Ordinance No. 14,734 - PSA with Bayten, Ltd ORDINANCE NO. 14,734
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A PROFESSIONAL SERVICES PAYMENT AGREEMENT WITH
BAYTEN, LTD, REGARDING THE EXPENSES ASSOCIATED WITH THE
CROSSINGS PUBLIC IMPROVEMENT DISTRICT; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute a Professional Services Payment Agreement with Bayten, Ltd,
regarding the expenses associated with The Crossings Public Improvement District. 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 27°i day of May, 2021. A6
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ANGEL JACKSON, Interim City Cle
APPROVED AS TO FORM:
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KAI�Ml. HORNER, City Attorney
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Exhibit "A"
PROFESSIONAL SERVICES PAYMENT AGREEMENT
This Professional Services Payment Agreement (this "Agreement"), effective as of the
day of March, 2021 (the "Effective Date"), is made and entered into by and between the
City of Baytown("City")and Bayten,Ltd.,a Texas limited partnership,and Sowell Land Partners
— Baytown, L.P., a Texas limited partnership (collectively the "Developer"). The City and the
Developer shall each be referred to as a "Party" or collectively as the "Parties." The obligations
of the Developer herein shall be the joint and several obligations of Bayten, Ltd., and Sowell
Land Partners —Baytown, L.P.
WHEREAS, the Developer plans to develop 142.17 acres of land in the City into a
mixed-use development in accordance with the applicable City Regulations; and
WHEREAS,the Parties previously determined that the financing of a portion of the costs
of the public improvements necessary for the development of the Property can be funded by
means of Chapter 372, Texas Local Government Code, as amended, entitled the Public
Improvement District Assessment Act ("PID Act"); and
WHEREAS, Developer desires to develop the Property and the City, at the behest of
Developer, intends to create The Crossings Public Improvement District ("PID") pursuant to the
PID Act; and
WHEREAS,the Parties hereto acknowledge that the City has heretofore incurred certain
costs relative to the creation of the PID and will continue to incur costs relative to(i)the creation
of the PID,(ii)the adoption of a service and assessment plan relative to the Property,and (ii) the
City's issuance of its bonds secured by assessments levied on a portion of the land within the PID
("PID Bonds"), including, but not limited to: professional services, legal publications, notices,
reproduction of materials, public hearing expenses, recording of documents, engineering fees,
attorney fees, financial advisory fees, City staff time dedicated to PID matters, and other special
consultant fees (collectively, "City Expenses").
NOW, THEREFORE, in consideration of the mutual benefits and promises contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
l. Payment for Professional Services. Within ten (10) days of receipt of request by
the City,Developer shall deposit with the City$40,000.00(the "Deposit")for payment of the City
Expenses relative to creating the PID and to fund the review and adoption of the SAP and issuing
the PID Bonds. Further:
(a) City agrees to hold the Deposit in a separate interest-bearing account
maintained by the City which may only be used to pay the City Expenses.
(b) City agrees that all City Expenses relating to third-party consultants that are
to be paid from the Deposit shall be evidenced by invoices that describe the
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work performed by person, date, billing rate and amount of time to perform
such task. Within ten(10)business days after receipt of each invoice for City
Expenses (and before such invoice is paid), the City shall forward such
invoice to the Developer. If the Developer reasonably requests additional
information in clarification or support of such invoice, the City/consultant
shall provide the same, if available. The Developer shall have ten (10)
business days after receipt during which to review each invoice and to make
objections. If the Developer objects to any portion of an invoice,the City,the
Developer and those providing the services shall attempt to resolve the
dispute within a reasonable period of time; however,if not withstanding their
collective good-faith efforts the dispute cannot be timely resolved, the City
may pay such invoice, including any disputed amounts, within thirty (30)
days from the date of the invoice using the funds from the Deposit. For City
staff time, the City shall provide an accounting of the staff time dedicated to
PID matters and an allocation of costs for such time.
(c) Developer agrees that in the event the Deposit falls below $10,000.00, upon
request from the City, Developer shall advance to the City an additional
amount of not less than $20,000,00.
(d) In the event. the Deposit is exhausted, upon notice, Developer shall pay the
balance owed in full within fifteen (15) business days in addition to the
remittance of the additional funds as provided above.
(e) In the instance that deposits of additional funds are not timely made, the City
shall have no obligation to incur any additional City Expenses until such
deposit is made.
(f) The City will pay City Expenses out of the Deposit and keep accounting of
all charges for City Expenses incurred. Upon the termination of this
Agreement, any unused portion of the Deposit shall be returned to Developer
(including all interest earned on the Deposit).
2. No Obligation to Adopt an SAP or Issue PID Bonds. Developer acknowledges that
the City has no obligation to adopt an SAP or to issue any PID Bonds or other indebtedness with
respect thereto,and nothing contained within this Agreement shall create any such obligation. The
Developer's obligation to pay the City Expenses shall exist and continue independent of whether
the SAP or PID Bonds or other indebtedness are approved. This Agreement shall confer no vested
rights or development rights on the Property or to the Developer. Further, this Agreement shall
provide no assurances, promises, or covenants to approve any development in the Property.
3. Termination. Either Party may terminate this Agreement for any reason or for no
reason by providing at least thirty (30) days' written notice of termination. Termination of this
Agreement shall be the sole and exclusive remedy of the City and the Developer,as the case may
be, for any claim by either Party of any breach of this Agreement by the other Party. The City
shall be entitled to pay the City Expenses incurred through the date of termination; however, any
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excess funds remaining after such payments have been made shall be promptly refunded to
Developer. Notwithstanding any other provision of this Agreement to the contrary,the obligation
to repay such excess funds to the Developer in the event of a termination shall survive any
termination of this Agreement, and the Developer does not release or discharge its right to such
excess funds. At the closing of the sale of the first series of PID Bonds, this Agreement shall
automatically terminate and any remaining portion of the Deposit shall be refunded to Developer.
4. Entire Agreement. This Agreement contains the entire agreement between the
Parties with respect to the transactions contemplated herein.
5. Amendment. This Agreement may only be amended by written instrument
approved by the Parties.
6. Successors and Assigns. Neither City nor Developer may assign or transfer their
interest in the Agreement without prior written consent of the other Party.
7. Notice. Any notice and/or statement required and permitted to be delivered shall
be deemed delivered by electronic transmission received by the other Party of by depositing same
in the United States Mail,Certified, with Return Receipt Requested,postage prepaid,addressed to
the appropriate Party at the following addresses,or at such other addresses provided by the Parties
in writing:
City:
City Manager
2401 Market Street
Baytown,TX 77520
Developer:
Bayten, Ltd.
21711 FM 1093 Rd
Richmond,TX 77407-9527
Sowell Land Partners—Baytown, L.P.
1601 Elm Street, Suite 300
Dallas,TX 75201
8. Interpretation. Regardless of the actual drafter of this Agreement, this Agreement
shall, in the event of any dispute over its meaning or application, be interpreted fairly and
reasonably and neither more strongly for or against either Party.
9. Applicable Law. This Agreement is made, and shall be construed in accordance
with the laws of the State of Texas, and venue shall lie in Harris County,Texas.
10. Severability. In the event any portion or provision of this Agreement is illegal,
invalid, or unenforceable under present or future law, then and in that event, it is the intention of
the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also
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the intention of the parties to this Agreement that in lieu of each clause or provision that is found
to be illegal,invalid or unenforceable,a provision be added to this Agreement which is legal, valid
and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid
or unenforceable.
11. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be considered an original, but all of which shall constitute one instrument.
12. Execution. The City Manager is hereby authorized to execute and deliver this
Agreement in substantially the form presented to the City Council with such changes as he may
deem appropriate.
13. Iran, Sudan and Foreign Terrorist Organizations. The Developer represents that
neither it nor any of its parent companies, wholly- or majority-owned subsidiaries, and other
affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and
posted on any of the following pages of such officer's internet website:
https://compiroller.texas.gov/purchasing/does/sedan-list.pdf, https://comptroller.texas.gov/purcasing/does/iran-
list.pdf, or https://compirolier.texas.gov/purchasing/does/ilo-list.pdf. The foregoing representation is made
solely to comply with Section 2252.152,Texas Government Code, and to the extent such Section
does not contravene applicable Federal law and excludes the Developer and each of its parent
companies wholly- or majority-owned subsidiaries, and other affiliates, if any, that the United
States government has affirmatively declared to be excluded from its federal sanctions regime
relating to Sudan or Iran or any federal sanctions regime relating to a foreign terrorist organization.
The Developer understands"affiliate"to mean any entity that controls,is controlled by,or is under
common control with the Developer and exists to make a profit.
14. Anti-Israel Boycott. The Developer hereby verifies that it and its parent companies,
wholly- or majority-owned subsidiaries, and other affiliates, if any, do not boycott Israel and, to
the extent this Agreement is a contract for goods or services, will not boycott Israel during the term
of this Agreement. The foregoing verification is made solely to comply with Section 2271.002,
Texas Government Code, and to the extent such Section does not contravene applicable Federal
law. As used in the foregoing verification,'boycott Israel'means refusing to deal with,terminating
business activities with, or otherwise taking any action that is intended to penalize, inflict
economic harm on,or limit commercial relations specifically with Israel,or with a person or entity
doing business in Israel or in an Israeli-controlled territory, but does not include an action made
for ordinary business purposes. The Developer understands 'affiliate' to mean an entity that
controls, is controlled by, or is under common control with the Developer and exists to make a
profit.
CITY OF BAYTOWN,TEXAS
By: _
RICHARD L. DAVIS, City Manager
Date:
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DEVELOPER: BAYTEN, LTD.,a Texas Limited
Partnership
By: BOBCAT LA DEVELOPMENT
LLC, its e ;er,
By: /I
Name: �6✓c t �,�d sue►-•
Its:
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DEVELOPER: SOWELL LAND PARTNERS—
BAYTOWN,L.P., a Texas Limited Partnership
By: SOWELL BAYTOWN,INC., its
General Partner
By:
Name:
Its:
UKawn Homer\rh umems\Files\Commas\The CmssingsTSA%DM-#8003980-r l-Form_professional_services_agrwmcnl_10021.DOCX
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