MDD Resolution No. 181 RESOLUTION NO. 181
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL
DEVELOPMENT DISTRICT AUTHORIZING THE GENERAL MANAGER TO EXECUTE
AND THE ASSISTANT SECRETARY TO ATTEST TO A DEVELOPMENT PROJECT
CONTRACT BETWEEN THE BAYTOWN LITTLE THEATRE INCORPORATED AND THE
BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT REGARDING FUNDING OF A
THEATRE TO BE LOCATED ON PROPERTY AT THE INTERSECTION OF N. MAIN
STREET AND TEXAS AVENUE TO PROMOTE NEW OR EXPANDED BUSINESS
DEVELOPMENT WITHIN THE AREA; MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL
DEVELOPMENT DISTRICT:
Section l: That the Board of Directors of the Baytown Municipal Development District hereby finds
that the expenditures authorized herein are for improvements, which satisfy the purposes for which the funds can be
expended pursuant to Chapter 377 of the Texas Local Government Code and/or Section 3888.102 of the Special
District Local Laws Code. All required findings pursuant thereto are hereby declared to have been made and
adopted as findings of the Board of Directors.
Section 2: That the Board of Directors of the Baytown Municipal Development District hereby
authorizes the General Manager to execute and the Assistant Secretary to attest to a Development Project Contract
between the Baytown Little Theatre Incorporated (the "BLT") and the Baytown Municipal Development District
(the "District") regarding funding for the construction of a new 37,000 square foot theatre by BLT within the
District's boundaries to be located on property at the intersection of N. Main Street and Texas Avenue. Such new
theatre will be at the opposite end of Texas Avenue from the Lee College Performing Arts Center and will anchor
the area,thereby promoting new or expanded business within the area. A copy of said contract is attached hereto as
Exhibit"A"and incorporated herein for all intents and purposes.
Section 3: That the Board of Directors of the Baytown Municipal Development District hereby
authorizes the payment of an amount not to exceed FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00)to the BLT in accordance with the agreement referenced in Section 2 hereof.
Section 4: This resolution shall take effect immediately from and after it assage by the Board of
Directors of the Baytown Municipal Development District.
INTRODUCED, READ and PASSED by the affirmative vote of the B and of Directors of the Baytown
Municipal Development District,this the 7'day of June,2012.
I`tL r c l
Oc!i4
DONCARLOS, Pr ident
A: 4-
L TICItEe S E ecretary
J
APP OVED TO M:
G ACIO RAMIREZ, SR.,Gen& Counsel
R:\leanmc\My Documents\Council\AutharimConuactWithBLTfollheatmConswetion.doc
Exhibit "A"
DEVELOPMENT PROJECT CONTRACT
STATE.OF TEXAS §
§
COUNTY OF HARRIS §
THIS CONTRACT. which is made as of the _ day of April, 2012. by and between the
BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, a political subdivision of the State of Texas.
hereinafter called "District," and THE BAYTOWN LITTLE THEATER INCORPORATED, a Texas
Nonprofit Corporation, hereinafter called"BLT."
W ITN E S S ET H:
WHEREAS, the District desires to promote new or expanded business development within its
boundaries;and
WHEREAS, the BLT desires to construct a new 37,000 square foot theater within the District's
boundaries and specifically located at the intersection of N. Main Street and Texas Avenue;and
WHEREAS,the new theater will be at the opposite end of Texas Avenue, will compliment the Lee
College Performing Arts Center and will anchor the area thereby promoting new or expanded business within
the District's boundaries;
NOW THEREFORE,for and in consideration of the premises and mutual covenants herein contained,
it is agreed as follows:
Section 1. Representations.
(a) The District is engaged in an on-going effort to provide new resources to plan, acquire,
establish,develop,construct and/or renovate one or more development projects beneficial to
the District,which includes the incorporated limits of the City of Baytown lying within Harris
County.
(b) A development project of the District may include, but not be limited to, buildings,
equipment,facilities,and improvements found by the Board of Directors of the District(the
"Board")to promote new or expanded business development in the District.
(c) The District hereby finds that BLT's development of a theater on the property located at the
intersection of N.Main Street and Texas Avenue and more particularly described as follows:
HCAD Property Description
Account No.
0500720000009 ITS 9, 10, 11 &12 BLK 60 0I6&0514'FIOMAS WRIGHT).GOOSE CREEK
1306590000001 LT I VILLAS AT GOOSE CREEK
(the"Property")constitutes a development project in that it will promote new or expanded
business development in the District.
(d) The District represents and warrants that it has been properly created and is duly authorized
pursuant to the Act to enter into this Agreement.
Development Project Contract. Page I
Section 2. Services to be Provided.
(a) Construction. BLT shall construct or cause to be constructed a 37.000 square foot theater
with both performance and rehearsal spaces on the Property; provided such construction is
designed to promote new or expanded business development in the District consistent with
Section 3888.102 of the Texas Special Districts Code(the"Development Project").
(b) Operation. In the Development Project, BLT shall operate a community theater for at least
ten (10) years commencing on the date of the issuance of the Development Project's
certificate of occupancy. Operation for purposes of this paragraph shall mean providing a
minimum of six (6) theatrical productions per year along with educational/youth
programming.
Section 3. BLT Records and Reports.
(a) Financial Records. BLT shall maintain complete and accurate financial records of each
expenditure of the fees paid by the District. These funds shall be classified as restricted funds
for audited financial purposes and may not be used for contracted services,including,but not
limited to,auditing fees and attorney fees. Upon reasonable advance written request of the
General Manager or his designee, BLT shall make such financial records available for
inspection and review and shall provide copies of the same if so requested. BLT understands
and accepts that all such financial records,and any other records relating to this Agreement
shall be subject to the Texas Public Information Act, as hereafter amended, and the Local
Government Records Act,as amended.
(b) Quarterly Reports. BLT shall prepare and submit to the District after the end of each
calendar quarter during the term of this contract a brief written report describing the progress
of the Development Project during the previous quarter. The report shall be submitted to the
Secretary of the District and shall be in a form as approved by the District's General Manager.
BLT shall respond promptly to any request from the General Manager for additional
information relating to the Development Project and the use of fees under this Agreement.
(c) Annual Reports. BLT shall prepare and submit to the District, within thirty(30)calendar
days after the end of the District's fiscal year,a written report describing in detail the progress
of the Development Project during the preceding fiscal year. The report shall be submitted to
the Secretary of the District and shall be in a form as approved by the District's General
Manager. BLT shall respond promptly to any request from the General Manager for
additional information relating to the Development Project and the use of fees under this
Agreement.
(d) Notice of Meetings. BLT shall give the District's General Manager reasonable advance
written notice of the time and place of all meetings of BLT's Board of Directors,as well as
any other meeting of any constituency of BLT at which this Agreement or any matter subject
to this Agreement shall be considered.
(e) Audits. BLT shall provide to the District,within ninety(90)days of the close of BLT's fiscal
year, its audited annual financial statements.
Section 4. Payment.
(a) For and in consideration of the services to be performed by BLT and compliance with the
terms of this contract and subject to the other provisions of this section,the District agrees to
Development Project Contract,Page 2
pay to BLT the total sum of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00)based upon the following formula:
($500,000 x(Percentage of Completion x 2))—Amount Previously Paid by MDD
The percentage of completion of the Development Project shall be certified by BLT's design
professional and included in the quarterly reports submitted to the Board. Payment will be
made not more often than quarterly and only after receipt of the quarterly report and approval
of such payment by the Board.
(b) BLT agrees to use the monies paid by the District hereunder solely for construction costs of
the Development Project and shall not use such fees for any other purpose. BLT agrees to
demonstrate strict compliance with this subsection through its recordkeeping and audits
required herein. Any ineligible expenditures shall be forfeited to the District upon expiration or
termination of the Agreement.
(c) The entire amount paid by the MDD pursuant to Section 4(a)shall be immediately due and
payable to the MDD if BLT:
➢ fails to meet the operational standards specified in Section 2(b)or
➢ sells, assigns, transfers or divests itself of title to the property on which the
Development Project is located.
BLT's obligation hereunder will be secured by a lien on the property subordinate to the
mortgage lien. Should BLT comply with the terms and conditions hereof,the lien shall be
forgiven ten years after the date of the certificate of occupancy issued for the Development
Project. BLT agrees to execute the lien on the effective date of this agreement,which shall be
prior to any construction of the Development Project. A copy of such lien is attached hereto
as Exhibit"A,"and incorporated herein for all intents and purposes.
Section 5. Allocated Funds.
Payments by the District to BLT are subject to funds being appropriated by the District.
Section 6. Term.
This contract shall be effective for the period from the date of execution of this Agreement by the
General Manager until a certificate of occupancy has been issued by the City's Chief Building Official, a
certificate of final completion has been issued by BLT's design professional,or BLT has fully complied with
all terms and conditions herein, whichever occurs last.
Section 7. Termination for Cause.
A party may terminate its performance under this Agreement upon the occurrence of any of the
following events:
(a) The termination of the legal existence of BLT or the District;
(b) The insolvency of BLT or the District,the filing of a petition in bankruptcy,either voluntarily
or involuntarily by BLT or the District,or an assignment of this Agreement by BLT for the
benefit of creditors;
Development Proiect Contract, Page 3
(c) The continuation of a breach of any of the terms or conditions of this Agreement by either the
District or BLT for more than thirty(30)days after written notice of such breach is given to
the breaching party by the other party;or
(d) The failure of BLT to submit financial reports which comply with the reporting procedures
required herein and generally accepted accounting principles.
Section 8. Insurance.
BLT shall,at a minimum, provide insurance as follows:
Commercial General Liability
■ General Aggregate: $2.000,000
■ Per Occurrence: $1,000,000
■ Coverage shall be at least as broad as ISO CG 00 02 12 07
■ No coverage shall be deleted from standard policy without notification of individual
exclusions being attached for review and acceptance.
BLT shall require its general contractor,at a minimum,to provide insurance as follows:
Builder's Risk Insurance to be provided by either BLT or its general contractor)
■ Limit: 100%of replacement value.
The following are general requirements applicable to all policies:
➢ AM Best Rating of B+; VII or better for all liability policies.
➢ Insurance carriers licensed and admitted to do business in the State of Texas will be accepted.
➢ Upon request of and without cost to the District certified copies of all insurance policies and/or
certificates of insurance shall be fumished to District's representative.
➢ Certificates of insurance showing evidence of insurance coverage shall be provided to the
District's representative prior to any work being performed at the site.
➢ 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 the District.
➢ The District, its officers, agents and employees are to be added as Additional Insureds to all
liability policies.
Additionally, BLT shall fumish separate certificates and endorsements for each at-risk vendor,
including those supplying amusement activities. All coverage of such vendors shall be subject to all of the
requirements stated herein.
Section 9. Indemnity.
BLT AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE DISTRICT, ITS OFFICERS, AGENTS AND EMPLOYEES
(HEREINAFTER COLLECTIVELY REFERRED TO AS THE"DISTRICT"),
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES,
CAUSES OF ACTION SUITS AND LIABILITY OF EVERY KIND
Development Prgiect Contract,Page 4
INCLUDING, BUT NOT LIMITED TO,ALL EXPENSES OF LITIGATION,
COURT COSTS,AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH
OF ANY PERSON,OR FOR ANY AND ALL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE SERVICES PROVIDED BY BLT
PURSUANT TO THIS AGREEMENT,THE CONDUCT OR MANAGEMENT
OF BLT'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR
OMISSION BY BLT, ITS AGENTS, AND EMPLOYEES, WHEN
PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT,
WHERE SUCH INJURIES, DEATHS OR DAMAGES ARE CAUSED BY
THE JOINT NEGLIGENCE OF THE DISTRICT AND ANY OTHER
PERSON OR ENTITY AND/OR BY THE JOINT OR SOLE NEGLIGENCE
OF BLT. IT IS THE EXPRESSED INTENTION OF THE PARTIES
HERETO, BOTH BLT AND THE DISTRICT, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY BLT TO
INDEMNIFY AND PROTECT THE DISTRICT, ITS OFFICERS, AGENTS
AND EMPLOYEES FROM THE CONSEQUENCES OF(n THE DISTRICT'S
OWN NEGLIGENCE,WHERE THAT NEGLIGENCE IS A CONCURRING
CAUSE OF THE RESULTING INJURY,DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND/OR(II)BLT'S JOINT AND/OR SOLE
NEGLIGENCE. FURTHERMORE,THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE DISTRICT
FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND
LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS
FROM THE SOLE NEGLIGENCE OF THE DISTRICT, UNMIXED WITH
THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT
THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE
DISTRICT BY REASON OF ANY OF THE ABOVE, BLT FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE DISTRICT.
The indemnity provided hereinabove shall survive the termination and/or expiration of this
Agreement.
Section 10. Release.
By this Agreement,the District does not consent to litigation or suit,and the District 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 District's sovereign immunity. BLT assumes full responsibility for its work
performed hereunder and hereby releases,relinquishes,discharges,and holds harmless the District,its officers,
agents,and employees from al I 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 BLT's work to be performed hereunder. This release shall apply with
respect to BLT's work regardless of whether said claims,demands,and causes of action are covered in whole
or in part by insurance.
Develooment Project Contract, Page 5
Section 11. No Arbitration.
Notwithstanding anything to the contrary contained in this Agreement,the District and BLT hereby
agree that no claim or dispute between the District and BLT 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 District is subjected to an arbitration
proceeding notwithstanding this provision, BLT consents to be joined in the arbitration proceeding if BLT's
presence is required or requested by the District of complete relief to be recorded in the arbitration proceeding.
Section 12. Refund.
Any funds provided by the District and either not expended or not expended in full compliance with
this Agreement shall be refunded to the District pursuant to the terms of this Agreement. In the event the
construction is cancelled for any purpose,whether due to a force majeure or otherwise,BLT shall refund all of
the monies provided by the District pursuant to this Agreement within thirty(30)days of the cancellation.
Section 13. Independent Contractor.
The relationship of BLT to the District shall be that of an independent contractor. The District shall
have no authority to direct the day-to-day activities of any of BLT's personnel decisions, and shall have no
other rights to internal working papers or other information or data than the District would have to any other
independent contractor providing specific services (e.g. museum services, weed cutting, legal services,
auditors).
Section 14. Parties in Interest.
This contract shall bind and benefit the District and BLT and shall not bestow any rights upon any
third parties.
Section 15. 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 or to exercise any right or remedy occurring as a result of any future default or
failure of performance.
Section 16. Applicable Laws.
This contract is subject to and shall be construed in accordance with the laws of the State of Texas,the
laws of the federal government of the United States of America and all rules and regulations of any regulatory
body or officer having jurisdiction. This contract is performable in Harris County.Texas.
Section 17. Notices.
Development Project Contract, Page 6
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:
BLT
The Baytown Little Theater Incorporated
Attn: President
4328 Hugh Echols Blvd
Baytown,Texas 77521
Fax:(281)
DISTRICT
Baytown Municipal Development District
Attn: General Manager
P.O. Box 424
Baytown,Texas 77522-0424
Fax: (281)420-6586
Section 18. Ambiguities.
In the event of any ambiguity in any of the terms of this contract,it shall not be construed for or against
any party hereto on the basis that such party did or did not author the same.
Section 19. Entire Agreement.
This contract 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.
Section 20. Assignment or Transfer of Rights or Obligations.
BLT shall not sell,assign,or transfer any of its rights or obligations under this contract in whole or in
part without prior written consent of District, nor shall BLT assign any monies due or to become due to it
hereunder without the previous consent of the District.
Section 21. Severability.
All parties agree that should any provision of this contract be determined to be invalid or
unenforceable,such determination shall not affect any other term of this contract,which shall continue in full
force and effect.
Section 22. Complete Agreement.
This Agreement contains the entire understanding and constitutes the entire agreement between the
parties hereto concerning the subject matter contained herein. There are no representations, agreements,
arrangements,or understandings,oral or written,express or implied,between or among the parties hereto,relating
Development Project Contract, Page 7
to the subject matter of this Agreement,which are not fully expressed herein. The terms and conditions of this
Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any
other document relating to this transaction or these transactions.
Section 23. Duplicate Originals.
This Agreement is executed in duplicate originals.
Section 24. Headings.
The headings and subheadings of the various sections and paragraphs of this Agreement are inserted
merely for the purpose of convenience and do not express or imply any limitation,definition,or extension of the
specific terms of the section and paragraph so designated.
Section 25. Authority.
The officers executing this Agreement on behalf ofeach Party hereby confirm that such officers have
full authority to execute this Agreement and to bind the Party he/she represents.
IN WITNESS WHEREOF,the parties have made and executed this contract in multiple copies,each
of which shall be an original,on this the day of ,2012.
BAYTOWN MUNICIPAL DEVELOPMENT THE BAYTOWN LITTLE THEATER
INCORPORATED
ROBERT D. LEIPER,General Manager (Signature)
11r, rD r P/ X
(Printed Name)
W r
(Title)
ATTEST: ATTEST:
a.
LETICIA BRYSCH, Assistant Secretary (Signature)
c� A. h, i ., L r s
(Printed Name)
Development Proiect Contract, Page 8
(Title)
APPROVED AS TO FORM:
e4grACIO RAMIREZ, SR.,Gen&&nsel
APPROVED AS TO FUNDING AVAILABILITY:
LOUISE RICHMAN, Director of Finance
%%Cobfs0Iklc HKaren\Files%City Council\municipal Development District\contracts%Contracts 2012\BLT Construction Agreement doe
Development Project Contract,Page 9
Exhibit "A"
THE STATE OF TEXAS §
§ DEVELOPMENT PROJECT LIEN
COUNTY OF HARRIS §
WHEREAS,pursuant to that certain Development Project Contract(the"Contract")dated the day
of , 20_, by and between The Baytown Little Theater Incorporated (the
"Owner")and the Baytown Municipal Development District,a political subdivision of the City of Baytown
and the State of Texas located in Hams County,Texas(the'*MDD"),the MDD agreed to reimburse the Owner
for certain improvements determined to be eligible for reimbursement;and
WHEREAS,the aforementioned improvements are to be constructed on the property more particularly
as follows,to-wit:
LTS 9, 10, 11 & 12 BLK 60(016& 051*THOMAS WRIGHT),GOOSE CREEK, HARRIS
COUNTY,TEXAS
(Also known as 2 N.Alain Street,Baytown,Texas)
and
LT 1 VILLAS AT GOOSE CREEK,HARRIS COUNTY TEXAS
(Also known as 0 N.Main Street,Baytown,Texas)
(the"Property");and
WHEREAS, in exchange for such reimbursement for the improvements in accordance with the
Contract, the Owner has agreed that a lien be placed upon the Property, which lien is conditioned on the
Owner's compliance with all of the terms and conditions of the Contract,which is incorporated herein by this
reference for all intents and purposes. Such responsibilities include, but are not limited to, those detailed in
Section 2 of the Contract;and
WHEREAS,should the Owner fail to comply with the Contract at any time within ten(10)years from
the date of the issuance of the certificate of occupancy for the improvements,the Owner after the expiration of
any cure period specified in the Contract shall reimburse the MDD the entire Lien Amount;and.
WHEREAS,failure to remit the appropriate amount owed to the MDD in a timely manner shall result
not only in interest calculated in accordance with Chapter 2251 of the Texas Government Code,but also in the
Owner being obligated to pay court costs and all attorneys' fees expended by the MDD in order to collect the
amount owed to the MDD;
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That the sum of FIVE HUNDRED THOUSAND AND NO/100 DOLLARS($500,000.00)(the"Lien
Amount")is due and owing to the Baytown Municipal Development District,for the expense incurred by the
MDD for the improvements made on the Property and that a lien exists on the Property to secure payment of
the Lien Amount to the MDD.
The Owner hereby warrants and represents to the MDD that this Lien is being executed and delivered
before the labor or materials for the erection and construction of improvements have been furnished or
delivered.
Development Project Lien, Page I
WITNESS MY HAND this the day of ,20
OWNER: The Baytown Little Theater
Incorporated
Signature
Printed Name
Ar zS/*a
MAM IL tAllNII.E11
STATE OF TEXAS § • ,•• MY COMMUN
g
§ a>laao��
COUNTY OF HARRIS §
,, , Before me, the undersigne notary public, on this day personally appeared
�LN 9. JPaz)N , the RCS1 Dc1/? of The Baytown Little Theater
Incorporated, known to me to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he/she executed the same for the purposes and consideration therein expressed and in
the capacity therein stated.
SUBSCRIBED AND SWORN before me thisgday of ,20J A.
. yzC
Not#Public in and for the State of Texas
RETURN TO:
BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT
OFFICE OF THE CITY CLERK
P. O. BOX 424
BAYTOWN,TEXAS 77522
\Tobfs0IUegallKaren\Files\City Councif,Municipal Development DistrictWontracts\Contracts 201ZBLT Licn.doc
Development Project Lien, Page 2
I)EVELOPMENT PRO.IEC`T CON'TRA( T
STATE OF TEXAS
COUNTY OF HARRIS S
'PHIS CONTRACT, which is made as of the _ day of�{ if 2012. by and between the
BAYTOWN MUNICIPAL DEVELOPMENT I)IS7 WI a political subdivision of the State ofTexas,
hereinafter called "District." and THE BAYTOWN LITTLE THEATER INCORPORATED, a'Teaas
Nonprofit Corporation. hereinafter called "BI, :"
Rrl "l "NESSE'i'll:
WHERP-.AS, the District desires to promote new or expanded husiness development within its
boundaries; and
WI IERFAS, the BIA desires to construct a new 77,000 square foot theater within the District's
boundaries and specifically located at the intersection of N. Main Street and Texas Avcouc, and
WHEREAS. the new theater will he at the apposite and of't exits Arcane, will compliment the Lec
College Performing Arts Center and will anchor the area tlrcrehg promoting new or expanded business within
the District's boundaries;
NOW T B9REFi )RE, for and in cnnsidcnrtion oPihe premisu;und annual covenards herein contained,
it is agreed as follows:
Section 1. Representations.
(a) The District is engaged in an ongoing effort to provide new resources to plan. acquire,
establish, develop, construct and/or renovate one or more development projects beneficial to
the District, which includes the Incorporated limits of the CiN of Buy.own I} inn„ within Harris
County.
(b) A development project of the District may Include, but not be limited to, buildings,
equipment f rcilities, and improvements found by the Board of Director, ofthe District (the
"Board ") to promote new or txpanded business development in the District.
(c) 'the District thereby finds that BL, I's development of a theater on the property located at the
intersection of N. Main Street and "7 exas Avenue and more particularly dewribed as follows;
(the. "Property"') constitutes- a development project in that it will promote new or expanded
business development in the District,
(d) The District represents and warrants that it hxs L> en pr operly created and is duly authorized
pursuant in the riot to enter into this Agraennem.
Develop. cnt ProiuGi,S;,ontia , I"we I
Section 2. Services to be Provided.
(a) Construction. BLT shall construct or cause to be constructed a 37,000 square foot theater
with both performance and rehearsal spaces on the Property; provided such construction is
designed to promote new or expanded business development in the District consistent with
Section 3888.102 of the Texas Special Districts Code (the "Development Project ").
(b) Operation. In the Development Project, BLT shall operate a community theater for at least
ten (10) years commencing on the date of the issuance of the Development Project's
certificate of occupancy. Operation for purposes of this paragraph shall mean providing a
minimum of six (6) theatrical productions per year along with educational/youth
programming.
Section 3. BLT Records and Reports.
(a) Financial Records. BLT shall maintain complete and accurate financial records ofeach
expenditure of the fees paid by the District. These funds shall be classified as restricted funds
for audited financial purposes and may not be used for contracted services, including, but not
limited to, auditing fees and attorney fees. Upon reasonable advance written request of the
General Manager or his designee, BLT shall make such financial records available for
inspection and review and shall provide copies of the same if so requested. BLT understands
and accepts that all such financial records, and any other records relating to this Agreement
shall be subject to the Texas Public Information Act, as hereafter amended, and the Local
Government Records Act, as amended.
(b) Quarterly Reports. BLT shall prepare and submit to the District after the end of each
calendar quarter during the term of this contract a brief written report describing the progress
of the Development Project during the previous quarter. The report shall be submitted to the
Secretary of the District and shall be in a form as approved by the District's General Manager.
BLT shall respond promptly to any request from the General Manager for additional
information relating to the Development Project and the use of fees under this Agreement.
(c) Annual Reports. BLT shall prepare and submit to the District, within thirty (30) calendar
days after the end of the District's fiscal year, a written report describing in detail the progress
of the Development Project during the preceding fiscal year. The report shall be submitted to
the Secretary of the District and shall be in a form as approved by the District's General
Manager. BLT shall respond promptly to any request from the General Manager for
additional information relating to the Development Project and the use of fees under this
Agreement.
(d) Notice of Meetings. BLT shall give the District's General Manager reasonable advance
written notice of the time and place of all meetings of BLT's Board of Directors, as well as
any other meeting of any constituency of BLT at which this Agreement or any matter subject
to this Agreement shall be considered.
(e) Audits. BLT shall provide to the District, within ninety (90) days of the close of BLT's fiscal
year, its audited annual financial statements.
Section 4. Payment.
(a) For and in consideration of the services to be performed by BLT and compliance with the
terms of this contract and subject to the other provisions of this section, the District agrees to
Development Project Contract, Page 2
pay to BLT the total sum of FIVE HUNDRED THOUSAND AND NO1100 DOLLARS
($500,000.00) based upon the following formula:
($500,000 x (Percentage of Completion x 2)) — Amount Previously Paid by MDD
The percentage of completion ofthe Development Project shall be certified by BLT's design
professional and included in the quarterly reports submitted to the Board. Payment will be
made not more often than quarterly and only after receipt of the quarterly report and approval
of such payment by the Board.
(b) BLT agrees to use the monies paid by the District hereunder solely for construction costs of
the Development Project and shall not use such fees for any other purpose. BLT agrees to
demonstrate strict compliance with this subsection through its recordkeeping and audits
required herein. Any ineligible expenditures shall be forfeited to the District upon expiration or
termination of the Agreement.
(c) The entire amount paid by the MDD pursuant to Section 4(a) shall be immediately due and
payable to the MDD if BLT:
➢ fails to meet the operational standards specified in Section 2(b) or
sells, assigns, transfers or divests itself of title to the property on which the
Development Project is located.
BLT's obligation hereunder will be secured by a lien on the property subordinate to the
mortgage lien. Should BLT comply with the terms and conditions hereof, the lien shall be
forgiven ten years after the date of the certificate of occupancy issued for the Development
Project. BLT agrees to execute the lien on the effective date of this agreement, which shall be
prior to any construction of the Development Project. A copy of such lien is attached hereto
as Exhibit "A," and incorporated herein for all intents and purposes.
Section 5. Allocated Funds.
Payments by the District to BLT are subject to funds being appropriated by the District.
Section 6. Term.
This contract shall be effective for the period from the date of execution of this Agreement by the
General Manager until a certificate of occupancy has been issued by the City's Chief Building Official, a
certificate of final completion has been issued by BLT's design professional, or BLT has fully complied with
all terms and conditions herein, whichever occurs last.
Section 7. Termination for Cause.
A parry may terminate its performance under this Agreement upon the occurrence of any of the
following events:
(a) The termination of the legal existence of BLT or the District;
(b) The insolvency of BLT or the District, the filing of a petition in bankruptcy, either voluntarily
or involuntarily by BLT or the District, or an assignment of this Agreement by BLT for the
benefit of creditors;
Development Project Contract, Page 3
(c) The continuation of a breach of any of the terms or conditions of this Agreement by either the
District or BLT for more than thirty (30) days after written notice of such breach is given to
the breaching party by the other party; or
(d) The failure of BLT to submit financial reports which comply with the reporting procedures
required herein and generally accepted accounting principles.
Section 8. Insurance.
BLT shall, at a minimum, provide insurance as follows:
Commercial General Liability
• General Aggregate: $2,000,000
• Per Occurrence: $1,000,000
IN Coverage shall be at least as broad as ISO CG 00 02 12 07
■ No coverage shall be deleted from standard policy without notification of individual
exclusions being attached for review and acceptance.
BLT shall require its general contractor, at a minimum, to provide insurance as follows:
Builder's Risk Insurance to be provided by either BLT or its general contractor)
■ Limit: 100% of replacement value.
The following are general requirements applicable to all policies:
AM Best Rating of B +; VII or better for all liability policies.
➢ Insurance carriers licensed and admitted to do business in the State of Texas will be accepted.
Upon request of and without cost to the District certified copies of all insurance policies and/or
certificates of insurance shall be furnished to District's representative.
➢ Certificates of insurance showing evidence of insurance coverage shall be provided to the
District's representative prior to any work being performed at the site.
➢ 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 the District.
➢ The District, its officers, agents and employees are to be added as Additional Insureds to all
liability policies.
Additionally, BLT shall furnish separate certificates and endorsements for each at -risk vendor,
including those supplying amusement activities. All coverage of such vendors shall be subject to all of the
requirements stated herein.
Section 9. Indemnity.
BLT AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE DISTRICT, ITS OFFICERS, AGENTS AND EMPLOYEES
(HEREINAFTER COLLECTIVELY REFERRED TO AS THE "DISTRICT"),
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES,
CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND,
Development Proiect Contract, Page 4
INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH
OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE SERVICES PROVIDED BY BLT
PURSUANT TO THIS AGREEMENT, THE CONDUCTOR MANAGEMENT
OF BLT'S BUSINESS OR ACTIVITIES, OR FROM ANY OTHER ACT OR
OMISSION BY BLT, ITS AGENTS, AND EMPLOYEES, WHEN
PERFORMING SERVICES IN ACCORDANCE WITH THIS AGREEMENT,
WHERE SUCH INJURIES, DEATHS OR DAMAGES ARE CAUSED BY
THE JOINT NEGLIGENCE OF THE DISTRICT AND ANY OTHER
PERSON OR ENTITY AND /OR BY THE JOINT OR SOLE NEGLIGENCE
OF BLT. IT IS THE EXPRESSED INTENTION OF THE PARTIES
HERETO, BOTH BLT AND THE DISTRICT, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY BLT TO
INDEMNIFY AND PROTECT THE DISTRICT, ITS OFFICERS, AGENTS
AND EMPLOYEES FROM THE CONSEQUENCES OF (I) THE DISTRICT'S
OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING
CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND /OR (II) BLT'S JOINT AND /OR SOLE
NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE DISTRICT
FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND
LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS
FROM THE SOLE NEGLIGENCE OF THE DISTRICT, UNMIXED WITH
THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT
THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE
DISTRICT BY REASON OF ANY OF THE ABOVE, BLT FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE DISTRICT.
The indemnity provided hereinabove shall survive the termination and/or expiration of this
Agreement.
Section 10. Release.
By this Agreement, the District does not consent to litigation or suit, and the District 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 District's sovereign immunity. BLT assumes full responsibility for its work
performed hereunder and hereby releases, relinquishes, discharges, and holds harmless the District, 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 BLT's work to be performed hereunder. This release shall apply with
respect to BLT's work regardless of whether said claims, demands, and causes of action are covered in whole
or in part by insurance.
Development Project Contract. Page 5
Section 11. No Arbitration.
Notwithstanding anything to the contrary contained in this Agreement, the District and BLT hereby
agree that no claim or dispute between the District and BLT 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 District is subjected to an arbitration
proceeding notwithstanding this provision, BLT consents to be joined in the arbitration proceeding if BLTs
presence is required or requested by the District of complete relief to be recorded in the arbitration proceeding.
Section 12. Refund.
Any funds provided by the District and either not expended or not expended in full compliance with
this Agreement shall be refunded to the District pursuant to the terms of this Agreement. In the event the
construction is cancelled for any purpose, whether due to a force majeure or otherwise, BLT shall refund all of
the monies provided by the District pursuant to this Agreement within thirty (30) days of the cancellation.
Section 13. Independent Contractor.
The relationship of BLT to the District shall be that of an independent contractor. The District shall
have no authority to direct the day -to-day activities of any of BLTs personnel decisions, and shall have no
other rights to internal working papers or other information or data than the District would have to any other
independent contractor providing specific services (e.g. museum services, weed cutting, legal services,
auditors).
Section 14. Parties in Interest.
This contract shall bind and benefit the District and BLT and shall not bestow any rights upon any
third parties.
Section 15. 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 or to exercise any right or remedy occurring as a result of any future default or
failure of performance.
Section 16. Applicable Laws.
This contract is subject to and shall be construed in accordance with the laws of the State of Texas, the
laws of the federal government of the United States of America and all rules and regulations of any regulatory
body or officer having jurisdiction. This contract is performable in Hams County, Texas.
Section 17. Notices.
Development Project Contract, Page 6
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:
BLT
The Baytown Little Theater Incorporated
Attn: President
4328 Hugh Echols Blvd
Baytown, Texas 77521
Fax: (28 1) Q3a — qfy 11 9sy1
DISTRICT
Baytown Municipal Development District
Attn: General Manager
P. O. Box 424
Baytown, Texas 77522 -0424
Fax: (281) 420 -6586
Section 18. Ambiguities.
In the event of any ambiguity in any of the terms of this contract, it shall not be construed for or against
any party hereto on the basis that such party did or did not author the same.
Section 19. Entire Agreement.
This contract 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.
Section 20. Assignment or Transfer of Rights or Obligations.
BLT shall not sell, assign, or transfer any of its rights or obligations under this contract in whole or in
part without prior written consent of District, nor shall BLT assign any monies due or to become due to it
hereunder without the previous consent of the District.
Section 21. Severability.
All parties agree that should any provision of this contract be determined to be invalid or
unenforceable, such determination shall not affect any other tern of this contract, which shall continue in full
force and effect.
Section 22. Complete Agreement.
This Agreement contains the entire understanding and constitutes the entire agreement between the
parties hereto concerning the subject matter contained herein. There are no representations, agreements,
arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating
Development Project Contract, Page 7
to the subject narrator this Agreement, which are not fully expresser) herein. Thetenns and conditions of this
Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any
other document relating to thistransacfion or thesetiansactions.
Section 23. Duplicate Originals.
This Agreement is executed in duplicate originals.
Section 24. Headiugs.
The headings and subheadings of the various sections and paragraphs of this Agreement are inserted
merely for the pwpose of convenience and do not express or imply any limitation, definition, or extension of the
specific terms of the section and paragraph so designated.
Section 25. Authority.
The officers executing this Agreement on behalf of each Party herehy confirm that such officers have
full authority to execute this Agreement and to bind the Parry he /she represents.
IN WITNESS WHEREOF, the parGe rave mad d executed .this contract in multiple copies, each
of which shah be an original, on this theay of _ 2012.
BAYTOWN MUNICIPAL DEVELOPMENT THE BAYTOWN LITTLE THEATER
INCORPORATED
ROBERT I LUPER, General Man ger (Signature)
Development Pro ecl Contract, Page 8
na
(Printed Name)
(Title)
ATTEST:
^(Signature)
(Printed Name)
n
(iigc)
APPROVE[,) AS TO FORM:
4 _
IO RAM7REZ, SR., Gen n -i onset
APPROVED AS ID FUNDING AVAILABILI'T'Y:
LOUISE R —ICI MANF Director of Finance
Cebfsm ue11F.nrnrlLS.Up I ,, 201235er co A,,u,a,d,c
Development P�C,� out,Page9
Exhibit "A"
THE STATE OF TEXAS
DEVELOPMENT PROJECT LIEN
COUNTY OF HARRIS
WHEREAS, pursuant to that certain Development Project Contract (the "Contract ") dated theeday
of , 20_L�,—by and between The Baytown Little Theater Incorporated (the
"Owner ") an4 the Baytown Municipal Development District, a political subdivision of the City of Baytown
and the State of Texas located in Harris County, Texas (the "MDD "), the MDD agreed to reimburse the Owner
for certain improvements determined to be eligible for reimbursement; and
WHEREAS, the aforementioned improvements are to be constructed on the property more particularly
as follows, to-wit:
LTS 9,10,11 & 12 BLK 60 (016 & 051 *THOMAS WRIGHT), GOOSE CREEK, HARRIS
COUNTY, TEXAS
(Also known as 2 N. Main Street, Baytown, Texas)
and
LT 1 VILLAS AT GOOSE CREEK, HARRIS COUNTY TEXAS
(Also known as 0 N. Main Street, Baytown, Texas)
(the "Property"); and
WHEREAS, in exchange for such reimbursement for the improvements in accordance with the
Contract, the Owner has agreed that a lien be placed upon the Property, which lien is conditioned on the
Owner's compliance with all of the terms and conditions of the Contract, which is incorporated herein by this
reference for all intents and purposes. Such responsibilities include, but are not limited to, those detailed in
Section 2 of the Contract; and
WHEREAS, should the Owner fail to comply with the Contract at any time within ten (10) years from
the date of the issuance of the certificate of occupancy for the improvements, the Owner after the expiration of
any cure period specified in the Contract shall reimburse the MDD the entire Lien Amount; and.
WHEREAS, failure to remit the appropriate amount owed to the MDD in a timely manner shall result
not only in interest calculated in accordance with Chapter 2251 of the Texas Government Code, but also in the
Owner being obligated to pay court costs and all attorneys' fees expended by the MDD in order to collect the
amount owed to the MDD;
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
That the sum of FIVE HUNDRED THOUSAND AND NO /100 DOLLARS ($500,000.00) (the "Lien
Amount ") is due and owing to the Baytown Municipal Development District, for the expense incurred by the
MDD for the improvements made on the Property and that a lien exists on the Property to secure payment of
the Lien Amount to the MDD.
The Owner hereby warrants and represents to the MDD that this Lien is being executed and delivered
before the labor or materials for the erection and construction of improvements have been furnished or
delivered.
Development Project Lien, Page 1
WITNESS MY HAND this the day of , 20
OWNER: The Baytown Little Theater
Incorporated
Signature
_ /4 QLr UIa14 d4rat
Printed Name
tr
NAM IL NOWTIM
STATE OF TEXAS ft" publik soft or To
§ •'
a�aao�:
§
COUNTY OF HARRIS §
Before me, the undersigns notary public, on this day personally appeared
AtithL& k. /n & LT, the R #-S r of The Baytown Little Theater
Incorporated, known to me to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that he/she executed the same for the purposes and consideration therein expressed and in
the capacity therein stated.
SUBSCRIBED AND SWORN before me thisU'day of , 201
Notaft Public in and for the State of Texas
RETURN TO:
BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT
OFFICE OF THE CITY CLERK
P. O. BOX 424
BAYTOWN, TEXAS 77522
1\CobfsOl\legW\Karcn\Files \City CouncilMmicipal Development DistrictWontractsTontracts 20121BLT Lien.doe
Development Project Lien, Page 2