Ordinance No. 12,585ORDINANCE NO. 12,585
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO THE ESROW AGREEMENT AND THE FIRST
AMENDMENT TO THE CHAPTER 380 ECONOMIC DEVELOPMENT
AGREEMENT WITH KSTX BAYTOWN, LLC; AUTHORIZING PAYMENT BY
THE CITY OF BAYTOWN AS AUTHORIZED IN SAID AGREEMENT; MAKING
OTHER PROVISIONS RELATED THERETO; 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 hereby authorizes and directs the
City Manager to execute and the City Clerk to attest to the First Amendment to the Chapter 380
Economic Development Agreement with KSTX Baytown, LLC. A copy of the agreement is attached
hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown hereby authorizes and directs the
City Manager to execute and the City Clerk to attest to the Escrow Agreement with KSTX Baytown, LLC
and Alamo Title Company. A copy of the agreement is attached hereto, marked Exhibit "B," and made a
part hereof for all intents and purposes.
Section 3: That the City Council of the City of Baytown authorizes payment in accordance
with the agreement authorized in Section 1 hereinabove.
Section 4: This ordinance shall take effect
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the
Baytown this the 24"' day of July, 2014.
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., 0 Attorney
and after its passage by the
vbte of the City Council of the City of
H. DONCARLOS,
RaKarenlFileslCity CouncillOrdinances\2014Wpril 10\ Kroger380EconomieDevelopmentAgreementOrdinance .doc
Exhibit "A"
FIRST AMENDMENT
TO THE
CHAPTER 380 ECONOMIC DEVELOPMENT AGREEMENT
STATE OF TEXAS
COUNTY OF HARRIS
This First Amendment ( "Amendment ") to that certain "Economic Development
Agreement" dated , 2014, by and between the City of Baytown, a Texas
home -rule municipal corporation ( "CITY" ), and KSTX Baytown, LLC, a Texas limited liability
company qualified to do business in Texas (the "Developer "), (all collectively referred to as the
"Parties ") is entered into on this day of , 2014 (the "Effective Date ").
WHEREAS, CITY and Developer entered into the Economic Development Agreement
(the "Agreement ") on , 2014, in order to set out the terms of an economic
development program to stimulate business and commercial activity in CITY; and
WHEREAS, the Parties agree that certain terms of the Agreement should be amended to
detail the allowable signage for the Property and to provide for the construction of Santavy Road
and related improvements; and
WHEREAS, the terms of the Agreement shall remain in full force and effect except as
specifically altered by the terms of this Amendment;
NOW THEREFORE, for and in consideration of the promises and the mutual agreements
set forth herein, the Parties hereby agree to amend the Agreement as follows:
ARTICLE I
AMENDMENTS
Section 1. Article III is hereby amended to add a new section to be numbered and
entitled Section 3.021 " Signage," which section shall read as follows:
3.021. Ste. The Developer or subsequent tenant or owner shall
acquire permits from the City of Baytown pursuant to Chapter 118 for the Code of
Ordinances, Baytown, Texas, for the sign structures more particularly detailed in
Exhibit "C," which includes Exhibits "C -1," "C -2" and "C -3" and is attached
hereto and incorporated herein for all intents and purposes. It is agreed that
nothing contained in Chapter 118 of the Code of Ordinances, Baytown, Texas,
shall be construed so as to prohibit the sign structures referenced in Exhibit "C"
from being erected on the Property, including the signs' classification, type,
overall area and the pylon sign, monument sign and fuel center sign depicted on
Exhibits "C -1," "C -2" and "C -3 "; provided, however, spectacular signs are
First Amendment. Page 1
expressly prohibited. In addition to the two (2) pylon signs and fuel sign show on
Exhibit C, each outpad shown on Exhibit C shall be permitted a monument sign in
accordance with Exhibit "C -2" and Kroger shall be permitted an additional
monument sign along Santavy Street in accordance with Exhibit 11C -2." The
Parties further agree in exchange for such allowance, no other sign structures
other than "directional signs" and "wall signs" shall be permitted on the Property
without City consent. The Developer agrees that it shall bind all subsequent
tenant(s) and owner(s) to this section by including it in a restrictive covenant,
which shall run with the land and which shall not be subject to change without the
express written consent of the City. The Developer agrees to add the City as a
third party beneficiary to the restrictive covenants for the sole purpose of
enforcing the signage restrictions in this section. This section shall not expire and
shall remain in full force and effect after the expiration or termination of this
agreement.
Section 2. Article III is hereby amended to add a new section to be numbered and
entitled Section 3.022 "Cost- Share," which section shall read as follows:
3.022 Cost - Share.
a. Generally. Subject to and upon the terms, provisions and conditions hereinafter
set forth, the Parties hereto agree that at the sole cost of the Developer, (i) the
Developer will design and the City will construct Santavy Road, a traffic signal
for the Project, and a deceleration lane off Garth Road to access the Project site
(the "City Improvements ") and (ii) the Developer will design and construct the
public and private water, sanitary sewer and storm sewer lines as well as the
shared privately maintained detention pond, which improvements as more
particularly depicted in Exhibit "D," which is attached hereto and incorporated
herein for all intents and purposes (the "Developer Improvements "). Both the
City Improvements and the Developer Improvements will be designed and
constructed to meet all City standards and code requirements. The plans and
specifications for the construction of the City Improvements and the Developer
Improvements shall be submitted to the City by the Developer for the City's
approval, and will be subject to approval of the City prior to the award of any
construction contract. The Developer agrees that should the City, based upon the
plans and specification, require additional rights -of -way or easements to be
dedicated to the City and /or the public, the Developer shall dedicate the same to
the City via a separate recorded document or a replat of the Project site. The
Parties expressly understand and agree that the City shall not be obligated to
construct the City Improvements until the Developer has substantially completed
detention pond, storm water conveyance system, and the Developer
Improvements located within the deceleration lane right -of -way of Garth Road
and the right -of -way of Santavy Road, as certified by the Developer's project
engineer. This portion of the Developer Improvements shall be considered
substantially complete when the City may safely commence the City
Improvements without interference from Developer's remaining work to complete
the Developer Improvements.
First Amendment, Page 2
Escrow Funds.
1. Deposit. On or before August 7, 2014, the Developer shall deposit with
Alamo Title Company, located at 1800 Bering, Suite 150, Houston, Texas
77057 (the "Escrow Agent ") cash in the amount of SEVEN HUNDRED
NINE THOUSAND NINE HUNDRED SIXTY -FIVE AND N01100
DOLLARS ($709,965.00) (the "Escrow Funds ") for the costs of the City
Improvements. The Parties understand and agree that this amount is
subject to adjustment after bid prices have been received and thereafter if
the cost of the City Improvements exceeds such amount. If the bids for
the City Improvements or if the actual cost of the City Improvements are
greater than the Escrow Funds deposited with the Escrow Agent, the
Developer shall be required to render additional funds so that the total
Escrow Funds equals the amount of the bid or the actual costs, whichever
is applicable. The Parties understand and agree that the City has no funds
for the City Improvements and such improvements will be paid solely by
the Developer through the Escrow Agent as provided for herein.
2. Title to Improvements. The legal title to the City Improvements shall at
all times be vested in the City; and the Developer shall have no claim
thereto. Developer shall have no right or privilege to remove or interfere
with any part or portion of the City Improvements during or after
construction. The legal title to those Developer Improvements, except for
storm sewer improvements, located within easements dedicated to the City
and /or public via a plat approved by the City's Planning and Zoning
Commission shall be vested in the City upon acceptance of the same; and,
after the City's acceptance, the Developer shall have no claim thereto. It is
expressly understood and agreed by the Parties that all detention and storm
sewer lines shall at all times remain vested in the Developer and
Developer shall be responsible for the repair and maintenance of the same.
Once the Developer Improvements (other than storm sewer) in the
easements dedicated to the City and/or the public are approved and
accepted by the City, the Developer shall have no right or privilege to
remove or interfere with any part or portion thereof.
3. Sole Source of Funding. The Parties and the City understand and agree
that the City Improvements shall be funded solely by the Developer. As
payments become due to the City's contractor constructing the City
Improvements, the City shall deliver written notice to the Developer and
to Escrow Agent at the address specified in Section 5.10 and subsection
b.1 of this section, which notice shall include a copy of a pay application
approved by the City for the work performed in accordance with the City's
contract with its contractor. Within ten (10) calendar days of receipt of
such pay application, the Escrow Agent shall pay the Escrow Funds in the
amount of the pay application to the City. Should the cost of the City
Improvements exceed the amount of the Escrow Funds, the Developer
First Amendment, Page 3
shall render additional monies to the Escrow Agent so that there is at all
times a sufficient balance to pay the City for the City Improvements.
Failure to make payments within the ten -day period specified hereinabove
shall result in interest being assessed against such late payment at the rate
specified in Section 2251.025 of the Texas Government Code and in the
City being able to pursue all appropriate remedies against the Developer
including, but not limited to, the termination of the Agreement.
C. Construction. After completion of the Developer's Improvements and acceptance
of the public portion of the same by the City, the City shall advertise for bids for
the construction of the City Improvements in accordance with the plans and
specifications approved by the City for such improvements. After the Developer
has deposited the required Escrow Funds with the Escrow Agent and made any
supplemental payments to increase the Escrow Funds based upon the bids
received by the City as required herein, the City will award the construction of the
City Improvements to the lowest responsible bidder and shall pay from the
Escrow Funds all costs and expenses of construction of the City Improvements,
including, not by way of limitation, the costs of all materials, labor and electricity
used in connection with such construction and all license, permit or inspection
fees that may be charged in connection with such work. The City's contract
documents will require that its contractor construct the Project in accordance with
the plans and specifications and continue such construction efforts thereafter in a
diligent manner until the Project is completed and accepted by the City.
d. Status Updates. Upon request, the City shall provide an update on the status of
the City Improvements to the Developer.
e. Escrow Agreement. Concurrently, with the execution of this Agreement, the
Developer and the City have entered into an Escrow Agreement with the Escrow
Agent setting forth the rights of the parties to receive the Escrow Funds consistent
with the terms hereof.
f. Platting. It is agreed that nothing contained in Chapter 126 of the Code of
Ordinances, Baytown, Texas, shall be construed so as to prohibit the Developer
from proceeding with final plat approval or from selling or offering for sale prior
to the required infrastructure, which is addressed herein, being constructed.
g. Building Permits. The Parties agree that no building permits shall be issued until
the City Improvements and the Developer Improvements have been completed
and all public improvements have been accepted by the City.
Section 3. Section 5.18 is hereby amended to read as follows:
5.18 Exhibits. The following Exhibits "A," `B," "C," "C -1," 64C -2," "C -3," and
"D" are attached and incorporated by reference for all purposes.
First Amendment, Page 4
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 1. Recitals. The recitals set forth above are declared true and correct and are
hereby incorporated as part of this Amendment.
Section 2. Definitions. Unless a different meaning clearly appears from the context,
words and phrases as used in this Amendment shall have the same meanings as in the
Agreement.
Section 3. Entire Agreement. The provisions of this Amendment and the Agreement
should be read together and construed as one agreement provided that, in the event of any
conflict or inconsistency between the provisions of this Amendment and the provisions of the
Agreement, the provisions of this Amendment shall control.
Section 4. Interpretation. This Amendment has been jointly negotiated by the parties
hereunder and shall not be construed against a party hereunder because that party may have
assumed primary responsibility for the drafting of this Amendment
Section 5. Captions. Captions contained in the Agreement and Amendment are for
reference only and, therefore, have no effect in construing the documents. The captions are not
restrictive of the subject matter of any section.
Section 6. No Waiver. By this Amendment, the City does not consent to litigation or
suit, and the City hereby expressly revokes any consent to litigation that it may have granted by
the terms of this Amendment, the Agreement or any other contract or agreement or addenda, any
charter, or applicable state law. Nothing contained in this Amendment or in the Agreement shall
be construed in any way to limit or to waive the City's sovereign immunity.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple
copies, each of which shall be deemed to be an original, but all of which shall constitute but one
and the same amendment, this day of July, 2014, the date of execution by the City
Manager.
CITY:
City of Baytown
LN
First Amendment, Page 5
ROBERT D. LEIPER, City Manager
ATTEST:
By:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
By:
IGNACIO RAMIREZ, SR., City Attorney
KSTX Baytown LLC, a Texas limited
liability company
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STATE OF '" %xAS §
COUNTY OF } AoR S §
The foregoing instrument was acknowledged before me on this 23 ti'day of W.j ,
2014, by b*,L E an , as /ice residenA
of KSTX BAYTOWN, LL , a Texas limited liability company, on behalf of said entity.
[ SEAL ]
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dt•• 4
LORRAINE BEDDINGFIELD
Notary Public, State of Texas
My Commission Expires
June 20, 2018
RAKaren \Fiics \Contracts \Kroger 380\First Amendment07212014.doc
First Amendment Page 6
0
Notary Public
Exhibit "B"
ESCROW AGREEMENT
(Chapter 380 Economic Development Agreement)
THIS ESCROW AGREEMENT (this "Escrow Agreement "),
, 2014, is made by and among KSTX Baytown, LLC,
liability company (the "Developer "), the CITY OF BAYTOWN, TEXAS
ALAMO TITLE COMPANY ( "Escrow Agent ").
RECITALS
dated as of
a Texas limited
(the "City "), and
WHEREAS, on or about the date hereof, the Developer and the City have entered into
that certain First Amendment (the "First Amendment ") to the Chapter 380 Economic
Development Agreement (the "Agreement ") relating to the Developers unconditional obligation
to fund the construction costs relating to a City Improvements to be constructed by the City, as
more particularly described therein; and
WHEREAS, the First Amendment provides that the Developer will deposit SEVEN
HUNDRED NINE THOUSAND NINE HUNDRED SIXTY -SEVEN AND NO/ 100 DOLLARS
($709,965.00) in escrow, and the City shall be entitled to receive such funds to pay for the
construction of the City Improvements as the construction progresses;
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
TERMS OF ESCROW AGREEMENT
1. Defined Terms. Any capitalized term used but not defined herein shall have the
meaning given to such term in the Cost -Share Agreement.
2. Deposit of Escrow Funds. On or before August 7, 2014, the Developer shall deliver
to Escrow Agent the sum of SEVEN HUNDRED NINE THOUSAND NINE HUNDRED
SIXTY -SEVEN AND N01100 DOLLARS ($709,965.00) (the "Escrow Deposit') to be
deposited, invested and disbursed strictly in accordance with the terms of this Escrow
Agreement. Escrow Agent hereby agrees to accept the Escrow Deposit upon and subject to the
terms and conditions hereof.
3. Escrow Account.
(a) The Escrow Deposit immediately shall be deposited into an interest - bearing,
segregated, non - commingled account (the "Escrow Account ") with a bank approved by the
Developer and the City (the "Bank "). All interest earned on the Escrow Deposit shall be
deposited in the Escrow Account (the Escrow Deposit, together with all interest earned thereon,
are collectively referred to herein as the "Escrow Funds "). Unless an alternative investment shall
Escrow Agreement, Page 1
have been approved by the Developer, the City and Escrow Agent in writing, the Escrow
Account shall not be invested other than in an interest bearing account with the Bank.
(b) The Escrow Account shall be in the name of Escrow Agent, in trust for the
Developer and the City, as their interests may appear. The tax I.D. number on the Escrow
Account shall be the City's tax I.D. number, so that all interest or dividend income is attributed
to the City.
(c) The Escrow Account shall be under the sole control of Escrow Agent (subject to
the terms of this Escrow Agreement), and designated signers of Escrow Agent shall have the sole
and exclusive authority to draw checks or make withdrawals on the Escrow Account.
(d) The monthly bank statement on the Escrow Account shall be sent to Escrow
Agent, and Escrow Agent promptly shall forward a copy of the bank statement to the Developer
and the City.
(e) Escrow Agent shall have no responsibility or liability for the security of any funds
in the Escrow Account or for calculating, reporting, or paying any interest or dividends on the
Escrow Account. The Developer and the City shall look solely to the Bank for such security and
services. Moreover, Escrow Agent shall have no responsibility or liability for the amount of
interest or dividends paid by the Bank on the Escrow Account. For example, Escrow Agent may
make disbursements from the Escrow Account without regard to how the timing of such
disbursements may affect the amount of interest or dividends paid by the Bank on the Escrow
Account. Escrow Agent shall have no responsibility or liability for, or with respect to, any loss
or damage resulting from any failure, refusal or inability of the Bank to disburse, or allow for
withdrawal of, the funds of the Escrow Account upon proper authorization or direction of
Escrow Agent. The Developer and the City hereby release Escrow Agent from the foregoing
types of responsibility and liability, except that Escrow Agent shall be responsible for any
investment losses caused by Escrow Agent's failure to follow the terms of this Escrow
Agreement.
4. Disbursement of Escrow Funds to the City. The Escrow Funds shall be disbursed
by Escrow Agent to the City subject to and in accordance with the following:
Escrow Funds in the amount specified in each pay application tendered by the
City shall be disbursed to the City within ten (10) calendar days after Escrow
Agent receives a request therefor along with a copy of the pay application
approved by the City for the work performed on the construction of the City
Improvements, which request for payment shall be concurrently sent to the
Developer. Each request for payment must certify that the City Improvements
have been completed to the point stated in the pay application.
5. Disbursement of Escrow Funds to the Developer. After final payment has been
made by the City to its contractor for the City Improvements, the City shall certify this fact to the
Escrow Agent and any Escrow Funds that have not been previously disbursed to the City
Escrow Agreement, Page 2
pursuant to Section 4 above be disbursed by Escrow Agent to the Developer in accordance with
and subject to the following:
The Escrow Funds shall be disbursed to the Developer within thirty (30) days
after Escrow Agent receives written notice from the City that the City
Improvements have been paid in full, which notice shall be concurrently sent to
the Developer.
6. Certain Termination Events.
In the event all of the Escrow Funds are disbursed as set forth in Sections 4 or 5 hereof,
this Escrow Agreement shall terminate, and none of the parties hereto shall have any further
rights or obligations hereunder.
7. Exculpation Provisions for Escrow Agent.
(a) It is agreed that (i) Escrow Agent shall in no case or event be liable for any direct or
indirect damage caused by the exercise of Escrow Agent's discretion in any particular manner, or
for any other reason, except gross negligence or a willful breach with reference to its duties
hereunder; (ii) Escrow Agent shall not be liable or responsible for the sufficiency or correctness
as to form, manner of execution, or validity of any instrument tendered to Escrow Agent
hereunder, nor as to identity, authority, or rights of any person executing the same; and
(iii) Escrow Agent shall not be liable or responsible for Escrow Agent's failure to ascertain the
terms or conditions, or to comply with any of the provisions of any agreement, contract or other
document other than its instructions contained herein as amended from time to time in
accordance with the terms hereof. Escrow Agent shall not be responsible for determining
whether the Developer or the City is obligated or entitled to give any instructions to Escrow
Agent hereunder.
(b) The Developer hereby covenants and agrees to indemnify and hold Escrow Agent
harmless from and against any and all losses, costs, damages or expenses (including reasonable
attorneys' fees) it may sustain by reason of its service as escrow agent hereunder, except if such
loss, costs, damages or expenses (including attorneys' fees) are incurred by reason of a willful
breach of Escrow Agent's obligations hereunder or gross negligence on its part.
(c) In the event of any disagreement between the parties to this Escrow Agreement
resulting in adverse claims or demands being made in connection with the Escrow Funds, or in
the event that Escrow Agent, in good faith, shall be in doubt as to what action it should take
hereunder, Escrow Agent may, at its option, refuse to comply with any requests, claims or
demands relating to this Escrow Agreement, so long as such disagreements continue or such
doubt exists, and in any such event, Escrow Agent shall be entitled to continue to refrain from
acting until (i) the rights to the Escrow Funds shall have been fully and finally adjudicated by a
court of competent jurisdiction or (ii) all differences shall have been adjusted and all doubt
resolved by written agreement among all of the persons making requests, claims or demands
with respect to the Escrow Funds, and Escrow Agent shall have been notified thereof in writing
Escrow Agreement, Page 3
signed by all such persons. In connection with any such disagreement as aforesaid, Escrow
Agent shall have the right to institute a bill of interpleader, and any costs so incurred by Escrow
Agent may be payable out of the Escrow Funds. The rights of Escrow Agent under this
paragraph are cumulative of all other rights that it may have by law or otherwise and shall
survive the termination of this Escrow Agreement.
8. Replacement of Escrow Agent.
(a) At any time during the term of this Escrow Agreement, Escrow Agent may resign and
be discharged of the obligations created by this Escrow Agreement by executing and delivering
to the Developer and the City at least fifteen (15) days' advance written notice of its resignation
as Escrow Agent and specifying the date when such resignation is to take effect. Any
resignation of Escrow Agent shall not become effective until acceptance of appointment by the
successor Escrow Agent.
(b) Escrow Agent may be removed at any time by a written notice executed by the
Developer and the City to Escrow Agent, whereupon a successor Escrow Agent shall be
appointed pursuant to subparagraph (d) below.
(c) If Escrow Agent shall otherwise be removed, or be dissolved, or if its property or
affairs shall be taken under the control of any state or federal court or administrative body or
agency because of insolvency or bankruptcy or for any other reason, a vacancy shall forthwith
exist in the office of Escrow Agent, and a successor shall be appointed pursuant to subparagraph
(d) below.
(d) In the event of the removal or resignation of the Escrow Agent pursuant to
subparagraphs (a), (b) or (c) above, the Developer and the City shall endeavor in good faith to
agree upon a successor Escrow Agent to be appointed by written instrument, one copy of which
instrument shall be delivered to the predecessor Escrow Agent, the successor Escrow Agent, the
Developer and the City. If the Developer and the City are unable to agree upon a successor
Escrow Agent within thirty (30) days after the removal or resignation of the Escrow Agent, the
Developer shall appoint a successor Escrow Agent, the identity of whom shall be subject to the
approval of the City, such approval not to be unreasonably withheld, conditioned or delayed;
provided, however, any successor Escrow Agent so appointed by the Developer and approved by
the City pursuant to subparagraphs (a), (b) or (c) above shall be adequately bonded, qualified and
reputable, as reasonably determined by the Developer, and shall be a title insurance company
licensed in Texas and with an office in Houston, Texas or a national bank with an office in
Houston, Texas.
(e) Upon the acceptance of appointment by the successor Escrow Agent, the predecessor
Escrow Agent shall be compensated from the Escrow Funds for any remaining reasonable out -
of- pocket expenses for which it has not been previously reimbursed, but shall not thereafter be
entitled to any further reimbursement or compensation for its former duties as Escrow Agent
hereunder.
Escrow Agreement, Page 4
(f) Any successor Escrow Agent appointed hereunder shall execute, acknowledge and
deliver to the Developer and the City an instrument accepting such appointment hereunder, and
thereupon such successor Escrow Agent, without any further act shall become duly vested with
all of the property, rights, powers, trusts, duties and obligations of its predecessor hereunder,
with the same effect as if originally named Escrow Agent.
9. Miscellaneous.
(a) The Developer shall be responsible for any and all charges, fees and expenses of
Escrow Agent incurred in connection with this Escrow Agreement, and Escrow Agent is
authorized to withhold from the funds otherwise payable to the Developer, as applicable, the
amount of such charges, fees and expenses.
(b) The address of the Developer, the City and Escrow Agent for purposes of notice
hereunder shall be as follows until changed by written notice:
Developer: KSTX Baytown, LLC
3120 Rogerdale, Suite 150
Houston, TX 77042
Attn: Patrick Egan
Phone: 713 - 292 -0959
Fax: 713 -532 -6412
the Cit City of Baytown
2401 Market Street
Baytown, TX 77520
Attention: City Manager
Phone: 281- 450 -6500
Fax: 281 - 420 -6586
Escrow Agent: Alamo Title Company
1800 Bering, Suite 150
Houston, Texas 77057
Attention: Chris Underbrink
Phone: 713- 986 -0725
Fax: 713- 966 -4061
Any such notices shall be either (a) sent by overnight delivery using a nationally recognized
overnight courier, in which case notice shall be deemed delivered one business day after deposit
with such courier, or (b) sent by personal delivery, in which case notice shall be deemed
delivered upon receipt. A party's address may be changed by written notice to the other party;
Escrow Agreement, Page 5
provided, however, that no notice of a change of address shall be effective until actual receipt of
such notice.
(c) This Escrow Agreement shall be governed by the laws of the State of Texas, and
venue for all purposes shall be in Harris County.
(d) The provisions of this Escrow Agreement may be amended only by a written
agreement signed by or on behalf of the Developer, the City and Escrow Agent.
(e) This Escrow Agreement may be executed by the parties hereto in one or more
separate counterparts, each of which shall be deemed an original but all of which together shall
constitute but one agreement.
(f) This Escrow Agreement and the First Amendment evidence the entire agreement
between the undersigned relating to the manner of holding the Escrow Funds and supersede all
prior agreements, understandings, negotiations and discussions, oral or written, of the parties
relating to such subject matter.
(g) The terms of this Escrow Agreement shall be binding upon and shall inure to the
benefit of Escrow Agent, the Developer and the City and their respective successors and assigns,
including any debtor in possession or bankruptcy trustee acting for any of said parties.
(h) Each person signing below represents that he or she is fully authorized pursuant to
applicable corporate or municipal law to execute this Escrow Agreement and to bind the party on
behalf of whom such person is signing. The failure of such representation to be true for any
particular party shall not affect the enforceability of this Escrow Agreement or the rights and
obligations of the other parties hereunder.
(i) Nothing in this Escrow Agreement shall be construed to make the City the agent of
the Developer for any purposes, or the Developer the agent of the City for any purposes, or the
Developer and the City partners, or joint or co- venturers.
0) Time is of the essence of this Escrow Agreement and all time periods hereunder.
(k) Upon final disbursement of the Escrow Funds in accordance with the terms hereof
this Escrow Agreement shall terminate and no parties hereunder shall have any further rights or
obligations hereunder, provided, however, the termination of this Escrow Agreement shall not
terminate the rights and obligations of the Developer and the City under the Agreement and First
Amendment.
[Signature Page Follows]
Escrow Agreement, Page 6
IN WITNESS WHEREOF, the Developer, the City and Escrow Agent have executed this
Escrow Agreement to be effective as of the date first set forth above.
The Developer:
KSTX BAYTOWN, LLC, a Texas limited liability
company
By: °7
Nam >
e:
The Ci :
THE CITY OF BAYTOWN, TEXAS
By:
Name:
Title:
Escrow Agent:
ALAMO TITLE COMPANY
By:
Name:
Title:
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Escrow Agreement, Page 7