Ordinance No. 12,627ORDINANCE NO. 12,627
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 A CHAPTER 380 ECONOMIC DEVELOPMENT
AGREEMENT WITH ROBERT B. MARTIN, JR., FOR THE DEVELOPMENT
AND OPERATION OF AN ARTS AND ENTERTAINMENT COMPLEX IN
THE BRUNSON THEATER AND THE CITIZENS BANK BUILDING,
AUTHORIZING THE CITY OF BAYTOWN'S GRANTING OF INCENTIVES 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 a Chapter 380 Economic Development Agreement
with Robert B. Martin, Jr., for the development and operation of an arts and entertainment complex in the
Brunson Theater and the Citizens Bank Building. 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 authorizes the granting of
incentives in accordance with the agreement authorized in Section 1 hereinabove.
Section 3: 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 ofCity Council of the City of
Baytown this the 28th day of August, 2014. (( //
SYEPHEN H. DONCARLOS,
LETICIA BRYSCH, City
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., Ci orney
RAKaren\FileslCity Council'. Ordinances\2014\August 28' Brunson380EconomicDevelopmentAgreementOrdinance .docx
Exhibit "A"
CITY OF BAYTOWN / W66-Rr 9 ? " � —A) -P.
CHAPTER 380
ECONOMIC DEVELOPMENT AGREEMENT
STATE OF TEXAS
COUNTY OF HARRIS
This Chapter 380 Economic Development Agreement and Lease ( "Agreement ") is made
and entered into by and between Q6 8. %yjwQ�,,�,�
( "DEVELOPER ") and the CITY OF BAYTOWN. TEXAS, a
home rule city and municipal corporation, located in Harris and Chambers Counties, Texas
( "CITY ").
RECITALS
WHEREAS, DEVELOPER desires to restore, repair, redevelop and operate an arts and
entertainment complex (the "Project ") in the Brunson Theater Building, located at 315 W. Texas
Avenue, and in the Citizens Bank Property, located at 319 West Texas Avenue (collectively the
"Property" (the "Project, "); and
WHEREAS. in accordance with Article 111. Section 52 -a of the Texas Constitution and
Chapter 380 of the Texas Local Gov't Code, CITY may establish and provide for the
administration of a program for making loans and grants of public money to promote state or
local economic development and to stimulate business and commercial activity in the City of
Baytown; and
WHEREAS, in accordance with Chapter 380, Texas Local Gov't Code. CITY hereby
establishes such a program to provide incentives and financial assistance to DEVELOPER to
encourage and promote the development of the Property thereby enhancing and stimulating
business and commercial activity in the City of Baytown; and
WHEREAS, as part of the Program and as a material inducement to DEVELOPER
developing the Project on the Property, CITY has agreed to offer incentives to DEVELOPER,
including, but not limited to, the conveyance of the Property. which will enable DEVELOPER to
develop the Project on the Property; and
WHEREAS, DEVELOPER has agreed, in exchange and as consideration of the
incentives provided by CITY to satisfy and comply with certain terms and conditions, including
the Restoration. repair, redevelopment and operation of the project on the Property: and
WHEREAS, CITY and DEVELOPER agree that the provisions of this Agreement
substantially advance a legitimate interest of CITY by expanding the property tax base as well as
the sales and use tax base of CITY, by increasing employment and by promoting economic
development:
Chapter 380 Economic Development Agreement, Page 1
NOW, THEREFORE, in consideration of the mutual benefits and promises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
CITY and DEVELOPER agree as follows:
I.
Recitals
1.01 Recitals. The recitals set forth above are declared true and correct and are hereby
incorporated into and made a part of this Agreement.
1.02. Public Purpose. CITY finds that the benefits provided by DEVELOPER and described in
Article V promote economic development in the City of Baytown and stimulate business
and commercial activity in the municipality.
II. Authority
2.01 City Authority. CITY'S execution of this Agreement is authorized by Chapter 380 of the
Texas Local Government Code and constitutes a valid and binding obligation of CITY.
2.02 DEVELOPER's Authority. DEVELOPER's execution and performance of this
Agreement constitutes a valid and binding obligation of DEVELOPER to develop the
Project on the Property.
III. Definitions
3.01 "Effective Date" is the date upon which the City Manager executes this Agreement.
3.02 "Project" means the restoration/repair /redevelopment and operation of an arts and
entertainment complex on the Property providing live entertainment and a restaurant with
at least 90 seats coupled with a bar with at least 20 seats, an outside patio, a bakery, and
related parking.
3.03 "Program" means the economic development program for this Project established by
CITY pursuant to Texas Local Government Code Chapter 380 to promote local economic
development and stimulate business and commercial activity within CITY.
3.04 "Property" means the land and improvements located at 315 and 319 W. Texas Avenue,
Baytown, Harris County, Texas, and more particularly described in Exhibit "A" which is
attached hereto and incorporated herein for all intents and purposes along with that
property described as Lots 7, 8 & 9, Block 22, Goose Creek, Harris County, Texas, should the
City be able to acquire the same without the use of its eminent domain powers.
Chapter 380 Economic Development Agreement, Page 2
IV. Term
4.01 Term.
a. The term of this Agreement shall commence on the Effective date and end one (1)
year after the issuance of the certificate of occupancy (the "Term "), unless
terminated sooner as provided in this Agreement.
b. It is expressly understood and agreed that should DEVELOPER fail to perform,
prior to the expiration or earlier termination of this Agreement, any of the
obligations established and assumed herein, CITY may terminate this Agreement
in accordance with Article VII below and the Property shall revert back to CITY
pursuant to Section 7.03 to CITY.
4.02 Damage or Destruction by Fire or Other Casualty.
a. If, during the Term, the Project is damaged or destroyed by fire, tornado, or other
casualty, regardless of its cause, DEVELOPER must immediately give CITY
written notice of the damage or destruction.
b. If, after the Lease Term, a fire, tornado, or other casualty or other occurrence,
whether or not caused in whole or in part by the negligence, gross negligence, or
intentional tort of DEVELOPER or any person in or about the Property, destroys,
in whole or in part, or damages the Project as determined by CITY, then
DEVELOPER shall rebuild the Project to the same or better condition it was in at
the time of such destruction or damage within one year of the destruction or
damage. DEVELOPER shall have the obligation to prosecute diligently such
work and complete the same within a reasonable period of time as determined by
CITY. If DEVELOPER fails to timely do so, DEVELOPER shall be deemed in
default of this Agreement.
V. DEVELOPER's Obligations
5.01 Commitment to Develop.
a. DEVELOPER hereby agrees to develop the Project in conformance with all
applicable laws, rules and regulations of CITY and any other governmental entity
having authority over the Project, so that, upon approval by the Chief Building
Official of CITY, the Project fully satisfies the Codes of the City of Baytown,
Texas, including, but not limited to, the Code of Ordinances, Baytown, Texas; the
National Electrical Code; the International Plumbing Code; the International
Mechanical Code; the International Fire Code and the International Building
Code, as adopted by the City of Baytown, Texas, (collectively, the "Codes ") in
Chanter 380 Economic Development Agreement. Page 3
accordance with a scope of work approved by the City Manager detailing the
events and times of completion of each event:
1. Building permit for structural repairs must be applied for within 30
calendar days of the Effective Date;
2. All structural repairs detailed in the structural analysis completed by
Carnes Engineering must be completed and pass inspection within 180
calendar days of the Effective Date;
3. A new roof on the Brunson and all other roof repairs must be completed
and pass inspection within 365 calendar days of the Effective Date; and
4. Certificate(s) of Occupancy /Completion must be obtained within two (2)
years calendar days of the issuance of the first building permit for the
Project.
Except for performing structural repairs detailed in the Carnes Engineering
structural analysis, prior to any construction activity on the Property,
DEVELOPER must submit to CITY properly sealed plans and specifications for
written approval by CITY'S Director of Engineering and the City Manager.
CITY must approve of the plans and specifications in writing prior to
DEVELOPER performing construction activities on the Property, such approval
not to be unreasonably withheld, conditioned or delayed.
b. Compliance with the Codes shall include, but not be limited to, performing
environmental cleanup of the Property if any is required, providing sealed
construction drawings; employing licensed professionals for those development
activities required to be made by a licensed professional pursuant to the Codes;
obtaining or causing to be obtained all required permits pursuant to the Codes;
obtaining and satisfying all required inspections; and obtaining a Certificate(s) of
Occupancy for the Project within two (2) years of the issuance of the first building
permit for the project.
C. It is expressly understood and agreed by the CITY and DEVELOPER that if the
repairs required in this section are more extensive than detailed in the structural
analysis completed by Carnes Engineering as certified in writing by
DEVELOPER's engineer, the deadlines shall be extended for the period that
DEVELOPER's engineer determines is reasonable given the additional work
needed.
5.02 Payment Obli at
ions.
a. Within thirty (30) days of the Effective Date of this Agreement, DEVELOPER
shall pay to CITY via a cashier's check FIVE THOUSAND AND NO /100
DOLLARS ($5,000.00), which amount shall either be:
1. refunded by CITY to DEVELOPER after both of the following:
Chaucer 380 Economic Develonment Agreement, Page 4
the structural repairs for the Project as detailed in the structural
analysis completed by Carnes Engineering have passed inspection as
determined by CITY'S Chief Building Official or his designee;
provide the repairs pass inspection within 180 calendar days of the
Effective Date, and
➢ after the roof repairs for the Project have passed inspection as
determined by CITY'S Chief Building Official or his designee;
provide the repairs pass inspection within one year of the Effective
Date; or
2. retained by CITY should DEVELOPER fail to make the structural and/or roof
repairs timely in accordance with this section.
b. Delinquent payments of DEVELOPER shall bear interest in accordance with
Section 7.03.e.
C. DEVELOPER will pay before delinquency all property taxes, special assessments
(including any special assessments imposed on or against the Property for
constructing or improving the Property), and governmental charges of any kind, if
any, imposed on any personal property located on the Property during the Term.
5.03 Maintenance. During the Term, DEVELOPER agrees at its own cost and expense to
operate and maintain the Property and the Project in full compliance with all codes, rules and
regulations of CITY as well as all other governmental entities having jurisdiction over the
Property and the Project. All maintenance, repair, alteration, and/or construction work
undertaken by DEVELOPER shall be done in a workmanlike manner.
5.04 Indemnity.
DEVELOPER HEREBY AGREES TO INDEMNIFY, HOLD
HARMLESS, PROTECT AND DEFEND CITY, ITS OFFICERS,
AGENTS, AND EMPLOYEES (THE "CITY PARTIES ") FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES
OF ACTION, SUITS AND LIABILITY OF EVERY KIND,
INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS
AND ATTORNEY'S FEES, FOR ANY INJURY TO OR DEATH OF
ANY PERSON OR DAMAGE TO ANY PROPERTY INCURRED IN
CONNECTION WITH ALL CLAIMS, INCLUDING ANY ACTION OR
PROCEEDINGS BROUGHT, THEREON ARISING FROM, AS A
RESULT OF, OR IN ANY WAY RELATED TO DEVELOPER'S AND
ITS SUBTENANTS', ASSIGNEES', OFFICERS', AGENTS',
EMPLOYEES', CONTRACTORS', GUESTS', AND /OR INVITEES'
Chapter 380 Economic Development Agreement, Page 5
(THE "DEVELOPER PARTIES ") USE OR OCCUPANCY OF THE
PROPERTY AND /OR PROJECT OR ANY OF THE ACTIVITIES OF
ANY SUCH DEVELOPER PARTIES IN OR ON THE PREMISES, OR
THE DESIGN OR CONSTRUCTION OF THE PROPERTY
IMPROVEMENTS, WHERE SUCH INJURIES, DEATH, OR
DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE
CITY PARTIES AND ANY OTHER PERSON OR ENTITY AND /OR
BY THE JOINT OR SOLE NEGLIGENCE OF THE DEVELOPER
PARTIES. IT IS THE EXPRESS INTENTION OF BOTH CITY AND
DEVELOPER THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY DEVELOPER TO
INDEMNIFY, HOLD HARMLESS, PROTECT, AND DEFEND THE
CITY PARTIES FROM (I) THE CONSEQUENCES OF THE
NEGLIGENCE OF THE CITY PARTIES, WHERE THAT
NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF ANY
OTHER PERSON OR ENTITY OF ANY SUCH INJURY, DEATH OR
DAMAGE, AND /OR (II) THE DEVELOPER PARTIES' SOLE
AND /OR CONCURRENT NEGLIGENCE. FURTHERMORE, THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE
NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR
DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE CITY.
IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT
AGAINST CITY BY REASON OF ANY OF THE ABOVE, DEVELOPER
FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION
OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO CITY.
Notwithstanding anything to the contrary contained in this Agreement, the indemnity
provided in this section shall not terminate upon the termination or expiration of this
Agreement, but shall continue in full force and effect.
5.05 Insurance, Bonds.
a. Insurance.
DEVELOPER'S Insurance. From the Effective Date and throughout the
Term of this Agreement, DEVELOPER will keep and maintain, or cause
to be kept and maintained, in force and effect insurance as specified
herein. DEVELOPER's insurance coverage shall be primary insurance
with respect to CITY, its officials, employees and agents, who shall be
Chanter 380 Economic Development Agreement, Page 6
named as additional insureds. Any insurance or self - insurance maintained
by CITY, its officials, employees or agents shall be considered in excess
of DEVELOPER's insurance and shall not contribute to it.
(a) The following is a list of standard insurance policies along with
their respective minimum coverage amounts required in this
Agreement to be maintained by DEVELOPER during the Lease
Term:
(1) Commercial General Liability
➢ General Aggregate: $2,000,000
➢ Per Occurrence: $1,000,000
➢ Owners' and Contractors' Protective Liability:
$1,000,000 during construction and all renovations
thereafter of the Property Improvements.
➢ Coverage shall be at least as Broad Form CGL
➢ No coverage shall be deleted from standard policy
without notification of individual exclusions being
attached for review and acceptance.
(2) Builder's Risk Insurance, including Flood and Quake
➢ Limit: 100% of replacement value.
City of Baytown will be named as loss payee.
(b) The following standard insurance policy along with its respective
minimum coverage amounts shall be required in this Agreement to
be maintained by DEVELOPER after the Lease Tenn but prior to
the issuance of the certificate of occupancy for the Property:
(1) Builder's Risk Insurance, All Risk Property Coverage,
including Flood and Quake
➢ Limit: 100% of replacement value.
➢ City of Baytown will be named as loss payee.
(c) The following standard insurance policy along with its respective
minimum coverage amounts shall be required to be maintained by
DEVELOPER after issuance of the certificate of occupancy for the
Property until the City's reversionary interest in the Property
expires:
(1) All Risk Property Coverage, including Flood and Quake
Replacement value.
City of Baytown shall be named as an additional
insured/loss payee.
However, if the DEVELOPER undertakes any construction
activities or contracts with a contractor to undertake such activities
Chanter 390 Economic Develooment Agreement, Page 7
after the issuance of the certificate of occupancy for the Property,
the Developer shall obtain a builder's risk policy as specified
hereinabove only during such construction activity.
(d) In the event that CITY'S City Manager in his sole discretion
determines that the activities or operations to be conducted or
conducted on the Property necessitates additional coverages, CITY
reserves the right to insist upon additional coverages with limits
deemed appropriate by the CITY'S Risk Manager, including, but
not limited to, the following coverages:
Boiler and Machinery/Mechanical Equipment
Coverages;
➢ Amusement Ride Liability; and
➢ Pollution Liability.
In lieu of providing such additional coverages, DEVELOPER may
cease the activities or operations which necessitate the additional
coverages as determined by the City Manager.
DEVELOPER shall provide copies of DEVELOPER'S insurance
certificates required hereunder to CITY on or before the Effective Date.
2. DEVELOPER's Contractor's Insurance. During the Lease Term,
DEVELOPER shall require its general contractor to carry in full force and
effect insurance coverages of the type and limits as required hereinbelow
should construction or other similar work be performed on the Property.
DEVELOPER shall require its general contractor to include all
subcontractors as additional insured under its policies or shall furnish
separate certificates and endorsements for each subcontractor. All
coverages for the general contractor and subcontractors shall be subject to
all of the requirements stated hereinbelow:
a. Commercial General Liability
➢ General Aggregate: $2,000,000
➢ Per Occurrence: $1,000,000
➢ Products & Completed Operations Aggregate: $1,000,000
➢ Owners' and Contractors' Protective Liability: $1,000,000,
during construction and all renovations thereafter of the
Property Improvements.
➢ Personal & Advertising Injury: $1,000,000
➢ Coverage shall be at least as Broad Form CGL
No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review
and acceptance.
➢ Waiver of Subrogation required.
Chapter 390 Economic Development Agreement, Page 8
b. Business Automobile Policy (BAP)
➢ Combined Single Limits: $1,000,000
➢ Coverage for "Any Auto."
c. Workers' Compensation: Statutory Limits
Employer's Liability: $1,000,000
Waiver of Subrogation required
Prior to any work being performed, DEVELOPER shall file with CITY
valid Certificates of Insurance and endorsements acceptable to CITY for
the general contractor and each of its subcontractors.
3. The following shall be applicable to all policies of insurance required
herein:
Insurance carrier must have an A.M. Best Rating of A: VI or
better.
Only insurance carriers licensed and admitted to do business in the
State of Texas will be accepted.
Liability policies must be on occurrence form.
Each insurance policy shall be endorsed to state that coverage shall
not be suspended, voided, canceled or reduced in coverage or in
limits except after thirty (30) days' prior written notice by certified
mail, return receipt requested, has been given to CITY.
CITY and its officers and employees are to be added as Additional
Insured to liability policies.
Upon request, and without cost to CITY, certified copies of all
insurance policies and /or certificates of insurance shall be
furnished to CITY.
➢ All insurance required under this section 5.05 shall be secured and
maintained in a company or companies satisfactory to CITY, and
shall be carried in the name of DEVELOPER.
b. During the Lease Term, DEVELOPER shall be required to obtain construction
and payment bonds in accordance with Chapter 2253 of the Texas Government
Code for 100% of the cost of construction/remodeling.
5.06 Failure to Meet Obligations. In the event that DEVELOPER fails to fulfill any of its
obligations under this article or elsewhere in this Agreement, after receipt of notice and
expiration of the cure period described in Section 7.03 below, CITY may, at its option,
terminate this Agreement, and the Property shall revert back to CITY pursuant to Section
7.03.
Chapter 380 Economic Development Agreement, Page 9
VI. City Obligations
6.01 Property Lease.
a. Lease. As consideration for DEVELOPER's performance of its obligations under
this Agreement, and subject to the terms herein, CITY does hereby lease, demise
and let unto DEVELOPER and DEVELOPER does hereby lease and take from
CITY the Property.
b. Property Condition. DEVELOPER hereby acknowledges that it has inspected the
Property, and DEVELOPER hereby accepts the Property in its present condition,
"AS IS, WHERE IS" and with all faults. To the maximum extent permitted by
applicable law,
CITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY
NATURE, KIND OR CHARACTER WHATSOEVER, EXPRESS OR
IMPLIED, REGARDING THE PHYSICAL AND ENVIRONMENTAL
CONDITION OF THE PREMISES, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
AND DEVELOPER ACCEPTS SUCH PREMISES IN AN "AS IS"
CONDITION, WITH ALL FAULTS.
2. DEVELOPER, BY ITS EXECUTION OF THIS AGREEMENT
EXPRESSLY WAIVES ANY RIGHT OR CLAIM AGAINST CITY
FOR DAMAGES, RESCISSION OR OTHER REMEDY AT LAW OR
IN EQUITY WITH RESPECT TO OR RESULTING FROM THE
PHYSICAL CONDITION OF THE PROPERTY AND THE
IMPROVEMENTS, IF ANY THEREON, INCLUDING, WITHOUT
LIMITATION, THE ENVIRONMENTAL CONDITION OF THE
PROPERTY AND THE FACT THAT PORTIONS OF THE PROPERTY
MAY BE LOCATED WITHIN THE 100 YEAR FLOOD PLAIN. THE
WAIVER AND EXCULPATION PROVIDED ABOVE SHALL BE
BINDING ON ALL SUCCESSORS AND ASSIGNS OF DEVELOPER
AND ALL SUBTENANTS OF AND INVITEES ON THE PROPERTY.
C. Lease Term.
I . Unless sooner terminated under the provisions hereof, the term of the lease
( "Lease Term ") shall commence on the Effective Date and shall continue
in full force through and until the day immediately preceding the twelfth
(12`h) month following the Effective Date. If CITY delivers a termination
notice during such twelve (12) month period and DEVELOPER fails to
vacate the Property within thirty (30) days after receipt of such notice or if
DEVELOPER fails to vacate the Property prior to the expiration of the
Lease Term, DEVELOPER shall be holding over and the following
subparagraph (b) shall be applicable.
Chanter 380 Economic Development Agreement, Page 10
2. Any holding over by DEVELOPER after expiration or termination of the
lease shall not constitute a renewal or extension or give DEVELOPER any
rights in or to the Property. Should DEVELOPER hold over,
DEVELOPER shall pay, as liquidated damages, the then current fair
market rental value of the affected portion of the Property and the
improvements thereon, as determined by CITY, calculated on a per diem
basis, multiplied by two (2) for the period during which DEVELOPER
possesses the affected portion of the Property beyond the expiration or
termination hereof. Such amount is reasonable in the light of the
anticipated or actual harm to the Landlord caused by DEVELOPER'S
holding over, the difficulties of proof of loss, and the inconvenience of
otherwise obtaining an adequate remedy.
d. Rent. DEVELOPER shall pay CITY from and after the effective date ONE AND
NO /100 DOLLAR ($1.00) and other good and valuable consideration for the
lease and use of the Property during the Lease Term. CITY and DEVELOPER
acknowledge that the Rent has been prepaid on the Effective Date.
e. Impositions. During the Lease Tenn, DEVELOPER shall not be responsible to
pay any real property and /or ad valorem taxes, assessments, excises, levies,
impositions and other charges by any public or private authority which may be
imposed on fee simple title to the Property or any part thereof. During the Lease
Term, CITY shall be responsible for any such real property taxes payable with
respect to the Property. DEVELOPER understands and agrees that it is
responsible to pay all ad valorem taxes, assessments, excises, levies, impositions
and other charges by any public or private authority which may be imposed on
personal property located on the Property.
f. Utilities. Commencing on the Effective Date, DEVELOPER shall pay all charges
directly to the provider of services for all utilities and other services used by
DEVELOPER. CITY shall not be liable in damages or otherwise for any failure
or interruption of any gas, heat, lights, power, telephone, water, sewer or any
other utility service to the Premises.
g. Use. DEVELOPER shall not use the Premises for any disorderly or unlawful
purpose in violation of any valid and applicable law, regulation or ordinance of
the United States, the State of Texas or the City of Baytown or other lawful
authority having jurisdiction over the Property, but rather shall conform to all
such laws, regulations and ordinances. Furthermore, at no time whatsoever, may
319 W. Texas be used as a night club or a bar. However, nothing contained herein
shall prohibit the use of the 319 W. Texas as a restaurant, which may serve
alcoholic beverages . DEVELOPER shall not cause or knowingly permit or suffer
any waste, damages or injury to any portion of the Premises. Throughout the
Lease Tenn, the only allowed use of the Property is for the development and
operation of an arts and entertainment complex, excluding businesses regulated
Chapter 380 Economic Development Agreement, Page I 1
by CITY in Chapters 4 and 20 of the Code of Ordinances, Baytown, Texas. Any
use not in conformity with this section shall be deemed a breach of this Lease for
which CITY may terminate the Lease.
The decision of the City Manager as to whether a proposed use is disorderly,
unlawful or is a change shall be made by the City Manager and shall be final and
binding on DEVELOPER.
h. Improvements.
I. DEVELOPER shall have the right to develop the Property in accordance
with Section 5.01 hereinabove.
2. In the event any lien is placed on the Property due to the acts or omissions
of DEVELOPER, DEVELOPER shall promptly remove such lien by
bonding or otherwise. if DEVELOPER fails to remove any such lien
within fifteen (15) days after notice of such liens, CITY may remove or
bond around such lien, and DEVELOPER shall reimburse CITY for the
costs incurred to remove or bond around such lien, plus interest on such
amount at the lesser of fifteen percent (15 %) per annum or the maximum
lawful rate commencing on the date such payment was made by CITY.
3. All improvements to the Property shall be the property of CITY
throughout the Lease Term.
4. Throughout the Lease Term, at DEVELOPER'S own cost and expense,
DEVELOPER shall maintain the Property in a clean and good condition,
ordinary wear and tear excepted, and in full compliance with all codes,
rules and regulations of CITY as well as all other governmental entities
having jurisdiction over the Property. Upon expiration or termination of
this lease, DEVELOPER shall return the Property to CITY in a clean and
good condition, ordinary wear and tear excepted. DEVELOPER shall
comply, at its expense, with all code provisions and/or requests for
corrections of violations issued by all governmental entities having
jurisdiction over the Property during the Lease Term related to
DEVELOPER'S use of the Property.
5. CITY shall provide the DEVELOPER, to the extent that CITY has the
same in its possession, the original Brunson Marquee as well as any
signage and hardware pertaining to the Brunson Theatre and Citizens
Bank properties, including banister rails, which the CITY may have.
DEVELOPER shall incorporate all such items provided to the
DEVELOPER by the CITY into the Project. If this Agreement is
terminated due to a breach of the DEVELOPER prior to such
incorporation, the DEVELOPER shall return all such items provided by
the CITY to the CITY within ten (10) days of termination.
CCh gter 380 Economic Development Agreement, Page 12
6.02 Property Conveyance. If at the end of the Lease Term, DEVELOPER has timely
performed its obligations concerning the structural and roof repairs such that
DEVELOPER is entitled to a refund of its cash bond provided in accordance with Section
5.02.a.1, CITY shall convey the Property "as is" and "with all faults" to DEVELOPER
by a deed without warranty. The deed without warranty shall contain a right of reversion
for one (1) year after the issuance of the certificate(s) of occupancy for the Project
should:
➢ DEVELOPER fail to obtain certificates) of occupancy for the Project within two
(2) years of the issuance of the first building permit for the project;
➢ DEVELOPER fails to commence operation of the Project within sixty (60) days
of the issuance of the certificate(s) of occupancy for the Project;
DEVELOPER fails to operate the Project for a period of one year after the
commencement of operations, except as permitted in Section 7.03(8); and
> this Agreement be terminated due to an uncured breach by DEVELOPER.
Additionally, such deed without warranty shall include the following disclaimers:
CITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF
ANY NATURE, KIND OR CHARACTER WHATSOEVER,
EXPRESS OR IMPLIED, REGARDING THE PHYSICAL
AND ENVIRONMENTAL CONDITION OF THE
PREMISES, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF HABITABILITY, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE AND
DEVELOPER ACCEPTS SUCH PREMISES IN AN "AS IS"
CONDITION, WITH ALL FAULTS.
DEVELOPER, BY ITS EXECUTION OF THIS
AGREEMENT EXPRESSLY WAIVES ANY RIGHT OR
CLAIM AGAINST CITY FOR DAMAGES, RESCISSION OR
OTHER REMEDY AT LAW OR IN EQUITY WITH
RESPECT TO OR RESULTING FROM THE PHYSICAL
CONDITION OF THE PROPERTY AND THE
IMPROVEMENTS, IF ANY THEREON, INCLUDING,
WITHOUT LIMITATION, THE ENVIRONMENTAL
CONDITION OF THE PROPERTY AND THE FACT THAT
PORTIONS OF THE PROPERTY MAY BE LOCATED
WITHIN THE 100 YEAR FLOOD PLAIN. THE WAIVER
Chai)ter 380 Economic Development Agreement, Page 13
AND EXCULPATION PROVIDED ABOVE SHALL BE
BINDING ON ALL SUCCESSORS AND ASSIGNS OF
DEVELOPER AND ALL SUBTENANTS OF AND
INVITEES ON THE PROPERTY.
Additionally, such deed without warranty shall include a restrictive covenant, which shall
run with the land, prohibiting 319 W. Texas Avenue from being used as any type of
nightclub.
If at the end of the Lease Term, DEVELOPER has not timely performed its obligations
concerning the structural and roof repairs, this Agreement shall expire and the parties
shall be relieved of all further obligations hereunder.
6.03 Facade Improvement Program. DEVELOPER shall be eligible to apply for the
Downtown Facade Improvement Program by submitting an application to CITY in
compliance with the Downtown Facade Improvement Program.
6.04 Neighborhood Empowerment Zone. Should CITY establish a neighborhood
empowerment zone ( "NEZ ") pursuant to Chapter 378 of the Texas Local Government
Code to promote economic development for the area in which the Property is located,
DEVELOPER, upon submission of a proper application therefor in accordance with the
terms of the NEZ, shall be entitled to the benefits thereof.
VII. General Terms
7.01 Non - Appropriation. This Agreement shall not be construed as a commitment, issue,
pledge or obligation of any specific taxes or tax revenues for payment to DEVELOPER.
7.02 Mutual Assistance. CITY and DEVELOPER will do the things commercially reasonable,
necessary or appropriate to carry out the terns and provisions of this Agreement.
7.03 Default.
a. CITY shall have the right to declare DEVELOPER in default if DEVELOPER:
1. Fails to make any payment of money due to CITY under this Agreement
within seven (7) days after written notice of the failure shall have been
given to DEVELOPER; or
2. Defaults in the performance of any other obligation imposed upon
DEVELOPER by this Agreement and does not cure the default within
thirty (30) days after written notice describing the default in reasonable
detail shall have been given DEVELOPER (or, if CITY in its reasonable
discretion, determines that the default cannot reasonably be cured within
Chapter 380 Economic Develot)ment Agreement Page 14
the thirty (30) day period, if DEVELOPER does not commence curative
work within the thirty (30) day period and prosecute the work to
completion with diligence.
b. Unless otherwise stated in this Agreement, if DEVELOPER commits a default,
CITY shall give DEVELOPER a written notice specifying the default and
DEVELOPER shall have the following periods of time to cure the default:
1. In the case of a failure to pay money, DEVELOPER must remedy the
default within seven days from the receipt of the notice.
2. In all other cases with the exception of those cases hereinabove specified
where the Agreement is subject to immediate termination by CITY, the
default must be cured within thirty (30) days from the receipt of the notice
or, if the default is not reasonably susceptible of being cured within the
thirty (30) day period, commence curative work within the thirty (30) day
period and prosecute it to completion with diligence.
C. If any such default occurs and is not cured within the time allowed by subsection
(b) of this section, DEVELOPER understands and agrees that upon termination of
this Agreement, DEVELOPER shall execute a general warranty deed in a form
satisfactory to CITY to re- convey the Property to CITY. Failure to provide such a
deed to CITY within ten (10) days of the termination shall result in DEVELOPER
being liable for any resulting costs incurred by CITY to obtain title to the
Property.
d. Failure to strictly and promptly enforce the conditions set forth above shall not
operate as a waiver of CITY'S rights. The waiver by CITY or DEVELOPER of
any breach of this Agreement shall not be deemed a waiver of any subsequent
breach of the same nor shall any other term or condition of this Agreement be
deemed to have been waived by CITY or DEVELOPER unless such waiver is in
writing and signed by CITY or DEVELOPER.
e. Sums payable under this Agreement that are not paid by DEVELOPER when due
shall bear interest at the same rate from and after the payment due date until the
date CITY receives payment thereof in full. The Default Rate as used herein shall
be twelve percent (12 %) per annum.
In the event of a default by CITY, DEVELOPER shall give CITY written notice
of the defaults and CITY shall have thirty (30) days in which to cure such default,
or, if the default is not reasonably susceptible of being cured within the thirty (30)
day period, commence curative work within the thirty (30) day period and
prosecute it to completion with diligence.
g. Notwithstanding anything to the contrary contained in this Agreement, neither
party shall be deemed in violation of this Agreement if it is prevented from
Chanter 380 Economic Development Agreement, Page 15
performing any of the obligations hereunder due to a force majeure and the time
for performance shall be automatically extended by the period the party is
prevented from performing its obligations hereunder due to a force majeure.
"Force Majeure" means any (a) strike, lock -out or other labor troubles, (b) failure
or shortage of electrical power, gas, water, fuel oil, or other utility or service, (c)
riot, war, insurrection or other national or local emergency, (d) accident, flood,
fire or other casualty, (e) other act of God, or (f) other cause similar to any of the
foregoing and beyond the control of the person in question.
7.04 No Arbitration. Notwithstanding anything to the contrary contained in this Agreement,
CITY and DEVELOPER hereby agree that no claim or dispute between CITY and
DEVELOPER arising out of or relating to this Agreement shall be decided by any
arbitration proceeding including, without limitation, any proceeding under the Federal
Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable State arbitration statute,
including, but not limited to, the Texas General Arbitration Act, provided that in the
event that CITY is subjected to an arbitration proceeding notwithstanding this provision,
DEVELOPER consents to be joined in the arbitration proceeding if DEVELOPER's
presence is required or requested by CITY for complete relief to be recorded in the
arbitration proceeding.
7.05 Entire Agreement. This Agreement contains the entire agreement between the parties. All
prior negotiations, discussions, correspondence, and preliminary understandings between
the parties and others relating hereto are superseded by this Agreement. This Agreement
may only be amended, altered or revoked by written instrument signed by CITY and
DEVELOPER.
7.06 Authority to Enter Contract. Each party has the full power and authority to enter into and
perform this Agreement, and the person signing this Agreement on behalf of each party
has been properly authorized and empowered to enter into this Agreement. The persons
executing this Agreement hereby represent that they have authorization to sign on behalf
of their respective entities.
7.07 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties
and their respective successors and assigns.
7.08 Assignment. Except as otherwise provided in this Agreement, neither party may assign,
transfer or mortgage all or part of its rights and obligations to a third party without the
prior written approval of the other party, which shall not be unreasonably withheld,
conditioned or delayed.
7.09 Notice. Any notice and /or statement required or permitted to be delivered shall be
deemed delivered by actual delivery, by e-mail with electronic receipt confirmation, or by
depositing the same in the United States mail, certified with return receipt requested,
postage prepaid, addressed to the appropriate party at the following addresses:
Chanter 380 Economic Development Agreement, Page 16
WT
MA ��
CITY:
City of Baytown
Attn: City Manager
2401 Market Street
Baytown, Texas 77520
With copy to:
City of Baytown
Attn: City Attorney
2401 Market Street
Baytown, Texas 77520
Either party may designate a different address at any time upon written notice to the other
party.
7.10 Interpretation. Each of the parties has been represented by counsel of their choosing in
the negotiation and preparation of this Agreement. Regardless of which party prepared
the initial draft of this Agreement. this Agreement shall, in the event of any dispute
regarding its meaning or application, be interpreted fairly and reasonably and neither
more strongly for, nor against any party.
7.11 Applicable Law. This Agreement is made, and shall be construed and interpreted, under
the laws of the State of Texas and venue shall lie in the State courts of Harris County,
Texas.
7.12 Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event. it is the intention of the
parties that the remainder of this Agreement shall not be affected. It is also the intention
of the parties that in lieu of each clause and provision that is found to be illegal, invalid or
unenforceable, a provision be added to this Agreement which is legal, valid or
enforceable and is as similar in terms as possible to the provision found to be illegal,
invalid or unenforceable.
7.13 Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various
and several paragraphs.
Chanter 380 Economic Development Agreement, Page 17
7.14 No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
7.15 No Joint Venture. It is acknowledged and agreed by the parties that the terms of this
Agreement are not intended to and shall not be deemed to create any partnership or joint
venture among the parties. CITY, its past and future officers, elected officials, employees
and agents do not assume any responsibilities or liabilities to any third party in
connection with the Property, Project or the design, construction or operation of any
portion of the Project.
7.16 Right to Inspect Project/Property. During the Term, CITY has the right to inspect the
Property and the improvements thereon at all reasonable times during the period of this
Agreement to ensure compliance with the terms and conditions of this Agreement.
7.17 Exhibit. The following Exhibit "A" is attached and incorporated by reference for all
purposes.
Exhibit "A ": Description of the Property
7.18 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 to exercise any right or remedy occurring as a result of any future
default or failure of performance.
7.19 Release. DEVELOPER assumes full responsibility for its obligations under this
Agreement performed hereunder and hereby releases, relinquishes, discharges, and holds
harmless CITY, its officers, agents, and employees from all claims, demands, and causes
of action of every kind and character, including the cost of defense thereof, for any injury
to or death of any person (whether they be either of the parties hereto, their employees, or
other third parties) and any loss of or damage to property (whether the property be that of
either of the parties hereto, their employees, or other third parties) that is caused by or
alleged to be caused by, arising out of, or in connection with DEVELOPER'S work to be
performed hereunder. This release shall apply with respect to DEVELOPER's work
regardless of whether said claims, demands, and causes of action are covered in whole or
in part by insurance.
7.20 Agreement Read. The parties acknowledge that they have read, understand and intend to
be bound by the terms and conditions of this Agreement.
7.21 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.
Chanter 380 Economic Development Agreement, Page 18
7.22 Brokers. DEVELOPER and CITY represent that they have not dealt with any real estate
broker or salesman in connection with this Agreement. This paragraph shall survive the
termination, or sooner expiration, of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year opposite their signatures.
CITY OF BAVTOWN, TEXAS
ROBERT D. LEIPER. City Manager
(Date)
ATTEST:
LETICIA BRYSCH. City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
DEVELOPER: j�dl&� jxl C'
Na
re)
�r�ope�•l�. man --�i'� i�i.
(Printed Name)
(Title)
C1 0
(Dat -)
Chapter 380 Economic Development Agreement, Page 19
STATE OF TEXAS
COUNTY OF —W4UJ 6
Before me,
personalty appearea K—UM.&I
ofIQDP'I-CM. /NG,a
the undersigned notary public, on this day
in his capacity as NEV V&J7'"
known to me
proved to Ine on the oath of or
�— proved to me through his current VEkV `IeE'k
(description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person)
(check one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office thisk�ny of
*. •!�,;. CHRISTINE SANDIIN
Notary Public, State of Teras
My Commission Expire,
,,,,,,,• Novembet 08, 2014
2014.
Notary Public in and for t'r State of Texas
My commission expires: II D8 o2O1
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Chapter 380 Economic Development Agreement, Page 20
Exhibit "A"
Description of the Property
LTS 5 619 & 20 BLK 22
GOOSE CREEK, HARRIS COUNTY, TEXAS
LTS 10 THRU 18 BLK 22
GOOSE CREEK, HARRIS COUNTY, TEXAS
Exhibit "A." Page Solo