HomeMy WebLinkAboutBEAZER HOMES TEXAS, LPDEVELOPMENT AGREEMENT
among
CITY OF LA PORTE, TEXAS,
and
REINVESTMENT ZONE NUMBER ONE,
CITY OF LA PORTE, TEXAS,
and
LA PORTE REDEVELOPMENT AUTHORITY
and
BEAZER HOMES TEXAS LP
DEVELOPMENT AGREEMENT
This Agreement ("Agreement"), effective IO February, 2014, is made by and among
the CITY OF LA PORTE, TEXAS (the "City"), REINVESTMENT ZONE NUMBER ONE,
CITY
OF LA PORTE, TEXAS (the "Zone"), a tax increment reinvestment zone created by the City,
acting by and through its Board of Directors (the "Zone Board"), LA PORTE
REDEVELOPMENT AUTHORITY (the "Authority"), a local government corporation created
by the City, acting by and through its Board of Directors (the "Authority Board") and BEAZER
HOMES TEXAS LP, a Delaware limited partnership (the "Developer").
RECITALS
WHEREAS, by Ordinance No. 99-2325 (the "TIRZ Ordinance"), the City Council of the
City created the Zone pursuant to Chapter 311, Texas Tax Code, as amended (the "TIRZ Act");
and
WHEREAS, the Zone Board adopted a final Project Plan and Reinvestment Zone
Financing Plan; and
WHEREAS, the City Council approved the final Project Plan and Reinvestment Zone
Financing Plan by Ordinance No. 99-2352; and
WHEREAS, the Zone Board recommended that the Zone's boundaries be expanded and
adopted an Amended Project Plan and Reinvestment Zone Financing Plan (as amended, the
"Project Plan"); and
WHEREAS, the City Council approved the expansion of the Zone's boundaries by
Ordinance No. 2014-3508 and approved the Project Plan by Ordinance No. 2014-3509; and
WHEREAS, the City authorized the creation of the 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 the City and neighboring areas as described in the TIRZ
Ordinance; and
WHEREAS, the City, the Zone and the Authority have entered into that certain
Agreement dated July 9, 2001, and approved by Ordinance No. 2001-2498 (the "Tri-Party
Agreement"), pursuant to which the City and the Zone contracted with the Authority to
administer the 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 the City, to enter
into development agreements with developers and builders in the City, and to issue, sell or
deliver its bonds, notes or other obligations in accordance with the terms of the Tri-Party
Agreement upon the approval of the City Council of the City; and
WHEREAS, the Tri-Party Agreement further provides that the Authority must obtain the
prior approval of the City for any project approved in the Project Plan that is constructed or
caused to be constructed by the Authority; and
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WHEREAS, the TIRZ Act provides that the 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 Authority Board and the Zone Board have determined that it is in the
best interest of the Zone and the Authority to contract with the Developer, in order to provide for
the efficient and effective implementation of certain aspects of the Project Plan; and
WHEREAS, the Developer desires to proceed with the development of an urban project
consisting of residential, commercial and retail development located on land within the Zone (the
"Project") prior to the time that the Authority can issue its bonds or otherwise pay the costs of
the Public Improvements (as defined herein);
NOW THEREFORE, for and in consideration of the mutual promises, covenants,
obligations, and benefits of this Agreement, the City, the Zone, the Authority and the Developer
contract and agree as follows:
AGREEMENT
ARTICLE 1
GENERAL TERMS
1.1 Definitions. The terms "Agreement," "Authority," "Authority Board," "City,"
"Developer," "Project," "Project Plan," "TIRZ Act," "Tri-Party Agreement," "Zone" and "Zone
Board" have the above meanings, and the following terms have the following meanings:
"Authority Bonds" shall mean the 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.l(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 Project Costs by the
Developer pursuant to Section 6.1 of this Agreement and shall include any interest payable
thereon as prescribed in this Agreement.
"HCAD" shall mean the Harris County Appraisal District.
"Parties" or "Party" shall mean the City, the Zone, the 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 Site.
"Property Account" means an account within the Tax Increment Revenue Fund for
deposit of Pledged Available Tax Increment, 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 Site" shall mean the area known as La Porte Outlots Subdivision, 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.
"State" shall mean the State of Texas.
"Tax Increment" shall have the meaning given such term in the Tri-Party Agreement.
"Tax Increment Revenue Fund" shall mean the special fund established by the Authority
and funded with payments made by the City and any other participating Taxing Units, pursuant
to the Tri-Party Agreement.
"Taxing Unit" shall mean individually and collectively, the City and any other taxing
units participating in the 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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ARTICLE2
BEPBESENTATIONS
2.1 Representations of the Authority. The Authority hereby represents to the
Developer that:
(A) The 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 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
Authority under any agreement or instrument to which the Authority is a party or by
which the 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
Authority and, constitutes a legal, valid and binding obligation of the 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 Authority
does not require the consent or approval of any person which has not been obtained.
(F) The Authority has an exemption from the payment of sales and use taxes
pursuant to the statute under which the Authority was created.
2.2 Representations of the Zone. The Zone hereby represents to the Developer that:
(A) The 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 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
Zone under any agreement or instrument to which the Zone is a party or by which the
Zone 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 Zone
and constitutes a legal, valid and binding obligation of the 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 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
Authority and the 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 bylaws 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.
(E) The Developer will prepare and record residential covenant/deed
restrictions for the Project Site requiring that (1) the square footage for each single-family
home constructed thereon shall be no less than 1,629 square feet (as determined by
HCAD); (2) upon build-out of the Project Site, at least 64% of the single-family homes
will have at least 2,000 square feet (as determined by HCAD); and (3) each single-family
home shall have a masonry exterior on 100% of the first-floor front elevation and on not
less than 50% of each first-floor side elevation.
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ARTICLE3
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 Project 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.l(A) hereof) related to such Public Improvements. The Project
Costs may be modified with approval of the Authority Board.
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
pursuant to Article 4.
ARTICLE4
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 Tri-Party Agreement), provide
supervision of all phases of construction of the Public Improvements, provide periodic reports as
may be reasonably requested and required by the Authority from time to time of such
construction to the Authority 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 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
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 Authority all required temporary construction and access easements necessary to maintain the
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Public Improvements. The easements granted must be satisfactory for the intended purpose as
determined by the City. On property owned by the Authority, the 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 any 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 Zone and the
Authority and Developer will provide all necessary information to the Authority and its
consultants in order to assist the Authority in complying with the Tri-Party 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, 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
authorization to enlarge the Zone and the Authority's commitment to pay or reimburse such costs
in accordance with the terms herein, but no other contract has heretofore been entered into by the
Developer with the Authority or the 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 Authority and the 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 Authority and Zone to reimburse
funds heretofore expended by the Developer for such Public Improvements, by entering into this
Agreement,
(A) the Authority and the 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
(B) the Developer releases and discharges the Authority and the Zone from all
claims of any nature the Developer might make, now or in the future, arising out of any
failure by the Authority and Zone to pay or 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 Project. The Developer shall not make any change in the Project as to
the uses of the property or change the boundaries within the Project Site without the express
written consent of the City, the Authority Board and the Zone Board.
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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 therefor; 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 Authority and the 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 AUTHORITY
5.1 Authority Contributions. The Authority shall pay or reimburse to Developer the
Project Costs in the amount of the actual costs of the Public Improvements, subject to the
conditions of and provided by Articles 3 and 4. The total, actual Project Costs of the Public
Improvements, for which the Authority shall be responsible under the terms of this Agreement, is
estimated to be $2,097,297. 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 Authority has already repaid Developer for such
ineligible Public Improvements in accordance with this Agreement, the Parties agree that
Developer shall reimburse the Authority for such repayment within thirty (30) days of receipt of
an invoice from the 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 Authority may, in its sole discretion, withhold the amount
due, including accrued interest, from future Contract Progress Payments.
5 .2 Project Costs. The Authority shall pay or reimburse the Project Costs in
accordance with this Agreement. In the event the Authority does not have funds available at the
time all or part of the Project Costs are payable by the 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 Authority under this Agreement.
ARTICLE6
PUBLIC IMPROVEMENTS FINANCING AND FUNDING
6.1 Developer Advances.
(A) Developer shall advance sufficient funds as such become due for all costs
comprising 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)
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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 Authority. The Authority, at its expense, shall hire a certified public
accountant to calculate the amount due Developer and shall prepare and submit, within a
reasonable time, a report to the Authority Board and send a copy to the City Manager of
the City. 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 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 Authority Board, the Developer shall be
deemed to have advanced such amount to the Authority as of the date actually expended
by the Developer. Interest (as calculated pursuant to Subsection 6.l(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 Authority, at its expense, shall hire a certified
public accountant to calculate the amount due to the Developer and shall prepare and
submit a report to the Authority Board and send a copy to the City Manager of the City
certifying (1) the amount due to the 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 Authority Board shall promptly
authorize and make payment to the Developer.
(C) If, upon completion of the Public Improvements and conveyance of the Public
Improvements to the Authority or the City, as applicable, the 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 Authority an amount equal to the
difference between (i) the amount of the Project Costs which has been previously paid by
the Authority to Developer and (ii) the final cost of the Public Improvements as
evidenced by documentation approved by the Authority 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 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;
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(2) proceeds from the sale of applicable Authority Bonds; or
(3) Pledged Available Tax Increment.
(F) Subject to the limitations described in Section 6.l(B) hereof, 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.
(G) The 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 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 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 Authority approved by the Authority Board and the City Council of the City.
Except in the event that (i) the cumulative average sales price (documented at the time
Developer sells a finished home to an initial end-user) of all homes within the Project
Site is less than $175,000, or (ii) 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 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 this Agreement.
The Developer Advances constitute a special obligation of the 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 Authority, the 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 Authority other than the Pledged Available Tax Increment or sources
described in Section 6.1 (E).
(H) The Authority will evaluate and consider bond issues to reimburse the
Developer upon the following circumstances:
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( 1) Projected incremental revenue generates 1.25 times coverage for the bonds
over projected annual debt service (or such lesser coverage if
recommended to the Authority by its financial advisor);
(2) Projected incremental revenue will be calculated by multiplying estimated
or certified incremental value from HCAD 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; and
( 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. Reimbursements to multiple developers may be aggregated in a
single bond issue to achieve the minimum bond size.
(I) The Authority shall not issue obligations in accordance with this Article
unless the resulting debt service requirements on all 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 Project
Site does not change from the amount then most recently estimated or certified by
HCAD, ( 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 of the City, and
( e) the Property Account is expended in each year to pay administrative expenses of the
Zone in an amount equal to the product of (i) the total amount of such expenses budgeted
in the Zone's most recent operating budget and (ii) a fraction, the numerator of which is
the current Tax Increment attributable to the Project Site and the denominator of which is
the current Tax Increment for the Zone.
(J) The 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 Project Site and
the source of such revenue of the Zone and of the Authority the intended use of which is
to verify the availability of funds for payment of the Project Costs or Developer
Advances, if applicable, pursuant to this Section.
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(K) The Zone and the Authority shall use commercially reasonable efforts to
cause each Taxing Unit to collect all ad valorem taxes due on property located within the
Zone and shall use commercially reasonable efforts 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 Tri-Party Agreement.
ARTICLE7
INSVRANCE;BELEASE
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
Authority, and the 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
Worker's Compensation
Employer's Liability
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)
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)
Limit of Liability
Statutory
Bodily Injury by Accident $100,000 (each accident)
Bodily injury by Disease $500,000 (policy limit)
Bodily injury by Disease $100,000 (each employee)
Bodily Injury and Property Damage, Combined
Limits of $500,000 each Occurrence and $1,000,000
Aggregate
$500,000 Combined Single Limit per Occurrence
$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
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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 all times
generally equal to the limits described herein measured in year 2006 dollars.
(A) Form of Policies. The Authority Board may approve the form of the
insurance policies, but nothing the Authority Board does or fails to do relieves Developer
of its obligation to provide the required coverage under this Agreement. The Authority
Board's actions or inactions do not waive the Zone's or 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 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 Authority or 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 Authority 30 days'
advance written notice. Developer shall (and shall contract with each contractor to) give
written notice to the 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 Authority, the
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.
13
(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 Authority
or 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 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 Authority, Developer
shall furnish the Authority with certificates of insurance maintained by Developer in
accordance with this Section. If requested in writing by the 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 Authority, at its
sole discretion, may (1) suspend performance by the Authority hereunder and begin
procedures to terminate this Agreement for default or (2) purchase the required insurance
with Authority or Zone funds and deduct the cost of the premiums from amounts due to
Developer under this Agreement. The 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 lpdempjficatjon apd Release.
DEVELOPER SHALL DEFEND, INDEMNIFY, AND HOLD THE AUTHORITY,
THE CITY AND THE ZONE, THEIR AGENTS, EMPLOYEES, OFFICERS, AND LEGAL
REPRESENTATIVES (COLLECTIVELY, THE "INDEMNIFIED PERSONS") HARMLESS
FOR ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, FINES, AND EXPENSES
(INC~UDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES, COURT
COSTS, AND ALL OTHER DEFENSE COSTS AND INTEREST) FOR INJURY, DEA TH,
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 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.
14
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 PERSQNS 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. FURTIIERMORE, 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 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 stop 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
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
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.
15
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 TIDS 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, TIDS RELEASE SHALL HA VE NO APPLICATION TO AN
INDEMNIFIED PERSON'S FAILURE TO PAY MONIES OWED PURSUANT TO THIS
AGREEMENT.
FROM AND AFTER THE DATE OF TIDS 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 AUTHORITY.
8.1 Default.
ARTICLES
DEFAULT
(A)lf the Authority or the 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 of this Agreement for any such default if such default is not cured or is not
commenced and diligently pursued within thirty (30) days after receipt by the Authority
and the 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 Authority or the 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
Authority and the Zone may have under this Agreement or in law or equity, the Authority
and/or the 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 (1 O)
days after receipt by Developer of a written notice of default and thereafter diligently
prosecuted to completion as determined in the discretion of the Authority.
16
ARTICLE9
GENERAL
9.1 Inspections. Audits. The Developer agrees to keep such operating records
relating to the Public Improvements as may be required by the 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 Authority and the Zone access to documents and
records in the Developer's possession, custody or control that the Authority deems necessary to
assist the 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 Authority, the 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 Authority, the 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 Zone or the 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:
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: (281) 471-2047
17
ZONE
Reinvestment Zone Number One, City of La Porte,
c/o City of La Porte
604 West Fairmont Parkway
La Porte, Texas 77571
Attn: ------FAX: (281) 471-2047
AUTHORITY
La Porte Redevelopment Authority
c/o City of La Porte
604 West Fairmont Parkway
La Porte, Texas 77571
Attn:
FAX: (281) 471-2047
DEVELOPER
Beazer Homes Texas, LP
10235 West Little York, Suite 200
Houston, Texas 77040
Attn: Jeff Anderson
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 Zone, the 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 Zone, the 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 Authority and the 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 Authority and the 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 Authority and the 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.
18
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
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, m
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 Authority 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 shall not be construed for or against any party hereto on the basis that such party did or did not
author the same.
19
9.16 Non-Waiver. Failure of either party hereto to insist on the strict perfonnance of
any of the agreements contained herein or to exercise any rights or remedies accruing hereunder
upon default or failure of perfonnance 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
perfonnance.
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 tennination of this Agreement. If the
Authority is dissolved, the Tri-Party Agreement requires that the City shall make satisfactory
arrangements to provide for the payment of the obligations to the Developer of the Authority
hereunder.
9 .19 Approval by the Parties. Whenever this Agreement requires or pennits 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 tenns, provisions and intent.
[The remainder of this page is intentionally left blank]
20
IN WITNEf~REOF, the parties hereto have caused t~iJ instrument to be duly
executed as of the ay of\-fhtiJt,{:A , ~d-0/ 'f
By:~t6:::'.~~~~a_~kQ'4-
Name: Patrice Fogarty
Title: City Secretary
THESTATEOFTEXAS §
§
COUNTY OF HARRIS §
Lo .BEFORE ~ the undersigned authority, on this day personally appeared
L-US R., R ( C'ib\ t , known to me to be the person whose name is subscribed to the
foregoing instrument-'andlicknowledged to me that he executed the same for the purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this thelD_day of Ma rd1' ~db\+.
YVONNE GARRISON
My Commission Expires
October 28, 2017
(SE,.. ....... ,...._.._.._._..._ ..
~
21
THESTATEOFTEXAS §
§
COUNTY OF HARRIS §
REINVESTMENT ZONE NUMBER ONE,
CITY OF LA PORTE, TEXAS
, BEFORE ME, the undersigned authority, on this day personally appeared
)._,11cfSa_ :Pe.i"A ..R_V , known to me to be the person whose name is subscribed to the
foregom ms en an acknowledged to me that he executed the same for the purposes and
consideration therein expressed. . J , . " /,...
ililli. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the2/1!'_day of~,
. . . il"fl o., (i) ~
~:~in and for
(SEAL)
SHELLY D SIMON
My commission Expires
November 1. 201 S
The State of Texas
22
THE STATE OF TEXAS §
§
COUNTY OF HARRIS §
By:.--L._.,,..q:..~~--f,;.~~~u:\....~=----
Name:.-f-~~~=----~zi..:~a..!1::...-'-----~
Title:._..A.....L--"<Z-....--'--'--'~--------
the undersigned authority, . on this day personally appeared
....L~~~~~..:::l:~~~_, known to me to be the person whose name is subscribed to the
m · trument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed. · 1. . r f
~GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the_3_day of~~
(SEAL)
~ Not Public in and for
The State of Texas
23
BEAZER HOMES TEXAS, LP
By:.~~~~~~~~~~~~~~
Name: ·----------------Title: _______________ _
BEAZER HOMES TEXAS HOLDINGS, INC.
(As eneral p rtn eazer Homes Texas, LP)
...... •••ne on
d Acquisition and Development • Houston
THESTATEOFTEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned authority, on this day personally appeared -J-e HA nder5cxl , 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.
201~ ~~MY HAND AND SEAL OF OFFICE, this fuel day oftr\Ai:rk.J
Notary Public in and for
The State of Texas
24
EXHIBIT A
PROJECT SITE
25
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TAX INCREMENT REINVESTMENT ZONE, NUMBER ONE
CITY OF LA PORTE
26
, CITY OF LA PORTE
l la Porte TIRZ 1 •,
;;,.~Zone Expansion 2~13
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TAX INCREMENT REINVESTMENT ZONE, NUMBER ONE
CITY OF LA PORTE
27
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DESCRIPTION OF
17.3705 ACRES (756,658 SQ. FT)
LA PORTE OUTLOTS SUBDIVISION
RICHARD PEARSALL SUVEY, A-612
HARRIS COUNTY, TEXAS
Being all that certain 17.3705 acres (756,658 sq. ft.) ofland situated in the Richard Pearsall
Survey, A-625, Harris County, Texas, and being all of Lots 56 & 57 and portions of Lots 58, 59,
60, 63, 64 & 65 of the La Porte Outlots Subdivision as recorded under Volume (Vol.) 59, Page
(Pg.) 313 of the Harris County Deed Records, and being out of a called 6.6322 acre tract
conveyed to Lawrence B. Chapman, Trustee as recorded under Harris County Clerk's File
(H.C.C.F.) No. H205928, and out of a called 25.8292 acre tract conveyed to Lawrence B.
Chapman, Trustee as recorded under H.C.C.F. No. G933350 and a previously apportioned and
occupied area of the north-south excess in the Block between North D Street and Main Street
(Spencer Highway) said 17.3705 acre tract being more particularly described as follows:
(Bearings based on the Texas Coordinate System, South Central Zone, NAD83, 2011
Adjustment)
BEGINNING at a 5/8-inch iron rod with a plastic cap stamped "Cobb Fendley & Associates" set
for the northeast comer of the herein described tract, same being located in the south line of Lot
41 and the north line of Lot 60, as apportioned, of said La Porte Outlots, said point lying in the
west right-of-way of Sens Road (width varies);
THENCE South 03°02'03" East, along said west right-of-way, a distance of 312.49 feet to a 5/8-
inch iron rod with a plastic cap stamped "Cobb Fendley & Associates" set for the most easterly
southeast comer of the herein described tract;
THENCE South 86°58'35" West, over and across said 6.6322 acre tract, a distance of 725.27
feet to a 5/8-inch iron rod with a plastic cap stamped ''Cobb Fendley & Associates" set for an
interior comer of the herein described tract and lying in the west line of a called 80 feet wide
pipeline easement conveyed to Humble Pipeline Company as recorded under H.C.C.F. Nos.
D550217 & D597345, Vol. 1093, Pg. 302, Vol. 2941, Pg. 218, Vol. 7527, Pg. 283, Vol. 2304,
Pg. 258 of the H.C.D.R.;
THENCE South 08°44'42" East, along said west line of pipeline easement, a distance of 281.42
feet to a 5/8-inch iron rod with a plastic cap stamped ''Cobb Fendley & Associates" set for an
angle point in the south line of the herein described tract;
THENCE South 86°56'46" West, a distance of 916.78 feet to a 5/8-inch iron rod with a plastic
cap stamped ''Cobb Fendley & Associates" set for the southwest comer of the herein described
tract, said point lying in the west line of the aforementioned 25.8292 acre tract, same being the
east line of Block 1 of the Final Plat For Spencer Landing Subdivision Section 2 as recorded
under Film Code (F.C.) No. 421149 of the Harris County Map Records (H.C.M.R.);
29
THENCE North 02°42'16" West, along the east line of said Block 1, a distance of 592.13 feet to
a 5/8-inch iron rod with a plastic cap stamped ''Cobb Fendley & Associates" set for the
northwest comer of said Lot 56, as apportioned, and a angle point in said east line of said Block
1·
I
THENCE North 86°41 '45" East, along the north line of Lot 56 and the south line of Lot 41, as
apportioned, of the aforementioned La Porte Outlots Subdivision, a distance of280.96 feet to a
5/8-inch iron rod with a plastic cap stamped ''Cobb Fendley & Associates" set for a angle point
in the north line of the herein described tract, and the southeast comer of Lot 24 of said Block 1,
said point being the southwest comer of a called 0.9358 acre tract conveyed to James Furlow as
recorded under H.C.C.F. No. 20130280293;
THENCE North 86°59'53" East, along the south line of Lots 44 & 43 as apportioned and
conveyed to James W. Furlow & wife Joan P. Furlow, as recorded under H.C.C.F. Nos. L884630
& L884631 and Lots 42 and 41 as apportioned and conveyed to the La Porte Independent School
District, as recorded under H.C.C.F. NO. S583257, a distance of 1329.68 feetto the POINT OF
BEGINNING and containing 17.3705 acres (756,658 sq. ft.) ofland more or less.
NOTES:
1. Square footage area shown is for information only and surveyor does not certify accuracy
of survey to nearest square foot.
2. This metes and bounds description is referenced to a survey drawing prepared by Cobb,
Fendley & Associates, Inc. dated June 13, 2013, titled ''LAND TITLE SURVEY OF
TRACT 1, 17.3705 ACRES, LA PORTE OUTLOTS SUBDIVISION, RICHARD
PEARSALL SURVEY, A-625, HARRIS COUNTY, TEXAS".
Cobb, Fendley & Associates, Inc.
13430 Northwest Freeway, Suite l 100
Houston, Texas 77040
Phone: (713) 462-3242
JobNo. 1310-004-01-01
June 13,2013
30
EXHIBITB
PUBLIC IMPROVEMENTS
31
LA PORTE -BEAZER DEVELOPMENT
PRELIMINARY COST ESTIMATE
Wednesday, November 20, 2013
ITEM ITEM Ql'Se.._IFl'.ION UNIT UNIT
NO. PRICE" QTY
L s 5 4 s
LF s 1.00 1.735 s
LF s 55.GO 1,103 s
i....F s 85.00 381 s
LF s 82.00 251 $
EA s 4,000.00 12
EA s 2.500.00 12
EA s 1,500.00 2
EA s 1.000.00 2
AC s 3,500.00 0.4
1 1. 0
2 s 25.00
3 12" C~SOO PVC Water Line Re uired per Cit LF s 31.00
4 12" CL 200. D. I. Gate Valve EA s 2.100.00
5 8" CL 200, D.1. Gate Valve EA s 1.100.00
6 8" Bore LF s 90.00
7 16" Bore LF s 250.00 67
8 Site Pre ration AC s 3,500.00 0.8
9 16"x8" TSllV EA s 10,000.00 1
10 Blo...v off Valve EA $ 2.000.00 1
11 12"x12"TSllV EA s 7.000.00 1
12 Floshin. Valve Assembl• EA s 3,900.00 5
SUBTOTAL WATER LINE
1 LF s 1.00 3,268 s
2 EA s 4.200.00 27 s
3 LF s 35.00 3,268 s
4 EA $ 1,650.00 37 s
5 EA s 600.00 37 s
6 AC s 3,500.00 0.8 s
7 LF s 3.85 3.268 s
8 EA s 1.500.00 2 s
LF s 200.00 82 s s
EA s 65.00 12 s
LF s 1.50 3.166 s
EA s 50.00 24 s
EA $ 2,500.00 s
LS s 1.500.00 s
AC s 1.500.00 3 s
AC $ 750.00 12.1 $ s
LS s 41,453.16 1 s
LS s 5.000.00 2 s
SY s 3.50 1050 s
AC s 1.500.00 5.3 s
LF s 1.50 3150 s
EA s 65.00 4 s
CY s 5.00 35600 s
EA s 5,000.00 2 s
EA s 10.000.00 2 s
em orced Extreme Event Overf!.cw SWale CY s 300.00 10 s
LS s 550.000.00
SUBTOTAL DETENTION:
5% CONTINGENC
DETENTION ENGINEERIN
32
1 s
$
,II •
42.4S5.50
17,335.50
14,407.40
33,600.00
21,000.00
2.100.00
1,400.00
1.029.00
161 888.68
546.00
3,324.30
840.00
1.750.00
1,050.00
161.888.68
244,233.36
123.396.00
17,217.55
546 735.59
27.336.78
59.024.00
633 096.37
SUBTOTAL AMIEHITY
LA PORTE ·BEAZER DEVELOPMENT
PRELIMINARY COST ESTIMATE
10% CONTINGENCY
TOTAL AMEHITY
REIMBURSEMENTS
33
s
I
•"" ~: -J\"• ., ·, .,.
,:..:, (:<"· ... ,.,,,
·'· !
:•.:-.:en
416.860 I
...!;• r~~"·
.&G.686 I
548.220 I
:-:.j :\X ;, '" '·' .. ~I:-[, ;.•
4.:, :1J
: ~-~).'.-.. , ,..
'· ·"-( ·:· .. :.• ...
'.'.t.~· K( ~' :,;.·Y! ..... ............ cc:.; ''•'"·'"'''
.1··~ .r. r'·' ....
'48,220
EXHIBITC
CERTIFICATE OF ADVANCE
This Certificate is issued under that certain Development Agreement (the "Development
Agreement"), by and among the City of La Porte, Texas (the "City"), the La Porte
Redevelopment Authority (the "Authority''), Reinvestment Zone Number One, City of La Porte,
Texas (the "Zone"), and Beazer Homes Texas, LP (the "Developer"), dated ,
2013. 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 JPMorgan Chase Bank as described in the Development Agreement for the period
described in 6.l(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.
34
AGREEDTOthis ___ day of. _____ _, 20 .
LAPORTE
REDEVELOPMENT AUTHORITY
By: _____________ _
Name:
Title: Chairman, Board of Directors
ATTEST:
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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the __ day of. ___ _
20 .
(SEAL)
Notary Public in and for
The State of Texas
35
ATTEST:
By: _________ _
Name:.~~~~~~~~~~
Title: Secretary, Board of Directors
THESTATEOFTEXAS §
§
COUNTY OF HARRIS §
REINVESTMENT WNE NUMBER ONE,
CITY OF LA PORTE
By:.~~~~~~~~~~~~~~~
N ame: ~~~~~~~~~~~~~~~
Title: Chairman, Board of Directors
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. ___ _
20 .
(SEAL)
Notary Public in and for
The State of Texas
36
BEAZER HOMES TEXAS, LP
By:·----------~~~-N ame: ______________ _
Title: _______________ _
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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the __ day of" ___ _
20 .
(SEAL)
Notary Public in and for
The State of Texas
37