Ordinance No. 14,683ORDINANCE NO. 14,683
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AND THE
CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO THE FUNDING
AGREEMENT WITH THE BAYTOWN HOSPITALITY PUBLIC FACILITIES
CORPORATION AND THE BAYTOWN MUNICIPAL DEVELOPMENT
DISTRICT TO FUND THE COSTS OF THE PRE -CONSTRUCTION
AGREEMENT WITH DPR CONSTRUCTION AND A PORTION OF THE
COSTS OF THE DEVELOPMENT MANAGEMENT AGREEMENT WITH
GARFIELD PUBLIC/PRIVATE LLC, FOR EXPENSES ASSOCIATED WITH
THE BAYTOWN HOTEL AND CONVENTION CENTER PROJECT; 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 the First Amendment to the Funding
Agreement with the Baytown Hospitality Public Facilities Corporation and the Baytown
Municipal Development District to fund the costs of the Pre -Construction Agreement with DPR
Construction and a portion of the costs of the Development Management Agreement with Garfield
Public/Private LLC, for expenses associated with the Baytown Hotel and Convention Center
Project. 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.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 0' day of March, 2021.
9�r Ca4"
B NDON CAPETILLO, ayor
ATTEST:
I- A��'
LETICIA BRYSCH, CiV Clerk
APPROVED AS TO FORM:
25?Aklloc)
KARER-L. HORNER, City Attorney
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RAKaren Horner\DocumentsTileslCity Council\Resolutions%2021 .March COrdinance - MDD PFC Interlocal Agreement.docx
Exhibit "A"
FIRST AMENDMENT TO THE
AGREEMENT FOR FUNDING
ASSOCIATED WITH THE
HOTEL/CONVENTION CENTER PRE -CONSTRUCTION
EFFORTS
STATE OF TEXAS
COUNTY OF HARRIS §
This First Amendment ("First Amendment") to that certain Agreement for Funding associated
with the Hotel/Convention Center Pre -Construction Efforts (the "Agreement") is made by and among the
BAYTOWN HOSPITALITY PUBLIC FACILITIES CORPORATION, a public facility corporation
created under Chapter 303 of the Texas Local Government Code, as amended (the "PFC"); the
BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, created under Chapter 377 of the Texas Local
Government Code, as amended, (the "Act") and located in Harris County, Texas, (the "District"), and the
CITY OF BAYTOWN, a home -rule municipal corporation located in Harris and Chambers Counties,
Texas (the "City").
WHEREAS, on December 12, 2019, the District and the PFC entered into the Agreement to fund
up to SIX HUNDRED THOUSAND AND NOi 100 DOLLARS ($600,000.00) for (i) the PFC's
performance under the Pre -Construction Agreement with DPR Construction ("DPR") and (ii) the pre -
construction portion of the Hotel and Convention Center Development Services Agreement with Garfield
Public'Private LLC ("Garfield"), and (iii) the Hotel Market Study Update; and
WHEREAS, since such time, the Governor declared that the COVID-19 pandemic is a statewide
public disaster, and the Mayor declared a local state of disaster within the City of Baytown; and
WHEREAS, the COVID-19 pandemic has caused the Project and the financing thereof to be
delayed, although DPR Construction and Garfield continued to press forward with the Project; and
WHEREAS, the pandemic coupled with the continued work has caused additional funding to be
necessary in order to cover costs during the protracted pre -development phase;
WHEREAS, the PFC, District and the City desire to amend the Agreement to reflect the funds
necessary for certain pre -construction efforts associated with the Project; and
NOW THEREFORE, for and in consideration of the premises and mutual covenants herein
contained, it is agreed as follows:
1. Definitions. Unless a different meaning clearly appears from the context, words and phrases as
used in this First Amendment shall have the same meanings as in the Agreement.
2. Amendments.
a. Section 2 "Description of Program" of the Agreement is hereby amended to read as follows:
Section 2. Description of Program.
The PFC, with the assistance of the District and the City as herein specified,
agrees to perform under a Pre -Construction Agreement with DPR Construction and the
First Amendment to the Agreement for Funding associated with the
Hotel/Convention Center Pre -Construction Efforts Page 1
pre -construction portion of the Development Management Agreement with Garfield
Public/Private LLC, in furtherance of the Baytown Hotel and Convention Center Project
(the "Project"). Additionally, the Project shall entail a Hotel Market Study Update
performed by CBRE, Inc.
b. Section 3 "Reports" of the Agreement is hereby amended to read as follows:
Section 3. Reports.
The PFC shall prepare and submit to the District and to the City within 120 days
after the end of each fiscal year during the term of this Agreement a verbal or brief
written report describing the services performed by the PFC pursuant to this Agreement
during the previous year, along with a summary of expenditures for the previous fiscal
year.
c. Section 5 "Funds to be provided by the District" of the Agreement is hereby renamed Section
5 "Funding" and is amended to read as follows:
Section 5. Funding.
For and in consideration of the services to be provided by the PFC in
furtherance of this Agreement,
a. the District shall tender funds to the PFC in an amount not to exceed
ONE MILLION ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($1,100,000.00) and
b. the City shall tender funds to the PFC in an amount not to exceed
TWO HUNDRED FIFTY THOUSAND AND NO,100 DOLLARS
($250,000.00).
All payments required to be made herein shall be payable on or before 30 days
after receipt of an invoice therefor from the PFC.
d. Section 8 "Force Majeure" of the Agreement is hereby amended to read as follows:
Section 8. Force Majeure.
Any prevention, delay, nonperformance, or stoppage due to any of the following
causes shall excuse nonperformance for the period of any such prevention, delay,
nonperformance, or stoppage, except the obligations imposed by this Agreement for the
payment of funds allocated for the Project. The causes referred to above are strikes,
lockouts, labor disputes, failure of power, acts of God, acts of public enemies of this State
or of the United States, riots, insurrections, civil commotion, inability to obtain labor or
materials or reasonable substitutes for either, governmental restrictions or regulations or
controls, casualties or other causes beyond the reasonable control of the party obligated to
perform.
e. Section 9 "Refund and Payment upon Termination" of the Agreement is hereby amended to
read as follows:
Section 9. Refund and Payment upon Termination.
Upon termination of this Agreement pursuant to Section 7 hereof due to an
uncured default by the PFC, the PFC hereby agrees to refund all unexpended,
unappropriated monies previously paid by the District and/or the City pursuant to this
Agreement. If at the time of termination, the District and/or the City owes the PFC
First Amendment to the Agreement for Funding associated with the
Hotel/Convention Center Pre -Construction Efforts Page 2
monies, the entity indebted to the PFC shall remit to the PFC the appropriate amount
computed as of the effective date of the termination.
Upon termination of this Agreement pursuant to Section 7 hereof due to an
uncured default by the District, the District hereby agrees to pay, on or before the
effective date of termination, the amount due as of the effective date of termination.
Upon termination of this Agreement pursuant to Section 7 hereof due to an
uncured default by the City, the City hereby agrees to pay, on or before the effective date
of termination, the amount due as of the effective date of termination.
f. Section 10 "Parties in Interest" of the Agreement is hereby amended to read as follows:
Section 10. Parties in Interest.
This Agreement shall bind and benefit the PFC, the City, and the District and
shall not bestow any rights upon any third parties.
g. Section 14 "Notices" of the Agreement is hereby amended to read as follows:
Section 14. Notices.
All notices required or permitted hereunder shall be in writing and shall be
deemed delivered when actually received or, if earlier, on the third day following deposit
in a United States Postal Service post office or receptacle with proper postage affixed
(certified mail, return receipt requested) addressed to the respective other party at the
address described below or at such other address as the receiving party may have
theretofore prescribed by notice to the sending party:
City
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, Texas 77522-0424
Fax: (281) 420-6586
District
Baytown Municipal Development District
Attn: President, Board of Directors
P.O. Box 424
Baytown, Texas 77522-0424
Fax: (281) 420-6586
PFC
Baytown Hospitality Public Facilities Corporation
Attn: General Manager
P.O. Box 424
Baytown, Texas 77522-0424
Fax: (281) 420-6586
h. Section 15 "Audits" of the Agreement is hereby amended to read as follows:
Section 15. Audits.
The City, PFC, and the District may, at any reasonable time, conduct or cause to
be conducted an audit of another party's records and financial transactions. The cost of
First Amendment to the Agreement for Funding associated with the
Hotel/Convention Center Pre -Construction Efforts Page 3
said audit will be borne by the entity requesting the audit. The City, the PFC, and the
District shall make available all of its records in support of the audit.
i. Section 19 "Assignment or Transfer of Rights or Obligations" of the Agreement is hereby
amended to read as follows:
Section 19. Assignment or Transfer of Rights or Obligations.
The PFC shall not sell, assign, or transfer any of its rights or obligations under
this Agreement in whole or in part without prior written consent of the District and the
City.
Entire Agreement. The provisions of this First Amendment and the provisions of the Agreement
should be read together and construed as one agreement, provided that, in the event of any
conflict or inconsistency between the provisions of this First Amendment and the provisions of
the Agreement, the provisions of this First Amendment shall control.
IN WITNESS WHEREOF, the parties have made and executed this Agreement in multiple
copies, each of which shall be an original and effective on the day of March, 2021.
BAYTOWN HOSPITALITY PUBLIC
FACILITIES CORPORATION
RICHARD L. DAVIS
General Manager
ATTEST:
LETICIA BRYSCH
Assistant Secretary
CITY OF BAYTOWN
RICHARD L. DAVIS
City Manager
ATTEST:
LETICIA BRYSCH
City Clerk
BAYTOWN MUNICIPAL
DEVELOPMENT DISTRICT
BRANDON CAPETILLO
President
ATTEST:
LETICIA BRYSCH
Assistant Secretary
RAKaren Horncr\Documcnts\Filcs.City CounciRMunicipal Development District Contracts Contracts 2021Tirst Amendment - PFC Pre -Construction Efforts.doc
First Amendment to the Agreement for Funding associated with the
Hotel/Convention Center Pre -Construction Efforts Page 4