HomeMy WebLinkAbout05-05-04 La Porte Redevelopment Authority Meeting
La Porte Redevelopment Authority
City of La Porte, Texas
Minutes of the Board Meeting
Held May 5, 2004
1. CALL TO ORDER At~D DETERi\1INATION OF A QUORUM
The Board of Directors of the La Porte Redevelopment Authority, City of La Porte, Texas, held a
meeting, open to the public, on the 5th day of May 2004, 6:30 p.m. in Council Chambers at the City Hall,
604 West Fairmont Parkway, La Porte, Texas 77572-1115 and the roll was called of the duly appointed
members of the Board, to wit:
Peggy Antone
Paul Larson
Alton Porter
Horace Leopard
Norman S. Cook
Lindsey Pfeiffer
Molly Helmlinger
Chester Pool
JJ Meza
Position I
Position 2
Position 3 - Chairman
Position 4
Position 5
Position 6
Position 7
Position 8
Position 9
and all of the above were present except Director Pool, thus constituting a quorum. Also present at the
meeting were John Joerns, David Hawes, Michael Dolby, and Kathy Powell. A quorum having been
established, Chairman Porter called the meeting to order at 6:33 p.m.
2. CONSIDER APPROVAL OF THE MINUTES OF THE FEBRUARY 4, 2004 BOARD OF DIRECTORS MEETING
Upon a motion duly made by Director Helmlinger and being seconded by Director Meza, the board
voted unanimously to approve the minutes of the February 4,2004 board of directors meeting.
3. REVIEW At~UAL AUDIT FOR LA PORTE TAX lNCREME.t'lT REINVESTMENT ZONE NUMBER ONE FUND
FY ENDING SEPTEMBER 30, 2003
Mr. Dolby briefed the board on FY 2003 Audit. There was no action taken.
4. RECEIVE At~D REVIEW ACTIVITY REpORT FOR 2003 T~" YEAR
Ms. Powell briefed the board with regard the Activity Report. There was no action taken.
5. ADMINISTRATIVE REPORTS
A. Re-zoning request within the Tax Increment Reinvestment Zone Number One.
Counsel notified the board that the request had been denied. There was no action taken.
B. Letter to David Turkel, Harris County Housing Authority, regarding Bayforest Ranch, Ltd.
Mr. Joerns reviewed discussions with Harris County Housing Authority regarding a preliminary agreement
to make payments in lieu of taxes for projects within the city of La Porte. The board requested that the
executive director submit a letter to HCHA confirming the general nature of this agreement.
C. Update on development within La Porte Tax Increment Reinvestment Zone Number One.
Mr. Hawes briefed the board with regard to the Fogerty project. There was no action taken.
6. BOARD MEMBER COMMENTS
There were no comments.
7. ADJOURNMENT
The meeting was adjourned at 7:46 p.m.
SIGNED:
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AGENDA ITEM 3:
AGREEMENT BETWEEN THE CITY, TIRZ AND REDEVELOPMENT AUTHORITY
On August 14, 2002 the La Porte Redevelopment Authority and TIRZ approved the first
agreement for services by and between the City, TIRZ and Redevelopment Authority. Prior to
this date, on May 20, 2002, Council passed and approved Ordinance 2002-2554 for this
agreement.
Section II and Section VI of the Tri-Party Agreement (attached) between the City, Zone and
Authority describes the services the Redevelopment Authority may furnish. Since the Authority
has no employees we are suggesting a simple agreement with the City to provide these services.
The agreement provides for the Authority to compensate the City, at cost plus 5%, annually,
upon termination, or as otherwise provided for in writing, for services performed by the City on
behalf of the Authority. For outside or vendor services, payment will be made within 30 days of
invoice date. The agreement term is for 1 year with the option for two I-year renewals and
includes provisions for termination by either party.
The La Porte City Council approved the second and final renewal of this agreement at their July
12,2004 meeting. We are requesting the Redevelopment Authority and TIRZ Board to approve
the renewal of this agreement.
REQAT FOR CITY COUNCIL AJlmA ITEM
Agenda Date Requested: Julv 12.1004
ADDropriation
Requested By: .Tnhn .Tnflrnc
Source of Funds:
Department: Administration
Account Number:
Report:
. Resolution:
Ordinance:
Amount Budgeted:
Exhibits: Agreement for Services
Amount Requested:
Exhibits: Sections L U and IV of Tri-party A2reement
Budgeted Item: XES. NO
Exhibits:
. SUMMARY & RECOMMENDATION
The Agreement for Services by and between the City of La Porte, Texas, Tax Increment Reinvestment Zone
NumlJer One, City of La Porte, Texas and the La Porte Redevelopment Authority expired on May 20,2004.
This agreement is to secure services of the City to assist the Authority in its duties described in its Agreement with
the City and Zone. .
After Council approval, this agreement will be presented to the TIRZ/Authority Board for approval.
Action Reauired by Council:
Approve second renewal of Service Agreement for a term of one (I) year per Section 1.
Approved for Citv Council Al!enda
~~OJ~~
ebra B. Feazelle, it)' anage
1-&-O~
Date
MINUTES OF REGU. MEETING, PUBLIC HEARING A"ORKSHOP MEETING
OF THE LA PORTE CITY COUNCIL '
July 12, 2004
1. CALL TO ORDER
The meeting was called to order by City Secretary Martha Gillett at 6:0~ p.m.
Members oiCily Council Present: Councilmembers Chuck Engelken. Howard Ebow, Peter Griffiths, Tommy
Moser, Mike Mosteit and Louis Rigby
Members of Council Absent: Mayor Pro Tern Barry Beasley
Members of City Executive Staff and City Employees Present: City Manager Debra Feazelle, Assistant City
Manager John Joems, Assistant City Attorney Clark Askins. City Secretary Martha Gillett. Public Works
Director Steve Gillett. Assistant Finance Director Michael Dolby. Interim Planning Director Nick Finan,
Police Chief Richard Reff, Human Resources Manager Sherri Sampson. Interim MIS Manager Al Owens and
EMS Chief Ray Nolen
Others Present: Carol Christian Houston Chronicle, Colleen Hicks. Dottie Kaminski, Ann Hayes, Dave
Turnquist, Charles Underwood. Barbara Norwine. Spero Pomonis. Sue Gail Mock Kooken. Sib Carpenter and
Tom Campbell and a number of other citizens and students' '
2. City SecretarY Martha Gillett requested a motion to elect,a temporary Mayor Pro Tempore 'for today's
meeting.
Motion was made' by Councilmember by Chuck Eng~lken to appoint Peter Griffiths as Mayor Pro Temoore for
this meetim~.. Second by Councilmember Ebow. Motion carried.
Ayes: Engelken, Griffiths. Mo~er, Mosteit, Rigby' and Ebow
Nays: None .
Abstain: None
3. ReVerend Mary Currie of Sl James Presbyterian Church delivered the invocation.
4. , Mayor Pro Tempore Peter Griffiths led the Pledge of Allegiance.
5. CONSENT AGENDA
A. Council to consider approval of Regular Meeting and Workshop Meeting Minutes held on June 28. 2004.
*-B.
Council to consider approval of second renewal of Service Agreement for a term of one (1) year per
Section I.
)/"'Motion was made by Councilmember Moser to aoprove the Consent Agenda as presented. Second by
Councilmember Mosteit. Motion carried.
Ayes: Engelken, Griffiths, Moser, Mosteit, Rigby and Ebow
Nays: None
Abstain: None
6. PETITIONS, REMONSTRANCES, COMMUNICATIONS, AND CITIZENS AND TAX PAYERS
WISHING TO ADDRESS COUNCIL ON ANY ITEM POSTED ON THE AGENDA - (LIMITED TO
FIVE MINUTES) , '
There were no citizens wishing to address City Council.
7. Open Public Hearing - Mayor Pro Tern Griffiths opened the Public Hearing at 6:04 p.m.
City Council Regular Meeting, PUbllearing and Workshop Meeting - July 12,'4 - Page 2
Interim Planning Director Nick Finan provided a summary of Special Conditional Use Pennit for 2.14 acres,
allowing expansion to existing La Porte Self Storage.
Public Input: There were no citizens wishing to provide input.
Planning and Zoning Recommendation - the Planning and Zoning Commission recommended approving the
request.
Public Hearing was closed at 6: 10 p.m.
8. Council to consider taking action on an Ordinance for a Special Conditional Use Pennit for 2.14 acres,
allowing expansion to existing La Porte Self Storage located at 2915 North 23rd Street as requested by Mr.
William Thomas.
Interim Planning Director Nick Finan presented summary and recommendation and answered Council's
questions.
Assistant City Attorney Clark Askins read: ORDINANCE 1501-SSS FOR SCU04-008 - AN ORDINANCE
AMENDING THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, CHAPTER 106, MORE
COMMONLY REFERRED TO AS THE ZONING ORDINANCE OF CITY OF LA PORTE, BY
GRANTING A SPECIAL CONDITIONAL USE PERMIT FOR THAT CERTAIN PARCEL OF LAND
DESCRIBED AS FOLLOWS, TO WIT: 2.14 ACRES, PART OF THE RICHARD PEARSALL 1/3
LEAGUE, ABSTRACT 625, LA PORTE, HARRIS COUNTY, TEXAS, FOR THE PURPOSE OF
EXPANDING A MINI-STORAGE AND WAREHOUSING MAK.ING CERTAIN FINDINGS OF FACT
RELATED TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND
PROVIDING AN EFFECTIVE DATE HEREOF.
Motion was made bv Councilmember Emzelken to approve Ordinance 1501-SSS and SCU04-008 as presented
bv Mr. Finan. Second by Councilmember Moser. Motion carried.
Ayes: Mosteit, Enf~elken, Ebow, Moser, Rigby and Griffiths
Nays: None.
Abstain: None
9. Open Public Hearing - Mayor Pro Tempore Griffiths opened the Public Hearing at 6: II p.m.
Interim Planning Director Nick Finan provided a summary of action on an ordinance for 4.9 acres of land
located along Caniff Road to rezone the property
Public Input: There were no citizens wishing to provide input.
Planning ~d Zoning Recommendation - the Planning and Zoning Commission recommended approval.
Public Hearing was closed at 6: 17 p.m.
10. Council to consider taking action on an Ordinance for 4.9 acres ofland located along CaniffRoad to rezone
the property from R-l to R-2 for proposed expansion of the church's parking lot at 9601 W. Fainnont Parkway
as requested by First United Methodist Church. .
Interim Planning Director Nick Finan presented summary and recommendation and an~wered Council's
questions. . .
Assistant City Attorney Clark Askins read: ORDINANCE 1501- TIT AND R04-006 - AN ORDINANCE
AMENDING THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, CHAPTER 106, MORE
COMMONLY REFERRED TO AS THE ZONING ORDINANCE OF THE CITY OF LA PORTE, BY
CHANGING THE ZONING CLASSIFICA nON FROM LOW DENSITY RESIDENTIAL TO MEDIUM
City Council Regular Meeting, publWearing and Workshop Meeting - July 12,.4 - Page 3
DENSITY RESIDENTIAL~S REQUESTED BY THE SLI GROUP, INC., ON BEHALF OF THE FIRST
. UNITED METHODIST CHURCH, THE OWNER OF 4.9 ACRES LOCATED ALONG CANIFF ROAD
JUST NORTH OF F AIRMONT P ARKW A Y HEREIN DESCRIBED; MAKING CERTAIN FINDINGS OF
FACT RELATED TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETING LAW;
AND PROVIDING AN EFFECTIVE DATE HEREOF.
Motion was made by Councilmember Ene:elken to aoorove Ordinance 1501-TTT and R04-006 as presented bv
Mr. Finan. Second by Councilmember Mosteit. Motion carried.
Ayes: Mosteit, Engelken, Ebow, Moser, Rigby and Griffiths
Nays: None
Abstain: None .
11. . Open Public Hearing -Mayor Pro Tempore Griffiths opened the Public Hearing at 6: 19 p.m.
Review by Staff - Interim .Planning Director Nick Finan provided an overview on an ordinance for 2.520 acres
ofland located in the 700 block ofSH 146 to be rezoned.
Recommendation of the Planning and Zoning Commission - the Planning and Zoning Commission.
recommended denial of the request by a 6-0 vote. If City Council wishes to overturn the negative
recommendation; it requires a % vote of the entire Council (7 members).
Public Input: Rebecca Terry spoke against the approval of the new Truck Stop site. She also informed
Council of existing problems in the area with drugs and prostitution.
Public Hearing was closed at 6:30 p.m.
12. Council to consider taking ~ction on an ordinance for 2.520 acres of land located in the 700 blo~k of SH 146 to
. be rezoned from GC to BI as requested by Ajay Jain. The applicant seeks to rezone the property for a .
. proposed development of a truck stop. .
The Planning and Zoning Commission ~ommended denial of the request by a 6-0 vote. If City Council
wishes to overturn the negative recot,nmendation, it requires a % vote ofth~ entire ~ounci1 (7 members).
. .
Interim Director of Planning Nick Finan presented summary and recommendation and answered Council's
questions.
Assistant City Attorney Clark Askins read: ORDINANCE 1501-UUU and RO-4005 - AN ORDINANCE
AMENDING THE CODE OF ORDINANCE OF THE CITY OF LA PORTE, CHAPTER 106, MORE
COMMONLY REFERRED TO AS THE ZONING ORDINANCE OF THE CITY OF LA PORTE, BY
CHANGING THE ZONING CLASSIFICATION FROM GENERAL COMMERCIAL TO BUSINESS
INDUSTRIAL REQUESTED BY MR. BOBBY GRISHAM ON BEHALF OF MR NIRANJAN PATEL,
THE OWNER OF THIS 2.520 ACRE TRACT LOCATED ALONG FEEDER ROAD OF THE STATE.
HIGHWAY 146 HEREIN DESCRIBED; MAKING CERTAIN FINDINGS OF FACT RELATED TO THE
SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN
EFFECTIVE DATE HEREOF.
Motion was made by Councilmember Moser approve Plannin~ and Zoning's recommendation to deny
Ordinance IS01-UUU as Dresented by Mr. Finan._Second by Councilmember Ebow. Motion carried.
Ayes: Mosteit, Moser, Engelken, Ebow, Rigby and Griffiths
Nays: None
Abstain: None
13. Council to consider taking action on Resolution 2004-06-A to extend and expand the moratorium on new
construction in the Main Street area up to 180 additional days. This item was previously tabled at the June 14,
2004 City Council Meeting. .
City Council Regular Meeting, pUblearinga,Dd ~orksbOP Meeting - July ~2,.4 - Page 4
Planning Staff recommends the extension and expansion of Resolution 2004-06-A.
Interim Director of Planning Nick Finan preSented summary and recommendation and answered Council's
. questions.
Assistant City Attorney Clark Askins read: RESOLUTION 2004-06-A - A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF CITY OF LA PORTE, TEXAS, RENEWING, EXTENDING, AND
EXPANDING A MORATORIUM ON THE ACCEPTANCE FOR FILING AND THE ISSUANCE OF
BUILDING PERMITS AND ALL OTHER ZONING AND/OR DEVELOPMENT PERMITS FOR NEW
CONSTRUCTION IN THE MAIN STREET DEVELOPMENT DISTRICT; PROVIDING TRA T SUCH
MORATORIUM SHALL EXPIRE AFTER ONE HUNDRED EIGHTY (180) DAYS OR DISPOSITION OF
ZONING CHANGE PROCEEDINGS WITH REGARD TO SUCH DISTRICTS, WHICHEVER COMES
FIRST; PROVIDING FOR SPECIAL EXCEPTIONS IN THE EVENT OF HARDSHIP AND PROVIDING.
AN EFFECTIVE DATE.
Motion was made by Councilmember Moser to approve Resolution 2004-06-A as presented bv Mr. Finan:
Second by Councilmember Rigby. Motion carried.
Ayes: Mosteit, Engelken, Ebow, Rigby, Moser and Beasley
Nays: None
Abstain: None '
14. '. . Council to consider approval of an ordinance authorizing the Mayor Pro Tempore to execute an agreement
with Harris County for the construction of Canada Road. '
Public Works Director Steve Gillett presented surrimary and recommendation and answered Council's
questions. .
. .
Assistant City Attorney Clark Askins read: ORDINANCE 2004-2756 - AN ORDINANCE APPROVING
AND AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND HARRIS COUNTY
TO JOINTLY CONSTRUCT CANADA ROAD, FROM SPENCER HIGHWAY TO F AIRMONT
P ARKW A Y; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT;
FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE
DATE HEREOF.
Motion was made bv CounciImember Engelken to approve Ordinance 2004-2756 as oresented bv Mr. Gillett.
Second by Councilrnember Mosteit. Motion carried.
Ayes: Mosteit, Engelken, Ebow, Rigby, Moser and Griffiths
Nays: None .
Abstain: None
15. Council to consider approving an ordinance amending Chapter 102, Natural Resources, Article IV, Pipeline
Transportation Sections 102-231 through 102-265, inclusive, and amending fees associated with the process.
Public Works Director Steve Gillett presented summary and recommendation and answered Council's
questions. This item was previously tabled at the June 28, 2004 City Council Meeting.
Assistant City Attorney Clark Askins read: ORDINANCE 2004-2755 - AN ORDINANCE AMENDING
CHAPTER 102, NATURAL RESOURCES, ARTICLE IV, PIPELINE TRANSPORTATION SECTIONS
102-231 THROUGH 102-265, INCLUSIVE, BY REPEALING CURRENT SECTIONS 102-231 THROUGH
102-265 AND REPLACING THEM WITH THE FOLLOWING; AND FURTHER AMENDING APPENDIX
A - FEES OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, SECTIONS 102-264 BY
REPEALING THE FEES ESTABLISHED HEREIN AND REPLACING THEM WITH THE FOLLOWING;
PROVIDING THAT ANY PERSON VIOLATING THE TERMS OF THIS ORDINANCE SHALL BE
DEEMED GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE FINED IN A SUM
City Council Regular Meeting, pUbl.earing and Workshop Meeting - July 12, . - Page 5
NOT TO EXCEED TWO THOUSAND DOLLARS ($2,000.00) PER DAY; PROVIDING FOR
PUBLICATION OF THE CAPTION HEREOF; CONTAINING A SEVERABILITY CLAUSE; FINDlING
COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE
HEREOF. .
Motion was made by Councilmember Ebow to aDDrove Ordinance 2004-2755 as Dresented bv Mr. Gillett.
Second by Council member Moser. Motion carried.
Ayes: Mosteit, Engelken, Ebow, Rigby, Moser and Griffiths
Nays: None
Abstain: None
16. Counc~l to consider approval ofa contract with RJ Solutions for IT management and operation support.
MIS Manager Al Owens presented summary and recommendation and answered Council's questions.
Assistant City Attorney Clark Askins read: ORDINANCE 2004-2757- AN ORDINANCE APPROVING
AND AUTHORIZING A CONTRACT BETWEEN THE CITY OF LA PORTE AND RJS SOLUTIONS
FOR PROVIDING SERVICES FOR NETWORKS RESTRUCTURE AND IT MANAGEMENT SERVICES;
APPROPRIATING $34,000.00 TO FUND SAID CONTRACT; MAKING VARIOUS FINDINGS AND
PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS
LAW; PROVIDING AN EFFECTIVE DATE HEREOF. .
Motion was made by Councilmember Rillbv to aDDrove the contract as Dresented. Second by Councilmember
Moser. Motion carried. . . '
Ayes: Mosteit, Engelken, Ebow, Rigby, Moser and Griffiths.
Nays: None
Abstain: None
17. The Regular Meeting closed and. the Workshop Meeting opened at 6:57 p.m.
A. Receive 90 Day Report from Human Resources Manager Sherri Sampson..'
Ms. Sampson provided an overview of Human Resources accomplishments within the last 90 days. (See
attached slide show).' ' .
B. Receive Report from Bayport Expansion Review Committee from Chairman Chuck Engelken. Minutes of
the meeting have been placed in the vault as a permanent record. .
18. The Workshop Meeting closed and the Regular Meeting reconvened at 7:35 p.m.
19. ADMINISTRATIVE REPORTS
Early voting for Mayor and District 6 Special Election will be held at the City Hall Council Chambers
beginning July 7, 2004 and ending on July 20,2004 from 8:00 a.m. to 5:00 p.m. and on Saturday July 10,2004
at City Hall Council Chambers from 8:00 a.m. to 5:00 p.m. on Election Day July 24, 2004.
The Newly Elected City Offiicals' Orientation will be held July 23-24 and August 20-21,2004 in Austin,
Texas. . ,
Budget Workshop Meetings week of August 9, 2004.
"
. Ms. Feazelle announced that Mr. Finan the Interim Planning Director has accepted a position with another
City. She thanked him for all his hard work and efforts while with the City ofL8 Porte.
City Council Regular Meeting, pUblearing aod Works~op Meeting - ~UIY 12,. - Page 6
20. COUNCn.. COMMENTS " ,
Councilmembers Engelken, Ebow, Moser, Rigby, Mosteit and Mayor Pro Tern Griffiths had comments.
21. EXECUTIVE SESSION - PURSUANT TO PROVISION OF THE OPEN MEETINGS LAW,
CHAPTER 551.011 THROUGH 551.076, 551-087, TEXAS GOVERNMENT CODE (CONSULTATION
WITH ATTORNEY, DELmERATION REGARDING REAL PROPERTY, DELIBERATION
REGARDING PROSPECTIVE GIFR OR DONATION, PERSONNEL MATTERS, DELIBERATION
REGARDING SECURITY DEVICES, OR EXCLUDING A WITNESS DURING EXAMINATION OF
ANOTHER WITNESS IN AN INVESTIGATION, DELIBERATION REGARDING ECONOMIC
DEVELOPMENT NEGOTIATIONS)
The City Manager announced there was no need for an Executive Session.
20. CONSIDERATIONS AND POSSmLE ACTION ON ITEMS CONSIDERED IN EXECUTIVE SESSION
21. There being no ,further business to c<?me before, Council, the Regular Meeting was ~uly adjourned at 7:42 p.m.
Respectfully submitted,
Martha Gillett, TRMC
City Secretary
Passed and approved on this 26th day of 1uly 2004
Peter Griffiths, Mayor Pro Tern
. .e: . '.
AGREEMENT FOR SERVICES BY AND BETWEEN
THE CITY OF LA PORTE, TEXAS, T AX INCREM~NT REINVESTMENT ZONE NUMBER ONE,
CITY OF LA PORTE, TEXAS AND THE LA PORTE REDEVELOPMENT AUTHORITY
TH'IS AGREEMENT (this "Agreement"), effective as of o:~{) ,2001/, is made by and between
the CITY OF LA PORTE, TEXAS, a municipal corporation and a home-rule city in the State of Texas (the "
"CITY"); REINVESTMENT ZONE NUMBER ONE, CITY O~ LA PORTE, TEXAS"a reinvestment zone
created by the City pursuant to Chapter 311, Texas Tax Code (the "ZONE"); and the LA PORTE, '
REDEVELOPMENT AUTHORITY, a nonprofit local govermnent corporation organized and existing under '
the laws of the State of Texas (the "AUTHORITY"),' , . , .
RECITALS "
WHEREAS, th,~ CITY, ZONE, and AUTI:iOR~TY have p~eviously ~n'tered into an Agre,~~ent~ and
,", .
. , WHEREAS, the CITY and the ZONE desire to secure serVices ~ftlie, CITY tq assist the AUTHORITY
, , ' in its duties described in its Agreement with the CITY an~ ZONE; , . : .
: ,
NOW, THEREFORE, for and 'in cons~deration of the mutual updertakings ~erein con~ained, the'
, AUTHORITY and CITY a8I:ee as fonows: : .. , ' , , ..' .,,',..:',..' . . " ,':
r.
, "
'. '.
. CITY agrees to aSsist the AUTHORITY in its scope 'of services as defined by Section II and Section IV of the
"AGREEMENT BY AND BETWEEN THE CITY OF LA PORTE, TEXAS, REINVESTMENT ZONE
NUMBER ONE, CITY OF LA,PORTE, TEXAS, AND THE LA PORTE REDEVELOPMENT
AUTHORITY" for a term of one (1) year commencing with an option to renew this agreement for two, ",
. additional one (1) year terms, subject, to the agreement of both parties. This !lgreement is subject to' .'
terinin~tion at any .time without cause by either P.arty giving ninety (90)-day written notice to the other: . ,
'. :
, ':: II.
CITY shall receive compensation for ~ervices ~eferred to in Sect~on I above in an amount equal to the direct, '
salary costs plus 5% of City personnel perfonning services anticipated by this agreement.' 'Payment for these,
seI:Vices shall be made annuallY',upon termination, or otherwise agreed to in writing by both parti~s.,
Reimbw.sable expenses such as consul~t's f~s, supplies and materials ~hali be billed at cost pl~s 5% and
paid within thirty (30) days of invoice or as determined by separate agreement with consultant or provider. .
. .
III.
CITY will procure, to AUTHORITY'S account.; supplies, materials, equipment, and services, utilizing funds
allocated in AUTIlORITY'S approved budget (Tax Increment Reinvestment Zone Fund), for the !jiervices ,
provided by the CITY on behalf of AUTHORITY. CITY shall confonn to all applicable purchasing laws of
the State of Texas in the procure~~nt of all s,upplies and materials nec~ssary for the services provided.
e'
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IV.
CITY is retained by AUTHORITY only for the purpose and to the extent set forth in this Agreement, and
City's relation to AUTHORITY, during the period of this Agreement, is that ofan independent entity, and ,
CITY shall be free to dispose of such portion of his 'entire time not required to satisfy the tenns of this ' '
Agreement in any manner he deems ~dvisable. CITY shall not be consi~ered an emp~oy~e, of AUTHORITY.
v. .'
CITY shall be required to operate within th~ current guidelines of its governing body and shall notify, ,
AUTHORITY of any possible conflicts with such suidelines, as soon as pra~tica.bl~ after the occurrence of
said possible conflicts. ' , " '
,VI. ..
, ,
, ,
. . , .. .
CITY hereby assumes eniirerespo~sjbiIity and liability for any and alI'damage or injury orany kind or'nature
whatever to all persons, whether employees of CITY or otheIWise,' and to all property caused by, resulting . "
from, arising out of, or occurring in connection with the services provided for in this Agreement and if any ,
'person shall make a claim for any daJ;l1age'or injury a;S herinabove described, whether such claim may be' " " ,
, based upon ~e AUTHORITY'S alleged active or passive negligence or participation in the wrong 'or upon any ,
alleged breach of any statUtory duty or obligation on the part of the AUTHORITY, the CITY agrees to ' ,',
indemnify and savehannless the AUTHORI1Y, its agents, servants, and employees from and against any and
all loss, expense, damage, or injury that the AUTHORITY: may sustain as result of any ,such claims and the '
CITY agree,s ,to assum'e, on behalf of the' AUTHORITY, the defense of.any 'action at law or in equity, ~hich
may be brought against the' AUTHORITY upon such claim and to pay on behalf of the AUTHORI1Y, upon ' ~
~ts d~and, Q.1e amo~t of any j,~d~~t that may be entered agai~t the AUTHORITY in any ,such, a~tion.' "
.:'
.:' ,",'
. ' .. VII "
.:. :. ".' . ..' .
, "
, ,
. , ' " .
Before com.niencing the services~ the 'CJTY shall procure arid maintain liability ~nsurance, at its own expense,', ..
~d procure and maintain workers' compensation and employee liability insurance in accordance with the', " '
laws of the State ,of Texas. The CITY agrees that nothing contained in this paragraph shall limit or release the,
CITY from its obligations otheIWise provided for in this Agreement, ~ncluding assumption of liabilities and
indemnifications to the AUTHORITY.' ' ,',',' , '
.. . .
If the CITY fails to procure and maiDtain at least the above insUrance, th~ AUTHORITY shall have the right
to procure and maintain the said insurance for and in the name of the CITY, and the CITY shall pay the cost,
, thereof and shall furnish all necess~ infonnation to make e~ective and maintain such insurance. '
VIII.
..' The CITY for the compensation provided for herein, hereby agrees to pay and shall hold the AUTHORITY
hannless against the payment of all contributions, taxes, or premiums which may be payable under Federal,
State, or Loca1laws arising out of the perfonnance oftl)e work. '
.
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IX. .'
If'either the CITY or AUTHORITY believes it has a claim of any natur~ whatsoever against the other party, it
shall give the other written notice of the amount, whenever possible, and nature of such claim within forty.five
(45) days (or such other time limits as may be expressly set forth in the Agreement) of the occurrence of the
eyent upon which such claim is based. In default of such notice th~ claim is waived. "
. x. '
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. .'
All matters relating to the validity, perfo~ance, i~terpretation, or construction of this Agreement or'the' .
br~ach thereof sh~l be governed by the la-w:s ,of ~e State ofTex~. .
.' . .'. "
IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands and seals the'day..
and year tirst above written. '. . . . . . . , . .
CITY OF LA PORTE . , ' .
BY:~.. ..........
. . ~rman M$l1na. Mayor. P-ro T~,~
. .~N Y .i('f(6f0.'j' ~-(.r 'Qfrf( IIt..J..
ATTEST:.'.., .. .
.~if~Ll/;j[1 ... .. ...
" M a A. Gillett, City S~retary. .
.' .
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LA PO~~lli::' DEVELOPMEN~ AUTHORITY . "
. . \ ?~"':
. By: C,..... ~
President, Board of Dir~tors
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ArrEST:. {{Jp' , '.
. ..,. '.' ?fi 7It. ."....
li8..-y.$DirecIO .
REINVESTMENT ZONE NUMBER ONE,'
. CITY OF ~ PORTE, TEXAS
By: . ~Ll/~
~hairperson, Board of Dire;ctors
A TrEST:
~~1tfl~ '. V.
~_.- - - ~OfD~ .
H:\My Documr:nts\Oocumc:nts\TIRZ\Redevlopment Authority Agreement.doc
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."TIRZ Revenue Fumf' shall me~ the subaccourit of the Revenue Fund into which the Tax
Increments ~e deposi,ted by the City fo~the use of the A~thority hereunder. '.
"Zone'~ is de~ed in the recitals hereto, arid includes.any are~ added to the boundaries of the
Zone.
. II.' .
SCqPE OF SERVICES BY AUTHORITY
To the extent of available funds and subject to the limitations offhis Agreement, the services.
that the Authority may furnish consist of, among other things, the following:' :. '.:
A. Mana2ement and Administrative Services and Consultants.:..,:Th~"Authority ~ll ......
provid~ management and administrative. services for the Zon~ and th~ PID.. .The services 'witho~t
limitationmayinclude~efollowing: ." .' ",'. ". ...n',.' .... :.'...,'...... .:' ..:.:..
. '.
. 1..' . Provide the st8.ff and administrativ.e services that are necessary to manage the
Zone and the PID and provi~e ,or supe~s~. the se~ces ~. th~. Projects;. . :..:. . ','., . .' ..'
. ,
. .' . .:2.. Pro~ide' manag~~ent~ flnanci8I an~ p!oirahi Ih~nit~ring systems fo~ the'. '.:
adMinistration of the Zone and the PID; ... .,' ':" :
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. ...... .4. ': Subject to the terms o,fthis Agreeri1ent, recruit, hire, pay.and superVise the . .
consultantS and any worJ,c force that the Authority' will utilize' to ,~h' scmccs. 'required for the' . . .
. development or redevelopment of the Zone; , .' . ,". . "
.. , 5. . . Provide staff to participate in meetings concerning the a~stration of the . . .
. Zone and the 'PID in all its capacities, including the services to the Zone Board .wh~n managing the .
Zone;
6~.. Provide liaison and coordination between the Zone, the City, the County, the.
School District, other Taxing Units, property owners, and other persons and groups interested in the'
redevelopment activities of the Z~n~ ~d the PID; .
. 7. . Supervise and m'onitOr the performance of consultants and subcontractors who
are employed by the Authority; . ,. .
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. 8. ' 'Assist in briefing Developers, property owners and other persons concerning: .
proposed ac'tivities and developments that woul~ complement, public and private development
'activities in the Zone;. . . .
, .. 9. Function as the infonnationlcomplaint center for all matters relating to the
administration of the Zone and advise the' Zone Board and the City in a ~mely manner 'of any
, " problems concerning the Zone and the ~ID; and . .
10. Provide engineering, Planning, legal, fmancial, real estate, and other services
through consUI~.tS eI~~aged by .the A~thority as, ~~~ ,be.. ~eq~ested by the ,zo,n~ ~oar~ ~r ~e City.
B. '. ;' ,Services With Respect to the Plans ~~d Enlargement ~fthe Z~ne~ . : ..
; ~. .: .. . '.
1.. Act as consultant to 'the 'ion~ ~ the implern:entation and amendment of the
P,lw in ~c~ordance wi~ ~ppl.i~able law. '. ' '. - : ' ..' . . .
.. 2.'. The Auth~rity will review areas' for .addition to the Zone' as requested by the'., .
Zone Board and will provide information with respect to any proposed enlargement that may be '"
.required by the Zone Board including, if requested, the information required for a prel~ P~oject
Plan and a prelim~~ry Financing, Plan with 'respect t~ the .enlargeme~t of, ~e Zone. . .
C. . Tax' and Assess~eni Rolls. "~ .', ......
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, " 1.. . Assist ~e Zone Board ~d the City With ~spect to'the p~eparation of sPecial
tax rolls relating to the Zone. The AuthoritY will analyze property uses in the Zone, compare them to
, the records' of the Appraisal District, and attempt to reconcile the tax rolls of the Appraisal District
with the actual land uses. :' : .' .' . ',' . , .',. " '.. >, ' " " :'
.. . . . .
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,2.', ' A~sist the City in securi~g a tax roli for the Zone ~ac'h year. and assist the'
Zone Board, 'the City, and the Appraisal District in having the Zone tax rolls correctly 'reflect the total
appraised value of reaI property in the Zone for that year and showing separately the Tax Increment ..
Base and the Captured Appraised Value. The Authority will assist the Zone Board and the City in '
advising all Taxing Units participating in the Zone with respect to the Captured Appraised Value and
the amount of Tax Increment of each Taxing Unit. which is to be paid into the Tax Increment Fund as
required by the TIRZ Act. . .' .
, ,
, 3.' Assist the City in preparing the P.ID Assessment rol1~, nC?ticing and conducting
hearings, and collecting the PID Assessments. .
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D. Construction ofProi eclS:' The Authority may construct infrastructure, buy equipment
and .supplies, and deal in real estate as necessary to implement the Plans and as permitted by the
TIRZ Act and the PID Act: .
1., To the extent funds are available, the Authority may design and construct
Proj ects identified in the Plans that meet the qualification~ of the TIRZ Act. and the PID Act as
applicable; and
'. 2. To ~e extent funds are available,., the Authority may huy: 'sell, lease and
o~erwise deal in real estate within the Zone. '.,
. . E. Subcontractor~:' Th~Ai.1tho~ity .may provide the ~ervices required by this Agreement .
throu~h staff, subcontractors, and/or consultants subject to th~ condit~ons ~f~s Agreement. .'
..
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..' . In
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, . . .' OBLIGATIONS OF T~ AUTHORITY.
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. . A. Geri~r~ Stat~inent.'. The' Authority haS the' authorl'ty to e'nter int~. Authority. '. '. ::.
Obligations with Developers and enter into contracts .with consultants and others to be paid from
moneys to. be paid ~y the. City and the 'Zone to the Au~ority from Tax Increments and PID .
. Assessments pursuant to this Agreement, and further, the Authority may issue Bonds ~th 'the .
consent of the City Council; provided that nothing in this Agreement shall be construed to authorize
'the Authority to expend any of the Tax Increment funds receive~ p1;1rsuant to this Agreemen~ for anY:
. costs othe.r than Project Costs. or expand PID Assessments fo~'any cost o~er ~an cos~s authori~ed'
under the PID Plan. ..' ... : .: ' .' . . .... ....;.. : ..... . . '..
B. .' Pow~r to Incur Auilio'ritV Obli2ati~ns~ Subj~ct'to' th~ provisio~ of this .Arti~le~ th~ .
Authority shall have the power from time to time to issue and incur Authority Obligations and enter. :' .
. into contracts ~th consultants upo~ s~ch terms and conditions as the Authority .Board and the Zone '.
Board shaH de~ermine to be necess!uy or desirable to implement the Plans. The Authority
Obligations may be in the form of a Development Agreement with the Developer of a Development
who agrees to construct, improveme~ts or other facilities included in the Plans in exchange for the .
obligation of the Authority to repay the Developer for such costs from future payments made by the
. . City and the Zone to the Authority pursuant to this Agreement. All Development Agreements shall .
specify which Plan pursuant to which it is entered, and shall provide that (i) the Authority will not
. reimburse any Developer for any Project that is determined to be an ineligible Project Cost under the
. TIRZAct, or an ineligible PID Project under the PID Act, as applicable; and (ii) the Developer ~hall .
repay the Authority for any payment .made by the Authority to the Dev~loper that is determined to be
ineligible.
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c. ' '. Aoproval ofBo~ds and Other Oblieations. 'The Authority may issue Bonds secured
by payments made purs,uant to this, Agi'eeme~t with the approval of City Council. "
D. ,Use ofTa'( Increments.', Amounts deposited in the TIRZ Revenue Fund shall be
applied in the following order of priority (i)' amounts pledged or required for the 'payment o~
outstanding Bonds secured by the TIRZ Revenue Fund, including Bonds in the process of issuance '
and refunding Bonds, (ii) administrative costs of the Zone and the Authority relating to th~ ZOl1e, and
(iii) payments of other, Authority Obligations relating~o the Zone. " '
, .
,E:,' " Use ofPID Assessments~ ' Amounts dep~sited in the PID'Reve~ue Fund shall be
applied in the following order of priority (i) amounts pledged or required for the p'ayment of
outstanding'Bonds secured by the P~ ~evenue Fund, including Bonds'in th~ process of issuance'
and refund.ing Bonds, (ii) administrative costs of the Authority relating to the,PID,and (iii) payments
of other Author.ity Obligations r.elating to the PID.', '
.. . . '. . .
, " . " ' , , F.,', ' Pledge of Revenue Fund. The AuthoritY and 'the Zone Board may pledge and assign
. '. all or a part of the Revenue ~und under this ~greement to: ",'., '
" '.
. .' ". .' 1.. "'.. with respect to' the ,TIRZ Reveri~e F~d, the owners and hol,ders of TIRZ
" ' . Bonds, and DevelopersIBuilders pursuant to a Development Agreement for TIRZ Impr~v~ments: ' ,
. '. '. . ,.... ~ .' '. " . . " J 1 ...... . . . . " . ~. . :". :.'. . ' '.: '. .
'. ':' : 2. " with respect to the PID Revenue Fund, the o~ers and holders ofPID Bonds,:
, and DeveloperslBuilders pursuant to a Development Agreement for PID Improvements.
.' .'" .: " " " .". , .. " .... . .
.... ,. ..',. . . \ '.. " " . . . .,' .
The City consents to any assignment' and pledge consistent with this Agreement. "The tenus : ' " .
and conditions of the ins~ents assigning or pledging the proceeds to be rec~ived by the Authority, '
pursuant to this Agreement must be approved by the City Manager..' . . .
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. , IV. . ,
DUTIES AND RESPONSIBILITIES OF THE CITY AND THE ZONE
A. .' Tax Increment Fund~ ' The City has established and will maintain a separate Tax
Increment Fund, including subaccounts if necessary, in the City treasury into which Tax Increments
shall be deposited. During the term of this Agreement, Tax Increments shall be paid to the Authority
from the TaX Incremel.lt Fund as herein provided. ' " "
B. . Soecial District Imorovement Fund. The Clty will establish and maintain a separate
. fund Speciar"District Improvement Fund, including subaccounts ifnecessary, in the City treasury into
which PII? Assessments shall be deposited. During the term of this Agreement, PID Assessments
shall be paid to the Authority frOJ;l'l the Special District Improvement Fund as herein provided.
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C. . Limitation of Source of Payment. The City and the Zone shall have no financial
obligation to the Authority other than as provided in this Agreement or in other agreeme~ts between : .
the City, the Zone and the Authority. . The obligation of the Ci ty and the Zone to the Authority under .
this Agreement is limited to the Tax Increments and PID Assessments that are collected by the City.
, This Agreement shall create no obligation on the City or the Zone that is payable from taxes or other
moneys of the City other than the Tax Increments 'and PID Assessments .that are collected by the
. 'City. The obligation of the City and the Zone to the Authority under this Agreement shall be subject
to the rights of any of the holders of Bonds or other obligations that have heretofore or are hereafter
. issued by the City, the County, and any other Taxing Units that are payable from or secured by a
, general levy of ad val,orem taxes throughout the taxing jurisdiction of the City, the County. and the
other Taxing Units. "
. D. . Collection and Payment of'Ta.x Increments bv the CitY and the Zone. In consideration
, of the services and TIRZ Proje~ts to be provided by the Authority, the City and the Zone covenant
and agree that they will, as authorized under the TIRZ Act and other applicable laws, continuously .
, collect the Tax Increments from the Taxing Units whose participation in the Zone is reflected in the .
TIRZ ~lan during the term of this Ag.reement in the manner and to the maximum extent permitted by' "
applicable law~' To the exte~t the 'City and the Zone may legally do so, the City and the Zone also
covenant and agree that they will not permit a reduction in the T~ Increments paid by the Taxing
Units except to the extent provided in the agreement with the Ta.xing Unit executed at the time the .
Taxing Unit agrees to participate in the Zone. in llddition, the City covenants and agrees that it will,
, not di~solve the Authority unIess 'the provisions of Article XVIII, Paragraph C, are met and ,that any , .
repeal of the right and power to c!Jllect the Tax Increments will not be effective until all the TIRZ
Bonds or other TIRZ-related Authority Obligations have been paid in full or until they are legally.' .'
defeased; 'The City and the Zone further covenant and agree that they will make all payments as set .'-
forth in Article. V below, by a direct deposit into the TIRZ Revenue Fund: without counterClaim or. . . "
offset, but minus any expenses incun:ed by the CitY in connection with the collection of the Tax '
, Increments and minus any am~unt, ~etaine~ pursuant to the pr~visio'ns set ,fo,rth ~ Art~cl~ y be~o~. .
, '.
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E. .' Coliection and Payment' of PIn Assessments bv the City. In consideration of the'
services and PID ProjectS to be provided by the Authority, the City cove~ts and agrees that it will;'
. as authorized under the PID Act imd other applicable laws, continuously collect the PID AssessmentS
. as reflected in the PID Plan during the term of this Agreement in the manner and to the maximum
extent permitted by applicable law. In addition, the City covenants ,and agrees that it will not'
dissQlve the Authority and that any repeal of the right and power to collect me PID Assessments will .
not be effective until all the PID Bonds or other PID-related Authority Obligations have been paid in
, full or until they are legally defeased. The City further covenants and agrees that it will make all
. payments as set forth in Article V below, by a direct deposit into the PID Revenue Fund, without
counterclaim or offset, but minus any expenses incurred by the City in connection with the collection '
. of the PID Assessments, and minus any amount retained' pursuant to the provisions set forth in
Article V below. " ,
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F. , Obligations ofCitv and the Zone to be Absolute. The obligation of the City and the
Zone to make the payments set forth in this Agreement shall be absolute and unconditional, and until
such time as this Agreement, Bonds', and the contract~al' obligations of ~e Authority incurr~d
, pursuant to this Agreement have been fully paid or provision for payment thereof shall have been
made in accordance with their terms (or, with respect to the Tax Increments, the date' ofexpiIation of
the Zone, if earlier), the City and the Zone .will not suspend or discontinue any payme~ts provided
for in this Agreement and, will not terminate this Agreement for any cause, including, without
limiting the generality of the for~going; the failure of the Authority to perform and observe any ,
. agreement, whether express or implied, or any duty, liability, or obligation arising out of or .
connected with this Agreement except as provided in Article XVII. Nothing contained in this
section'shall be construed to release the Authority from performance of any of the agreements on its ,
, part contained in this Agreement,' and in the event ~e Authority shall fail to perform any such '
agreement on its part, the City may institute such action against the Authority as the City may deem,' '
, necessary to compel performance so long as this action does not abrogate the. obligations of the City "
and the Zone to make the payme~ts set forth in this Agreement to pay, the .Bonds :ofthe Authority or ' .:
to, ~eet its Authority O~lig~ti~ns to Develo~e!s." . .,.'.:. '.. ,,'
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CITY PAYMENT TO,AUTHO~rY
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'A: . TIRZ Payments. The city~ on behalf of itself md the Zone, will pay the Authority,
" not later than the fifth business day of each cal~ndar quarter during the terin of this Agreement,' all
. monies then available in the Tax Incre~ent Fund, subject to the retention by the City of (i) an
. 'amount equal to the City's dir:Cct administrative costs connected with the Zone and the TIRZ Plan,
, not to exceed five percent ~fthe amount available in tbe Tax Incr~ment F~d; and (ii) the School
'. District Educational Facilities Costs~ if applicable... The Authority shalf deposit the payments '
received pursuant to thi~ Section into the TIRZ Revenue Fund and Use the monies in the TIRZ :... :
:' Revenue Fund for payment of its TIRZ-related costs, its obligations to the holders of its TIRZ Bonds,
, its obligations.to Developers pursuant to a TIRZ Development Agreement, or its other contractual
.- . obligations. ,The obligation to make these payments shall s~ive a tenuinanon of this Agreement as
'.' provided by Article XVII hereof. , .: ' '" :, .' .,'.'. ' " . '.
,B. " pm Pa",nents: The City will pay the Authority, not later than the fust business day of
each calendar quarter during the term of this Agreement, all monies then available in the Special
District Improvement Fund, subject to the retention by the City of an amount equal to the City's
direct administrative costs connected with the PID and the PID Plan, not to exceed five percent of the
amount available in the Special District Improvement Fund. The Authority shall deposit the
payments received pursuant to this Section into the PID Revenue Fund and use the monies in the PID
Revenue Fund for payment of its PID-related costs, its obligations to the holders of i 15 PIn Bonds, its
obligations'to Developers pursuant to a PID Development Agreement, or its other contractual
obligations. The obligation to make these payments s~all survive a termination of this Agreement as
provided by Articl~ XVII her~of. . '
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City of La Porte
Interoffice Memorandum
To:
TIRZ I La Porte Redevelopment Board
David Hawes, Board Consultant
From:
John Joems, Assistant City Ma a
cc:
Debra B. Feazelle, Ex-Officio
Cynthia Alexander, Ex-Officio
Knox Askins, Ex-Officio
Date:
July 29, 2004
Subject:
Golf Course Community I Infrastructure Reimbursements
August 4, 2004 Agenda Item 4
Backeround
In December 2003 you were provided a report on the request for reimbursement for Arete
Real Estate Development. That report was intended to be a base line for further negotiations.
Early conversations with Mr. Fogarty discussed the typical reimbursement he could receive if
he were in a MUD.
Enclosed is a spreadsheet depicting six different scenarios, which compare potential TIRZ
reimbursements to typical MUD reimbursements. Also provided is the latest summary of
development costs and a schedule of revenues anticipated with this development.
At this point Mr. Fogarty has re-applied for his SCUP. This application does not include any
joint venture/land swap with Mr. Hettig. The Planning and Zoning Commission has
recommended approval and City Council will consider the SCUP in August.
Random Thou2hts
During the time Mr. Fogarty spent attempting the land swap he obviously incurred financing
costs.
Arete will be funding/financing significant off-site costs and oversizing costs early on.
The land accumulation costs were higher than typical for this area.
A large expenditure for the trunk main will be financed by Arete before any lotlhome sales
generate revenue for certain sections of the subdivision.
Knowledge of this development has spurred interest in re-development of property along
South Broadway including some Bayfront property.
Other area reimbursem_ for residential developments within &z:
. Baytown 70%-Water, Sewer, Drainage
100%-Offsite
100%-Water, Sewer, Drainage and Offsite
100%-Water, Sewer, Drainage and Off site
100%-Water, Sewer, Drainage and Offsite
. Missouri City
. League City
. Houston
Development Aereement
The development agreement is very similar to the draft provided to the Board earlier. It has
been reviewed by the Board's Legal Counsel, Andrews/Kurth.
Concludine Remarks
It is important to resolve the reimbursement level rather quickly so Arete can finalize the
engineering, file plats and break ground. Mr. Fogarty has requested a reimbursement of
$8,942,900. It is suggested that a fair reimbursement be at or near Column 6, $7,103,500.
This would be slightly higher than the 70% MUD reimbursement.
This has been posted as an action item. If the Board wishes to review this further and
consider at a later date, I suggest that we at least target the end of August to coincide with
City Council's consideration of the SCUP.
Enclosures:
Reimbursement Spreadsheet
TlRZJDeveloper Cost Summary
TIRZIDeveloper Revenue Schedule
Layout of Lakes at Fainnont Greens
Development Agreement
l.aIles @ FBimlOfll Gr._
La PllfIe T1RZ MUD MUD TIRZ TIRZ TlRi
70% oIlnlemal WS&D \00% of Inl8maI WS&O 45% 01 IntemBi WS&D 40% of IntemBi WS&D 35% 01 Intllllll
% 01 Total
Detenllon 100% $ 745,O3\.1lO 100"4 $ 745.031.00 100'l1. $ 745,031.00 1 00'lI. $ 745.031.00 \llO'lI. $ 74
Clff.SlI8 Senltary S-r 100% $ 1.019.484.00 100% $ 1,019,484.00 1llO'l1. $ 1,019,484.00 100"' $ 1.019.484.00 100% $ 1.01
OiW3il8lOvenized SenlIary lllO'l1. $ 187.590.00 100'l1. S 187.590.00 lOO'l1. S 187.590.00 lllO'l1. $ 187.590.00 100"' S 18
Collec:IorRoad 0%$ OOfoS 100% $ 255.000.00 lllO'l1. $ 255.000.00 100% $ 2S
Water Dislribullon 70% $ 316.645.00 1000f0 S 452,350.00 45% S 203.557.50 40% S 180,940.00 35% $ 15,
Sanll8ry Sewer 70% $ 674.209.20 100'l1. $ 963.156.00 45% $ 433.420.20 40% $ 385.262.40 35% S 33'
Storm Sewer 7O'lI. S 1.090.422.20 lOO'l1. $ 1.557,746.00 45% $ 700,985.70 4O'lI. $ 623,098.40 35% S 54:
SlIa Praparallorl 70% $ 335.919.50 100% i 479.885.00 45'll. $ 215.948.25 40% $ 191.954.00 35% $ 16'
Storm Waler Pollution PIlIV. 70% $ 192.339.70 lOO'l1. S 274.n1.00 45% $ 123.646.95 40% $ 109.908.40 35% $ 91
Enginaerlng (15%) 60% $ 684.246.09 1000f0 S 851,991.45 68'lfo S 582,699.54 65% $ 554,740.23 62'lfo S 52t
Contingency (15"'1 80% $ 788,883.00 llmlo S 979.790. n 68'lI. $ 670.104.47 65"' $ 637,951.26 62% S 601
SUBTOTAL S 6.032.769.69 100'l1. $ 7,511.794.62 84"' S 5,137,467.61 S 4,890.959.69 S 4,64<
Public landscaping O'lloS 0"4$ 1 00'lI. S 1.481.176.00 'llO'l1. S 1,481.176.00 100% S 1,48'
land Cost (Detention) 100% S 670,941.30 l000f0 S 670.941.30 1 00'lI. S 670.941.30 100% S 670.941.30 lllO'l1. $ 671
land Cos\ (CoIleclar RllIId) 0%$ 0% $ lOO'l1. S 84.899.43 l000f0 S 84.899.43 100% S ~
land CosI (Open Spacel 100% S 222.031.36 100% S 222,031.36 \00% S 222,031.36 1000f0 $ 222,031.36 100% S 2~
SUBTOTAL S 892.972.68 $ 892.972.66 S 2.459.048.09 S 2,459.048.09 S 2,45~
GRAND TOTAL S 6,925,742.35 S 8,404,767.28 S 7,596,515.70 S 7,350,007.78 S 7,103,
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LAKES AT FAIRMONT GREENS TIRZlDEVELOPER COST SUMMARY
6/22/2004
IPROJECT COSTS
TIRZ ITEMS
Excavation & Fill Placement (for Detention)
Off-site Sanitary Sewer System
Water Distribution
On-site Sanitary Sewer System
Storm Sewer
Site Preperation
Storm Water Polution Plan
Contingency 15%
Engineering & Surveying 15%
ESTIMATED COSTS
1
TIRZ Subtotal
745,031.00
1,019,484.00
452,350.00
1,150,746.00
1,557.676.00
479,885.00
274,771.00
851,991.45
979,790.17
7,511,724.62
1,481,176.00
8,992.900.62
Landscape
DEVELOPER ITEMS
Paving
Contingency 15%
Engineering & Surveying 15%
Developer Subtotal
2.347,620.00
352,143.00
404,964.45
3.104,727.45
I Project Total
I Land Cost
12,097,628.07
4,960,226.00
I
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ITotal
17,057,854.07
~o~IIQt&
I. I'
~er '9~ ~,y"'ppmE?,,t co~t
Av~raqe &files price of lot
'111,qO
41503.90
I Ii~
, . 'I : ~ ;"'1... 4 II f . . .i I
~9524.00
LA PORTE TIRZ NUMBER ONE
Arete Zone Revenue Schedule
SCHEDULE B.1
Cumalitive
Education Education Education City County LPISD Zone Zone Revenue
Tax Coil. City County LPISD Zone Zone Zone Revenues Available for
Year Year Tax Rate Tax Rate Tax Rate Collection Collection Collection Avail,ll)!e Projects
2004 2005
2005 2006 S 0.710 $ 0.417 $ 0.860 $ 20,351 $ 11,710 $ 23,~49 $ 55,210 $ 55,21U
2006 2007 $ 0.710 $ 0.417 $ 0,860 $ 155,482 $ 89,466 $ 176,859 $ 421,807 $ 477;O'f'l
2007 2008 S 0.710 $ 0.417 $ 0.B60 S 326,426 $ 188,234 $ 373,947 $ 888,607 $ 1 ,365.6Z~
2008 2009 $ 0.710 $ 0.417 $ 0.860 $ 470,510 $ 271,243 $ 538,501 $ 1,280,254 $ 2,645,878
2009 2010 $ 0.710 S 0.417 $ 0.860 $ 563,047 S 323,981 $ 640,457 $ 1,527,485 $ 4,173~363.
,2010 2011 $ 0.710 $ 0.417 $ 0,860 $ 563,047 $ 323,981 $ 640,457 $ 1,527,485 $ 5,700,847
2011 2012 $ 0.710 $ 0.417 $ 0.860 $ 563,047 $ 323,981 $ 640,457 $ 1,527,485 $ 7,228,332
2012 2013 $ 0.710 $ 0.417 $ .0.860 $ 563,047 $ 323,981 $ 640,457 $ 1,527,485 $ 8,755",8-t&
2013 2014 $ 0.710 $ 0.417 $"'~O.~ $' , 573,576 S 330,039 $ 652,434 $ 1,556,048 $ 10,311,865
2014 2015 $ 0.710 $ 0.417 $ 0.860 $ 584,302 S 336,211 $ 664,634 $ 1,585,147 $ 11,897,011'
2015 2016 S 0.710 S 0.417 $ 0.860 $ 595,228 $ 342,498 $ 677 ,063 $ 1,614,789 S 13,511,800
2016 2017 $ 0.710 $ 0.417 $ 0.860 $ 606,359 $ 348,903 $ 689,724 $ 1,644,985 $ 15,156,785.
2017 2018 $ 0.710 $ 0.417 $ 0.860 $ 617,698 $ 355,427 S 702,622 $ 1,675,747 $ 16,832,532
2018 2019 $ 0.710 $ 0.417 S 0.860 $ 629,249 $ 362,074 $ 715,761 $ 1,707,083 $ 18,539.61'S'
2019 2020 $ 0.710 $ 0.417 $ 0.860 $ 641,016 $ 368,845 $ 729,145 $ 1,739,006 $ 20,278,621
2020 2021 $ 0.710 $ 0.417 $ 0.860 $ 653,003 $ 375,742 $ 742,780 $ 1,771,525 $ 22,050,145
2021 2022 $ 0.710 $ 0.417 $ 0.860 $ 665,214 $ 382.768 $ 756,670 $ 1,804,652 $ 23,854;798
2022 2023 $ 0.710 $ 0.417 $ 0.860 $ 677,653 $ 389,926 $ 770,820 $ 1,838,399 $ 25,693,197
2023 2024 $ 0.710 $ 0.417 $ 0.860 $ 690,325 $ 397,218 $ 785,235 $ 1,872,778 $ 27,565,&15
2024 2025 $ 0.710 $ 0.417 $ 0.860 S 703,234 $ 404,646 $ 799,918 $ 1,907,798 $ 29,473,773
2025 2026 $ 0.710 $ 0.417 $ 0.860 $ 716,385 $ 412,213 $ 814,877 $ 1,943,474 $ 31,417,248
2026 2027 $ 0.710 $ 0.417 $ 0.860 $ 729,781 $ 419,921 $ 830,115 $ 1,979,817 $ 33,397,065
2027 2028 $ 0.710 $ 0.417 $ 0.860 $ 743,428 $ 427,773 $ 845,638 $ 2,016,840 $ 35,413,905
2028 2029 $ 0.710 $ 0.417 $ 0.860 $ 757,330 $ 435,773 $ 861,452 $ 2,054,555 $ 37,468,459
2029 2030 $ 0.710 S 0.417 $ 0.860 $ 771,492 $ 443,922 S 877,561 $ 2,092,975 $ 39,561,4M
I $ 14,580,228 $ 8,390,474 $ 16,590,733 $ 39,561.434
Page 1 of 1
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HDU:2.322718.2
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DEVELOPMENT AGREEMENT
Between
REINVESTMENT ZONE NUMBER ONE
CITY OF LA PORTE
and
LA PORTE REDEVELOPMENT AUTHORITY
and
ARETE REAL ESTATE & DEVELOPMENT COMPANY
Draft
6/22/2004
.
e
DEVELOPMENT AGREEMENT
This Agreement ("Agreement"), effective , 2004, is made by and between
REINVESTMENT ZONE NUMBER ONE, CITY OF LA PORTE, TEXAS ("La Porte Zone"), a
tax increment reinvestment zone created by the City of La Porte, Texas (the "City") pursuant to
Chapter 3 I I of the Texas Tax Code, as amended, acting by and through its governing body, the
Board of Directors (the "Zone Board"), LA PORTE REDEVELOPMENT AUTHORlTY ("La
Porte Authority"), a local government corporation created and organized under the provisions of
the Texas Transportation Corporation Act, Chapter 431, Subchapter D, Transportation Code, and
authorized and approved by the City pursuant to Resolution No. adopted on
, acting by and through its governing body, the Board of Directors (the "La
Porte Board") and Arete Real Estate & Development Company, a Texas corporation (the
"Developer').
RECITALS
WHEREAS, by Ordinances No. _ the City Council of the City created the La Porte
Zone in the City pursuant to Chapter 311 of the Texas Tax Code, as amended, and pursuant to a
Preliminary Project Plan and Preliminary Reinvestment Zone Financing Plan, and appointed its
Board of Directors ("TIRZ Ordinance"); and
WHEREAS, the Zone Board adopted a final Project Plan and Reinvestment Zone
Financing Plan (the "Proiect Plan") and submitted the final Project Plan to the City Council of
the City for approval; and
WHEREAS, the City Council approved the final Project Plan by Ordinance No. _;
and
WHEREAS, the City authorized the creation of the La Porte Authority to aid, assist and
act on behalf of the City in the performance of the City's governmental functions with respect to
the common good and general welfare of La Porte and neighboring areas as described in the
TIRZ Ordinance; and
WHEREAS, the City, the La Porte Zone and the La Porte Authority have entered into
that certain Agreement dated . and approved as Ordinance No. (the
"La Porte Agreement"), pursuant to which the City and the La Porte Zone contracted with the
La Porte Authority to administer the La Porte Zone including, but not limited to, the power to
engage in activities relating to the acquisition and development of land, to construct and improve
infrastructure in La Porte, to enter into development agreements with developerslbuilders in
La Porte, and to issue, sell or deliver its bonds, notes or other obligations in accordance with the
terms of the La Porte Agreement upon the approval of the City Council of the City; and
WHEREAS, the La Porte Agreement further provides that the La Porte Authority must
obtain the prior approval ofthe City for any project approved in the La Porte Zone's Project Plan
that is constructed or caused to be constructed by the La Porte Authority; and
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WHEREAS, the Texas Tax Code provides that the La Porte Zone may enter into
agreements as the Zone Board considers necessary or convenient to implement the Project Plan
and achieve its purposes; and
WHEREAS, the La Porte Board and the Zone Board have determined that it is in the best
interest of the La Porte Zone and the La Porte Authority to contract with the Developer, in order
to provide for the efficient and effective implementation of certain aspects of the Project Plan;
and
The Developer desires to proceed with the development of an urban project consisting of
[residential. commerciaL industrial and retaill on land located within the La Porte Zone (the
"Proiect") prior to the time that the La Porte Authority can issue its bonds or incur other
obligations to pay the costs of the Public Improvements (as defined herein); NOW
THEREFORE,
AGREEMENT
For and in consideration of the mutual promises, covenants, obligations, and benefits of
this Agreement, the La Porte Zone, the La Porte Authority and the Developer contract and agree
as follows:
ARTICLE 1
GENERAL TERMS
1.1 Definitions. The terms ~~Agreement," "City," "Developer", "La Porte
Agreement," "La Porte Bo~d," "La Porte Authority," "La Porte Zone," "Project," and "Zone
Board" have the above meanings, and the following terms have the following meanings:
"Act" shall mean the Tax Increment Financing Act, Chapter 311, Texas Tax Code, as
amended.
"Authority Bonds" shall mean the La Porte Authority's tax increment revenue bonds
issued in one or more series pursuant to Section 6.1 (H) of this Agreement.
"Available Tax Increment" shall mean funds in the Tax Increment Revenue Fund.
"Completion" shall mean completion of construction of the Public Improvements in
accordance with the Plans and Specifications so that the Project can be used and maintained for
its intended purposes. Completion shall be approved by the City and certified by the engineering
firm engaged by Developer to make such certification.
"Contract Progress Payment" shall mean the payment due to a contractor or consultant
hired by Developer to complete the Public Improvements. A contract progress payment must be
supported not only by a report of a certified public accountant as required in Section 6.1 (B), but
also by customary documentation including, but not limited to, the name and address of the
contractor, a description of the contract pursuant to which the payment is requested, the amount
of such payment, the original contract amount, total payments made to date on such contract, an
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HOU:2322718.2
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estimate of remaining work to be completed, the cost of such work, and customary lien and
subcontractor releases.
"County" shall mean Harris County, Texas.
"Developer Advances" shall mean any funds advanced for eligible improvements by the
Developer pursuant to Section 6.1 of this Agreement and shall include any interest payable
thereon as prescribed in this Agreement.
"Parties" or "Party" shall mean the La Porte Zone, the La Porte Authority and the
Developer, the parties to this Agreement.
"Plans and Specifications" shall mean the designs, plans and specifications for the Public
Improvements prepared or to be prepared by engineering and landscape architect firms at the
direction of Developer in accordance with the Project Plan and as approved by the City in
accordance with Section 4.2.
"Pledged Available Tax Increment" shall mean the Available Tax Increment attributable
to the Project.
"Property Account" means an account within the Tax Increment Revenue Fund
established by the City to account for the tax increment attributable to the Project Site, the
proceeds of Authorized Bonds issued to finance Public Improvements pursuant to this
Agreement, and other obligations issued pursuant to Article 6, and earnings from the investment
of such amounts.
"Project Costs" shall mean the cost of the Public Improvements.
"Project Plan" means the Project Plan and Reinvestment Zone Financing Plan for
Reinvestment Zone Number One, City of La Porte, as approved by the City Council on
, and as thereafter amended and approved by the City Council.
"Project Site" shall mean the area known as
described in Exhibit A, and all improvements located thereon.
, located in certain tracts
"Public Improvements" shall have the meaning provided in Article 3 of this Agreement.
"Residential Site" shall mean that part of the Project Site that is planned for residential
use and further described in Exhibit D.
"State" shall mean the State of Texas.
"Tax Increment Revenue Fund" shall mean the special fund established by the La Porte
Authority and funded with payments made by the City and any other participating Taxing Units,
pursuant to the La Porte Agreement, which payments are attributable to ad valorem property
taxes paid on the Project Site.
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"Taxing Unit" shall mean individually and collectively, the City and any other taxing
units participating in the La Porte Zone.
1.2 Singular and Plural. Words used herein in the singular, where the context so
permits, also include the plural and vice versa. The definitions of words in the singular herein
also apply to such words when used in the plural where the context so permits and vice versa.
ARTICLE 2
REPRESENTATIONS
2.1 Representation of La Porte Authority. The La Porte Authority hereby represents
to the Developer that:
(A) The La Porte Authority is duly authorized, created and existing in good
standing under the laws of the State and is duly qualified and authorized to carry on the
governmental functions and operations as contemplated by this Agreement.
(B) The La Porte Authority has the power, authority and legal right to enter
into and perform this Agreement and the execution, delivery and performance hereof
(i) have been duly authorized, (ii) to the best of its knowledge, will not violate any
applicable judgment, order, law or regulation, and (iii) do not constitute a default under,
or result in the creation of, any lien, charge, encumbrance or security interest upon any
assets of the La Porte Authority under any agreement or instrument to which the La Porte
Authority is a party or by which the La Porte Authority or its assets may be bound or
affected.
(C) The Project, the Public Improvements and the Project Costs are
components of or are consistent with the Project Plan.
(D) This Agreement has been duly authorized, executed and delivered by the
La Porte Authority and, constitutes a legal, valid and binding obligation of the La Porte
Authority, enforceable in accordance with its terms except to the extent that (i) the
enforceability of such instruments may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws of general application in effect from time to
time relating to or affecting the enforcement of creditors' rights and (ii) certain equitable
remedies including specific performance may be unavailable.
(E) The execution, delivery and performance of this Agreement by the
La Porte Authority does not require the consent or approval of any person which has not
been obtained.
(F) The La Porte Authority has an exemption from the payment of sales and
use taxes pursuant to the statute under which the La Porte Authority was created.
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HOU:2322718.2
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2.2 Representation of La Porte Zone. The La Porte Zone hereby represents to the
Developer that:
(A) The La Porte Zone is duly authorized, created and existing in good
standing under the laws of the State and is duly qualified and authorized to carry on the
governmental functions and operations as contemplated by this Agreement.
(B) The La Porte Zone has the power, authority and legal right to enter into
and perform this Agreement and the execution, delivery and performance hereof (i) have
been duly authorized, (ii) to the best of its knowledge, will not violate any applicable
judgment, order, law or regulation, and (iii) do not constitute a default under, or result in
the creation of, any'lien, charge, encumbrance or security interest upon any assets of the
La Porte Zone under any agreement or instrument to which the La Porte Zone is a party
or by which the La Porte Zone or its assets may be bound or affected.
(C) The Project, the Public Improvements and the Project Costs are
components of or are consistent with the Project Plan.
(D) This Agreement has been duly authorized, executed and delivered by the
La Porte Zone and constitutes a legal, valid and binding obligation of the La Porte Zone,
enforceable in accordance with its terms except to the extent that (i) the enforceability of
such instruments may be limited by bankruptcy, reorganization, insolvency, moratorium
or other similar laws of general application in effect from time to time relating to or
affecting the enforcement of creditors' rights and (ii) certain equitable remedies including
specific performance may be unavailable.
(E) The execution, delivery and performance of this Agreement by the
La Porte Zone does not require the consent or approval of any person which has not been
obtained.
2.3 Representations of the Developer. The Developer hereby represents to the
La Porte Authority and the La Porte Zone that:
(A) The Developer is duly authorized, created and existing in good standing
under the laws of the State and is qualified to do business in the State.
(B) The Developer has the power, authority and legal right to enter into and
perform its obligations set forth in this Agreement, and the execution, delivery and
performance hereof, (i) have been duly authorized by requisite corporate action, (ii) will
not, to the best of its knowledge, violate any judgment, order, law or regulation
applicable to the Developer or any provisions of the Developer's by laws or limited
partnership agreement, and (iii) do not constitute a default under or result in the creation
of, any lien, charge, encumbrance or security interest upon any assets of the Developer
under any agreement or instrument to which the Developer is a party or by which the
Developer or its assets may be bound or affected.
(C) The Developer will have sufficient capital to perform its obligations under
this Agreement at the time it needs to have sufficient capital.
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(D) This Agreement has been duly authorized, executed and delivered and
constitutes a legal, valid and binding obligation of the Developer, enforceable in
accordance with its terms except to the extent that (i) the enforceability of such
instruments may be limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws of general application in effect from time to time relating to or
affecting the enforcement of creditors' rights and (ii) certain equitable remedies including
specific performance may be unavailable.
ARTICLE 3
THE PUBLIC IMPROVEMENTS
3.1 Public Improvements. The Public Improvements shall be and include the design,
construction and installation of certain public infrastructure relating to the Project, such
infrastructure being more particularly described in the Plans and Specifications.
3.2 Proiect Costs. The estimated Project Costs of the Public Improvements are
described in Exhibit B. The Public Improvements will be developed pursuant to the Plans and
Specifications and a schedule that is mutually agreeable to the Parties. The Project Costs shall
include all architectural, engineering, design, legal and other consultant fees and expenses (as
further set forth in Section 6.1 (A) hereof) related to such Public Improvements. The Project
Costs may be modified with approval of the Board of Directors of the La Porte Authority.
3.3 Obligation. The Public Improvements shall be designed, acquired, constructed
and implemented in accordance with the Plans and Specifications to be approved by the City
under Article 4.
ARTICLE 4
DUTIES AND RESPONSIBILITIES OF THE DEVELOPER
4.1 Construction Manager. Subject to Article 3, the Developer agrees to construct the
Public Improvements as described in the Plans and Specifications and to provide and furnish, or
cause to be provided and furnished, all materials and services as and when required in connection
with the construction of the Public Improvements. The Developer will obtain all necessary
permits and approvals from the City and all other governmental officials and agencies having
jurisdiction (including the approvals required under the La Porte Agreement), provide
supervision of all phases of construction of the Public Improvements, provide periodic reports as
requested and required by the La Porte Authority of such construction to the La Porte Board with
copies to the City, and cause the construction to be performed in accordance with the Plans and
Speci fications.
4.2 Design of the Public Improvements. The Developer shall prepare or cause to be
prepared the Plans and Specifications for the Public Improvements. Prior to the commencement
of construction or implementation ofthe Public Improvements, the Plans and Specifications must
be submitted to and approved by the City and all other regulatory authorities having jurisdiction.
Once the City has approved the Plans and Specifications, no changes thereto can be made
without the express written approval of the City, the Zone Board, and the La Porte Authority.
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4.3 Completion. On the later of completion of the construction of the Public
Improvements or thirty days after this agreement is executed, Developer shall provide the
La Porte Authority and the City with a final cost summary of all costs associated with such
Public Improvements, a certificate of Completion and evidence that all amounts owing to
contractors and subcontractors have been paid in full evidenced by customary affidavits executed
by such contractors.
4.4 Conveyance of Easements. If applicable, the Developer shall grant the City and
the La Porte Authority all required temporary construction and access easements necessary to
maintain the Public Improvements. The easements granted must be satisfactory for the intended
purpose as determined by the City. On property owned by the La Porte Authority, the La Porte
Authority shall grant the Developer at no cost all required temporary construction and access
easements necessary to install the Public Improvements.
4.5 Payment of Fees. If applicable, Developer agrees to pay all monthly rates and
charges for water and sewer services and shall pay all applicable City building permit fees for the
Public Improvements.
4.6 Cooperation. Developer agrees that it will cooperate with the La Porte Zone and
the La Porte Authority and Developer will provide all necessary information to the La Porte
Authority and its consultants in order to assist the La Porte Authority in complying with the
La Porte Agreement, including, without limitation, the completion of the audit and construction
audit required therein.
4.7 Ad Valorem Taxes. The Developer agrees that all real property within the Project
Site will be valued for taxation in accordance with Section 23.01, Texas Tax Code and as
hereinafter may be amended, and that it will not request such property to be valued for taxation
on the basis of inventory as permitted by Section 23.12, Texas Tax Code and as hereinafter may
be amended.
4.8 Design and Completion of Public Improvements prior to Effective Date. Prior to
the effective date of this Agreement, the Developer has committed and expended funds in
amounts for Public Improvements described in Exhibit B, in reliance upon the City's
commitment to establish the Zone and the La Porte Authority's commitment to payor reimburse
such costs in accordance with the terms herein, but no other contract has heretofore been entered
into by the Developer with the La Porte Authority or the La Porte Zone to provide for such
expenditures and reimbursement. The Developer represents that the fair market value of the
work and property resulting from the funds so committed or expended and benefiting the
La Porte Authority and the La Porte Zone is at least equal to the amounts so committed and
expended, respectively. In order to compromise and settle all claims the Developer may have
arising out of any failure by the La Porte Authority and La Porte Zone to reimburse funds
heretofore expended by the Developer for such Public Improvements, by entering into this
Agreement,
(A) the La Porte Authority and the La Porte Zone agree to reimburse the
Developer for Project Costs of such Public Improvements paid or incurred prior to the
date hereof in a total amount of committed funds specified in Exhibit B plus financing
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costs and/or interest as set forth in Section 6.1 below, attributable thereto in accordance
with and subject to the other provisions hereof, without admitting liability of any kind on
their part, and
(B) the Developer releases and discharges the La Porte Authority and the
La Porte Zone from all claims of any nature the Developer might make, now or in the
future, arising out of any failure by the La Porte Authority and La Porte Zone to payor
reimburse the Developer for any other work done prior to the date hereof or in any
greater amount or on any other conditions for work performed in connection with Public
Improvements prior to the date hereof.
4.9 Changes in Proiect. The Developer shall not make any change in the Project as to
the uses of the property within the Residential Site or change the boundaries within the Project
Site without the express written consent of the City, the La Porte Board and the Zone Board.
4.10 No Vested Rights. The Developer expressly understands and agrees that neither
this Agreement nor any approvals required herein shall be construed as a "permit," as defined in
Section 245.001 of the Texas Local Government Code, or an application therefore; and, as such,
the Developer has no vested right as a "permit" in any order, regulation, ordinance, rule,
expiration date or other requirement in effect at the time of execution of this Agreement or at the
time any approval pursuant to the terms hereof is obtained. To this end, Developer, for itself, its
officers, agents, employees, successors and assigns, hereby releases and holds harmless the City,
the La Porte Authority and the La Porte Zone from any claim or cause of action involving vested
rights, including, but not limited to, such a right claimed pursuant to Chapter 245 of the Texas
Local Government Code, arising out of this Agreement or the approvals required to be obtained
herein.
ARTICLE 5
DUTIES AND RESPONSIBILITIES OF THE LA PORTE AUTHORITY
5.1 La Porte Authority Contributions. The La Porte Authority shall payor reimburse
to Developer the Project Costs in the amount of the actual costs of the Public Improvements as
more particularly described in and as provided by Articles 3 and 4. The total, actual Project
Costs of the Public Improvements, for which the La Porte Authority shall be responsible under
the terms of this Agreement, is estimated to be $ . Attached h~reto as Exhibit B
is a detailed description of the engineering estimates of the Public Improvements. The Project
Costs shall be financed and funded in accordance with Article 6 hereof In the event a portion of
the Public Improvements is determined to be ineligible under the Act, the Project Costs shall be
reduced by the amount of such ineligible Public Improvements. If the La Porte Authority has
already repaid Developer for such ineligible Public Improvements in accordance with this
Agreement, the Parties agree that Developer shall reimburse the La Porte Authority for such
repayment within thirty (30) days of receipt of an invoice from the La Porte Authority and all
such sums shall bear interest at the rate established in Section 6.1 (F) from the date past due until
the date of such reimbursement. Should the Developer fail to timely pay such amount, the
La Porte Authority may, in its sole discretion, withhold the amount due, including accrued
interest, from future Contract Progress Payments.
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5.2 Proiect Costs. The La Porte Authority shall payor reimburse the Project Costs in
accordance with this Agreement. In the event the La Porte Authority does not have funds
available at the time all or part of the Project Costs are payable by the La Porte Authority in
accordance with this Agreement, the Project Costs shall be funded in accordance with Article 6
hereof, and such funding shall not be deemed a default by the La Porte Authority under this
Agreement.
ARTICLE 6
PUBLIC IMPROVEMENTS FINANCING AND FUNDING
6.1 Developer Advances.
(A) Developer shall advance sufficient funds as such become due for all costs
compnsmg the Project Costs including, without limitation, all costs of design,
engineering, materials, labor, construction, and inspection arising in connection with the
Public Improvements, including all payments arising under any contracts entered into by
Developer pursuant to this Agreement, all costs incurred in connection with obtaining
governmental approvals, certificates or permits (including any building permit fees)
required as a part of any contracts entered into in accordance with this Agreement and all
related legal fees incurred in connection therewith.
(B) The Developer must submit, within sixty (60) days after the latest of
recording a final plat of property within the Project Site, signing this Agreement, or
completing an identifiable segment of Public Improvements not subject to the platting
requirements of the City, a request for a Contract Progress Payment when an identifiable
segment of Public Improvements has been completed. Documentation of cost and
completion shall be forwarded to the La Porte Authority. The La Porte Authority, at its
expense, shall hire a certified public accountant to calculate the amount due Developer
and shall prepare and submit a report to the La Porte Board and send a copy to the City
Manager. Requests for Contract Progress Payments shall be submitted only when an
identifiable segment of Public Improvements has been completed and shall be submitted
no more often than once every sixty (60) days. If the La Porte Authority does not have
sufficient funds to pay any Contract Progress Payment within 30 days of the date the
certified public accountant's report is received by the La Porte Board, Developer shall be
deemed to have advanced such amount to the La Porte Authority as of the date actually
expended by the Developer. Interest (as defined in Subsection 6.I(F)) on each Developer
Advance made pursuant to this Subsection shall accrue from the date the Developer
expended the funds and shall accrue for a maximum period of two years from such date.
At such time as funds are available to pay all or any portion of the Developer Advances
made hereunder, the La Porte Authority, at its expense, shall hire a certified public
accountant to calculate the amount due Developer and shall prepare and submit a report
to the La Porte Board and send a copy to the City Manager certifying (I) the amount due
Developer for the Developer Advances being repaid with interest calculated thereon as
specified herein and (2) that funds are available to make such payment. Upon receipt of
such report, the La Porte Board shall promptly authorize and make payment to
Developer.
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(C) If, upon Completion of the Public Improvements and conveyance of the
Public Improvements to the La Porte Authority, or the City, as applicable, the La Porte
Authority does not have sufficient funds to reimburse to Developer the unpaid balance of
the Project Costs, Developer shall be deemed to have advanced to the La Porte Authority
an amount equal to the difference between (i) the amount of the Project Costs which has
been previously paid by the La Porte Authority to Developer and (ii) the final cost of the
Public hnprovements as evidenced by documentation approved by the La Porte Board in
accordance with Section 4.3.
(D) Each Developer Advance shall be evidenced by a certificate in the form
attached hereto as Exhibit C.
(E) The La Porte Authority shall begin repaying the Developer Advances, and
shall continue such repayment until repaid in full, on the earliest date that funds are
available from any of the following sources.
(1) proceeds of any applicable bank loan;
(2) proceeds from the sale of applicable La Porte Authority Bonds; or
(3) the available Tax Increment Revenue Fund attributable to the Project.
(F) Interest on each Developer Advance shall accrue at the prime rate of
JPMorgan Chase Bank. Interest shall be calculated on the basis of a year of 360 days and
the actual days elapsed (including the first day but excluding the last day) occurring in
the period for which such interest is payable, unless such calculation would result in a
usurious rate, in which case interest shall be calculated on the per annum basis of a year
of 365 or 366 days, as applicable, and the actual days elapsed (including the first day but
excluding the last day). In no case shall the interest rate exceed one percent per month.
(0) The La Porte Authority's obligation to pay the Developer Advances or
reimburse the Developer for Project Costs is limited to any Pledged Available Tax
Increment. The rights of Developer in and to the Pledged Available Tax Increment
granted herein are subject only to (i) the rights of any holders of bonds, notes or other
obligations that have been heretofore or are hereafter issued by the City or any other
participating taxing unit that are payable from and secured by a general levy of ad
valorem taxes throughout the taxing jurisdiction of the City or any other participating
taxing unit, (ii) the rights of any of the holders of bonds and notes that are hereafter
issued or incurred by the La Porte Authority and which are secured by a pledge of the
Tax Increment Revenue Fund, and (iii) the rights of any of the holders of notes that are
hereafter issued or incurred by the La Porte Authority, which are secured by a pledge, all
or a part, of the Tax Increment Revenue Fund, the proceeds of which are used solely to
fund the annual operating and administration budget of the La Porte Authority approved
by the La Porte Board and the City Council of the City. Except in the event that
sufficient tax increment increase does not occur within the term of the Zone or within the
Project Site to generate sufficient revenue to repay the Developer Advance(s), it shall be
the obligation of the La Porte Authority to repay the Developer Advances and accrued
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interest thereon as set forth in this Agreement from the Pledged Available Tax Increment
until such time as the Developer Advances and accrued interest thereof incurred pursuant
to this Agreement, have been fully repaid or provision for payment thereon to Developer
shall have been made in accordance with their terms. The Developer Advances constitute
a special obligation of the La Porte Authority payable solely from the Pledged Available
Tax Increment as and to the extent provided in this Agreement. The Developer Advances
do not give rise to a charge against the general credit or taxing powers of the La Porte
Authority, the La Porte Zone, the City, the County or any other Taxing Unit and is not
payable except as provided in this Agreement. Developer, its successors and assigns,
shall not have the right to demand payment thereof out of any funds of the La Porte
Authority other than the Pledged Available Tax Increment or sources described in
Section 6.1 (E).
(H) The La Porte Authority will evaluate and consider bond issues to
reimburse the Developer upon the following circumstances:
(1) Projected incremental revenue generates [1.25) times coverage for the
bonds over projected annual debt service;
(2) Projected incremental revenue will be calculated by multiplying estimated
or certified incremental value from the appraisal district by the
participant(s) tax rate(s) divided by 100 times one minus a reasonable
historical tax collection factor times one minus the City set aside
percentage;
(3) A reserve fund equal to maximum annual debt service must be funded
from the bond proceeds;
(4) Adequate cash or capitalized interest must be set aside to assure payment
of the bonds through the date of the next increment payment;
(5) The minimum bond size will be that size that after funding the Reserve
Fund, any capitalized interest and any costs of issuance will allow for a
reimbursement to the developer of at least [$1.5] million plus developer
interest.
(I) The La Porte Authority shall not issue obligations in accordance with this
Article unless the resulting debt service requirements on all La Porte Zone obligations
may be paid in full when due from all money then on deposit in or thereafter required to
be deposited to the Property Account during the term of such Zone obligations, assuming
that (a) the rates at which property taxes are levied by all taxing units required to make
deposits to the Tax Increment Fund do not change from the rates at which they most
recently levied property taxes. (b) the assessed value of taxable property (net of
exemptions) within the Property does not change from the amount then most recently
estimated or certified by the Harris County Appraisal District, (c) all amounts deposited
(or required to be deposited) to the Property Account bear interest at the City's
investment rate until expended, (d) proceeds of such obligations are deposited to and set
11
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aside in the Property Account as capitalized interest in the amount requested by the
Developer and approved by the City Manager, and (e) the Property Account is expended
in each year to pay administrative expenses of the La Porte Zone in an amount equal to
the product of (i) the total amount of such expenses budgeted in the La Porte Zone's most
recent operating budget and (ii) a fraction, the numerator of which is the current Tax
Increment attributable to the Property and the denominator of which is the total current
Tax Increment.
(1) The La Porte Authority shall provide to Developer, upon the written
request of Developer, and on the earliest date such information is available after the date
of such request, certified copies of all statements of revenue attributable to the
Developer's portion of the Project and the source of such revenue of the La Porte Zone
and of the La Porte Authority the intended use of which is to verify the availability of
funds for payment of the Project Costs or Developer Advances, if applicable, under this
Section.
(K) The La Porte Zone and the La Porte Authority shall endeavor to cause
each Taxing Unit to collect all ad valorem taxes due on property located within the
La Porte Zone and shall endeavor to cause such Taxing Units to deposit all tax
increments due with the City for transfer to the Tax Increment Revenue Fund pursuant to
the La Porte Agreement.
ARTICLE 7
INSURANCE: RELEASE
7.1 Insurance. With no intent to limit any contractor's liability or obligation for
indemnification, the Developer shall require that each contractor providing work or service on
the Public Improvements provide and maintain certain insurance in full force and effect at all
times during the construction of the Public Improvements and shall require that the City, the
La Porte Authority, and the La Porte Zone are named as additional insured's under such
contractor's insurance policies.
The insurance, at a minimum, must include the following coverage's and limits of
liability:
Coverage
Limit of Liability
Worker's Compensation
Statutory
Employer's Liability
Bodily Injury by Accident $100,000 (each accident)
Bodily injury by Disease $500,000 (policy limit)
Bodily injury by Disease $100,000 (each employee)
Comprehensive General Liability:
Including Broad Form Coverage,
Contractual Liability, Bodily and
Personal Injury, and Completed
Operations (for a period of one year after
Bodily Injury and Property Damage, Combined
Limits of $500,000 each Occurrence and $1,000,000
Aggregate
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completion of work)
Automobile Liability Insurance (for
automobiles used in performing under
this Agreement, including Employer's
Non Ownership and Hired Auto
Coverage)
Professional Liability Coverage (for
professional service contract only)
Defense costs are excluded from the face amount of the policy. Aggregate Limits are per
12 month policy period unless otherwise indicated.
$500,000 Combined Single Limit per Occurrence
$500,000 per occurrence $1,000,000 aggregate
If the amount of any contract awarded by Developer to construct the Public Improvements shall
exceed $1,000,000, Developer shall contract with the contractor to maintain Commercial General
Liability coverage and the Auto Liability coverage for at least twice the combined minimum
limits specified above.
The amounts of the insurance required herein shall be reviewed on the fifth (51h) anniversary date
of this Agreement and each fifth (5th) year thereafter until the construction of the Project is
completed and shall be increased, if necessary, so that the amount of such coverage is at all times
generally equal to the limits described herein measured in year 2004 dollars.
(A) Form of Policies. The La Porte Board may approve the form of the
insurance policies, but nothing the La Porte Board does or fails to do relieves Developer
of its obligation to provide the required coverage under this Agreement. The La Porte
Board's actions or inactions do not waive the La Porte Zone's or La Porte Authority's
rights under this Agreement.
(B) Issuers of Policies. The issuer of each policy shall have a certificate of
authority to transact insurance business in Texas or a Best's rating of at least A and a
Best's Financial Size Category of Class VI or better, according to the most current
edition Best's Key Rating Guide, Property Casualty United States.
(C) Insured Parties. Each policy, except those for Workers' Compensation,
Employer's Liability, and Professional Liability, must name the La Porte Authority, its
officers, agents and employees as additional insured parties on the original policy and all
renewals or replacements.
(D) Deductibles. Developer shall be responsible for and bear (or shall contract
with each applicable contractor to bear and assume) any claims or losses to the extent of
any deductible amounts and waives (and shall contract with each contractor to waive) any
claim it may have for the same against the La Porte Authority or La Porte Zone, its
officers, agents, or employees.
(E) Cancellation. Each policy must state that it may not be canceled,
materially modified, or non-renewed unless the insurance company gives the La Porte
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Authority 30 days' advance written notice. Developer shall (and shall contract with each
contractor to) give written notice to the La Porte Authority within five days of the date on
which total claims by any party against such person reduce the aggregate amount of
coverage below the amounts required by this Agreement. In the alternative, the policy
may contain an endorsement establishing a policy aggregate for the particular Public
Improvements or location subject to this Agreement.
(F) Subrogation. Each policy must contain an endorsement to the effect that
the issuer waives any claim or right of subrogation to recover against the La Porte
Authority, the La Porte Zone, its officers, agents, or employees.
(G) Primary Insurance Endorsement. Each policy, except Workers'
Compensation and Professional Liability (if any), must contain an endorsement that the
policy is primary to any other insurance available to the additional insured with respect to
claims arising under this Agreement.
(H) Liability for Premium. Developer shall pay (or shall contract with
contractors to pay) all insurance premiums for coverage required by this Section, and the
La Porte Authority or La Porte Zone shall not be obligated to pay any premiums.
(I) Subcontractors. Notwithstanding the other provisions of this Section, the
amount of coverage contracted to be provided by subcontractors shall be commensurate
with the amount of the subcontract, but in no case less than $500,000 per occurrence.
Developer shall provide (or shall contract with contractors to provide) copies of insurance
certificates to the La Porte Authority.
(J) Proof of Insurance. Promptly after the execution of this Agreement and
from time to time during the term of this Agreement at the request of the La Porte
Authority, Developer shall furnish the La Porte Authority with certificates of insurance
maintained by Developer in accordance with this Section. If requested in writing by the
La Porte Authority, Developer shall furnish the City with certified copies of Developer's
actual insurance policies. If Developer does not comply with the requirements of this
Section, the La Porte Authority, at its sole discretion, may (1) suspend performance by
the La Porte Authority hereunder and begin procedures to terminate this Agreement for
default or (2) purchase the required insurance with La Porte Authority or La Porte Zone
funds and deduct the cost of the premiums from amounts due to Developer under this
Agreement. The La Porte Authority shall never waive or be estopped to assert its right to
terminate this Agreement because of its acts or omissions regarding its review of
insurance documents.
7.2 Indemnification and Release.
DEVELOPER SHALL DEFEND, INDEMNIFY, AND HOLD THE LA PORTE
AUTHORITY, THE CITY AND THE LAPORTE ZONE, THEIR AGENTS, EMPLOYEES,
OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY, THE "INDEMNIFIED
PERSONS") HARMLESS FOR ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, FINES,
AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'
14
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.
FEES, COURT COSTS, AND ALL OTHER DEFENSE COSTS AND INTEREST) FOR
INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN
CONNECTION WITH OR INCIDENTAL TO PERFORMANCE UNDER THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE CAUSED BY:
(A) DEVELOPER'S AND/OR ITS AGENTS', EMPLOYEES', OFFICERS',
DIRECTORS', CONTRACTORS', OR SUBCONTRACTORS' (COLLECTIVELY,
"DEVELOPER'S") ACTUAL OR ALLEGED SOLE AND/OR CONCURRENT
NEGLIGENCE OR INTENTIONAL ACTS; ;
(B) THE INDEMNIFIED PERSONS' AND DEVELOPi1R'S ACTUAL OR
ALLEGED CONCURRENT NEGLIGENCE AND/OR GROSS NEGLIGENCE,
WHETHER DEVELOPER IS IMMUNE FROM LIABILITY OR NOT; AND
(C) THE INDEMNIFIED PERSONS' AND DEVELOPER'S ACTUAL OR
ALLEGED STRICT PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY,
WHETHER DEVELOPER IS IMMUNE FROM LIABILITY OR NOT.
IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO THAT THE
INDEMNIFICATION PROVIDED FOR IN THIS SECTION IS AN INDEMNITY BY THE
DEVELOPER TO INDEMNIFY AND PROTECT THE INDEMNIFIED PERSONS FROM
THE CONSEQUENCES OF THE INDEMNIFIED PERSONS' OWN NEGLIGENCE,
INCLUDING GROSS NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING
CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. FURTHERMORE, THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION
TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE
THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE
INDEMNIFIED PERSONS UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR
ENTITY.
THE INDEMNITY PROVIDED FOR IN THIS SECTION 7.2 SHALL SURVIVE THE
TERMINATION OR EXPIRATION OF THIS AGREEMENT.
If an Indemnified Person or Developer receives notice of any claim or circumstance
which could give rise to an indemnified loss, the receiving party shall give written notice to the
other party within 3D-days. The notice must include a description of the indemnification event in
reasonable detail, the basis on which indemnification may be due, and the anticipated amount of
the indemnified loss. This notice shall not estop or prevent an Indemnified Person from later
asserting a different basis for indemnification or a different amount of indemnified loss than that
indicated in the initial notice. If an Indemnified Person does not provide this notice within the
3D-day period, it does not waive any right to indemnification except to the extent that Developer
is prejudiced, suffers loss, or incurs expense because of the delay.
For those matters for which the Developer has the obligation to defend an Indemnified
Person pursuant to this Section 7.2, Developer shall assume the defense of the claim at its own
expense with counsel chosen by it that is on the approved list established by the Texas Municipal
League or that is otherwise approved by the City. Within 10 days after receiving written notice
15
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of the indemnification request, Developer shall advise the Indemnified Person as to the chosen
counsel. If Developer does not properly notify the Indemnified Persons as required above, the
Indemnified Person shall assume and control the defense, and all defense ex.penses actually
incurred by it shall constitute an indemnified loss, which must be paid by the Developer within
thirty (30) days of receipt of an invoice from an Indemnified Person. Such indemnified loss shall
bear interest at the rate, but not the time, established in Section 6.1 (F) from the due date noted in
the invoice until the date of payment. Should the Developer fail to timely pay such amount, the
La Porte Authority may, in its sole discretion, withhold the amount due, including accrued
interest, from future Contract Progress Payments.
If Developer defends a claim against any Indemnified Person, the Indemnified Person
may retain separate counsel at the sole cost and expense of such Indemnified Person to
participate in (but not control) the defense and to participate in (but not control) any settlement
negotiations. Developer may not settle the claim without the consent or agreement of the
Indemnified Person, unless such settlement is at no cost to the Indemnified Person and no
judgment is entered against any Indemnified Person.
DEVELOPER RELEASES EACH INDEMNIFIED PERSON FROM ALL
LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS TO PERSONS OR
PROPERTY SUSTAINED IN CONNECTION WITH OR INCIDENTAL TO
PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE INJURY, DEATH,
DAMAGE, OR LOSS IS CAUSED BY THE INDEMNIFIED PERSON'S SOLE OR
CONCURRENT NEGLIGENCE AND/OR THE INDEMNIFIED PERSON'S STRICT
PRODUCTS LIABILITY OR STRICT STATUTORY LIABILITY; PROVIDED,
HOWEVER, THIS RELEASE SHALL HAVE NO APPLICATION TO AN
INDEMNIFIED PERSON'S FAILURE TO PAY MONIES OWED PURSUANT TO THIS
AGREEMENT.
FROM AND AFTER THE DATE OF THIS AGREEMENT, DEVELOPER SHALL
REQUIRE ALL CONTRACTORS ENGAGED BY IT TO CONSTRUCT PUBLIC
IMPROVEMENTS (AND THEIR SUBCONTRACTORS) TO RELEASE AND
INDEMNIFY THE INDEMNIFIED PERSONS TO THE SAME EXTENT AND IN THE
SAME FORM AS ITS RELEASE OF AND INDEMNITY TO THE INDEMNIFIED
PERSONS HEREUNDER.
THE DEVELOPER SHALL REQUIRE ALL GENERAL CONTRACTORS TO
POST PAYMENT AND PERFORMANCE BONDS IN THE AMOUNT OF THE
PROJECT COST AND ONE YEAR MAINTENANCE BONDS AS DEEMED
APPROPRIATE BY THE LA PORTE AUTHORITY.
ARTICLE 8
DEFAULT
8.1 Default.
(A) If the La Porte Authority or the La Porte Zone does not perform its
obligations hereunder in compliance with this Agreement in all material respects, in
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.
addition to the other rights given the Developer under this Agreement, the Developer may
enforce specific performance of this Agreement for any such default if such default is not
cured or is not commenced and diligently pursued within thirty (90) days after receipt by
the La Porte Authority and the La Porte Zone of a written notice detailing the event of
default. Failure of a project to generate sufficient tax increment increase to repay
Developer Advances is not a default on the part of the La Porte Authority or the La Porte
Zone.
(B) In the event the Developer completes the Public Improvements and the
Project but does not otherwise perform its obligations hereunder as provided in Article 4
in compliance with this Agreement, in addition to the other rights and remedies the
La Porte Authority and the La Porte Zone may have under this Agreement or in law or
equity, the La Porte Authority and/or the La Porte Zone may enforce specific
performance or seek actual damages incurred for any such default if such default is not
cured within thirty (30) days after receipt by Developer of a written notice of default or
such cure is not commenced within ten (10) days after receipt by Developer of a written
notice of default and thereafter diligently prosecuted to completion as determined in the
discretion of the La Porte Authority.
ARTICLE 9
GENERAL
9.1 Inspections. Audits. The Developer agrees to keep such operating records
relating to the Public Improvements as may be required by the La Porte Authority, or by state
and federal law or regulation for a period not to exceed four (4) years after completion unless
otherwise required by law. The Developer shall allow the La Porte Authority and the La Porte
Zone access to documents and records in the Developer's possession, custody or control that the
La Porte Authority deems necessary to assist the La Porte Authority in determining the
Developer's compliance with this Agreement.
9.2 Developer Operations and Employees. No personnel supplied or used by the
Developer in the performance of this Agreement shall be deemed employees, agents or
contractors of the La Porte Authority, the La Porte Zone or the City for any purpose whatsoever.
The Developer shall be solely responsible for the compensation of all such personnel, for
withholding of income, social security and other payroll taxes and for the coverage of all
worker's compensation benefits. Under no circumstance shall the La Porte Authority, the
La Porte Zone, or the City be deemed responsible for compensation of the above.
9.3 Personal Liability of Public Officials. To the extent not limited by State law, no
director, officer, employee or agent of the La Porte Zone or the La Porte Authority, and no
officer, employee or agent of the City, shall be personally responsible for any liability arising
under or growing out of the Agreement.
9.4 Notices. Any notice sent under this Agreement (except as otherwise expressly
required) shall be written and mailed via certified mail, return receipt requested, or sent by
electronic or facsimile transmission confirmed by mailing written confirmation via certified mail,
return receipt requested at substantially the same time as such electronic or facsimile
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transmission, or personally delivered to an officer of the receiving party at the following
addresses:
CITY
City Manager
City of La Porte
604 West Fairmont Parkway
La Porte, Texas 77571
FAX: 281-842-1259
with a copy to:
City Attorney
City of La Porte
604 West Fairmont Parkway
La Porte, Texas 77571
FAX:
LA PORTE ZONE
Reinvestment Zone Number One, City of La Porte,
c/o Hawes Hill Calderon LLP
2500 Tanglewilde, Suite 260
Houston, Texas 77063
Attn: David Hawes
FAX: (713) 541-9906
LA PORTE AUTHORITY
La Porte Redevelopment Authority
c/o Hawes Hill Calderon LLP
2500 Tanglewilde, Suite 260
Houston, Texas 77063
Attn: David Hawes
FAX: (713) 541-9906
DEVELOPER
Arete Real Estate & Development Company
Attn:
FAX:
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with a copy to:
FAX:
Each party may change its address by written notice in accordance with this Section. Any
communication addressed and mailed in accordance with this Section shall be deemed to be
given when so mailed, any notice so sent by electronic or facsimile transmission shall be deemed
to be given when receipt of such transmission is acknowledged, and any communication so
delivered in person shall be deemed to be given when receipted for by, or actually received by,
the City, the La Porte Zone, the La Porte Authority or the Developer, as the case may be.
9.5 Amendments and Waivers. Any provision of this Agreement may be amended or
waived if such amendment or waiver is in writing and is signed by the La Porte Zone, the
La Porte Authority and the Developer. No course of dealing on the part of the Developer, nor
any failure or delay by the Developer with respect to exercising any right, power or privilege of
the Developer under this Agreement shall operate as a waiver thereof, except as otherwise
provided in this Section.
9.6 Successors and Assigns. All covenants and agreements contained by or on behalf
of the La Porte Authority and the La Porte Zone in this Agreement shall bind their successors
and assigns and shall inure to the benefit of the Developer and its successors and assigns. The
La Porte Authority and the La Porte Zone may assign its rights and obligations under this
Agreement or any interest herein, with the prior written consent of the Developer. The
Developer may sell or othelWise transfer the Project with the prior written consent of the
La Porte Authority and the La Porte Zone. Provided, however, any such purchaser or assignee
must specifically assume all of the obligations of the Developer hereunder; notwithstanding, if
the Developer is in compliance with this Agreement prior to the assignment, the Developer may
retain the right to be reimbursed for actual costs of Project Costs, which are then accrued and
vested in the Developer. If such assignment of the obligations by the Developer hereunder is
effective, the Developer shall be deemed released from such obligations. If any assignment of
the obligations by the Developer hereunder is deemed ineffective or invalid, the Developer shall
remain liable hereunder. Nothing in this section shall be construed so as to prevent the
Developer from selling any portion of the Project for which a final plat has been approved and
recorded in the records of the county clerk.
9.7 Exhibits: Titles of Articles. Sections and Subsections. The exhibits attached to
this Agreement are incorporated herein and shall be considered a part of this Agreement for the
purposes stated herein, except that in the event of any conflict between any of the provisions of
such exhibits and the provisions of this Agreement, the provisions of this Agreement shall
prevail. All titles or headings are only for the convenience of the parties and shall not be
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construed to have any effect or meaning as to the agreement between the parties hereto. Any
reference herein to a Section or Subsection shall be considered a reference to such Section or
Subsection of this Agreement unless otherwise stated. Any reference herein to an exhibit shall
be considered a reference to the applicable exhibit attached hereto unless otherwise stated.
9.8 Construction. This Agreement is a contract made under and shall be construed in
accordance with and governed by the laws of the United States of America and the State of
Texas.
9.9 Venue. All parties hereby irrevocably agree that any legal proceeding arising out
of or in connection with this Agreement shall only be brought in the District Courts of Harris
County, Texas or in the United States District Court for the Southern District of Texas, in
Houston, Texas.
9.10 Severability. All parties agree that should any provision of this Agreement be
determined to be invalid or unenforceable, such determination shall not affect any other term of
this Agreement, which shall continue in full force and effect.
9.11 No Third Party Beneficiaries. This Agreement shall not bestow any rights upon
any third party, but rather, shall bind and benefit the Parties hereto only.
9.12 Authoritv to Enter Contract. Each party has the full power and authority to enter
into and perform this Agreement, and the person signing this Agreement on behalf of each party
has been properly authorized and empowered to enter into this Agreement. The persons
executing this Agreement hereby represent that they have authorization to sign on behalf of their
respective corporations, or limited partnerships.
9.13 No Partnership. Nothing herein contained shall be construed or held to make the
Parties hereto partners in the conduct of any business.
9.14 Entire Agreement. This written agreement represents the final agreement
between the parties, unless later amended in writing and signed by the parties and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties.
9.15 Ambiguities. In the event of any ambiguity in any of the terms of this Agreement,
it sha1l not be construed for or against any party hereto on the basis that such party did or did not
author the same.
9.16 Non-Waiver. Failure of either party hereto to insist on the strict performance of
any of the agreements contained herein or to exercise any rights or remedies accruing hereunder
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.
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9.17 Multiple Originals. It is understood and agreed that this Agreement may be
executed in a number of identical counterparts each of which shall be deemed an original for all
purposes.
9.18 Term. This Agreement shall be in force and effect from the date of execution
hereof for a tenn expiring on the later of (i) December 31 in the year following Completion of
the Public Improvements pursuant to Section 4.3 hereof or (ii) the date the Developer Advances
have been repaid in full. It is expressly understood and agreed that Section 7.2 shall not expire
but shall remain in full force and effect regardless of the termination of this Agreement. If the
La Porte Authority is dissolved, the La Porte Agreement requires that the City shall make
satisfactory arrangements to provide for the payment of the obligations to the Developer of the
La Porte Authority hereunder.
9.19 Approval by the Parties. Whenever this Agreement requires or permits approval
or consent to be hereafter given by any of the parties, the parties agree that such approval or
consent shall not be unreasonably withheld or delayed.
9.20 Additional Actions. The Parties agree to take such actions, including the
execution and delivery of such documents, instruments, petitions and certifications as may be
necessary or appropriate, from time to time, to carry out the tenns, provisions and intent of this
Agreement and to aid and assist each other in carrying out said terms, provisions and intent.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the _ day of , 2004.
REINVESTMENT ZONE NUMBER ONE,
CITY OF LA PORTE
By:
Name:
Title:
A ITEST:
By:
Name:
Title:
THE STATE OF TEXAS ~
~
COUNTY OF HARRIS ~
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
2004.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _ day of
Notary Public in and for
The State of Texas
(SEAL)
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LA PORTE REDEVELOPMENT AUTHORITY
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
THE STATE OF TEXAS ~
~
COUNTY OF HARRIS ~
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
2004.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _ day of
Notary Public in and for
The State of Texas
(SEAL)
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DEVELOPER
By:
Name:
Title:
THE STATE OF TEXAS ~
~
COUNTY OF HARRIS ~
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
GNEN UNDER MY HAND AND SEAL OF OFFICE, this the _ day of
2004.
Notary Public in and for
The State of Texas
(SEAL)
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EXHIBIT A
PROJECT SITE
(Property Description)
A-I
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Sample Exhibit B
The TIRZ Improvements
B-1
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EXHIBIT C
CERTIFICATE OF ADVANCE
This Certificate is issued under that certain Development Agreement (the "Develol'ment
Agreement") by and between the La Porte Redevelopment Authority (the "Authority"),
Reinvestment Zone Number One, City of La Porte (the "Zone"), and
("Develooer") dated . 2004. Capitalized terms used in this Certificate shall
have the meaning provided for in the Development Agreement.
This Certificate evidences a Developer Advance under the Development Agreement in
the amount of $ for the [describe the project category and nature of work
completed] .
Interest on the Developer Advance evidenced by this Certificate shall accrue at the prime
rate of lPMorgan Chase Bank as described in the Development Agreement for the period
described in 6.1 (B) of the Development Agreement and shall be payable in accordance with the
Development Agreement.
By Developer's execution of this Certificate, Developer represents that it has made the
expenditures and completed the work described in this Certificate. Copies of the relevant
invoices and other appropriate documentation are attached to this Certificate.
By the Authority's execution of this Certificate, the Authority indicates its approval of
the expenditures and work described in this Certificate and its approval of the matters set forth in
this Certificate and recognizes its obligation to repay such Developer Advance together with
interest pursuant to the Development Agreement.
..
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AGREED TO this
day of
.2004.
LA PORTE
REDEVELOPMENT AUTHORITY
By:
Name:
Title: Chainnan Board of Directors
A TrEST:
By:
Name:
Title: Secretary, Board of Directors
THESTATEOFTEXAS ~
~
COUNTY OF HARRIS ~
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
2004.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _ day of
Notary Public in and for
The State of Texas
(SEAL)
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REINVESTMENT ZONE NUMBER ONE,
CITY OF LA PORTE
By:
Name:
Title: Chairman Board of Directors
ATTEST:
By:
Name:
Title: Secretary, Board of Directors
THE STATE OF TEXAS ~
~
COUNTY OF HARRIS ~
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
2004.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _ day of
Notary Public in and for
The State of Texas
(SEAL)
C-3
HOU:2322718.2
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DEVELOPER
By:
Name:
Title:
THE STATE OF TEXAS ~
~
COUNTY OF HARRIS ~
BEFORE MEt the undersigned authoritYt on this day personally appeared
t known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
GWEN UNDER MY HAND AND SEAL OF OFFICEt this the _ day of
2004.
Notary Public in and for
The State of Texas
(SEAL)
C-4
HOU:2322718.2
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City of LaPorte
Interoffice Memorandum
To:
Mayor Pro Tempore and City Council
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'26
From:
Debra Brooks Feazelle, City Manager
Date:
July 23,2004
Subject:
Civil Service Commission
Please find the attached letter of resignation from Lindsay Pfeiffer from the following:
. The Civil Service Commission
· The Board of Directors of the Tax Increment Reinvestment Zone (TIRZ)
· The Board of Directors of the Redevelopment Authority
My recommendation for the vacancy in the Civil Service Commission will be forthcoming.
Please be considering candidates for the Boards of TIRZ and the Redevelopment Authority for
discussion at a future City Council Meeting.
OBF/db
Attachment
c: John Joerns
Cynthia Alexander.
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55
LSO-~
LINDSAY R. PFEIFFER
HOrvIE - 281.471-6650 '" OFFICE ~ 281-471-4222
723 BAYRrDGE ROAD
MORGAJ.'I'S POINT, TEXAS 77571
July 20, 2004
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City of La Porte
P.O. Box 1115
La Porte, Texas 77572
Attn: John Joerns
. Dear John,
Please accept this letter as my formal notice of resignation from the Civil ServiCe Commission,
the Board of Directors of the Tax Increment Reinvestment Zone and the Board of Director of the
Redevelopment Authority. I appreciate the opportunity to serve the citizens of La Porte and to
work with the staff and other board members over the years.
If I can be of any help to the city in the future, please don't hesitate to call on me.
;2:/1:;/
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City of La Porte
Interoffice Memorandum
To: Debra Feazelle
From:
John Jooms, Assistant Ci
er
Date:
July 30, 2004
Subject:
Site Known as Texas ImportlExport Park
Notice of Lis Pendens & Pleadings
The City has learned (and confirmed) that a lawsuit has been filed that alleges a breach of
contract and interference regarding an earnest money contract and an addendum granting certain
options.
The City is not a party to the suit and is only briefly mentioned in the pleadings in terms of a
zoning and permitting authority (not negatively).
John Armstrong and I agree that the City should not entertain any zoning, permitting, general
plan, etc. submittals or applications relating to the property that is the subject of the suit until this
matter is resolved to the satisfaction of the City Attorney's office.
It is my understanding that the parties are meeting in an attempt to resolve this matter. I wish
them success!
JJ/db
Attachment
c: Mayor and City Council
Planning & Zoning Commission
TIRZ Board
Cynthia Alexander
Wayne Sabo
Debbie Wilmore
..137/29/2B04 lei: 47 ,_, 7~36~8112'
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RESEARCH
PAGE 138/26
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NOTICE OF US PENDENS
X75SS2?
STATE OF TEXAS I a7I09/Oit 2D056m7
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COUNTY OF HARRIS A
NOTICE IS 8EREBY GIVEN that Cause No. Zoo44 '!fDO'7i... styled
S15.Z'
GORDON WESTERGREN, TRUSTEE vs. STU..o\RT HA YNSWORTB, ,
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LaPORTE 81, LTD; LaPORTE 82. LTD,Lal'ORTK 115, L'lD. and JOE
FOGARTY, was ccm.menced in tbcl':53P9 District Court ofHarriJ; c.onn.ty,
~ Texas. and is now pending in such court.
'ri
i\l The action involves the title'to, and seeks to establish a ~onstructive trust'
I
lYi against. ~al property situated in Harris County I Texas, arid d:~cribcd as follows,
~
~ to wit:
~
III 190 ac['e,$, mora or lea out of the lohnson Hun~ ~1Jrvey. Abs~ct 35.
and the Wllliam P. .Hams Suxvey, Abstract 30, being:
A t-act of 175.439 acres, and'
A tract of 14.70 acres.
both more particu1ary described on Exhibit ~'A" attached hell'eto and
made it part hereof and incoxporated herein by reference.
Signed byPloWiffthi.9m:. dq ofluty, 2004-.L ~~
Gordon Westergren, Trustee /1)1."
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W. "A'r.ID
I Texas Department of Transportation
P.O. BOX 1386' HOUSTON, TEXAS mS1-1386' (713) 802-5000
July 13,2004
Harris and Galveston Counties
SH 146: Fairmont Parkway to Galveston Y
Control 0389-07-029
RECEIVED
CONTACT: DPD
Mr. Nick Finan
Interim Planning Director
City of La Porte
604 W. Fairmont Parkway
La Porte, Texas 77571
JUl 1 5 2004
PLANNING DEPffoJr ~ (tJL[JLq~Y
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Dear Mr. Finan:
The Texas Department of Transportation (TxDOT) is in the process of developing preliminary
schematic layouts for SH 146 from Fairmont Parkway in La Porte to IH 45 South in Texas City.
Specific issues regarding noise barrier walls will not be addressed until the final plans have been
approved. Although TxDOT does not have legal authority to require developers to construct
noise barrier walls along their development, we encourage the local authorities to adopt a policy
or pass an ordinance that would encourage the developers to include a masonry wall in their site
plan. This type of ordinance is especially useful where residential developments are located
behind commercial developments that are.adjacent to TxDOT facilities. It is very difficult for
TxDOT to provide mitigation for homes located behind businesses. Other cities having similar
ordinances include the City of Sugar Land and Jersey Village.
If further information is needed, please contact Mr. Hassan Nikooei, P.E., at (713) 802-5256.
Sincerely,
C1P~
Pat Henry, P.E.
Director of Project Development
Houston District
AHN :ljh
cc: Mr. Hassan Nikooei, P .E.