Ordinance No. 13,162ORDINANCE NO. 13,162
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A
DEVELOPMENT AGREEMENT WITH THE BAYTOWN
REDEVELOPMENT AUTHORITY AND THE REINVESTMENT ZONE
NUMBER ONE, CITY OF BAYTOWN, TEXAS, FOR THE ISSUANCE OF
CERTIFICATES OF OBLIGATION FOR THE CONSTRUCTION OF SAN
JACINTO BOULEVARD AND OTHER RELATED IMPROVEMENTS; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes
the City Manager to execute and the City Clerk to attest to a Development Agreement with the
Baytown Redevelopment Authority and the Reinvestment Zone Number One, City of Baytown,
Texas, for the issuance of Certificates of Obligation for the construction of San Jacinto
Boulevard and other related improvements. A copy of said agreement is attached hereto as
Exhibit "A," and incorporated herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown. -7
INTRODUCED, READ and PASSED by the affirmativ ote of the City Council of the
City of Baytown this the 14th day of April, 2016.
ATT T:
L TICIA BRYSCH, City dvA
APPROVED AS TO FORM:
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RAMIREZ, SR., Ci y Attorney
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H. DONCARLOS, Mayor
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Exhibit "A"
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (this "Agreement "), dated
2016, is made by and between REINVESTMENT ZONE NUMBER ONE, CITY OF
BAYTOWN, TEXAS ( "Baytown Zone "), a tax increment reinvestment zone created by
the City of Baytown, Texas (the "City ") pursuant to Chapter 311 of the Texas Tax Code,
as amended, acting by and through its governing body, the Board of Directors (the
"Zone Board "), BAYTOWN REDEVELOPMENT AUTHORITY ( "Baytown Authority "),
a local government corporation created and organized under the provisions of the
Texas Transportation Corporation Act, Chapter 431, Transportation Code, and
authorized and approved by the City under Resolution No. 1516 adopted on October
25, 2001, acting by and through its governing body, the Board of Directors (the
"Baytown Board "), and THE CITY OF BAYTOWN, TEXAS (the "City "), a Texas home -
rule city.
RECITALS
WHEREAS, by Ordinance No. 9197 and by Resolution No. 1516 the City Council
of the City created the Baytown Zone in the City pursuant to Chapter 311 of the Texas
Tax Code, as amended, and pursuant to a Preliminary Project Plan and Preliminary
Reinvestment Zone Financing Plan, and appointed its Board of Directors; and
WHEREAS, the Zone Board adopted and the City approved a final Project Plan
and Reinvestment Zone Financing Plan, as subsequently amended (the "Project Plan");
and
WHEREAS, the City authorized the creation of the Baytown Authority to aid,
assist and act on behalf of the City in the performance of the City's governmental
functions with respect to the common good and general welfare of Baytown and
neighboring areas; and
WHEREAS, the City, the Baytown Zone and the Baytown Authority have
entered into that certain Agreement dated November 24, 2001, and approved as
Ordinance No. 9271 (the "Baytown Agreement "), pursuant to which the City and the
Baytown Zone contracted with the Baytown Authority to administer the Baytown Zone
including, but not limited to, the power to engage in activities relating to the acquisition
and development of land, to construct and improve infrastructure in Baytown, to enter
into development agreements with developers/ builders in Baytown, and to issue, sell
or deliver its bonds, notes or other obligations in accordance with the terms of the
Baytown Agreement upon the approval of the City Council of the City; and
479312
WHEREAS, the Texas Tax Code provides that the Baytown Zone may enter into
agreements as the Zone Board considers necessary or convenient to implement the
Project Plan and achieve its purposes; and
WHEREAS, the Baytown Board and the Zone Board have determined that it is in
the best interest of the Baytown Zone and the Baytown Authority to contract with the
City to provide for the efficient and effective implementation of certain aspects of the
Project Plan; and
WHEREAS, the City desires to facilitate development in the Baytown Zone by
constructing various improvements authorized in the Project Plan (the "Public
Improvements "), and to finance such Public Improvements using City general
obligation debt, on the condition that the Authority use available Zone increment to
reimburse the City for its annual debt service payments directly attributable to the
applicable City debt; NOW THEREFORE,
AGREEMENT
For and in consideration of the mutual promises, covenants, obligations, and
benefits of this Agreement, the Baytown Zone, the Baytown Authority, and the City,
contract and agree as follows:
ARTICLE 1
GENERAL TERMS
1.1 Definitions. The terms "Agreement," "City," "Baytown Agreement,"
"Baytown Board," "Baytown Authority," 'Baytown Zone," and "Zone Board" have the
above meanings, and the following terms have the following meanings:
"Act" shall mean the Tax Increment Financing Act, Chapter 311, Texas Tax Code,
as amended.
"Available Tax Increment" shall mean funds in the Tax Increment Revenue
Fund, including eligible funds provided under the interlocal agreement between the
Baytown Zone, the City and Harris County.
"City Debt" shall mean any general obligation debt of the City, such as
certificates of obligation or similar instruments, and refundings thereof, used to finance
or refinance Public Improvements.
"Effective Date" means the effective date of this Agreement, being the date of
this Agreement written above.
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"Parties" or "Party" shall mean the City, the Baytown Zone, and the Baytown
Authority.
"Plans and Specifications" shall mean the designs, plans and specifications for
the Public Improvements prepared or to be prepared by the City's engineer in
accordance with the Project Plan.
"Pledged Available Tax Increment" shall mean the Available Tax Increment not
otherwise payable by the Authority under another Development Agreement, regardless
of when such agreement is executed.
"Project Costs" shall mean the regular debt service costs paid by the City on City
Debt, calculated as provided in this Agreement.
"Public Improvements" shall have the meaning provided in Article 3 of this
Agreement.
"Tax Increment Revenue Fund" shall mean the special fund established by the
Baytown Authority and funded with payments made by the City and any other
participating Taxing Units, pursuant to the Baytown Agreement.
"Taxing Unit" shall mean individually and collectively, the City, the County, and
any other taxing units participating in the Baytown Zone.
1.2 Singular and Plural. Words used herein in the singular, where the context
so permits, also include the plural and vice versa. The definitions of words in the
singular herein also apply to such words when used in the plural where the context so
permits and vice versa.
ARTICLE 2
REPRESENTATIONS
2.1 Representation of Baytown Authority. The Baytown Authority hereby
represents to the Parties that:
(A) The Baytown Authority is duly authorized, created and existing in
good standing under the laws of the State and is duly qualified and authorized to carry
on the governmental functions and operations as contemplated by this Agreement.
(B) The Baytown Authority has the power, authority and legal right to
enter into and perform this Agreement and the execution, delivery and performance
hereof (i) have been duly authorized, (ii) to the best of its knowledge, will not violate
595034 - 3 -
any applicable judgment, order, law or regulation, and (iii) do not constitute a default
under, or result in the creation of, any lien, charge, encumbrance or security interest
upon any assets of the Baytown Authority under any agreement or instrument to which
the Baytown Authority is a party or by which the Baytown Authority or its assets may
be bound or affected.
(C) The Public Improvements and the Project Costs are components of
or are consistent with the Project Plan.
(D) This Agreement has been duly authorized, executed and delivered
by the Baytown Authority and, constitutes a legal, valid and binding obligation of the
Baytown Authority, enforceable in accordance with its terms except to the extent that (i)
the enforceability of such instruments may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws of general application in effect from time
to time relating to or affecting the enforcement of creditors' rights and (ii) certain
equitable remedies including specific performance may be unavailable.
(E) The execution, delivery and performance of this Agreement by the
Baytown Authority does not require the consent or approval of any person which has
not been obtained.
(F) The Baytown Authority has an exemption from the payment of
sales and use taxes pursuant to the statute under which the Baytown Authority was
created.
2.2 Representation of Baytown Zone. The Baytown Zone hereby represents to
the Parties that:
(A) The Baytown Zone is duly authorized, created and existing in good
standing under the laws of the State and is duly qualified and authorized to carry on
the governmental functions and operations as contemplated by this Agreement.
(B) The Baytown Zone has the power, authority and legal right to enter
into and perform this Agreement and the execution, delivery and performance hereof
(i) have been duly authorized, (ii) to the best of its knowledge, will not violate any
applicable judgment, order, law or regulation, and (iii) do not constitute a default
under, or result in the creation of, any lien, charge, encumbrance or security interest
upon any assets of the Baytown Zone under any agreement or instrument to which the
Baytown Zone is a party or by which the Baytown Zone or its assets may be bound or
affected.
(C) The Public Improvements and the Project Costs are components of
or are consistent with the Project Plan.
595034 - 4 -
(D) This Agreement has been duly authorized, executed and delivered
by the Baytown Zone and constitutes a legal, valid and binding obligation of the
Baytown Zone, enforceable in accordance with its terms except to the extent that (i) the
enforceability of such instruments may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws of general application in effect from time
to time relating to or affecting the enforcement of creditors' rights and (ii) certain
equitable remedies including specific performance may be unavailable.
(E) The execution, delivery and performance of this Agreement by the
Baytown Zone does not require the consent or approval of any person which has not
been obtained.
2.3 Representation of the City. The City hereby represents to the Parties that:
(A) The City is a Texas home -rule City duly incorporated under the
laws of the State and is duly qualified and authorized to carry on the governmental
functions and operations as contemplated by this Agreement.
(B) The City has the power, authority and legal right to enter into and
perform this Agreement and the execution, delivery and performance hereof (i) have
been duly authorized, (ii) to the best of its knowledge, will not violate any applicable
judgment, order, law or regulation, and (iii) do not constitute a default under, or result
in the creation of, any lien, charge, encumbrance or security interest upon any assets of
the City under any agreement or instrument to which the City is a party or by which the
City or its assets may be bound or affected.
(C) This Agreement has been duly authorized, executed and delivered
by the City and, constitutes a legal, valid and binding obligation of the City, enforceable
in accordance with its terms except to the extent that (i) the enforceability of such
instruments may be limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws of general application in effect from time to time relating to or
affecting the enforcement of creditors' rights and (ii) certain equitable remedies
including specific performance may be unavailable.
(D) The execution, delivery and performance of this Agreement by the
City does not require the consent or approval of any person which has not been
obtained.
(E) The City has an exemption from the payment of sales and use taxes
pursuant to state law.
595034 - 5 -
ARTICLE 3
THE PUBLIC IMPROVEMENTS
3.1 Public Improvements. The Public Improvements shall be design,
construction and installation of any public improvements authorized in the Project Plan
as it may be amended from time to time in accordance with applicable law, as may be
agreed in writing by the Parties. The Parties hereby agree that the initial Public
Improvements covered by this Agreement shall be the extension of San Jacinto
Boulevard by the City.
3.2 Project Costs. The costs of the Public Improvements are authorized by
this Agreement shall be financed with City Debt. The debt service payments of the City
with respect to City Debt shall be considered to be Project Costs to be paid by the
Authority in accordance with this Agreement.
ARTICLE 4
DESIGN, AND CONSTRUCTION AND FINANCING
4.1 Design of the Public Improvements. The City shall prepare or cause to be
prepared the Plans and Specifications for the Public Improvements.
4.2 Construction Manager. The City agrees to cause to be designed and
constructed the Public Improvements and to provide and furnish, or cause to be
provided and furnished, all materials and services as and when required in connection
with the construction of the Public Improvements. The City will obtain all necessary
permits and approvals from all other governmental officials and agencies having
jurisdiction, provide supervision of all phases of construction of the Public
Improvements, provide periodic reports as requested and required by the Baytown
Authority of such construction to the Baytown Authority, and cause the construction to
be performed in accordance with the Plans and Specifications.
4.3 Accounting Upon Completion. Within 90 days after the final completion
of the construction of the Public Improvements and acceptance of the same by the City
Council of the City of Baytown, the City shall provide the Parties with a final cost
summary of all costs associated with the Public Improvements.
4.4 Ci Debt. To finance the costs of the Public Improvements, the City shall
issue City Debt, using the proceeds thereof for such purpose, to be reimbursed for City
Debt principle and interest by the Authority. The City Debt may be combined with the
issuance of other City obligations; in such event, the debt service payments on the total
City obligations will be prorated based on percentage that the City Debt, including its
share of the costs of issuance, represents of the total City issuance.
595034 - 6 -
4.5 Cooperation. The Parties agree that they will cooperate with each other
and provide all necessary information to the Baytown Authority and its consultants in
order to assist the Baytown Authority in complying with the Baytown Agreement,
including, without limitation, the completion of the audit and construction audit
required therein.
4.6 Authority's Debt Service Contributions. The Authority agrees to provide
to the City the applicable Project Costs, being the debt payments attributable to the City
Debt, on or before the date each debt service payment is due. The Authority's
obligation to make such payments is limited to the Pledged Available Tax Increment.
ARTICLE 5
DEFAULT
If a Party does not perform its obligations hereunder in compliance with this
Agreement in all material respects, in addition to the other rights given the City under
this Agreement, the other Parties may enforce specific performance of this Agreement
for any such default if such default is not cured or is not commenced and diligently
pursued within 90 days after receipt by the non - performing Party of a written notice
detailing the event of default. Failure of a project to generate sufficient tax increment
increase to repay City Advance is not a default on the part of the Baytown Authority or
the Baytown Zone.
ARTICLE 6
GENERAL
6.1 Inspections, Audits. The City shall allow the other Parties access to
documents and records in the City's possession, custody or control that the other
Parties deem necessary to assist them in determining the City's compliance with this
Agreement.
6.2 Cit1 012erations and Employees. No personnel supplied or used by the
City in the performance of this Agreement shall be deemed employees, agents or
contractors of the other Parties for any purpose whatsoever. The City shall be solely
responsible for the compensation of all such personnel, for withholding of income,
social security and other payroll taxes and for the coverage of all workers'
compensation benefits. Under no circumstance shall the other Parties be deemed
responsible for compensation of the above.
6.3 Personal Liability of Public Officials. To the extent not limited by State
law, no director, officer, employee or agent of the City, the Baytown Zone or the
595034 - 7 -
Baytown Authority shall be personally responsible for any liability arising under or
growing out of this Agreement.
6.4 Notices. Any notice sent under this Agreement (except as otherwise
expressly required) shall be written and mailed via certified mail, return receipt
requested, or sent by electronic or facsimile transmission confirmed by mailing written
confirmation via certified mail, return receipt requested at substantially the same time
as such electronic or facsimile transmission, or personally delivered to an officer of the
receiving party at the following addresses:
CITY
City Manager
City of Baytown
P. O. Box 424
Baytown, Texas 77522 -0424
with a copy to:
City Attorney
City of Baytown
P. O. Box 424
Baytown, Texas 77522 -0424
BAYTOWN ZONE
Reinvestment Zone Number One, City of Baytown,
c/o Hawes Hill Calderon L.L.C.
9610 Long Point Road, Suite 150
Houston, Texas 77055
Attn: David Hawes
BAYTOWN AUTHORITY
Baytown Redevelopment Authority
c/o Hawes Hill Calderon L.L.P.
9610 Long Point Road, Suite 150
Houston, Texas 77055
Attn: David Hawes
Each Party may change its address by written notice in accordance with this Section.
Any communication addressed and mailed in accordance with this Section shall be
deemed to be given when so mailed, any notice so sent by electronic or facsimile
transmission shall be deemed to be given when receipt of such transmission is
acknowledged, and any communication so delivered in person shall be deemed to be
595034 - 8 -
given when receipted for by, or actually received by, the other Parties, as the case may
be.
6.5 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if such amendment or waiver is in writing and is signed by the
Parties. No course of dealing on the part of the Parties, nor any failure or delay by the
Parties with respect to exercising any right, power or privilege of the Parties under this
Agreement shall operate as a waiver thereof, except as otherwise provided in this
Section.
6.6 Successors and Assigns. All covenants and agreements contained by or
on behalf of the Baytown Authority or the Baytown Zone in this Agreement shall bind
their successors and assigns and shall inure to the benefit of the City and their
successors and assigns. Except as provided above, this Agreement may not be assigned
without the written permission of the other Parties.
6.7 Exhibits; Titles of Articles, Sections and Subsections. The exhibits attached
to this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein, except that in the event of any conflict
between any of the provisions of such exhibits and the provisions of this Agreement,
the provisions of this Agreement shall prevail. All titles or headings are only for the
convenience of the parties and shall not be construed to have any effect or meaning as
to the agreement between the parties hereto. Any reference herein to a Section or
Subsection shall be considered a reference to such Section or Subsection of this
Agreement unless otherwise stated. Any reference herein to an exhibit shall be
considered a reference to the applicable exhibit attached hereto unless otherwise stated.
6.8 Construction. This Agreement is a contract made under and shall be
construed in accordance with and governed by the laws of the United States of America
and the State of Texas.
6.9 Venue. All parties hereby irrevocably agree that any legal proceeding
arising out of or in connection with this Agreement shall only be brought in the District
Courts of Harris County, Texas or in the United States District Court for the Southern
District of Texas, in Houston, Texas.
6.10 Severability. All parties agree that should any provision of this
Agreement be determined to be invalid or unenforceable, such determination shall not
affect any other term of this Agreement, which shall continue in full force and effect.
6.11 No Third Party Beneficiaries. This Agreement shall not bestow any rights
upon any third party, but rather, shall bind and benefit the Parties hereto only.
595034 - 9 -
6.12 No Partnership. Nothing herein contained shall be construed or held to
make the Parties hereto partners in the conduct of any business.
6.13 Entire Agreement. This written agreement represents the final agreement
between the parties, unless later amended in writing and signed by the parties and may
not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the parties.
6.14 Ambiguities. In the event of any ambiguity in any of the terms of this
Agreement, it shall not be construed for or against any party hereto on the basis that
such party did or did not author the same.
6.15 Non- Waiver. Failure of either party hereto to insist on the strict
performance of any of the agreements contained herein or to exercise any rights or
remedies accruing hereunder upon default or failure of performance shall not be
considered a waiver of the right to insist on and to enforce by an appropriate remedy,
strict compliance with any other obligation hereunder or to exercise any right or
remedy occurring as a result of any future default or failure of performance.
6.16 Multiple Originals. It is understood and agreed that this Agreement may
be executed in a number of identical counterparts each of which shall be deemed an
original for all purposes.
6.17 Term. This Agreement shall be in force and effect from the Effective Date
for a term expiring on the termination of the Baytown Zone.
6.18 Approval by the Parties. Whenever this Agreement requires or permits
approval or consent to be hereafter given by any of the parties, the parties agree that
such approval or consent shall not be unreasonably withheld or delayed.
6.19 Additional Actions. The parties agree to take such actions, including the
execution and delivery of such documents, instruments, petitions and certifications as
may be necessary or appropriate, from time to time, to carry out the terms, provisions
and intent of this Agreement and to aid and assist each other in carrying out said terms,
provisions and intent.
[The remainder of this page is intentionally left blank]
595034 _10-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the Effective Date.
CITY OF BAYTOWN, TEXAS
By:
Mayor
ATTEST
City Clerk
APPROVED AS TO FORM
By:
Name:
Title:
595034 - 11 -
REINVESTMENT ZONE NUMBER ONE, CITY OF BAYTOWN
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
BAYTOWN REDEVELOPMENT AUTHORITY
By:
Name:
ATTEST:
By:
Name:
Title:
595034 -12-