Ordinance No. 12,869ORDINANCE NO. 12,869
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE ACTING CITY MANAGER TO EXECUTE
AND THE CITY CLERK TO ATTEST TO A CHAPTER 380 ECONOMIC
DEVELOPMENT AGREEMENT WITH TEXAS CAPITAL DEVELOPMENT
CORPORATION, INC.; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN AS AUTHORIZED IN SAID AGREEMENT; MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
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
Acting City Manager to execute and the City Clerk to attest to a Chapter 380 Economic Development
Agreement with Texas Capital Development Corporation, Inc. 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 payment in accordance
with the agreement authorized in Section 1 hereinabove.
Section 3: This ordinance shall take effect immediately frrd after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative votf the City Council of the City of
Baytown this the 14th day of May, 2015. '
ATTEST:
"BRYSCH,
4
APPROVED AS TO FORM:
R
NACIO RAMIREZ, SR., City ,ttorney
ell
Mayor
o •cobfs0l, legal XarrwFilesCity CounciP•Ordinances\2015VNay 14 TexasCapitalDevelopmentCorporationlnc. 380EconomicDevelopmentAgreementOrdinance .doc
Exhibit "A"
CHAPTER 380
ECONOMIC DEVELOPMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Chapter 380 Economic Development Agreement ( "Agreement ") is made and entered
into by and between the CITY OF BAYTOWN, a municipal corporation located in Hams and
Chambers Counties, Texas, hereinafter known as the "City," and TEXAS CAPITAL
DEVELOPMENT CORPORATION, INC., a Texas corporation, hereinafter known as the
"TCDC."
RECITALS
WHEREAS, the City seeks to develop certain property owned or to be owned by TCDC
as part of a municipal golf course (the "Project"); and
WHEREAS, the Project is expected to cause the promotion of state and local economic
development and stimulate business and commercial activity within the corporate limits of
Baytown; and
WHEREAS, in accordance with Article III, Section 52 -a of the Texas Constitution and
Chapter 380 of the Texas Local Gov't Code, the 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, the City hereby
establishes such a program to provide incentives to TCDC to encourage and promote the
development of the Project 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 TCDC selling the
property more particularly described in Article III hereof, the City has agreed to offer a monetary
incentive for the sale of the same; and
WHEREAS, TCDC has agreed, in exchange and as consideration of the incentive
provided by the City to satisfy and comply with certain terms and conditions, including the sale
of the property and the closing of the same by December 31, 2015; and
WHEREAS, the City and TCDC agree that the provisions of this Agreement substantially
advance a legitimate interest of the City by expanding the property tax base as well as the sales
and use tax base of the City, by promoting economic development;
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,
the City and TCDC 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. The City finds that the benefits provided by TCDC and described herein
promote economic development in the City of Baytown and stimulate business and
commercial activity in Baytown.
II.
Authority
2.01 Cam. This Agreement and the City's obligations herein are expressly contingent upon the
City Council's approval of the terms and conditions of this Agreement. Once approved
by the City Council, this Agreement, which is authorized by Chapter 380 of the Texas
Local Government Code, constitutes a valid and binding obligation of the City.
2.02 TCDC. TCDC's execution and performance of this Agreement constitutes a valid and
binding obligation of TCDC. The City acknowledges that TCDC is acting in reliance
upon the City's performance of its obligations under this Agreement in making its
decision to sell the property described in Article III in order for the City to develop the
Project and to promote economic development in Baytown.
III.
Definitions
3.01 "Effective Date" is the date upon which the City Manager executes this Agreement.
3.02 "HCAD" means the Harris County Appraisal District or its successor.
3.03 "Program" means the economic development program for this Project established by the
City pursuant to Texas Local Government Code Chapter 380 to promote local economic
development and stimulate business and commercial activity within the City.
3.04 "Project" means the development of a municipal golf course and related amenities.
3.05 "Property" means the land and improvements on the property depicted in Exhibit "A"
and being approximately 124 acres off of Evergreen Road, out of Tracts 4G and 4H,
Abstract 65 of the William Scott Survey, Harris County, Texas.
Chapter 380 Economic Development Agreement. Page 2
IV.
TCDC Obligations
4.01 Sale of Property.
Between the Effective Date and December 31" or seven days after objections to title,
inspection report, environmental assessment and/or survey have been cured, TCDC shall
convey good title to the Property in accordance with the Earnest Money Contract, which
is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes (the
"Earnest Money Contract "), which property shall be used as part of the Project.
4.02 Failure to Meet Obli atg ions. In the event that TCDC fails to fulfill its obligations under
the performance obligations contained in the Earnest Money Contract, the City may, at its
option, terminate this Agreement in accordance with Section 6.02, whereupon TCDC
shall be required to reimburse the City within 30 days for all expenses it has incurred to
the date of termination.
V.
City Obligations
5.01 Economic Development Grant. The City shall pay to TCDC an economic development
grant in the form of a one -time payment, which shall be added to the appraised value as
last certified by HCAD to reach a sales price of TWENTY -TWO THOUSAND AND
NO 1100 DOLLARS ($22,000.00) per acre. Specifically, the grant shall be as follows and
shall be paid by the City at closing:
HCAD Appraised Value per Acre: $ 8,687.54
Economic Development Grant per Acre: $13,312.46
Sales Price per Acre
VI.
General Terms
6.01 Term. This Agreement shall become enforceable upon execution by the City Manager of
the City and shall be effective on the Effective Date. Unless terminated earlier in
accordance with its terms, this Agreement shall terminate once TCDC has conveyed good
title to the Property to the City.
6.02 Termination. If either the City or TCDC should default in the performance of any
obligations of this Agreement or the Earnest Money Agreement, such default shall be
governed by the terms of the Earnest Money Contract.
Chapter 380 Economic Develoomot Anreemmt. Page 3
6.03 Mutual Assistance. The City and TCDC will do the things commercially reasonable,
necessary or appropriate to cant' out the terms and provisions of this Agreement, and to
aid and assist each other in carving out such terms and provisions.
6.04 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 the City and
TCDC.
6.05 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties
and their respective heirs, executors, administrators, successors and assigns.
6.06 Assignment. Except as provided below, TCDC may not assign all or part of its rights and
obligations to a third party without prior written approval of the City.
6.07 Release. By this Agreement, 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 Agreement or any other contract or agreement, any charter, or applicable state
law. Nothing contained herein shall be construed in any way so as to waive in whole or
part the City's sovereign immunity. TCDC assumes full responsibility for its obligations
under this Agreement performed hereunder and hereby releases, relinquishes, discharges,
and holds harmless the City, its officers, agents, and employees from all claims, demands,
and causes of action of every kind and character that is caused by or alleged to be caused
by, arising out of, or in connection with TCDC's obligations hereunder. This release
shall apply with respect to TCDC's work regardless of whether said claims, demands,
and causes of action are covered in whole or in part by insurance.
6.08 Notice. Any notice and /or statement required or permitted to be delivered shall be
deemed delivered by actual delivery, by facsimile, with receipt of 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:
TCDC:
Texas Capital Development Corporation, Inc.
Attn: President
5950 Berkshire Ln, Suite 375,
Dallas, TX 75225
CITY:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522 -0424
Either party may designate a different address at any time upon written notice to the other
party-
Chow 380 Economic Development Agreement, Page 4
6.09 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.
6.10 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 Hams County,
Texas.
6.11 Severabilitv. 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.
6.12 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.
6.13 No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
6.14 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.
6.15 Public Information. Records and information provided to the City or its representative(s)
to verify compliance with this Agreement shall be available for public inspection.
6.16 Exhibit. The following Exhibit "A" is attached and incorporated by reference for all
purposes.
6.17 Multiple Originals. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute but
one and the same instrument, which may be sufficiently evidenced by one counterpart.
6.18 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.
Chanter 380 Economic Development Aamcment. Page 5
6.19 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.
EXECUTED by the authorized representatives of the parties on the dates indicated
below.
CITY OF BAYTOWN, TEXAS
RON BOTTOMS, Acting City Manager (Date)
ATTEST:
LETICIA BRYSCH
City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR.
City Attorney
TEXAS CAPITAL DEVELOPMENT
CORPORATION, INC., a Texas Corporation
LIM
Chapter 380 Economic Develooment Agreement. Page 6
(Signature) (Date)
(Printed Name)
(Title)
STATE OF TEXAS
COUNTY OF
Before me, , the undersigned notary public,
on this day personally appeared , the
of Texas Capital Development Corporation, Inc., the owner of the above - described Property,
known to me to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes, in the capacity, and for the
consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of , 2015.
Notary Public in and for the State of Texas
R: Karen Files ContmctvTexas Capital Development Eamest Money Agreement%380 Agreement doc
Chanter 380 Economic Development Agreement, Page 7
Exhibit "A"
EARNEST MONEY CONTRACT
STATE OF TEXAS
COUNTY OF HARRIS
This Earnest Money Contract (this "Agreement ") is made and entered into this Way of
2015, by and between the CITY OF BAYTOWN, a municipal corporation located in
HarTfs and Chambers Counties, Texas, hereinafter known as the "Buyer," and TEXAS CAPITAL
DEVELOPMENT CORPORATION, INC., a Texas corporation, hereinafter known as the "Seller."
I.
IN GENERAL
Subject to Article II hereof, the Seller agrees to sell and convey to Buyer and Buyer agrees to buy
from Seller the property described below.
II.
CONTINGENCY
Seller's and Buyer's obligations herein are expressly contingent upon the following:
1. the City Council's approval of this Agreement and the Chapter 380 Agreement with
Seller for the golf course development project which is attached hereto as Exhibit "D"
and incorporated herein for all intents and purposes;
2. the City Council's approval of this Agreement;
3. an environmental site assessment satisfactory to the Buyer;
4. the City of Baytown's voters approving the issuance of general obligations bonds for the
purchase and upgrade of the Evergreen Point Golf Course and related properties at the
election to be held on November 3, 2015 (the "Election Date ");
5. the City of Baytown's acquisition of the properties more particularly described in
Exhibits `B" and "C" which are attached hereto and incorporated herein for all intents
and purposes; and
6. Seller receiving an eighty (80) foot wide easement from Tri- Cities Beach Road for access
to the approximate 17 -acre tract noted on Exhibit "A," hereinafter referred to as the
"Easement."
III.
PROPERTY
The property subject to this Agreement is that property in Exhibit "A," which is attached hereto
and incorporated herein for all intents and purposes, and hereinafter referred to as the "Property."
IV.
SALES PRICE
The sales price of the above - referenced property shall be TWENTY -TWO THOUSAND AND
NO /100 DOLLARS ($22,000.00) per acre, hereinafter "Sales Price," which sum shall be paid in full at
closing on the Property.
Earnest Money Contract, Page 1
V.
EARNEST MONEY
Buyer shall deposit ONE THOUSAND AND NO 1100 DOLLARS ($1,000.00) as earnest money
with Chicago Title Company, located at 407 W. Baker Road, Suite T, Baytown, TX 77521 ( "Title
Company") upon execution of this Agreement by both parties.
VI.
TITLE POLICY AND SURVEY
Seller shall obtain at Buyer's sole cost and expense an Owner Policy of Title Insurance (the "Title
Policy ") issued by the Title Company in the amount of the Sales Price, dated at or after closing, insuring
Buyer against loss under the provisions of the Title Policy subject to the promulgated exclusions
(including existing building and zoning ordinances) and the following exceptions, among others:
(1) restrictive covenants common to the platted subdivision in which the Property is located;
(2) the standard printed exception for standby fees, taxes and assessments;
(3) utility easements created by the dedication deed or plat of the subdivision in which the
Property is located;
(4) reservations or exceptions otherwise permitted by this Agreement or as may be approved
by Buyer in writing;
(5) the standard printed exception as to discrepancies, conflicts, shortages in area or
boundary lines, encroachments or protrusions or overlapping improvements;
(6) the standard printed exception as to marital rights; and
(7) the standard printed exception as to waters, tidelands, beaches, streams, and related
matters.
Within twenty (20) days after the Effective Date, Seller shall furnish to Buyer a commitment for
Title Insurance (the "Commitment ") and, at Buyer's expense, legible copies of restrictive covenants and
documents evidencing exceptions in the Commitment other than the standard printed exceptions. Seller
authorizes the Title Company to mail or hand - deliver the Commitment and related documents to Buyer at
Buyer's address shown below. If the Commitment is not delivered to Buyer within the specified time, the
time for delivery shall be automatically extended up to fifteen (15) days. Buyer shall have ten (10) days
after the receipt of the Commitment to object in writing to matters disclosed in the Commitment. Buyer
may object to items (1) through (7) listed above if Buyer determines that any such item prohibits the
proposed use of the Property as hereinafter described; however, Buyer may not object to existing building
and zoning ordinances.
Buyer shall obtain a survey meeting its own criteria at Buyer's expense (the "Survey "). Within
thirty (30) days after the Effective Date, Buyer may object in writing to any matter which constitutes a
defect or encumbrance to title shown on the Survey. The Survey shall be made by a Registered
Professional Land Surveyor acceptable to the Title Company and the Buyer. The Survey shall (a) identify
the Property by metes and bounds or platted lot description; (b) show that the Survey was made and
staked on the ground with the comers permanently marked; (c) set forth the dimensions and total area of
the Property; (d) show the location of all improvements, highways, streets, roads, railroads, rivers, creeks
or other waterways, fences, easements and rights -of -way on the Property with all easements and rights -of-
way referenced to their recording information; (e) show any discrepancies or conflicts in boundaries, any
visible encroachments, and any portion of the Property lying within the one hundred (100) year flood
Earnest Money Contract, Page 2
plain as shown on the current Federal Emergency Management Agency map; and (f) contain the
surveyor's certificate that the survey as shown by the plat is true and correct.
Utility easements created by the dedication deed and plat of the subdivision in which the Property
is located shall not be a basis for objection. Buyer's failure to object under this article within the time
allowed shall constitute a waiver of Buyer's right to object except that the requirements in Schedule C of
the Commitment shall not be deemed to have been waived. If objections are timely made by Buyer,
Seller shall have the opportunity, but not the obligation, to cure the objection within twenty (20) days
after the date Seller receives them. If objections are not cured by the expiration of the twenty day cure
period, then Buyer shall either waive such exceptions and close on the Property or terminate this Contract
within five (5) days following the expiration of the cure period and receive back its Earnest Money.
VII.
CLOSING
The closing of the sale shall be on or before the 18s' day of November, 2015, or within seven (7)
days after (i) objections to title, inspection report, environmental assessment and/or survey have been
cured; (ii) the satisfaction of the contingencies expressed in Article II; and (iii) the closing and receipt of
funds for the general obligation bond debt issuance for the financing of the Evergreen Point Golf Course
and related properties, whichever date is later, such date hereinafter referred to as "Closing Date." Unless
earlier terminated for failure to meet the contingencies or the above - referenced conditions, the parties
agree that the Closing Date shall not extend beyond December 31, 2015. If either party fails to close this
sale by the Closing Date herein specified, the non - defaulting party shall be entitled to exercise any
remedies contained in Article XII hereof. At closing, Seller shall furnish tax statements or certificates
showing no delinquent taxes are due and owing on the Property, and Seller shall tender a General
Warranty Deed conveying good and indefeasible title showing no additional exceptions, other than those
not objected to by Buyer or waived by Buyer pursuant to Article VI hereof.
VIII.
POSSESSION
The possession of the Property shall be delivered to Buyer at closing.
IX.
SALES EXPENSES
The following expenses shall be paid at or prior to closing:
A. Buyer shall be responsible for the expenses associated with the environmental
assessments; preparation of deed; escrow fee; and other expenses stipulated to be paid by
Buyer under other provisions of this Agreement.
B. Seller shall be responsible for the expenses associated with the following: releases of
existing liens, including prepayment penalties and recording fees; release of Seller's loan
liability; taxes assessed prior to January 1, 2015; tax statements or certificates; and other
expenses stipulated to be paid by Seller under other provisions of this Agreement.
Earnest Money Contract, Page 3
X.
PRORATIONS
Current taxes, any rents, maintenance fees, and assessments shall be prorated through the Closing
Date. If the amount of the ad valorem taxes for the year in which the sale is closed is not available on the
Closing Date, proration of the taxes shall be made on the basis of the taxes assessed in the previous year.
XI.
CHARGES DUE TO SELLER'S CHANGE IN USE
If Seller's change in use of the Property prior to the closing or denial of a special use valuation on
the Property claimed by Seller results in the assessment of additional taxes for periods prior to closing,
the additional taxes shall be the obligation of the Seller. Obligations imposed by this article shall survive
closing.
XII.
DEFAULT
If Buyer fails to comply with this Agreement, Buyer shall be in default, and Seller may (a)
enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate
this Agreement and receive the Earnest Money as liquidated damages, thereby releasing both parties from
this Agreement. If Seller fails to comply with this Agreement, Seller shall be in default and Buyer may
either (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b)
terminate this Agreement, receive the Earnest Money, and seek such other relief as may be provided by
law, thereby releasing both parties to this Agreement.
XIII.
ESCROW
The Earnest Money is deposited with Escrow Agent with the understanding that Escrow Agent is
not (a) a party to this Agreement and does not have any liability for the performance or non - performance
of any party to this Agreement, (b) liable for interest on the Earnest Money, or (c) liable for any loss of
Earnest Money caused by the failure of a financial institution in which the Earnest Money has been
deposited unless the financial institution is acting as Escrow Agent. If either party makes demand for the
payment of the Earnest Money, Escrow Agent has the right to require from all parties a written release of
liability of Escrow Agent for disbursement of the Earnest Money. Any refund or disbursement of Earnest
Money under this Agreement shall be reduced by the amount of unpaid expenses incurred on behalf of the
party receiving the Earnest Money, and Escrow Agent shall pay the same to the creditors thereto. At
closing the Earnest Money shall be refunded to Buyer. Demands and notices required by this paragraph
shall be in writing and delivered by hand delivery or by certified mail, return receipt requested.
XIV.
REPRESENTATIONS
Seller represents that as of the Closing Date there will be no liens, assessments, or Uniform
Commercial Code or other security interests against any of the Property which will not be satisfied out of
the Sales Price, other than ad valorem taxes. If any representation in this Agreement is untrue on the
Closing Date, this Agreement may be terminated by Buyer and the Earnest Money shall be refunded to
Buyer. All representations contained in this Agreement shall survive the closing.
Earnest Money Contract, Page 4
XV.
SALE OF INTEREST
The Seller may not sell or assign all or part interest in the Property to another party or parties
without the express prior written approval of the Acting City Manager of such sale or assignment, nor
shall Seller assign any monies due or to become due to it hereunder without the previous consent of the
Acting City Manager. It is expressly understood and agreed that this provision shall only apply to the
Property as defined in Article III.
XVI.
NOTICES
All notices required to be given hereunder shall be given in writing in person or by overnight,
certified or registered mail, return receipt requested at the respective addresses of the parties set forth
herein or at such other address as may be designated in writing by either party. Notice given by mail shall
be deemed given three (3) days after the date of mailing thereof to the following addresses:
SELLER
Texas Capital Development Corporation, Inc.
Attn: President
5950 Berkshire Ln, Suite 375,
Dallas, TX 75225
BUYER
City of Baytown
Attn: Acting City Manager
P.O. Box 424
Baytown, TX 77522
XVII.
FEDERAL TAX REQUIREMENTS
If Seller is a "foreign person" as defined by applicable law or if Seller fails to deliver an affidavit
that Seller is not a "foreign person," then Buyer shall withhold from the sales proceeds an amount
sufficient to comply with the applicable tax law and deliver the same to the Internal Revenue Service
together with appropriate tax forms. IRS regulations require the filing of written reports if cash in excess
of specified amounts is received in the transaction.
XVIII.
USE
The intended use of the Property by Buyer is for municipal purposes. If Buyer ascertains that
applicable easements, restrictions or governmental laws, rules or regulations prevent such intended uses,
and Buyer notifies Seller within thirty (30) days after the effective date of this Agreement (but in all
events at least seven (7) days prior to closing) of Buyer's inability to use the property as herein proposed,
the Agreement shall terminate and the Earnest Money shall be refunded to Buyer. Buyer's failure to give
the notice within the required time shall constitute Buyer's acceptance of the Property.
Earnest Money Contract, Page 5
XIX.
NON - WAIVER
Failure of either party hereto to insist on the strict performance of any of the agreements herein or
to exercise any rights or remedies accruing thereunder 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.
XX.
GOVERNING LAW
This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas and the City of Baytown, regardless of the place of its
execution or performance. The place of making and the place of performance for all purposes shall be
Baytown, Hams County, Texas.
XXI.
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.
XXII.
NO RIGHT TO ARBITRATION
Notwithstanding anything to the contrary contained in this Agreement, the Buyer and the Seller
hereby agree that no claim or dispute between the Buyer and the Seller 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 the Buyer
is subjected to an arbitration proceeding notwithstanding this provision, the Seller consents to be joined in
the arbitration proceeding if the Seller's presence is required or requested by the Buyer for complete relief
to be recorded in the arbitration proceeding.
XXIII.
COMPLETE AGREEMENT
This Agreement contains all the agreements of the parties relating to the subject matter hereof and
is the full and final expression of the agreement between the parties.
=V.
AUTHORITY
The persons executing this Agreement on behalf of the parties hereby represent that such persons
have full authority to execute this Agreement and to bind the party he/she represents.
Earnest Money Contract, Page 6
Xxv.
EXPIRATION
This Contract shall expire if not signed by the Seller on or before the 23`d day of April, 2015.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies,
each of which shall b'Vdeemed to an o ' 'nal, but all of which shall constitute but one and the same
Agreement on the day of _, 2015, the date of execution by the Seller.
B ER• / VTYAYTOWN,TEXAS
l
ATTEST: RO-WBOTTOMS, Acting City Manager
LETICIA BRYSCH, C Clerk 0
APPROVED AS TO FORM:
4AgK1ftIREZ, SR., City t they
SELLER:
TEXAS CAPITAL DEVELOPMENT
CORPORATIO INC., a Texas Corporation
B _
(Signature)
ev uj
(Printed Name)
(Title)
Earnest Money Contract, Page 7
STATE OF TEXAS
COUNTY OF Hcvn
Before me, tJ iri, Rr c r t rte. e ( , the undersigged notary public, on this
day personally appeared J n Wells the Ut ee l Yes toes —jof Texas Capital
Development Corporation, Inc., the owner of the above - described Property, known to me to be the person
whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same
for the purposes, in the capacity, and for the consideration therein expressed.
SUBSCRIBED AND SWORN before me thisfl &lday of A62 �t , 2015.
E ERRING SEELEY Public, State of Texas ommission Expires AY 26. 2017
N61)_ ry Public in and for the Vite of Tex
R: Karen Files Contracts Texas Capital Development Earnest Money AgreementWaytown Contract 04222015.doc
Earnest Money Contract, Page 8
Exhibit "A"
Exhibit "B"
Exhibit "C
Exhibit "D"
CHAPTER 380
ECONOMIC DEVELOPMENT AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Chapter 380 Economic Development Agreement ( "Agreement ") is made and entered
into by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and
Chambers Counties, Texas, hereinafter known as the "City," and TEXAS CAPITAL
DEVELOPMENT CORPORATION, INC., a Texas corporation, hereinafter known as the
"TCDC."
RECITALS
WHEREAS, the City seeks to develop certain property owned or to be owned by TCDC
as part of a municipal golf course (the "Project "); and
WHEREAS, the Project is expected to cause the promotion of state and local economic
development and stimulate business and commercial activity within the corporate limits of
Baytown; and
WHEREAS, in accordance with Article III, Section 52 -a of the Texas Constitution and
Chapter 380 of the Texas Local Gov't Code, the 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, the City hereby
establishes such a program to provide incentives to TCDC to encourage and promote the
development of the Project 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 TCDC selling the
property more particularly described in Article III hereof, the City has agreed to offer a monetary
incentive for the sale of the same; and
WHEREAS, TCDC has agreed, in exchange and as consideration of the incentive
provided by the City to satisfy and comply with certain terms and conditions, including the sale
of the property and the closing of the same by December 31, 2015; and
WHEREAS, the City and TCDC agree that the provisions of this Agreement substantially
advance a legitimate interest of the City by expanding the property tax base as well as the sales
and use tax base of the City, by promoting economic development;
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,
the City and TCDC 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. The City finds that the benefits provided by TCDC and described herein
promote economic development in the City of Baytown and stimulate business and
commercial activity in Baytown.
II.
Authority
2.01 Cam. This Agreement and the City's obligations herein are expressly contingent upon the
City Council's approval of the terms and conditions of this Agreement. Once approved
by the City Council, this Agreement, which is authorized by Chapter 380 of the Texas
Local Government Code, constitutes a valid and binding obligation of the City.
2.02 TCDC. TCDC's execution and performance of this Agreement constitutes a valid and
binding obligation of TCDC. The City acknowledges that TCDC is acting in reliance
upon the City's performance of its obligations under this Agreement in making its
decision to sell the property described in Article III in order for the City to develop the
Project and to promote economic development in Baytown.
III.
Definitions
3.01 "Effective Date" is the date upon which the City Manager executes this Agreement.
3.02 "HCAD" means the Harris County Appraisal District or its successor.
3.03 "Program" means the economic development program for this Project established by the
City pursuant to Texas Local Government Code Chapter 380 to promote local economic
development and stimulate business and commercial activity within the City.
3.04 "Project" means the development of a municipal golf course and related amenities.
3.05 "Property" means the land and improvements on the property depicted in Exhibit "A"
and being approximately 124 acres off of Evergreen Road, out of Tracts 4G and 4H,
Abstract 65 of the William Scott Survey, Harris County, Texas.
19 : l i . llmnm t ]t
IV.
TCDC Obligations
4.01 Sale of Pronerty.
Between the Effective Date and December 31" or seven days after objections to title,
inspection report, environmental assessment and/or survey have been cured, TCDC shall
convey good title to the Property in accordance with the Earnest Money Contract, which
is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes (the
"Earnest Money Contract "), which property shall be used as part of the Project.
4.02 Failure to Meet Obligations. In the event that TCDC fails to fulfill its obligations under
the performance obligations contained in the Earnest Money Contract, the City may, at its
option, terminate this Agreement in accordance with Section 6.02, whereupon TCDC
shall be required to reimburse the City within 30 days for all expenses it has incurred to
the date of termination.
V.
City Obligations
5.01 Economic Development Grant. The City shall pay to TCDC an economic development
grant in the form of a one -time payment, which shall be added to the appraised value as
last certified by HCAD to reach a sales price of TWENTY -TWO THOUSAND AND
NO /100 DOLLARS ($22,000.00) per acre. Specifically, the grant shall be as follows and
shall be paid by the City at closing:
HCAD Appraised Value per Acre: $ 8,687.54
Economic Development Grant per Acre: $13,312.46
Sales Price per Acre $22
VI.
General Terms
6.01 Term. This Agreement shall become enforceable upon execution by the City Manager of
the City and shall be effective on the Effective Date. Unless terminated earlier in
accordance with its terms, this Agreement shall terminate once TCDC has conveyed good
title to the Property to the City.
6.02 Termination. If either the City or TCDC should default in the performance of any
obligations of this Agreement or the Earnest Money Agreement, such default shall be
governed by the terms of the Earnest Money Contract.
Chapter 380 Economic Development Aem'ment Page 3
6.03 Mutual Assistance. The City and TCDC will do the things commercially reasonable,
necessary or appropriate to carry out the terns and provisions of this Agreement, and to
aid and assist each other in carrying out such terms and provisions.
6.04 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 the City and
TCDC.
6.05 Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties
and their respective heirs, executors, administrators, successors and assigns.
6.06 Assignment. Except as provided below, TCDC may not assign all or part of its rights and
obligations to a third party without prior written approval of the City.
6.07 Release. By this Agreement, 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 Agreement or any other contract or agreement, any charter, or applicable state
law. Nothing contained herein shall be construed in any way so as to waive in whole or
part the City's sovereign immunity. TCDC assumes full responsibility for its obligations
under this Agreement performed hereunder and hereby releases, relinquishes, discharges,
and holds harmless the City, its officers, agents, and employees from all claims, demands,
and causes of action of every kind and character that is caused by or alleged to be caused
by, arising out of, or in connection with TCDC's obligations hereunder. This release
shall apply with respect to TCDC's work regardless of whether said claims, demands,
and causes of action are covered in whole or in part by insurance.
6.08 Notice. Any notice and/or statement required or permitted to be delivered shall be
deemed delivered by actual delivery, by facsimile, with receipt of 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:
TCDC:
Texas Capital Development Corporation, Inc.
Attn: President
5950 Berkshire Ln, Suite 375,
Dallas, TX 75225
CITY:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522 -0424
Either party may designate a different address at any time upon written notice to the other
ply.
Chapter 380 Economic Develonment Auc ment. Page 4
6.09 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.
6.10 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.
6.11 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.
6.12 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.
6.13 No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
6.14 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.
6.15 Public Information. Records and information provided to the City or its representative(s)
to verify compliance with this Agreement shall be available for public inspection.
6.16 Exhibit. The following Exhibit "A" is attached and incorporated by reference for all
purposes.
6.17 Multiple Originals. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute but
one and the same instrument, which may be sufficiently evidenced by one counterpart.
6.18 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.
Chaotcr 380 Economic n..,,,.toument Augment Pagc 5
6.19 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.
EXECUTED by the authorized representatives of the parties on the dates indicated
below.
ATTEST:
LETICIA BRYSCH
City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR.
City Attorney
Chapter 380 Economic Development Agreement Page 6
CITY OF BAYTOWN, TEXAS
RON BOTTOMS, Acting City Manager (Date)
TEXAS CAPITAL DEVELOPMENT
CORPORATION, INC., a Texas Corporation
wo
(Signature) (Date)
(Printed Name)
(Title)
STATE OF TEXAS
COUNTY OF
Before me, , the undersigned notary public,
on this day personally appeared , the
of Texas Capital Development Corporation, Inc., the owner of the above - described Property,
known to me to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes, in the capacity, and for the
consideration therein expressed.
SUBSCRIBED AND SWORN before me this day of 12015.
Notary Public in and for the State of Texas
R_ Karen Files Contracts Texas Capital Development Earnest Money Agreement\380 Agreement doc
Chanter 380 Economic Dcvclonment Agreement Page 7