of Public Officials. To the extent not limited by State law, no director, officer, employee or agent of the City, the Baytown Zone or the Baytown Authority shall be personally responsible for any liability arising under or growing out of this Agreement. 9.4 Notices. Any notice sent under this Agreement (except as otherwise expressly required) shall be written and mailed via certified mail, return receipt requested, or sent by electronic or facsimile transmission confirmed by mailing written confirmation via certified mail, return receipt requested at substantially the same time as such electronic or facsimile transmission, or personally delivered to an officer of the receiving party at the following addresses: CITY City Manager City of Baytown P. O. Box 424 Baytown, Texas 77522-0424 with a copy to: City Attorney City of Baytown P. O. Box 424 Baytown, Texas 77522-0424 4MI2 -12 - BAYTOWN ZONE Reinvestment Zone Number One, City of Baytown, c/o Hawes Hill Calderon L.L.C. 9610 Long Point Road, Suite 150 Houston, Texas 77055 Attn: David Hawes BAYTOWN AUTHORITY Baytown Redevelopment Authority c/o Hawes Hill Calderon L.L.P. 9610 Long Point Road, Suite 150 Houston, Texas 77055 Attn: David Hawes Each Party may change its address by written notice in accordance with this Section. Any communication addressed and mailed in accordance with this Section shall be deemed to be given when so mailed, any notice so sent by electronic or facsimile transmission shall be deemed to be given when receipt of such transmission is acknowledged, and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by, the other Parties, as the case may be. 9.5 Amendments and Waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing and is signed by the Parties. No course of dealing on the part of the Parties, nor any failure or delay by the Parties with respect to exercising any right, power or privilege of the Parties under this Agreement shall operate as a waiver thereof, except as otherwise provided in this Section. 9.6 Successors and Assigns. All covenants and agreements contained by or on behalf of the Baytown Authority or the Baytown Zone in this Agreement shall bind their successors and assigns and shall inure to the benefit of the City and their successors and assigns. Except as provided above, this Agreement may not be assigned without the written permission of the other Parties. 9.7 Exhibits; Titles of Articles, Sections and Subsections. The exhibits attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein, except that in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail. All titles or headings are only for the convenience of the parties and shall not be construed to have any effect or meaning as to the agreement between the parties hereto. Any reference herein to a Section or Subsection shall be considered a reference to such Section or Subsection of this 4M12 -13- Agreement unless otherwise stated. Any reference herein to an exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise stated. 9.8 Construction. This Agreement is a contract made under and shall be construed in accordance with and governed by the laws of the United States of America and the State of Texas. 9.9 Venue. All parties hereby irrevocably agree that any legal proceeding arising out of or in connection with this Agreement shall only be brought in the District Courts of Harris County, Texas or in the United States District Court for the Southern District of Texas, in Houston, Texas. 9.10 Severability. All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 9.11 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Parties hereto only. 9.12 No Partnership. Nothing herein contained shall be construed or held to make the Parties hereto partners in the conduct of any business. 9.13 Entire Agreement. This written agreement represents the final agreement between the parties, unless later amended in writing and signed by the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. 9.14 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 9.15 Non -Waiver. Failure of either party hereto to insist on the strict performance of any of the agreements contained herein or to exercise any rights or remedies accruing hereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder or to exercise any right or remedy occurring as a result of any future default or failure of performance. 9.16 Multiple Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 4M12 -14- 9.17 Term. This Agreement shall be in force and effect from the Effective Date for a term expiring on the later of (i) December 31 in the year following Completion of the Public Improvements, as described in Section 4.3 of this Agreement, or (ii) the date the City Advance has been repaid in full. 9.18 Approval by the Parties. Whenever this Agreement requires or permits approval or consent to be hereafter given by any of the parties, the parties agree that such approval or consent shall not be unreasonably withheld or delayed. 9.19 Additional Actions. The parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications as may be necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. [The remainder of this page is intentionally left blank] 47%12 -15- IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of the Effective Date. CITY OF BAYTOWN, TEXAS By:, Mayor ATTEST City Clerk APPROVED AS TO FORM By: Name: Title: 4M12 -16- REINVE TMENT ZO NUMBER ONE, CITY OF BAYTOWN By: Name: t t n Title: L a t, K By: czL / J- 4L� r ■ BAYTO EDEVE ENT AUTHORITY By: Name: Title: ATTEST: 479.112 -17- EXHIBIT A The Public Improvements An extension of John Martin Road from Interstate 10 to Hunt Road, including the Hunt Road intersection, and related appurtenances. Estimated Reimbursable Costs: $2,500,000 4M12 -18-