Ordinance No. 14,884 ORDINANCE NO. 14,884
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A PROFESSIONAL SERVICES PAYMENT AGREEMENT WITH
CASTLEROCK COMMUNITIES, LLC, REGARDING THE EXPENSES
ASSOCIATED WITH BAY CREEK 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 Castlerock Communities,
LLC, regarding the expenses associated with Bay Creek 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 affi tive vote of the City cil of the City of
Baytown this the 14"'day of October, 2021.
iA
N CAPETIL O ayor
ATTEST: , , '>dr&.'.
ANGELA WCKSON, City Clerk Boaa
APPROVED AS TO FORM:
N L. NER, City Attorney
RAKaren Hamer\Documents\Files\City Council\Ordinances1202h0ctober 141ProfessionalServicesPaymentAgreeinent4BayCreekPID.docx
Exhibit"A"
PROFESSIONAL SERVICES PAY.-N1ENT AGREE1NIENT
Jhis Professional Services Payment Agreement (this - .A( I,ecnlellt"). cf•icctiye a;� ol'the•
day uf'October, 2021 (the "l f iceti\e Date.*'), is Made and entered into by and between
the City of Baytown. Texas ("C'ity") and Castll'Rock ('0111111111litie5 I.1_C.a i)t l;l\Val-e lillli(ed liability
colllh;lnti ("I)cyelOpcl..). herein collecli\•ely referred to its (1);11-ty" oi-"Parties").
11 HUAZE.AS, the Developer plans to develop appl't)x1mately 69.5 acres of Bind ill tlic
City till() tile• Ray C'reck hclusin�4 deyCi0I)111C1It. and the (1e\elopment of the Property shall he
de\Cl0I)Cd in i1CCc►rdancC W1111 tllc apphCahlc City RCUllla1101IS: and
'1 HE.REAS, the P1111iCS prC\'I0LISIy (ICICI-Mille(I that the (lllancillu of a portion of, the
Costs 01'the I)tlhliC i III PRWenlcnts Ileccssary kw the development ol,the 111.0I1LT1\' Can hC iUMICILI
by illc;nls ui- Chapter ;??. I Cxas l will Government Code. as alllelulcd. cntiticd the Public
lmprovcnlcnl District Assessment Act (111.) Act—): and
WHEREAS. DCvClopc1' desires to dcvc1oll the Prop".1.1y and Ilse ( 'il\. ;11 tlic hCllesl 1►1'
V)c\t• opt•r. illt,.•Il(ls 11) CrcitlC the k,'". ( 'reel. PUNK' (1n1`1r1►\c111011 to the
I'll) Ak-1: ;Ind
W HERFAS. tilt• I M—HC• IICICIO aCl;1l0\VIL'd:-L• HIM the ('it\ h;1s hcre•10101c ine-urrcd
certalil io."Is rcl;ltl\c to tilt' t'1'c;ltl)►i1 1)l 111C I'll) ;111(1 Will t:1111tllluC 10 Incur co"Is rclall\c to (1)
the CrcalItIn o the PID.(ii) the ad IptItIn ol'a set.\icc;lIlk C.Isscss1ne111 plan reI;IIP\ c io the• Propert\
c *SAF). ;Illd (Il l the ('itC., i,�sl1:1 CC III ils hti lhk ICCHICII 1)\ J_Y�CSNIllCIIII IC\1,'tl Oil ;I portwil
of the land \\ithin the• PID ("I'll) Hollds'). includinu. hilt not limited to: pr�►I��sil�n;ll per\icCs.
IC11;11 I)uhlit:;01011S. 11011ces. rcproduction of, matcri;lls. puhlic hcar11141 cxl)Crltic.S. r0:01-dill�1 Of
(IOCLIl11C1115. en0inecrin�4 Cces. attc►rncy (sirs. 1111;lncial adyisury fees. City st;111'11111C dc(licaled to
PH) nlaltcrs ("('il\ ~tali Iin1c 1. ;111(1 MId cltllCl' sl)CCUll C01MOt11711 ices (C0IICcl1vely. '-C'it\•
ExI)ellses'")
7NOW, T1111 F RE:FO RE. in vollSd ",11 l I1 e heltets ; lld hied
)
herein and [(it- oilier good and \iduahlC Consideration. the I'OXil)t aI1cI sul*lh:ie•rlc\ 01*WhiC11 art•
herchy ac1:nm\leduml. the parties ;12I*ee its lollok\s:
I. Paynlcllt 101- Prolcs_siolial Services. WHII]rl tell ( 1 U)days ofreceipt o1*re(lue t by the
CtIv. Developer shall deposit \\'ith the City S25.000.00 (the I)Cpclsil") 1i►1' i)a\MeltI of file C'itV
Expenses rclati\c to CreatiM_' the PI ;Ind to thud ills rC\'lC\\ 1111LI ad0JI111 )r1 01*the SAP and issuing
the I'll) Builds. l:ul'ther:
(a) Cite aurccs t1) hold the Deposit in it separate interest hcarmu, account
I'llaintainCd by the City \1'IiICII Illal' OIIIV he used to paV the Cov Expense;.
(h) City agrecs that all C HN' ExpCnsCs I-C1a6112 tO tIIiI_LI-I)ilI_IV C0►11sUIta111S that arc
it) be paid iirurll the Deposit shall he evidenced by in\uiccs that describe the
work- perlurmcd 1)v person. dale. ratC and 111101.1111 Of time to perl.ornl
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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 $l 0,000.00,upon
request from the City, Developer shall advance to the City an additional
amount necessary to cause the amount on deposit with the City to equal no
less than S 10,000.00.
(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 (other than City Staff Time) out of the
Deposit and keep accounting of all charges for City Expenses incurred,
including City Staff Time. Upon the termination of this Agreement any
unused portion of the Deposit shall be returned to Developer (including all
interest earned on the Deposit).
(g) City Staff Time, up to a maximum amount of S 15,000,000, will be
reimbursed from bond proceeds at closing of the first issuance of PID Bonds
relating to the Property.
2. No Obligation to Adopt a SAP or Issue PID Bonds. Developer acknowledges that
the City has no obligation to adopt a 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.
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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 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 pennitted 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:
Cam:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown,TX 77522
Developer:
CastleRock Communities LLC
Attn: Kirk Breitenwischer
2401 Fountain View#215
Houston, Texas 77057
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.
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006646.00017314826-0536-0865.v4
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 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 delivery this
Agreement in substantially the form presented to the City Council with such changes as he may
deem appropriate.
13. Iran. Sudan and Forei to Terrorist Organizations. The Developer represents that
neither it nor any of its parent company, 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 cif'such officer's intemet website:
https:l/coiuptroller.texas.govlpurchasitig,does/sudan-I1st.pdf.
https:/'comptroller.texas.gov/purciisino/docsiiran-Iist.pdf, or
https:l/comptroller.texas.gov/purchasing/does/flo-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 conhavene applicable Federal law and excludes the
Developer and each of its parent company 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 than
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 company,
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.
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98021239.2
CITY OF BAYTOWN, TEXAS
By
City Manager
Date:
DEVELOPER
CASTLEROCK COMMUNITIES LLC,
a Delaware limited liability company
By:
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