HomeMy WebLinkAbout08-03-05 La Porte Redevelopment Authority Meeting minutes
La Porte Redevelopment Authority
City of La Porte, Texas
Minutes of the Board Meeting
Held August 3, 2005
1. CALL TO ORDER AND DETERMINATION OF A QUORUM
The Board of Directors of the La Porte Redevelopment Authority, City of La Porte, Texas held its annual
meeting, open to the public, on the 3rd day of August 2005, and meeting was called to order at 6:40 p.m. in
Council Chambers at the City Hall, 604 West Fairmont Parkway, La Porte, Texas 77571, and roll was called of
the duly appointed members of the Board, to wit:
Peggy Antone
Dave Turnquist
Alton Porter
Horace Leopard
Doug Martin
JJ Meza
Molly Helmlinger
Chester Pool
Lin Pfeiffer
Position 1
Position 2
Position 3
Position 4
Position 5
Position 6
Position 7
Position 8
Position 9 - Chairman
and all of the above were present except Director Helmlinger and Director Pfeiffer, thus constituting a quorum.
Also present at the meeting were John Joems and David Hawes.
2. CONSIDER APPROVAL OF THE MINUTES OF THE MEETING HELD April 27, 2005
Upon a motion duly made by Director Meza and being seconded by Director Pool, the board unanimously
approved the minutes of April 27, 2005.
3. ACKNOWLEDGE APPOINTMENT OF NEW PRESIDENT BY THE MAYOR
Mayor Porter announced to the board that Lin Pfeiffer had been appointed by City council to serve as Chairman
of the Redevelopment Authority and TIRZ Boards.
4. ELECTION OF OFFICERS
Upon a motion duly made by Director Meza and being seconded by Director Porter, the board unanimously
approved Director Martin as Vice-Chairman.
Upon a motion duly made by Director Pool and being seconded by Director Meza, the board unanimously
approved Director Antone as Secretary Treasurer.
5. STAFF REPORTS
· Estimated Expenditures for Fiscal Year 2004-05
· Draft Budget for Fiscal Year 2005-06
· Discuss Proposed Developments
· Discuss next meeting Date
Mr. Joems reviewed the estimated expenditures and the draft FY 2005-06 Budget with the board. He also
reviewed with the board potential small developments that may occur within the TIRZ in the near future. The
board then discussed the next meeting date and that staff would look to having the next board meeting in either
the 2nd or 3rd week of September.
6. BOARD MEMBER COMMENTS
No comments made or further discussion requested by the board.
7. EXECUTIVE SESSION
The board adjourned into Executive Session at 7:12 PM and reconvened in to regular meeting at 7:30 PM with
no action being taken.
8. Adjournment
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AGENDA ITEM 3:
REVIEW AND CONSIDER APPROVAL OF FISCAL YEAR 2005-2006 BUDGET
The projected revenues and proposed expenses are the same as the draft shown to the board
at the last meeting. However, there was a question about the estimated cost of the audit that I
answered incorrectly at that meeting.
The audit expense is not a separate cost center (line item) in the City's contract with our
auditors. The audit expenses for the TIRZ/Redevelopment Authority were pro-rated by the
Finance Department. The Finance Department has agreed to review the assumptions and
provide a new pro-rated amount for the audit expenses. This is the final year in the current
audit services agreement and when a new RFP is issued the City will take steps to isolate
these costs.
The board had asked for more detail in the budget this year. To accomplish that, I broke
down the projected expenses utilizing the City's chart of accounts.
It is recommended that the budget be approved recognizing that the Finance Department will
return with a revised number for audit expenses.
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City of La Porte
Tax Increment Reinvestment Zone One (039) Fund Summary
Working Capital 9/30/04 133,794
Plus Estimated 04-05 Revenues 42,450
Less 04-05 Expenditures and Commitments
Developmental Assistance, Audit, Operations, Misc. 24,400
24,400
Equals Estimated Working Capital 9/30/05 151,844
Plus 05-06 Revenues:
Property Taxes 40,750
Interest Income 3,100
Total Revenues 43,850
Equals Total Resources 195,694
Less 04-05 Expenditures and Commitments
Miscellaneous Consulting Fees 19,100
Operations 2,800
Miscellaneous Supplies, Materials 700
Educational Fund 13,400
Total Expenditures 36,000
Equals Estimated Working Capital 9/30/06 159,694
Revenues
Expenditures & Commitments
Estimated Fund Balance Usage
Estimated
2004-05
42,450
24,400
18,050
Projected
2005-06
43,850
36,000
7,850
*City Council agreed to front the expenses for the City's portion of the Sylvan Beach Shoreline Erosion Project
estimated at $486,435. This commitment will be reimbursedfromfuturefunds.
City of La Porte
Tax Increment Reinvestment Zone One Fund (039)
Statement of Revenues
Actual Budget Revised Projected
Object Description 2003-04 2004-05 2004-05 2005-06
General Property Taxes:
401.01-00 Current Property Taxes 15,764 15,000 39,950 40,750
General Property Taxes Subtotal 15,764 15,000 39,950 40,750
Interest:
483.01-00 Interest Income 1,624 2,030 2,500 3,100
Interest Subtotal 1,624 2,030 2,500 3,100
Total TIRZ One Fund Revenues 17,388 17,030 42,450 43,850
_ City of La Porte
TIRZ #1
Detail of Expenditures
039-9898-826
039-9898-510
Actual
2003-04
Budget
2004-05
Estimated
2004-05
Requested
2005-06
Miscellaneous Supplies:
2001 Office Supplies
2002 Postage
2015 Other Supplies
Miscellaneous Supplies Subtotal
425
125
150
700
Miscellaneous Consulting Fees:
5001 Audit
5003 Legal Services
5004 TIRZ Consultant
Miscellaneous Consulting Fees Subtotal
6,000
5,100
8,000
19,100
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Operations (La Porte Staff):
5005 Personnel Services
Operations Subtotal
2,800
2,800
Educational Fund (LPISD):
6017 Educational Facilities
Educational Fund Subtotal
13,400
13,400
Division Total
36,000
AGENDA ITEMS 4:
PRESENT A TIONS AND DISCUSSION OF PROPOSED DEVELOPMENT IN
LA PORTE TAX INCREMENT REINVEST ZONE #1
The lawsuit related to the property known as Texas Import/Export was successfully
mediated. Presently, the attorneys are refining the settlement documents.
Russell Plank, with National Property Holdings, will present plans for the property that will
be under their control. He is aware of the SCUP, General Plan and the Development
Agreement. He also understands the need to plan and develop the property in a unified vs.
piecemeal fashion.
AGENDA ITEM 5:
DISCUSS DEVELOPMENT AGREEMENT WITH 65 LA PORTE, L TD AND
PROPOSED DEVELOPMENT AGREEMENT WITH THE CITY OF LA PORTE
As reported earlier, 65 La Porte, Ltd. (Joe Fogarty/Arete) has secured his financing for the
development ofthe Lakes at Fairmont Green. The financing does not include the trunk main and
offsite lift station improvements. The City's FY05-06 budget includes $705,000 for the
expenses related to the construction of the trunk main (although this amount may need to be
increased to reflect current projected costs plus engineering). Also, the expenses for the offsite
lift station have not been projected yet.
David Hawes and I met with Mr. Fogarty on September 7 to discuss the status ofthe project.
Mr. Fogarty indicated he should receive his funding by September 13 and that he would also be
meeting with this engineers (Brown & Gay) and authorize them to move forward with the
engineering. He was also to secure a projected timeline for their work.
After tonight's discussion and input, City Council will receive a similar presentation at a future
Council meeting. After their input, a Development Agreement will be drafted for the Council's
and TIRZ/Redevelopment Authority's consideration.
Background information provided:
· Approved Development Agreement with 65 La Porte, Ltd. (Arete)
· Estimated costs for the South La Porte Trunk Sewer
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DEVELOPMENT AGREEMENT
Between
REINVESTMENT ZONE NUMBER ONE
CITY OF LA PORTE
and
LA PORTE REDEVELOPMENT AUTHORITY
and
65 LAPORTE, LTD.
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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 311 of the Texas Tax Code, as amended, acting by and through its governing body, the
Board of Directors (the "Zone Board"), LA PORTE REDEVELOPMENT AUTHORITY ("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.2000-2457 adopted on
December 11, 2000, acting by and through its governing body, the Board of Directors (the "La
Porte Board") and 65 La Porte, Ltd., a Texas limited liability partnership (the "Developer").
RECITALS
WHEREAS, by Ordinances No. 99-2325 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. 99-2352;
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 July 9, 2001, and approved as Ordinance No. 2001-2498 (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 ofthe 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
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
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HOU:2322718.3
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, and retail 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 Board," "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.l(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 hnprovements 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
estimate of remaining work to be completed, the cost of such work, and customary lien and
subcontractor releases.
"County" shall mean Harris County, Texas.
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"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.
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"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 Proj ect 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 August
23, 1999 and as thereafter amended and approved by the City Council.
"Project Site" shall mean the area known as Lakes at Fairmont Green, located in certain
tracts described in Exhibit A, and all improvements located thereon.
"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.
"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.
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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.
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(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.
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 eXIstmg in good
standing under the laws of the State and is duly qualified and authorized to carryon 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
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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.
~-
(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.
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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
Specifications.
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 of the 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.
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
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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
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
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(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
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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.
ARTICLES
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 $7,103,499.87. Attached hereto 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.
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.
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ARTICLE 6
PUBLIC IlVIPROVEMENTS 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 6.1(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 five (5) 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 (1) 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.
(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 sufticient 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
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Public Improvements 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 ofthe 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 mcrement Revenue Fund attributable to the Project.
(F) Subject to the limitations described in Section 6.1 (B) hereof, interest on
each Developer Advance shall accrue at the prime rate of IPMorgan 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.
(G) 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 shaH be
the obligation of the La Porte Authority to repay the Developer Advances and accrued
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
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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) Proj ected 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 ofthe 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 fora
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
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
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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
I
the La Porte Agreement.
ARTICLE 7
INSURANCE; RELEASE
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7.1 Insurance. With no intent to limit any contractor's liability or obligation for
indemnification, the Developer shall require that each contra~tor 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 $1 00,000 (each accident)
Bodily injury by Disease $500,000 (policy limit)
Bodily injury by Disease $1 00,000 (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
completion of work)
Bodily Injury and Property Damage, Combined
Limits of $500,000 each Occurrence and $1,000,000
Aggregate
Automobile Liability Insurance (for
automobiles used in performing under
this Agreement, including Employer's
$500,000 Combined Single Limit per Occurrence
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Non Ownership and Hired Auto
Coverage)
Professional Liability Coverage (for
professional service contract only)
$500,000 per occurrence $1,000,000 aggregate
Defense costs are excluded from the face amount of the policy. Aggregate Limits are per
12 month policy period unless otherwise indicated.
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 (5th) 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 alltimes
generally equal to the limits described herein measured in year 2004 dollars.
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(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
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
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HOll'1,7271IU
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.
(n 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 occur;rence.
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 CLAWS, CAUSES OF ACTION, LIABILITIES, FINES,
AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'
FEES, COURT COSTS, AND ALL OTHER DEFENSE COSTS AND INTEREST) FOR
INJURY, DBA TH, DAMAGE, OR LOSS TO PERSONS OR PROPERTY SUSTAINED IN
CONNECTION WITH OR INCIDENT AL TO PERFORMANCE UNDER THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE CAUSED BY:
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(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 DEVELOPER'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 SO~E 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 30-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
30-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
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 expenses 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
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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 APPLIc;ATION TO AN
INDEMNIFIED PERSON'S FAILURE TO PAY MONIES O\VED PURSUANT TO THIS
AGREEMENT.
FROM AND AFfER 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
addition to the other rights given the Developer under this Agreement, the Developer may
enforce specific performance ofthis 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
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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 Emoloyees; 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
transmission, or personally delivered to an officer of the receiving party at the following
addresses:
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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 Tang1ewi1de, 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
65 La Porte, Ltd.
340 North Sam Houston Parkway East, #140
Houston, Texas 77060
Attn: Norman Reed
FAX: 281-260-9798
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
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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 otherwise 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 ofthe 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
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.
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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. li1 the event of any ambiguity in any of the terms of this Agreement,
it shall 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 performaJ,lce 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.
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 term 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 terms, provisions and intent of this
Agreement and to aid and assist each other in carrying out said terms, provisions and intent.
A-20
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed as of the L day of ~i I c,-t- ,2004.
REINVESTMENT ZONE NUMBER ONE,
CITY OF LA PORTE
BY:~Y~
Name:-Bi fr-f' r::. 8r+ef
Title:_ c.jy3 Ii '~rPf<tm .
ATTEST:
(
By: .
Name:-
Title: .
THE STATE OF TEXAS 9
9
COUNTY OF HARRIS 9
. BEFORE ME, the undersigned authority, on this day personally appeared
~" t. pcr~r . ' 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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the -d- day of lJI1/lJJ4f,
2004. ~
m~iJ~ A~t.1~
~blic in and for ~
The State of Texas
(Sa
MELlSA LANCLOS
Notaty Public, Slats of Texas
My Commission Expires
JAN 10, 200S
A-21
LA PORTE REDEVELOPMENT AUTHORITY
By: ~LV~
N.ame:~t~ to Pf+t"l
TItle:' .rJ. Pn
THE STATE OF TEXAS S
S
COUNTY OF HARRIS S
(SE! 0
11-'. BEFORE. ME, the undersigned authority, on this day personally appeared
t:::r,lz)n E. P~f , 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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the --11 day of!lt !jL1J-,
2004.
rat~~ /~<<d~
Notar Public in and for
The State of Texas
MEUSA LANCLOS
Notary Public, State of Texas
My Commission Expires
1AN 10, 2005
A-22
THE STATE OF TEXAS ~
~
COUNTY OF HARRIS ~
",-
2004.
(SEAL)
~'~~~:~;.;!~:-~~~~ ,.'. \
;i /tf...d:t:;\ GONNA L. CliFFORD I
'.:!~~~~n MY COMMlSS1GN EXPIRES I
" ~,~...J'~"'~<' . lal'uarv 22 2006 I
~ ~ 7J;_:~r:.~XI~~\o...~""~... 'w _ ~.$IN'~ ,..-;;.' __ III 11 ..~
.';:,;-;~ ~ - ~ -,~ -.
DEVELOPER
cL ~ &#-
. 1vL4'u0 . '~d
Notary Public in and for /,.
The State of Texas
A-23
EXHIBIT A
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A-24
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LAKES AT
FAIRl.iONT GREENS
.",_~_f:lI:>>,_;c.-uO'1.lof1;l
l.W.:.o:1(jt:ilt.\lt(
.'......."'IIQ,*"'t..,.~
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trot OII.l!"':lT(
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Exhibit B
The TIRZ hnprovements
Public Improvements
Excavation & Fill Placement for Detention
100% of Off-Site Sanitary Sewer System
100% of Oversized On-Site Sanitary Sewer
100% of Collector Road
35% of On-Site Water Distribution System
35% of On-Site Sanitary Sewer System
35% of On-Site Storm Sewer System
35% of Site Preparation
35% of Storm Water Pollution Prevention
Engineering (15%)
Contingency (15%)
Subtotal
100% Public Landscaping
100% Land Cost for Detention
100% Land Cost for Collector Road
100% Land Cost for Open Space/Park/Recreation
Subtotal
Grand Total
B-1
Cost Estimate
$745,031.00
$1,019;484.00
$187,590.00
$255,000.00
$158,322.50
$337,104.60
$545,211.10
$167,959,75
$96,169.85
$526,780.92
. $605,798.06
$4,644,451.78
$1,481,176.00
$670,941.30
$84,899.43
$222,031.36
$2,459,048.09
$7,103,499.87
EXHIBIT C
CERTIFICATE OF ADVANCE
This Certificate is issued under that certain Development Agreement (the "Development
Agreement") by and between the La Porte Redevelopment Authority (the "Authority"),
Reinvestment Zone Number One, City of La Porte (the "Zone"), and
("Developer") 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].
lriterest.on the Developer Advance evidenced by this Certificate shall accrue at the prime
rate of IPMorgan 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.
C-l
AGREED TO this
day of
,2004.
LA PORTE
REDEVELOPMENT AUTHORITY
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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _ day of
2004.
Notary Public in and for
The State of Texas
(SEAL)
C-2
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 S
S
COUNTY OF HARRIS S
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
DEVELOPER
By:
Name:
Title:
THE STATE OF TEXAS 9
9
COUNTY OF HARRIS 9
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-4
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EXHIBIT D
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LAKES AT
FAIRMON'T GREEN'S
.~ilIl:n..~Uor~
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~or>....~
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8RO~ t~ r;lIl:'L1_r.1Il<I . !l/.lWll'fillIill
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Page 1 of 1
Joerns, John
From: Norman Reed [normanreed@aretere.com]
Sent: Thursday, September 08,20057:51 AM
To: dhawes@hhcllp.com; Joerns, John
Subject: SS Cost Estimate
Attached is the cost estimate for the sanitary sewer trunk line. It does not include engineering, contingencies or up
grading the existing lift station. Lars will be adding these items to the list and checking to see if I left anything else
out.
Norman Reed
Arete Real Estate & Development Co.
340 N. Sam Houston Pkwy. E., #]40
Houston, Tx. 77060
(28]) 272-6134 office
(28]) 260-9798 fax
(28]) 435-5887 mobile
normanreed@aretere.com
9/15/2005
Lakes at Fairmont Greens
Phase I Sanitary Sewer
ON-SITE SANITARY COLLECTION SYSTEM TRUNK LINE
1. Manholes:
a. Standard Precast Manhole 19 EA $ 1,250.00 $ 23,750.00
2. Extra Depth for Standard Manhole
a. 8' - 12' Depth 57 VF $ 70.00 $ 3,990.00
b. Over 12' Depth 38 VF $ 100.00 $ 3,800.00
3. SDR 26 P.V.c. Sewers (including Bedding)
a. 24" Pipe (all cuts) 2,532 LF $ 80.00 $ 202,560.00
4 Miscellaneous Items
a. Trench Safety System 2,532 LF $ 1.00 $ 2,532.00
The following are to be used only when directed by the Engineer using methods approved by the Engineer and will
<-Ix: paid for per the unit prices. Utilization of these items will depend on site conditions at the time of construction.
5 Well Point Dewatering ($20.00 minimum) 2,532 LF $ 20.00 $ 50,640.00
6 Modified" A-A" Bedding and all
appurtenances for wet sand construction
(per plans). ($10.00 minimum) 2,532 LF $ 20.00 $ 50,640.00
7 Manhole Base for Wet Sand Construction
($1,000.00 minimum) 14 EA $ 1,000.00 $ 14,000.00
Total, On-Site $ 351,912.00
Lakes at Fairmont Greens
Phase I Sanitary Sewer
OFF-SITE SANITARY COLLECTION SYSTEM
1. Manholes:
a. Standard Precast Manhole 2 EA $ 1,250.00 $ 2,500.00
2. Extra Depth for Standard Manhole
a. 8' - 12' Depth 8 VF $ 70.00 $ 560.00
b. Over 12' Depth 6 VF $ 100.00 $ 600.00
3. SDR 26 P.V.c. Sewers (including bedding)
a. 24" Pipe (all cuts) 200 LF $ 80.00 $ 16,000.00
4. C900-DRI8 PVC FM (class 150, all cuts)
a. 6" Pipe - Interim (includes all fittings) 3,653 LF $ 16.00 $ 58,448.00
5. Lift Station LS $ 200,000.00 $ 200,000.00
6. Miscellaneous Items
a. Connect 24" Sanitary to existing MH EA $ 700.00 $ 700.00
b. Trench Safety System 3,853 LF $ 1.00 $ 3,853.00
c. Upgrade Existing Lift Station (north end) LS $ $
The following are to be used only when directed by the Engineer using methods approved by the Engineer and will
be paid for per the unit prices. Utilization of these items will depend on site conditions at the time of construction.
7. Well Point Dewatering ($20.00 minimum) 150 LF $ 20.00 $ 3,000.00
8. Modified "A -A" Bedding and all
appurtenances for wet sand construction
(per plans). ($10.00 minimum) 150 LF $ 20.00 $ 3,000.00
9. Manhole Base for Wet Sand Construction
($1,000.00 minimum) 2 EA $ 1,000.00 $ 2,000.00
Total, Off-Site $ 290,661.00
Total, On and Off-Site Sanitary Sewer Trunk Line $ 642,573.00
AGENDA ITEM 6
STAFF REPORTS
· Review City of La Porte/LPISD Report for 2004 Tax Year
o Calculation of the amount of taxes due the Tax Increment Reinvestment
Zone #1 by the City of La Porte
o Calculation of the amount of taxes due the Tax Increment Reinvestment
Zone #1 by the La Porte Independent School District
· Review Harris County Report for 2004 Tax Year
o Calculation of the amount of taxes due the Tax Increment Reinvestment
Zone # 1 by Harris County
· Update on Various Developments - Verbal
9/13/2005
Calculation of the Amount of Taxes Due the
Tax Increment Reinvestment Zone # 1, La Porte, TX
By the City of La Porte
For the 2004 Tax Year
Data Entry Area:
Enter the Amount of Taxes Billed on Property located in the Zone
Enter the Amount of Billed Taxes which have not been collected
Enter the City's Tax Rate (.71 = .71 Cents per $100)
$58,795.88
$10,226.15
$0.0071
1 Calculation of the Collection Rate for Property in the TIRZ
a Total Taxes Billed on Property Located in the TIRZ
b Less Total Delinquent Taxes on Property Located in the TIRZ
c Equals Total Taxes Collected on Property in the TIRZ
d Divided by the Total Taxes Billed on Property Located in the TIRZ
e Equals the Collection Rate for Taxes in the TIRZ
$58,795.88
$10,226.15
$48,569.73
$58,795.88
82.61 %
f~( .03,
2 Calculation of the Captured Appraised Value
a Total Taxes Billed on Property Located in the TIRZ
b Divided by the City's Tax Rate
c Equals the Total Appraised Value for the Current Year
d Less the Tax Increment Base (1999) Value
e Equals the Captured Appraised Value
$58,795.88
$0.0071
8,281,110
6,362,980
1,918,130
3 Calculation of the Amount Due the TIRZ by the City
a Captured Appraised Value
b Times City's Tax Rate
c Equals Total Taxes applicable to the Captured Appraised Value
d Times the City's Collection Rate
e Equals the Total Taxes due the TIRZ by the City of La Porte
1,918,130
$0.0071
$13,618.72
82.61 % ~j
$11,250.07 ) r ~ s:' (r;
u') 6/ '{. (.. {
,....--
9/13/2005
Calculation of the Amount of Taxes Due the
Tax Increment Reinvestment Zone # 1, La Porte, TX
By the La Porte ISO
For the 2004 Tax Year
Data Entry Area:
Enter the Amount of Taxes Billed on Property located in the Zone
Enter the Amount of Billed Taxes which have not been collected
Enter the ISO's Tax Rate (1.7335 = 1.7335 Cents per $100)
$145,079.28
$25,110.14
$0.017335
Calculation of the Collection Rate for Property in the TIRZ
a Total Taxes Billed on Property Located in the TIRZ
b Less Total Delinquent Taxes on Property Located in the TIRZ
c Equals Total Taxes Collected on Property in the TIRZ
d Divided by the Total Taxes Billed on Property Located in the TIRZ
e Equals the Collection Rate for Taxes in the TIRZ
$145,079.28
$25,110.14
$119,969.14
$145,079.28
82.69% 7(, ~.
2 Calculation of the Captured Appraised Value
a Total Taxes Billed on Property Located in the TIRZ
b Divided by the ISO's Tax Rate
c Equals the Total Appraised Value for the Current Year
d Less the Tax Increment Base (1999) Value
e Equals the Captured Appraised Value
$145,079.28
$0.017335
8,369,154
6,346,840
2,022,314
3 Calculation of the Amount Due the TIRZ by the ISO
a Captured Appraised Value
b Times ISO's Tax Rate
c Equals Total Taxes applicable to the Captured Appraised Value
d Times the ISO's Collection Rate
e Equals the Total Taxes due the TIRZ by the La Porte ISO
2,022,314
$0.017335
$35,056.81
82.69%
$28,989.22 J, [ 00 '7:
4 Breakdown of How ISO Taxes are Applied
a Equals the Total Taxes Due the TIRZ by the La Porte ISO
b Divided the Total Tax Rate for ISO
c Equals Taxes due the Tirz per penny of Tax Rate
d Times rate for General TIRZ Projects (.0086 per contract)
e Difference is rate for Education Facilities Projects
$28,989.22
$0.017335
$167.57
$14,410.83
$14,578.39 I!>, orr ..S 53
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