HomeMy WebLinkAboutC2024-096 - 5/21/2024 - Approved PARTICIPATION AGREEMENT
For Effluent Waterline Improvements
Per Texas Local Government Code 212.071
This PARTICIPATION AGREEMENT ("Agreement") is entered into between the City of Corpus
Christi ("City"), a Texas home-rule municipal corporation, acting by and through its City
Manager, or designee, and Ashlar Interests, LLC, ("Developer"), a Texas limited liability
company, to be effective as of April 23, 2024 (the "Effective Date"). The City and the Developer
are individually referred to as a "Party" and collectively as the "Parties."
WHEREAS the Developer, acting solely on behalf of Diamond Beach Holdings, LLC
(the "Owner"), desires to develop and plat the property designated on Exhibit 1 of this
Agreement (the "Property"), which exhibit is attached to and incorporated in this Agreement by
reference;
WHEREAS, the Property lies within Reinvestment Zone Number Two, City of Corpus
Christi, Texas (the "Zone") established by Ordinance No. 024270 adopted by the City Council
on November 14, 2000 in accordance with the Tax Increment Financing Act, Texas Tax Code
Chapter 311, as amended; and. the Property also lies within the Whitecap Public Improvement
District No 1 (the "PID") created by Resolution No. 032761 approved by the City Council on
May 17, 2022, and recorded in the real property records of Nueces County as Instrument No.
2022024701 on May 20, 2022;
WHEREAS, in connection with the development of the Property for the master-planned
project to be known as "Whitecap" (the "Project"), the Developer and the City have entered
into: (1) that certain "1st Amended and Restated TIRZ #2 Development Reimbursement
Agreement — Whitecap," effective as of April 28, 2023 as amended on January 23, 2024 (the
"TIRZ Reimbursement Agreement"), (2)that certain "Development Agreement Whitecap North
Padre Island," effective December 12, 2023 (the "Development Agreement"), and (3) that
certain "PID Reimbursement Agreement — Whitecap Public Improvement District No. 1,"
effective[February 20, 2024] (the"PID Reimbursement Agreement"and together with the TIRZ
Reimbursement Agreement and Development Agreement collectively referred to as the
"Whitecap Agreements");
WHEREAS, as part of the development of the Project in accordance with the Whitecap
Agreements, the Developer is required to complete certain improvements necessary for
access to recycled water (the "Effluent Improvements") set forth in Exhibit 2, which exhibit is
attached to and incorporated in this Agreement by reference;
WHEREAS, the construction of the Effluent Improvements will provide additional
effluent capacity for neighboring properties adjacent to the Project, including City property;
WHEREAS, the Effluent Improvements implement City initiatives including, but not
limited to, water conservation and encouraging further development in the area;
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SCANNED
WHEREAS, it is in the best interests of the City to have the Effluent Improvements
installed by the Developer in conjunction with the Project;
WHEREAS, Section 212.071 of the Texas Local Government Code authorizes a
municipality to make a contract with a developer of a subdivision or land in the municipality to
construct public improvements related to the subdivision or land; and
WHEREAS, this Agreement is made pursuant to Section 212.071 & 212.072 of the
Texas Local Government Code;
NOW, THEREFORE, in order to provide a coordinated Effluent Improvement project,
the City and the Developer agree as follows:
Section 1. RECITALS. The Parties agree that the language contained in the preamble of this
Agreement is substantive in nature, is incorporated into this Agreement by reference, and has
been relied on by both Parties in entering into and executing this Agreement.
Section 2. DEVELOPER PARTICIPATION.
a. The Developer shall construct the Effluent Improvements set forth in Exhibit 2 for and
on behalf of the City in accordance with the plans and specifications approved in
advance of construction by the City Engineer on behalf of the City, provided, however,
the Parties agree that repair and/or rehabilitation of the existing effluent line may be
required instead of or in addition to the improvements detailed on Exhibit 2, and in that
case, such repair and/or rehabilitation shall be considered a part of the "Effluent
Improvements" for purposes of this Agreement. Upon inspection, approval and/or
acceptance of the Effluent Improvements, or each segment thereof, and subject to the
terms of this Agreement, the Developer will be reimbursed for the cost of such Effluent
Improvements. If any portion of the Effluent Improvements set forth in Exhibit 2 are not
constructed, then the Developer will submit an addendum to the plans and
specifications for work that has not been performed for approval by the City Engineer.
b. Based on the Plans and Specifications, which are based on preliminary engineering and
are subject to change, the Parties acknowledge and confirm the total cost estimate for
construction of the Effluent Improvements is $1,500,000.00, which represents 100% of
the cost of the oversizing of the effluent line. Subject to the limitations set forth below,
the Developer shall pay the costs of construction of the Effluent Improvements, up to
$1,500,000.00. Further, subject to the limitations set forth below, the City shall
reimburse the costs of construction of the Effluent Improvements, up to $1,500,000.00.
c. The City hereby grants to Developer and Owner, and their respective contractors,
agents and employees, a non-exclusive temporary license to enter upon any portion of
City-owned property reasonably required to complete construction of the Effluent
Improvements in accordance with the terms, provisions, and conditions of this
Agreement. Additionally, the Parties shall make commercially reasonable efforts to
execute and deliver (or cause to be executed and delivered) utility easements and any
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other necessary easements, in a form reasonably acceptable to the City Attorney and
at no additional cost to the City, sufficient to allow the City access to the Property for
purposes of construction, maintenance and repair of the Effluent Improvements as may
be applicable.
Section 3. REIMBURSEMENT.
a. The City shall reimburse the Developer the City's agreed cost of the Effluent
Improvements after the Improvements have been completed and are inspected and
approved or accepted. However, if such acceptance has not occurred, then, in lieu
thereof, Developer shall provide reasonable written evidence to the City that all matters
necessary to have been undertaken in order to obtain such acceptance, except for the
passage of time for any required maintenance period, have occurred, and this
reasonable written evidence provided by Developer for reimbursement is approved by
the City. Prior to reimbursement, Developer must submit to the City a final invoice for
the work performed with cost-supporting documentation. The invoice must be paid by
the City no later than thirty (30) days following receipt of the invoice. Such
reimbursement will be made payable to the Developer at the address shown in Section
12 of this Agreement.
b. Cost-supporting documentation to be submitted shall include:
1. Summary of Costs and Work Performed Form provided by the Development
Services Department; and
2. Contractor and professional services invoices detailing work performed.
All disbursements shall provide evidence of payment by the Developer or Owner, as
applicable, through a cancelled check or bank ACH.
Section 4. PERFORMANCE BOND. Developer's contractor shall, before beginning the work that
is the subject of this Agreement, furnish a performance bond payable to the City of Corpus Christi if the
contract is in excess of$100,000 and a payment bond if the contract is in excess of$50,000. Bonds
furnished must meet the requirements of Texas Insurance Code 3503, Texas Government Code 2253,
and all other applicable laws and regulations. The performance or payment bond must name the City
as an obligee. If the Owner is not an obligor, then Owner shall be named as a joint obligee. The bond
must clearly and prominently display on the bond or on an attachment to the bond:
(1) the name, mailing address, physical address, and telephone number, including the area
code, of the surety company to which any notice of claim should be sent; or
(2) the toll-free telephone number maintained by the Texas Department of Insurance under
Subchapter B, Chapter 521, Insurance Code, and a statement that the address of the surety
company to which any notice of claim should be sent may be obtained from the Texas
Department of Insurance by calling the toll-free telephone number.
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Section 5. CONSTRUCTION CONTRACT DOCUMENTS. Developer shall submit standard
construction contract documents to the City's Director of Engineering Services for review and
approval in advance of beginning any construction of the Effluent Improvements, including
addendums.
Section 6. INSPECTIONS. Throughout construction, the City shall conduct periodic
inspections and either approve the progress of the Effluent Improvements or promptly notify
the Developer in writing of any defect, deficiency, or other non-approved condition in the
progress of the Effluent Improvements.
Section 7. WARRANTY. The Developer shall fully warranty the workmanship and construction
of the Effluent Improvements for a period of one year from and after the date of
approval/acceptance of the improvements by the City.
Section 8. INDEMNIFICATION.
Developer covenants to fully indemnify, save, and hold harmless the City
of Corpus Christi, its officers, employees, and agents (the "Indemnitees")
against any and all liability, damage, loss, claims, demands, suits, and
causes of action of any nature whatsoever asserted against or recovered
from Indemnitees on account of injury or damage to the person including,
without limitation of the foregoing, workers' compensation, personal injury,
and death claims, or property loss or damage of any other kind whatsoever,
to the extent that any injury, damage, or loss may be incident to, arise out
of, be caused by, or be in any way connected with, either proximately or
remotely, wholly or in part, the construction, installation, existence,
operation, use, maintenance, repair, restoration, or removal of the public
improvements associated with the platting and construction of the Effluent
Improvements during the period of construction, excluding any errors,
omissions, or willful misconduct, or negligent act or omission of the
Indemnitees, and including all expenses of litigation, court costs, and
reasonable attorneys' fees which arise, or are claimed to arise, out of or in
connection with the asserted or recovered incident. This indemnity
survives termination of this Agreement.
Section 9. DEFAULT. The following events shall constitute default:
1. Developer fails to submit plans and specifications for the Effluent Improvements to the
Director of Engineering Services in advance of construction.
2. Developer does not reasonably pursue construction of the Effluent Improvements under
the approved plans and specifications.
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3. Developer fails to complete construction of the Effluent Improvements, under the
approved plans and specifications, on or before the expiration of 24 calendar months
measured from the date this document is executed by the City, except that the time for
completion may be extended upon written approval of the City Manager, or designee.
4. Either the City or the Developer otherwise fails to comply with its duties or obligations
under this Agreement.
Section 10. NOTICE AND CURE.
1. In the event of a default by either Party under this Agreement, the non-defaulting Party
shall deliver notice of the default, in writing, to the defaulting Party stating, in sufficient
detail, the nature of the default and the requirements to cure such default.
2. After delivery of the default notice, the defaulting Party has sixty (60) days from the
delivery of the default notice ("Cure Period") to cure the default, or if such default cannot
be cured by reasonably diligent efforts within sixty (60) days, both Parties may agree to
extend the Cure Period in writing.. Notwithstanding the foregoing, the Cure Period for a
monetary default (i.e., non-payment) shall not exceed thirty (30) days.
3. In the event the default is not cured by the defaulting Party within the Cure Period, then
the non-defaulting Party may pursue its remedies in this Section.
4. In the event of an uncured default by the Developer, after the appropriate notice and
Cure Period, the City has all its common law remedies and the City may:
a. Terminate this Agreement after the required notice and opportunity to cure the
default;
b. Refuse to record a related plat or issue any certificate of occupancy for any structure
to be served by the project; and/or
c. Perform any obligation or duty of the Developer under this Agreement and charge
the cost of such performance to the Developer. The Developer shall pay to the City the
reasonable and necessary cost of the performance within thirty (30) days from the date
the Developer receives notice of the cost of performance. In the event the Developer
pays the City under the preceding sentence and is not otherwise in default under this
Agreement, then the Agreement shall be considered in effect and no longer in default.
5.In the event of an uncured default by the City after the appropriate notice and Cure Period,
the Developer has all its remedies at law or in equity for such default.
Section 11. FORCE MAJEURE.
Each Party shall use good faith, due diligence, and reasonable care in the performance of
its respective obligations under this Agreement, and time shall be of the essence in such
performance; however, in the event a Party is unable, due to a Force Majeure Event
(defined below), to perform its obligations under this Agreement, then the obligations of
such Party (the "Impacted Party") affected by the Force Majeure Event shall be temporarily
suspended. Within ten (10) business days after the occurrence of a Force Majeure Event,
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the Party claiming the right to temporarily suspend its performance, shall give Notice to all
the Parties, including a detailed explanation of the Force Majeure Event and a description
of the action that will be taken to remedy the Force Majeure Event and resume full
performance at the earliest possible time. The term "Force Majeure Event" shall include
events or circumstances that are not within the reasonable control of the Party whose
performance is suspended and that could not have been avoided by such Party with the
exercise of good faith, due diligence, and reasonable care, including specifically: (a) acts
of God; (b) natural disasters, such as flood, fire, hurricane, earthquake, severe weather
events, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is
declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order,
law, or actions; (e)embargoes, or blockades in effect on or after the date of this Agreement;
(f) national or regional emergency; (g) strikes, organized labor activities, including but not
limited to labor stoppages or slowdowns; (h) restraints or delays impacting power, storage,
transportation or supplies, including, but not limited to, telecommunication breakdowns,
power outages or shortages, lack of warehouse or storage space, inadequate
transportation services, or inability or delay in obtaining supplies of adequate or suitable
materials; (i) any other similar events or circumstances beyond the reasonable control of
the Impacted Party or (j) any unreasonable delays of the City, either in its capacity as a
governmental entity with respect to actions related to the development and construction of
the Project Improvements, such as the granting of permits or conducting inspections, or in
its capacity as a Party to this Agreement with respect to its obligations under this Agreement
(which unreasonable delays are not due to a Force Majeure Event as described in clauses
(a)-(i) above; provided, that in no event shall the obligation to make a payment be
considered a Force Majeure Event.
Section 12. NOTICES.
1. All notices required or contemplated by this Agreement (or otherwise given in
connection with this Agreement) (a "Notice") must be in writing, shall be signed by or on
behalf of the Party giving the Notice, and shall be effective as follows: (a) on or after the
3rd business day after being deposited with the United States mail service, Certified Mail,
Return Receipt Requested with a confirming copy sent by E-mail; (b) on the day delivered
by a private delivery or private messenger service (such as FedEx or UPS) as evidenced
by a receipt signed by any person at the delivery address (whether or not such person is
the person to whom the Notice is addressed); or(c) otherwise on the day actually received
by the person to whom the Notice is addressed, including, but not limited to, delivery in
person and delivery by regular mail (with a confirming copy sent by E-mail). Notices given
pursuant to this section shall be addressed as follows:
If to the City: If to the Developer:
City of Corpus Christi Ashlar Interests, LLC
Attn: Asst. City Manager, Attn: Steve Yetts
Economic Development 400 Las Colinas Blvd E, Ste. 1075
1201 Leopard Street/ 78401 Irving, Texas 75039
P. O. Box 9277 / 78469-9277
Corpus Christi, Texas
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2. Either Party may change the address for notices by giving notice of the change, in
accordance with the provisions of this Section, within five (5) business days of the change.
Section 13. PROJECT CONTRACTS. Developer's contracts with the professional engineer
for the preparation of the plans and specifications for the construction of the Effluent
Improvements, contracts for testing services, and contracts with the contractor for the
construction of the Effluent Improvements must provide that the City is a third party beneficiary
of each contract.
Section 14. DISCLOSURE OF INTEREST. In compliance with City of Corpus Christi
Ordinance No. 17112, the Developer agrees to complete the Disclosure of Interests form.
Section 15. CERTIFICATE OF INTERESTED PARTIES. Submitted herewith a completed
Form 1295 Certificate of Interested Parties generated by the Texas Ethics Commission's (the
"TEC') electronic filing application in accordance with the provisions of Section 2252.908 of the
Texas Government Code and the rules promulgated by the TEC (the "Form 1295"). The City
hereby confirms receipt of the Form 1295 from the Developer, and the City agrees to
acknowledge such form with the TEC through its electronic filing application not later than the
30th day after the receipt of such form. The Parties understand and agree that, with the
exception of information identifying the City and the contract identification number, neither the
City nor its consultants are responsible for the information contained in the Form 1295; that
the information contained in the Form 1295 has been provided solely by the Developer; and,
neither the City nor its consultants have verified such information.
Section 16. INTERPRETATION. The Parties acknowledge that each of them has been actively
involved in negotiating this Agreement. Accordingly, the rule of construction that any
ambiguities are to be resolved against the drafting Party will not apply to interpreting this
Agreement. In the event of any dispute over the meaning or application of any provision of
this Agreement, the provision will be interpreted fairly and reasonably and neither more
strongly for nor against any Party, regardless of which Party originally drafted the provision.
Section 17. ENTIRE AGREEMENT; SEVERABILITY. The Whitecap Agreements constitute
the entire agreement between the Parties and supersede all prior agreements, whether oral or
written, covering the subject matter of this Agreement. This Agreement shall not be modified
or amended except in writing signed by the Parties. If any provision of this Agreement is
determined by a court of competent jurisdiction to be unenforceable for any reason, such
unenforceable provision shall be deleted from this Agreement, and the remainder of this
Agreement shall remain in full force and effect and shall be interpreted to give effect to the
intent of the Parties. In the event there is a conflict between the terms and provisions of this
Agreement and any of the Whitecap Agreements, the applicable terms and provisions of the
applicable Whitecap Agreements shall apply.
Section 18. NON-WAIVER. Any failure by a Party to insist upon strict performance by another
Party of any material provision of this Agreement shall not be deemed a waiver thereof, and
the Party shall have the right at any time thereafter to insist upon strict performance of any and
all provisions of this Agreement. No provision of this Agreement may be waived except by
writing signed by the Party waiving such provision. Any waiver shall be limited to the specific
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purposes for which it is given. No waiver by any Party of any term or condition of this
Agreement shall be deemed or construed to be a waiver of any other term or condition or
subsequent waiver of the same term or condition.
Section 19. NO THIRD-PARTY BENEFICIARIES. This Agreement only inures to the benefit
of, and may only be enforced by, the Parties. No other person or entity shall have any right,
title, or interest under this Agreement or otherwise be deemed to be a third-party beneficiary
of this Agreement.
Section 20. STATUTORY VERIFICATIONS. The Developer makes the following
representations and covenants pursuant to Chapters 2252, 2271, 2274, and 2276, Texas
Government Code, as amended, in entering into this Agreement (the "Verifications"). As used
in such Verifications, the Developer understands 'affiliate' to mean an entity that controls, is
controlled by, or is under common control with the Developer within the meaning of SEC Rule
405, 17 C.F.R. § 230.405, and exists to make a profit. Liability for breach of any such
Verifications during the term of this Agreement shall survive until barred by the applicable
statute of limitations, notwithstanding anything contained in this Agreement to the contrary.
a. No Boycott of Israel. The Developer hereby verifies that it and its parent company,
wholly- or majority-owned subsidiaries, and other affiliates, if any, do not boycott Israel and
will not boycott Israel during the term of this Agreement. As used in the foregoing
verification, 'boycott Israel,' has the meaning in Section 2271.001, Texas Government
Code, by reference to Section 808.001(1), Texas Government Code, and means refusing
to deal with, terminating business activities with, or otherwise taking any action that is
intended to penalize, inflict economic harm on, or limit commercial relations specifically with
Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory,
but does not include an action made for ordinary business purposes.
b. Iran, Sudan and Foreign Terrorist Organizations. The Developer represents that neither
it nor any of its parent company, wholly- or majority-owned subsidiaries, and other affiliates
is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code,
as amended. The foregoing representation excludes the Developer and each of its parent
company, wholly-or majority-owned subsidiaries, and other affiliates, if any, that the United
States government has affirmatively declared to be excluded from its federal sanctions
regime relating to Sudan or Iran or any federal sanctions regime relating to a foreign
terrorist organization.
c. No Discrimination Against Fossil Fuel Companies. The Developer hereby verifies that it
and its parent company, wholly- or majority-owned subsidiaries, and other affiliates, if any,
do not boycott energy companies and will not boycott energy companies during the term of
this Agreement. As used in the foregoing verification, "boycott energy companies" has the
meaning in Section 2276.001(1), Texas Government Code, by reference to Section
809.001, Texas Government Code, and means, without an ordinary business purpose,
refusing to deal with, terminating business activities with, or otherwise taking any action
that is intended to penalize, inflict economic harm on, or limit commercial relations with a
company because the company (A) engages in the exploration, production, utilization,
transportation, sale, or manufacturing of fossil fuel-based energy and does not commit or
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pledge to meet environmental standards beyond applicable federal and state law; or (B)
does business with a company described by (A) above.
d. No Discrimination Against Firearm Entities and Firearm Trade Associations. The
Developer hereby verifies that it and its parent company, wholly- or majority-owned
subsidiaries, and other affiliates, if any, do not have a practice, policy, guidance, or directive
that discriminates against a firearm entity or firearm trade association and will not
discriminate against a firearm entity or firearm trade association during the term of this
Agreement. As used in the foregoing verification and the following definitions:
i. 'discriminate against a firearm entity or firearm trade association,' has the
meaning in Section 2274.001(3), Texas Government Code, and means: (A) with
respect to the firearm entity or firearm trade association, to (i) refuse to engage in
the trade of any goods or services with the firearm entity or firearm trade association
based solely on its status as a firearm entity or firearm trade association, (ii) refrain
from continuing an existing business relationship with the firearm entity or firearm
trade association based solely on its status as a firearm entity or firearm trade
association, or(iii) terminate an existing business relationship with the firearm entity
or firearm trade association based solely on its status as a firearm entity or firearm
trade association, and (B) does not include: (i) the established policies of a
merchant, retail seller, or platform that restrict or prohibit the listing or selling of
ammunition, firearms, or firearm accessories and (ii) a company's refusal to engage
in the trade of any goods or services, decision to refrain from continuing an existing
business relationship, or decision to terminate an existing business relationship (aa)
to comply with federal, state, or local law, policy, or regulations or a directive by a
regulatory agency or (bb) for any traditional business reason that is specific to the
customer or potential customer and not based solely on an entity's or association's
status as a firearm entity or firearm trade association;
ii. 'firearm entity,' has the meaning in Section 2274.001(6), Texas Government
Code, and means a manufacturer, distributor, wholesaler, supplier, or retailer of
firearms (defined in Section 2274.001(4), Texas Government Code, as weapons that
expel projectiles by the action of explosive or expanding gases), firearm accessories
(defined in Section 2274.001(5), Texas Government Code, as devices specifically
designed or adapted to enable an individual to wear, carry, store, or mount a firearm
on the individual or on a conveyance and items used in conjunction with or mounted
on a firearm that are not essential to the basic function of the firearm, including
detachable firearm magazines), or ammunition (defined in Section 2274.001(1),
Texas Government Code, as a loaded cartridge case, primer, bullet, or propellant
powder with or without a projectile) or a sport shooting range (defined in Section
250.001, Texas Local Government Code, as a business establishment, private club,
or association that operates an area for the discharge or other use of firearms for
silhouette, skeet, trap, black powder, target, self-defense, or similar recreational
shooting); and
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iii. 'firearm trade association,' has the meaning in Section 2274.001(7), Texas
Government Code, and means any person, corporation, unincorporated association,
federation, business league, or business organization that (i) is not organized or
operated for profit (and none of the net earnings of which inures to the benefit of any
private shareholder or individual), (ii) has two or more firearm entities as members,
and (iii) is exempt from federal income taxation under Section 501(a), Internal
Revenue Code of 1986, as an organization described by Section 501(c) of that
code."
Section 21. PUBLIC INFORMATION. Notwithstanding any other provision to the contrary in
this Agreement, all information, documents, and communications relating to this Agreement
may be subject to the Texas Public Information Act and any opinion of the Texas Attorney
General or a court of competent jurisdiction relating to the Texas Public Information Act. The
requirements of Subchapter J, Chapter 552, Texas Government Code, may apply to this
Agreement and the Developer agrees that this Agreement may be terminated if the Developer
knowingly or intentionally fails to comply with a requirement of that subchapter, if applicable,
and the Developer fails to cure the violation on or before the 10th business day after the date
the City provides notice to Developer of noncompliance with Subchapter J, Chapter 552.
Pursuant to Section 552.372, Texas Government Code, Developer is required to preserve all
contracting information related to this Agreement as provided by the records retention
requirements applicable to the City for the duration of this Agreement; promptly provide to the
City any contracting information related to this Agreement that is in the custody or possession
of the Developer on request of the City; and on completion of the Agreement, either provide at
no cost to the City all contracting information related to the contract that is in the custody or
possession of the entity or preserve the contracting information related to the contract as
provided by the records retention requirements applicable to the City.
Section 22. AMENDMENTS. Any amendment of this Agreement must be in writing and shall
be effective if signed by the authorized representatives of both Parties.
Section 23. APPLICABLE LAW; VENUE. This Agreement shall be construed in accordance
with Texas law. Venue for any action arising hereunder shall be in Nueces County, Texas.
Section 24. AUTHORITY. Each Party represents and warrants that it has the full right, power
and authority to execute this Agreement.
Section 25. INDEPENDENT CONTRACTOR. Developer covenants and agrees that it is an
independent contractor, and not an officer, agent, servant or employee of City; that Developer
shall have exclusive control of and exclusive right to control the details of the work performed
hereunder and all persons performing same, and shall be liable for the acts and omissions of
its officers, agents, employees, contractors, subcontractors and consultants; that the doctrine
of respondent superior shall not apply as between City and Developer, its officers, agents,
employees, contractors, subcontractors and consultants, and nothing herein shall be
construed as creating a partnership or joint enterprise between City and Developer.
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Section 26. NON-APPROPRIATION. The continuation of this Agreement after the close of
any fiscal year of the City, which fiscal year ends on September 30th annually, is subject to
appropriations and budget approval specifically covering this Agreement as an expenditure in
said budget, and it is within the sole discretion of the City's City Council to determine whether
or not to fund this Agreement for a given fiscal year. The City does not represent that this
budget item will be adopted for a given fiscal year, as said determination is within the City
Council's sole discretion when adopting each budget. Notwithstanding the foregoing, so long
as funds are earmarked for the Effluent Improvements under the TIRZ Reimbursement
Agreement, then this Agreement, and the City's obligation to fund this Agreement, shall
continue until Developer has been reimbursed for the Effluent Improvements.
Section 27. TERM. This Agreement becomes effective, is binding upon, and inures to the
benefit of the City and the Developer from and after the Effective Date. This Agreement expires
(a) 24 calendar months from the date this document is executed by the City, and (b) the date
on which Developer has been reimbursed for the Effluent Improvements, unless terminated
earlier in accordance with the provisions of this Agreement, or extended upon written approval
of the City Manager, or designee.
Section 28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and constitute one and the same
instrument.
Section 29. FURTHER DOCUMENTS. Each Party shall, upon request of the other Party,
execute and deliver such further documents and perform such further acts as may
reasonably be requested to effectuate the terms of this Agreement and achieve the intent of
the Parties.
Section 30. EXHIBITS. The following Exhibits are attached to this Agreement and are
incorporated herein for all purposes:
Exhibit 1 Metes and Bounds Description of the Property
Exhibit 2 Effluent Improvements Exhibit
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EXECUTED in one original this 3�5 day of tv\OkT , 2024.
ATTEST: CITY OF CORPUS CHRISTI
(/112V..
Rebecca Huerta Heather Hurlbert
City Secretary Assistant City Manager
City of Corpus Christi
XA-0Y0 AU I Ntittlis.,
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SECRE'TAEY
APP'OVED AS TO FORM:
I 0 /ice_
J: •u,,re S. Bazan, Assistant ity Attorney
Ashlar/Whitecap
Effluent Participation Agreement Page 12 of 15
1156.011\937401.16
DEVELOPER: Ashlar Interests, LLC, a Texas limited liability company
4 a"Mt PA
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Steve Yetts,
Marrager
Ashlar Interests, LLC
Ashlar/Whitecap
Effluent Participation Agreement Page 13 of 15
1156.011\937401.16
EXHIBIT 1
METES AND BOUNDS DESCRIPTION OF THE PROPERTY
Metes and Bounds Description of the Property
(approximately 242.011 acres)
242.011 acres being all of a 39.692 acre tract referenced and described by metes & bounds in
Substitute Trustee's Deed, Doc. No. 2017050832,Official Records, Nueces County,Texas,said
39.692 acre tract being out of Tract 27C and 27D of the Padre Island - Corpus Christi Island
Fairway Estates, hereafter referred to as P.I.C.C.I.F.E., Lots 27C and 27D, a map of which is
recorded in Vol.67,Pg.779,Map Records, Nueces County,Texas;and 202.319 acres referenced
in Correction Warranty Deed, Doc. No. 2018045542, Official Records, Nueces County, Texas,
and described by metes&bounds of a 28.629 acre tract (Tract 1), a 72.316 acre tract (Tract 2),
a 74.440 acre tract (Tract 3), and a 30.684 acre tract(Tract 4),save & except 3.749 acres, said
3.749 acres being a portion of a 60-foot wide street tract, also known as 'Aquarius Street Re-
Alignment', recorded in Doc. No. 2011039226, Official Records, Nueces County, Texas; said
202,319 acres including portions of Tract 27C and 27D of P.I.C.C.I.F.E., Lots 27C and 27D, a
map of which is recorded in Vol, 67, Pg. 779,Map Records, Nueces County,Texas; a portion of
P.I.C.C.I.F.E., Blocks 45&46,a map of which is recorded in Vol. 42, Pg. 153-154, Map Records,
Nueces County,Texas;a portion of P.I.C.C.I.F.E., Block 3,a map of which is recorded in Vol.40,
Pg. 145-146, Map Records, Nueces County, Texas; all of P.I.C.C.I.F.E., Blocks 37, 38, 39, and
40,a map of which is recorded in Vol.41, Pg. 128,Map Records, Nueces County,Texas;a portion
of P.I.C.C.I.F.E., Blocks 24-33,a map of which is recorded in Vol.40, Pg. 154-159,Map Records,
Nueces County, Texas; a portion of P.I.C.C.I.F.E., Blocks 43&44,a map of which is recorded in
Vol. 42, Pg. 10-11, Map Records, Nueces County, Texas; and portions of P.I.C.C.I.F.E., Blocks
34,35,and 36,a map of which is recorded in Vol.40,Pg.183-184,Map Records, Nueces County,
Texas,said Blocks 26,35,36,43,44,and a portion of Block 34 now vacated as per plat recorded
in Vol. 67, Pg. 688, Map Records, Nueces County,Texas.
Ashlar/Whitecap Effluent Participation Agreement
EXHIBIT 1
1156.011\937401.16
EXHIBIT 2
EFFLUENT IMPROVEMENTS EXHIBIT
PROSPECTIVE WI-IRE "CA„° " '
T.I.R.Z. No. 2 I I` -[/ / C P,ILESTOION AT WHITECAP WW
PROJECTS NE 3
�\ \ DESIGN OF NEW PIPES&
PS
EFFLUENT FROM W,W, .TF! � . INSTALL TALL NEW PUMPS FOR
7 i� 191- �. EFFLUENT FORCEMAIN
/\ INSTALL FORCFMAIN PIPING
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♦CONDITION ASSESSMENT OF EXISTING IiTZTTTI". 11■ ,) �'LLIf ,� �:�'�
EFFLUENT INFRASTRUCTURE I 11111 1,M111! - f , • Ij
PRESSURE TESTING OF EXISTING �• ■ ■ -
10"EFFLUENT FORCEMAIN si6[iliii■ -- -.1 'I41 7�
• POINT REPAIRS OF EXISTING 10" Iaas -�• `��^( ',(
EFFLUENT FORCEMAIN Plit.4111I1 Q /wi ,� ,.
• ASSESSMENT OF EFFLUENT LIFT rape T-; * �y
STATION AT WHITECAP WWTP ta§ INV'1—' I +'V
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MILESTONE 2' i1111= IM _ 1 - M1 1 M 1 ®'1(SEPARATE T.I.R.Z.NO.2 Ii
CONNECTION TO PROPOSED nal 1 -I. M1MM M_. In Ell.AG"NI PROJECT) �,
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TEXAS ENGINEERING FIRM F-1386 0 400 e00' /'100�-1600.',�—I', -�G'1 L_____ y
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IJA ENGINEERING.Ins. 5350 S.Staples Street.Suite 475,Corpus Ch,sti.Taw„78411 phone: 361.991.6550 f0.: 361.887 8655 w..(.1A.com
Ashlar/Whitecap Effluent Participation Agreement
EXHIBIT 2
1156.011\937401.16