Ordinance No. 9,742 INFRASTRUCTURE CONSTRUCTION AGREEMENT
This Infrastructure Construction Agreement (the "Agreement") is made and entered into
by and between The City of Baytown, Texas, a body corporate and politic under the laws of the
State of Texas (the "City") and Cedar Crossing L.P., a Texas limited partnership ("Cedar
Crossing").
WITNESSETH
WHEREAS, Cedar Crossing, as owner and Carter & Burgess Inc., as optionee, entered
into that certain Option to Purchase Real Estate dated August 1, 2003 whereby Cedar Crossing
granted Carter & Burgess, Inc., an option to purchase approximately 500 acres of land within
Chambers County, Texas, and within the extraterritorial jurisdiction of the City and more
particularly described on Exhibit"A"attached hereto (the"Property");
WHEREAS, Cedar Crossing, as owner and Wal-Mart Stores East, LP ("Wal-Mart"), as
assignee of Carter &Burgess Inc. and as optionee, entered into that certain First Amendment and
Supplement to Option to Purchase Real Estate dated December 29, 2003 (the Option to Purchase
Real Estate, the First Amendment and Supplement to Option to Purchase Real Estate and, when
executed and delivered by Cedar Crossing and Wal-Mart, the Second Amendment and
Supplement to Option to Purchase Real Estate, being together referred to herein as the "Option
Agreement");
WHEREAS, Wal-Mart intends to purchase a 235.1 acre tract within the Property and has
announced that it will construct a distribution center on the Property(the"Project");
WHEREAS, pursuant to the Option Agreement, Cedar Crossing is obligated to extend or
cause to be extended a twelve (12) inch water and twelve (12) inch sewer lines with capacity
sufficient to provide 25,000 gallons per day of water and sanitary sewer service from FM 1405 to
the western boundary of the Property(the foregoing hereinafter referred to as the "Infrastructure
Work");
WHEREAS, pursuant to the Option Agreement, certain infrastructure plans (the
"Infrastructure Plans") for the Infrastructure Work were prepared by Pate Engineers, Inc. (Job
No. 966-002-02, dated February 2, 2004) on behalf of Cedar Crossing and were submitted to and
approved by Carter & Burgess, Inc., on behalf of Wal-Mart, the third party beneficiary of this
Agreement;
WHEREAS, pursuant to the Option Agreement, Cedar Crossing has previously submitted
the Infrastructure Plans to the City for review and approval; and
WHEREAS, in consideration of the economic development benefits anticipated to be
generated by the Project, and in reliance on Wal-Mart's public announcement of its intention to
construct a distribution center on the Property, the City is willing to construct the Infrastructure
Work described in the Infrastructure Plans at its sole cost and expense.
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HOUSTON 737119v5
NOW THEREFORE in consideration of the mutual premises, covenants and agreements
contained herein, the sufficiency of which is hereby acknowledged, the City and Cedar Crossing
hereby agree as follows:
1. Contingency. This Agreement is expressly contingent upon Wal-Mart's purchase
of a 235.1 acre tract within the Property on or about March 1, 2004.
2. Infrastructure Work. The City agrees, at its sole cost and expense, to construct
the Infrastructure Work in accordance with the Infrastructure Plans approved by
the City Engineer and in accordance with all applicable laws, regulations and
ordinances, and shall endeavor to complete the Infrastructure Work no later than
ninety (90) days after the effective date hereof, subject to force majeure or
inclement weather.
3. Remedies. If either party defaults under this Agreement, the non-defaulting party
may pursue any legal or equitable remedy, including, without limitation, a suit for
specific performance of this Agreement.
4. Time of the Essence. Time is of the essence of this Agreement. However, if a
date specified or computed under this Agreement for the performance of an
obligation by any party, or for the occurrence of any event provided herein, shall
be a Saturday, Sunday or "legal holiday" (defined for purposes hereof as any
holiday observed by the City) then the date of such performance or occurrence
shall automatically be extended to the next calendar day that is not a Saturday, ,
Sunday or legal holiday.
5. Amendment. This Agreement may only be amended by an instrument in writing
executed by the parties hereto and by Wal-Mart.
6. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each one of which shall be deemed an original, but all of which
when taken together constitute one and the same instrument.
7. Parties in Interest. This Agreement does not bestow any rights upon any third
party, but binds and benefits the City, Cedar Crossing, and Wal-Mart only.
8. Recitals. Cedar Crossing hereby represents that the recitals set forth above in this
Agreement are true and correct, and the representations, covenants and recitations
set forth therein are made a part hereof for all purposes.
9. Effectiveness. This Agreement shall be effective from and after its execution by
both the City and Cedar Crossing.
10. Authority of the City. The City hereby represents and warrants to Cedar Crossing
that the City has full lawful right, power and authority, under currently applicable
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HOUSTON 737119v5
law, to execute, deliver and perform the terms and obligations of this Agreement,
and all of the foregoing have been or will be duly and validly authorized and
approved by all necessary City proceedings, findings or actions. Accordingly,
this Agreement constitutes the legal, valid and binding obligation of the City, is
enforceable in accordance with its terms and provisions and does not require the
consent of any other governmental authority.
11. Authority of Cedar Crossing. Cedar Crossing hereby represents and warrants to
the City that Cedar Crossing has full lawful right, power and authority to execute
and deliver and perform the terms and obligations of this Agreement and all of the
foregoing have been or will be duly and validly authorized and approved by all
necessary actions of Cedar Crossing. Accordingly, this Agreement constitutes the
legal, valid and binding obligation of Cedar Crossing and is enforceable in
accordance with its terms and provisions.
12. Invalidity. In the event that any of the provisions contained in this Agreement
shall be held unenforceable in any respect, such unenforceability shall not affect
any other provisions of this Agreement and, to that end, all provisions, covenants,
agreements or portions of this Agreement are declared to be severable.
13. Successors and Assigns. Cedar Crossing shall have the right and will assign its
rights under this Agreement to Wal-Mart provided Cedar Crossing gives the City
written notice of the effective date of such assignment. The City shall not have
the right to assign its rights under this Agreement, or any interest herein, without
the prior written consent of Cedar Crossing. This Agreement shall be binding
upon and inure to the benefit of the heirs, successors, administrators, executors
and assigns of the respective parties.
14. Entire Agreement. This written agreement represents the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral or written agreements of the parties. There
are no unwritten oral agreements between the parties relating to the subject matter
hereof. All prior negotiations, writings, discussions, correspondence, and
preliminary understandings between the parties hereunder and others relating
hereto are superceded by this Agreement.
15. Interpretation. This Agreement has been jointly negotiated by the parties
hereunder and shall not be construed against a party hereunder because that party
may have assumed primary responsibility for the drafting of this Agreement.
16. Captions. Captions contained in this Agreement are for reference only and,
therefore, have no effect in construing this Agreement. The captions are not
restrictive of the subject matter of any section in this Agreement.
17. Choice of Law; Venue. This Agreement is interpreted with and subject to the
laws of the State of Texas,the City Charter and ordinances, the laws of the federal
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HOUSTON 737119v5
government of the United States, and all rules and regulations of any regulatory
body or officer having jurisdiction. Venue for any litigation relating to this
Agreement is Harris County, Texas.
18. No Waiver. 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 constructed so
as to limit or waive the City's sovereign immunity.
19. Effective Date. This Agreement will be effective upon the date that the last party
hereto executes the Agreement.
IN WITNESS HEREOF, the parties have executed this Agreement effective the;21'lday
of le6co 0.►1 , 2004.
ATTEST: CITY OF BAYTOWN, TEXAS
Cox 11)-151N)
By
:
Name: so,)
APPROVED AS TO FORM: Title:
91a)
r��� )t 1 CEDAR CROSSING L.P.,
KAREN L. HORNER, Assistant City Attorney
a Texas limited partnership
By: Cedar Crossing Management LLC
By: Gl.JCP-----"- _--
Name: W 0#t1to TIOs t3c-. —
Title: 5 o-e
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HOUSTON 737119v5
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APPROXIMATE LIMITS OF 100'
0 1000 2000 PROPOSED DRAINAGE EASEMENT
r a g = 1(11X17)
GRAPHIC SCALE IN FEET CEDAR CROSSING SITE
BAY TOWN, TEXAS
...1Civil1Exhibits\DrainEasmiDGN 01/20/2004 02.41:31 PM