HomeMy WebLinkAboutC2024-051 - 2/20/2024 - Approved PID Reimbursement Agreement
Whitecap Public Improvement District No. 1
This PID Reimbursement Agreement (this "Agreement") is entered into by Ashlar
Interests,LLC(the "Developer")and the City of Corpus Christi Texas(the "City"),to be effective
Romottic ,2024(the "Effective Date").The Developer and the City are individually referred to
as a "Party" and collectively as the "Parties."
SECTION 1. RECITALS
1.1 WHEREAS, capitalized terms used in this Agreement shall have the meanings given to
them in Section 2;
1.2 WHEREAS, unless otherwise defined: (1)all references to "sections" shall mean sections
of this Agreement;(2)all references to "exhibits" shall mean exhibits to this Agreement which are
incorporated as part of this Agreement for all purposes; and (3) all references to "ordinances" or
"resolutions" shall mean ordinances or resolutions adopted by the City Council;
1.3 WHEREAS,the Developer is a Texas limited liability company;
1.4 WHEREAS,the City is a Texas home-rule municipality;
1.5 WHEREAS, on May 17, 2022, the City Council passed and approved the PID Creation
Resolutiorl authorizing the creation of the PID pursuant to the Act, covering approximately
242.011 contiguous acres within the City's corporate limits, which land is described in the PID
Creation Resolution;
1.6 WHEREAS, on February 20, 2024,the City Council passed and approved an Assessment
Ordinance related to Improvement Area#1 of the PID;
1.7 WHEREAS, the City Council expects to pass and approve additional Assessment
Ordinances related to other phases of development in the PID in the future as such phases are
developed;
1.8 WHEREAS, each Assessment Ordinance approves the SAP, including each Assessment
Roll attached thereto;
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SCANNED
1.9 WHEREAS, the SAP identifies Authorized Improvements to be designed, constructed,
and installed by or at the direction of the Parties that confer a special benefit on the Assessed
Property;
1.10 WHEREAS,the SAP sets forth the Actual Costs of the Authorized Improvements;
1.11 WHEREAS,the Assessed Property is being developed in phases or"Improvement Areas;"
1.12 WHEREAS, this Agreement shall apply to all Improvement Areas and no additional
reimbursement agreement shall be required for Improvement Areas to be developed in the future
following the initial phase of development constituting "Improvement Area#1";
1.13 WHEREAS, the SAP determines and apportions the Actual Costs of the Authorized
Improvements to the Assessed Property,which Actual Costs represent the special benefit that the
Authorized Improvements confer upon the Assessed Property as required by the Act;
1.14 WHEREAS, in each Assessment Ordinance the City levied or expects to levy a portion of
the Actual Costs of the Authorized Improvements as Assessments against the Assessed Property
in the amounts set forth on the Assessment Roll(s);
1.15 WHEREAS, Assessments, including the Annual Installments thereof, are or will be due
and payable once levied as described in the SAP;
1.16 WHEREAS, Assessments, including the Annual Installments thereof, shall be billed and
collected by the City or its designee;
1.17 WHEREAS,the Parties agree the City's obligations to reimburse the Developer for Actual
Costs of Authorized Improvements constructed for the benefit of any Improvement Area are: (1)
contingent upon the City levying Assessments against property within such Improvement Area
benefitting from the Authorized Improvements, (2) payable solely from the Assessments,
including the Annual Installments of such Assessments,collected from Assessed Property within
such Improvement Area, and (3) not due and owing unless and until the City actually adopts an
Assessment Ordinance levying such Assessments;
1.18 WHEREAS, Assessment Revenue from the collection of Assessments, including the
Annual Installments thereof, shall be deposited(1)as provided in the applicable Indenture if PID
Bonds secured by such Assessments are issued, or (2) into the PID Reimbursement Fund if no
such PID Bonds are issued or none of such PID Bonds remain outstanding;
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1.19 WHEREAS,Bond Proceeds shall be deposited as provided in the applicable Indenture;
1.20 WHEREAS,a PID Project Fund related to each series of PID Bonds shall only be used in
the manner set forth in the applicable Indenture;
1.21 WHEREAS, this Agreement is a "reimbursement agreement" authorized by
Section 372.023(d)(1)of the Act;
1.22 WHEREAS, the foregoing RECITALS: (1) are part of this Agreement for all purposes;
(2)are true and correct; (3)create obligations of the Parties (unless otherwise stated therein or in
the body of this Agreement), and (4) each Party has relied upon such Recitals, each of which are
incorporated as part of this Agreement for all purposes, in entering into this Agreement; and
1.23 WHEREAS, all resolutions and ordinances referenced in this Agreement (e.g., the PID
Creation Resolution, Development Agreement, and each Assessment Ordinance), together with
all other documents referenced in this Agreement (e.g., the SAP and each Indenture), are
incorporated as part of this Agreement for all purposes as if such resolutions, ordinances, and
other documents were set forth in their entirety in or as exhibits to this Agreement.
NOW THEREFORE, for and in consideration of the mutual obligations of the Parties set forth in
this Agreement,the Parties agree as follows:
SECTION 2. DEFINITIONS
2.1 "Act" is defined as Chapter 372, Texas Local Government Code, as amended.
2.2 "Actual Costs" are defined in the SAP.
2.3 "Administrator" is defined in the SAP.
2.4 "Agreement" is defined in the introductory paragraph.
2.5 "Annual Collection Costs" are defined in the SAP.
2.6 "Annual Installment" is defined in the SAP.
2.7 "Applicable Laws" means the Act and all other laws or statutes, rules, or regulations of the
State of Texas or the United States, as the same may be amended, by which the City and its powers,
securities, operations, and procedures are, or may be, governed or from which its powers may be
derived.
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2.8 "Assessed Property" is defined in the SAP.
2.9 "Assessment" is defined in the SAP.
2.10 "Assessment Ordinance" is defined in the SAP.
2.11 "Assessment Revenue" means the revenues actually received by or on behalf of the City from
any one or more of the following: (1) an Assessment levied against Assessed Property, or Annual
Installment payment thereof, including any interest on such Assessment or Annual Installment during
any period of delinquency, (2)a Prepayment, and(3)foreclosure proceeds.
2.12 "Assessment Roll" is defined in the SAP.
2.13 "Authorized Improvements" are defined in the SAP.
2.14 "Bond Proceeds" mean the proceeds derived from the issuance and sale of[a series of] PID
Bonds that are deposited and made available to pay Actual Costs in accordance with the applicable
Indenture.
2.15 "Certificate for Payment" means a certificate (substantially in the form of Exhibit A or as
otherwise approved by the Developer and the City Representative)executed by a representative of the
Developer and approved by a City Representative, delivered to a City Representative (and/or, if
applicable, to the trustee named in any applicable Indenture), specifying the work performed and the
amount charged (including materials and labor costs) for Actual Costs, and requesting payment of
such amount from the appropriate fund or funds. Each certificate shall include supporting
documentation in the standard form for City construction projects and evidence that each Authorized
Improvement(or its completed segment) covered by the certificate has been inspected by the City.
2.16 "Change Order" is defined in Section 3.12.
2.17 "City" is defined in the introductory paragraph.
2.18 "City Council" means the governing body of the City.
2.19 "City Representative" means any person authorized by the City Council to undertake the
actions referenced herein.
2.20 "Closing Disbursement Request" means a request in the form of Exhibit B or as otherwise
approved by the Parties.
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2.21 "Commitment" is defined in Section 3.10.
2.22 "Cost Underrun" is defined in Section 3.11.
2.23 "County" is defined in the SAP.
2.24 "Default" is defined in Section 4.8.1.
2.25 "Delinquent Collection Costs" are defined in the SAP.
2.26 "Developer" is defined in the introductory paragraph.
2.27 "Developer Advances" mean advances made by the Developer to pay Actual Costs.
2.28 "Developer Improvement Account" means an account of the PID Project Fund which may be
created and established under the applicable Indenture(and segregated from all other funds contained
in the PID Project Fund) into which the City deposits, or directs the applicable trustee to deposit,any
funds received from the Developer as required under such Indenture.
2.29 "Development Agreement" is defined in the SAP.
2.30 "Effective Date" is defined in the introductory paragraph.
2.31 "Failure" is defined in Section 4.8.1.
2.32 "Improvement Area" is a phase of development defined and described by metes and bounds in
the SAP..
2.33 "Improvement Area#1" is defined in the SAP.
2.34 "Indenture" means the applicable trust indenture pursuant to which PID Bonds are issued.
2.35 "Maturity Date" is the date one year after the last Annual Installment is collected.
2.36 "Party" and "Parties" are defined in the introductory paragraph.
2.37 'PID" is defined as the Whitecap Public Improvement District No. 1, created by the PID
Creation Resolution.
2.38 'PID Bonds" are defined in the SAP.
2.39 'PID Creation Resolution" is defined as Resolution No. 032761 passed and approved by the
City Council on May 17, 2022, and recorded in the official public records of Nueces County, Texas,
as Instrument No. 2022024701 on May 20, 2022.
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2.40 "PID Pledged Revenue Fund"means,collectively,the fund established by the City under each
applicable Indenture (and segregated from all other funds of the City) into which the City deposits
Assessment Revenue securing PID Bonds issued and still outstanding.
2.41 "PID Project Fund" means, collectively, the fund, including all accounts created within such
fund, established by the City under each applicable Indenture (and segregated from all other funds of
the City)into which the City deposits Bond Proceeds in the amounts and as described in the applicable
Indenture.
2.42 "PID Reimbursement Fund" means the fund, including all accounts created within such fund
to designate Assessment Revenues collected from each Improvement Area, to be established by the
City under this Agreement (and segregated from all other funds of the City) held by the City or the
City's designee into which the City deposits Assessment Revenue if not deposited into the PID Pledged
Revenue Fund.
2.43 "Prepayment" is defined in the SAP.
2.44 "Reimbursement Agreement Balance" is defined in Section 3.3.
2.45 "SAP" is defined as the Whitecap Public Improvement District Service and Assessment Plan
approved February 20, 2024, as part of the Assessment Ordinance adopted by the City Council on
February 20,2024 and recorded in the official public records of Nueces County, Texas as Instrument
No. 'aDaL1(1)5 51 t on PlwpAt23120 at{, as the same may be updated or amended by City
Council action in accordance with the Act.
2.46 "Transfer" and "Transferee" are defined in Section 4.11.
SECTION 3. FUNDING AUTHORIZED IMPROVEMENTS
3.1 Fund Deposits. Until PID Bonds payable from Assessment Revenue collected from a specific
Improvement Area of the development are issued,the City shall bill,collect,and immediately deposit
into the PID Reimbursement Fund all Assessment Revenue consisting of: (1) revenue collected from
the payment of Assessments (including pre-payments and amounts received from the foreclosure of
liens but excluding costs and expenses related to collection); and (2) revenue collected from the
payment of Annual Installments (excluding Annual Collection Costs and Delinquent Collection
Costs). Unless and until PID Bonds payable from Assessment Revenue collected from a specific
Improvement Area of the development are issued, funds in the PID Reimbursement Fund shall be
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deposited into a segregated account relating to the Improvement Area from which such Assessment
Revenue was collected and such funds shall only be used to pay Actual Costs of the Authorized
Improvements benefitting that Improvement Area or all or any portion of the Reimbursement
Agreement Balance related to that Improvement Area in accordance with this Agreement.
Once PID Bonds payable from Assessment Revenue collected from a specific Improvement Area of
the development are issued, the City shall bill, collect, and immediately deposit all Assessment
Revenue collected from that Improvement Area that secure such series of PID Bonds in the manner
set forth in the applicable Indenture. The City shall also deposit Bond Proceeds and any other funds
authorized or required by the applicable Indenture in the manner set forth in the applicable Indenture.
Annual Installments shall be billed and collected by the City(or by any person,entity,or governmental
agency permitted by law) in the same manner and at the same time as City ad valorem taxes are billed
and collected. Funds in the PID Project Fund shall only be used in accordance with the applicable
Indenture;provided that funds disbursed from the applicable PID Project Fund pursuant to Section 3.5
below shall be made first from Bond Proceeds held in the applicable accounts within such PID Project
Fund until such accounts are fully depleted and then from the Developer Improvement Account of the
applicable PID Project Fund, if applicable. Subject to Section 3.6 below, the Actual Costs of
Authorized Improvements within each Improvement Area shall be paid from: (1) the Assessment
Revenue collected solely from Assessments levied on the property within such Improvement Area
benefitting from such Authorized Improvements and on deposit in the PID Reimbursement Fund; or
(2)net Bond Proceeds or other amounts deposited in an account of the PID Project Fund created under
an Indenture related to PID Bonds secured by Assessment Revenue collected solely from Assessments
levied on benefitted property within such Improvement Area.The City will take and pursue all actions
permissible under Applicable Laws to cause the Assessments to be collected and the liens related to
such Assessments to be enforced continuously, in the manner and to the maximum extent permitted
by the Applicable Laws, and, to the extent permitted by Applicable Laws, to cause no reduction,
abatement or exemption in the Assessments for so long as any PID Bonds are outstanding or a
Reimbursement Agreement Balance remains outstanding. The City shall determine or cause to be
determined, no later than February 15 of each year whether any Annual Installment is delinquent. If
such delinquencies exist, then the City will order and cause to be commenced as soon as practicable
any and all appropriate and legally permissible actions to obtain such Annual Installment, and any
delinquent charges and interest thereon, including diligently prosecuting an action to foreclose the
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currently delinquent Annual Installment;provided, however,the City shall not be required under any
circumstances to purchase or make payment for the purchase of the delinquent Assessment or the
corresponding Assessed Property or to use any City funds, revenues,taxes, income, or property other
than moneys collected from the Assessments for the payment of Actual Costs of Authorized
Improvements under this Agreement. Once PID Bonds are issued, the applicable Indenture shall
control in the event of any conflict with this Agreement.
3.2 Payment of Actual Costs. Subject to Section 3.6 below, if PID Bonds are not issued (or prior
to such issuance)to pay Actual Costs of Authorized Improvements,the Developer may elect to make
Developer Advances to pay Actual Costs. If PID Bonds are issued, the Bond Proceeds shall be used
in the manner provided in the applicable Indenture; and, except as may be required under the
Development Agreement and/or an applicable Indenture, the Developer shall have no obligation to
make Developer Advances for the related Authorized Improvements, unless the Bond Proceeds,
together with any other funds in the PID Project Fund or PID Reimbursement Fund, are insufficient
to pay the Actual Costs of such Authorized Improvements, in which case the Developer shall make
Developer Advances to pay the deficit. If Developer Advances are required in connection with the
issuance of a series of PID Bonds, then such Developer Advances may be reduced by the amount of
payments of Actual Costs of the Authorized Improvements (or portions thereof) to be financed by
such PID Bonds that the Developer has previously paid if(1) the Developer submits to the City all
information related to such costs that would be required by a Closing Disbursement Request at least
five(5)days prior to the pricing date of such PID Bonds, and(2)the City approves such Actual Costs
in writing.The Developer shall also make Developer Advances to pay for cost overruns(after applying
cost savings). The lack of Bond Proceeds or other funds in the PID Project Fund shall not diminish
the obligation of the Developer to pay Actual Costs of the Authorized Improvements.
3.3 Payment of Reimbursement Agreement Balance. Subject to the terms, conditions, and
requirements of this Agreement,including Section 3.6 hereof,The City agrees to pay to the Developer,
and the Developer shall be entitled to receive payments from the City,until the Maturity Date,for the
lesser of: (a)amounts shown on each approved Certificate for Payment for Actual Costs of Authorized
Improvements paid by or at the direction of the Developer, and(b)the reimbursement amount shown
in Schedule I of the SAP plus: (1) simple interest on the unpaid principal balance at a rate equal to or
less than five percent (5%) above the highest average index rate for tax-exempt bonds reported in a
daily or weekly bond index shown on Schedule I of the SAP that was approved by the City Council
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of the City and reported in the month before the date the obligation is incurred(which date is the date
of approval by the City of the Assessment Ordinance levying the Assessments from which the
Reimbursement Agreement Balance, or a portion thereof, shall be paid) for years one through five
beginning on the date each Certificate for Payment is delivered to the City Representative; and (2)
simple interest on the unpaid principal balance at a rate equal to or less than two percent(2%) above
the highest average index rate for tax-exempt bonds reported in a daily or weekly bond index reported
in the month before the date the obligation was incurred (which date is the same as the approval by
the City of the Assessment Ordinance levying the Assessments from which the Reimbursement
Agreement Balance, or a portion thereof, shall be paid) for years six and later (the unpaid principal
balance,together with accrued but unpaid interest,owed the Developer for all Certificates for Payment
is referred to as the "Reimbursement Agreement Balance"); provided, however, upon the issuance of
PID Bonds,the interest rate due and unpaid on amounts shown on each Certificate for Payment to be
paid to the Developer shall be the lower of: (1)the interest rate on such series of PID Bonds issued to
finance the costs of the Authorized Improvements for which the Certificate for Payment was filed,or
(2)the interest rate approved by the City Council of the City in the Assessment Ordinance levying the
Assessments from which the Bonds shall be paid. The interest rates set forth in Schedule I of the SAP
shall be approved by the City Council in each Assessment Ordinance as authorized by the Act. The
principal amount of each portion of the Reimbursement Agreement Balance to be paid under each
Assessment Ordinance, and the interest rate for such portion of the Reimbursement Agreement
Balance, shall be shown on Schedule I attached to the SAP and Schedule I is incorporated as a part of
this Agreement for all purposes. Interest shall accrue on each Reimbursement Agreement Balance
from the later of: (1) final plat approval as evidenced by recording the final plat in the real property
records of the County, and (2) the levy of Assessments securing such Reimbursement Agreement
Balance.As the City passes and approves additional Assessment Ordinances and/or issues PID Bonds,
the City shall approve an updated Schedule I as part of the updated or amended SAP for the sole
purpose of showing the principal amount of the portion of the Reimbursement Agreement to be paid
under such newly-adopted Assessment Ordinance and any adjustments to the interest rate for such
portion of the Reimbursement Agreement Balance if applicable. Such updated Schedule I attached to
the SAP shall automatically be incorporated as part of this Agreement for all purposes as if attached
hereto without any further action from the Parties.
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The Reimbursement Agreement Balance is payable solely from: (1)the PID Reimbursement Fund if
no PID Bonds are issued for the purposes of paying the Authorized Improvements related to such
Reimbursement Agreement Balance, or(2)from PID Bond Proceeds.No other City funds,revenues,
taxes, income,or property shall be used even if the Reimbursement Agreement Balance is not paid in
full by the Maturity Date. All payments made from Bond Proceeds shall be made in the manner set
forth in the applicable Indenture. So long as no PID Bonds are issued and the City has received and
approved a Certificate for Payment, the City shall make payments to the Developer toward the
Reimbursement Agreement Balance related to each Improvement Area from Assessment Revenue
collected from such Improvement Area (excluding the portion of each Assessment, or Annual
Installment thereof, collected for Annual Collection Costs) and deposited in the PID Reimbursement
Fund. Such payments shall be in an amount not to exceed the Assessment Revenue (excluding the
portion of each Assessment, or Annual Installment thereof, collected for Annual Collection Costs)
related to such Improvement Area on deposit in the PID Reimbursement Fund; and, such payments
shall be made at least annually and no later than 60 days after the date payment of the Annual
Installments are due and payable to the City. In the event that a Prepayment of an Assessment is made
prior to the issuance of PID Bonds,the City shall remit payment to the Developer of an amount of the
Reimbursement Agreement Balance then due and payable not to exceed the Assessment Revenue
related to such Prepayment from the Assessment Revenue deposited into the PID Reimbursement
Fund within 60 days after the Prepayment is made.Each payment from the PID Reimbursement Fund
shall be accompanied by an accounting that certifies the Reimbursement Agreement Balance as of the
date of the payment and that itemizes all deposits to and disbursements from the fund since the last
payment.
Approval of a Certificate for Payment and all payments under this Agreement are predicated on: (1)
the Developer constructing and installing, or the City acquiring (if applicable), the Authorized
Improvements (or portion thereof) shown on each Certificate for Payment as required under the
Development Agreement; (2)the Developer providing the necessary supporting documentation in the
standard form for City construction projects; and (3) the City's inspection of each Authorized
Improvement(or portion thereof) covered by each Certificate for Payment;provided, however, in no
event shall the City Representative be authorized to approve a Certificate for Payment if the City has
not previously levied an Assessment against Assessed Property within an Improvement Area related
to and benefitting from the Authorized Improvements for which such Certificate for Payment has been
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submitted. If there is a dispute over the amount of any payment, the City shall nevertheless pay the
undisputed amount, and the Parties shall use all reasonable efforts to resolve the disputed amount
before the next payment is made; however, if the Parties are unable to resolve the disputed amount,
then the City's determination of the disputed amount(as approved by the City Council) shall control.
Notwithstanding anything to the contrary in this Agreement, the City shall be under no obligation to
reimburse the Developer for Actual Costs of any Authorized Improvement that is not accepted by the
City.
The City's obligation to reimburse the Reimbursement Agreement Balance related to the Authorized
Improvements for a particular Improvement Area constructed for the benefit of the Assessed Property
within such Improvement Area is: (1)contingent upon the City levying Assessments against property
within such Improvement Area benefitting from the Authorized Improvements, (2) payable solely
from the Assessments, including the Annual Installments of such Assessments, collected from
Assessed Property within such Improvement Area,and(3)not due and owing unless and until the City
actually adopts an Assessment Ordinance levying such Assessments.
3.4 PID Bonds. The City, in its sole, legislative discretion, may issue PID Bonds, in one or more
series,when and if the City Council determines it is financially feasible for the purposes of:(1)paying
all or a portion of the Reimbursement Agreement Balance; or (2) paying directly Actual Costs of
Authorized Improvements. PID Bonds issued for such purpose will be secured by and paid solely as
authorized by the applicable Indenture. Upon the issuance of PID Bonds for such purpose and for so
long as PID Bonds remain outstanding, the Developer's right to receive payments each year in
accordance with Section 3.3 shall be subordinate to the deposits required under the applicable
Indenture related to any outstanding PID Bonds and the Developer shall be entitled to receive funds
pursuant to the flow of funds provisions of such Indenture. The failure of the City to issue PID Bonds
shall not constitute a "Failure" by the City or otherwise result in a "Default" by the City. Upon the
issuance of the PID Bonds, the Developer has a duty to construct those Authorized Improvements as
described in the SAP and the Development Agreement.The Developer shall not be relieved of its duty
to construct or cause to be constructed such improvements even if there are insufficient funds in the
PID Project Fund to pay the Actual Costs. This Agreement shall apply to all PID Bonds issued by the
City whether in one or more series, and no additional reimbursement agreement shall be required for
future series of PID Bonds.
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3.5 Disbursements and Transfers at and after Bond Closing.The City and the Developer agree that
from the proceeds of the PID Bonds, and upon the presentation of evidence satisfactory to the City
Representative,the City will cause the trustee under the applicable Indenture to pay at closing of the
PID Bonds approved amounts from the appropriate account to the persons entitled to payment for
costs of issuance and payment of costs incurred in the establishment,administration, and operation of
the PID and any other costs incurred by the Developer and the City as of the time of the delivery of
the PID Bonds as described in the SAP. In order to receive disbursement,the Developer shall execute
a Closing Disbursement Request to be delivered to the City no less than five (5) days prior to the
pricing date for the applicable series of PID Bonds for payment in accordance with the provisions of
the Indenture. In order to receive additional disbursements from any applicable fund under an
Indenture,the Developer shall execute a Certificate for Payment,no more frequently than monthly,to
be delivered to the City for payment in accordance with the provisions of the applicable Indenture and
this Agreement. Upon receipt of a Certificate for Payment (along with all accompanying
documentation required by the City) from the Developer, the City shall conduct a review in order to
confirm that such request is complete, to confirm that the work for which payment is requested was
performed in accordance with all Applicable Laws and applicable plans therefore and with the terms
of this Agreement and any other agreement between the parties related to property in the PID, and to
verify and approve the Actual Costs of such work specified in such Certificate for Payment. The City
shall also conduct such review as is required in its discretion to confirm the matters certified in the
Certificate for Payment. The Developer agrees to cooperate with the City in conducting each such
review and to provide the City with such additional information and documentation as is reasonably
necessary for the City to conclude each such review. The Developer further agrees that if the City
provides to the Developer a sales tax exemption certificate then sales tax will not be approved for
payment under a Certification for Payment. Within fifteen(15)business days following receipt of any
Certificate for Payment, the City shall either: (1) approve the Certificate for Payment and forward it
to the trustee for payment, or(2)provide the Developer with written notification of disapproval of all
or part of a Certificate for Payment, specifying the basis for any such disapproval. Any disputes shall
be resolved as required by Section 3.3 herein.The City shall deliver the approved or partially approved
Certificate for Payment to the trustee for payment, and the trustee shall make the disbursements as
quickly as practicable thereafter.
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3.6 Obligations Limited. The obligations of the City under this Agreement shall not, under any
circumstances, give rise to or create a charge against the general credit or taxing power of the City or
a debt or other obligation of the City payable from any source other than the PID Reimbursement Fund
or the PID Project Fund. The Parties further agree that the City's obligation under this Agreement to
reimburse the Developer for Actual Costs of Authorized Improvements within any Improvement Area
shall only be paid from: (1) net proceeds of PID Bonds, if issued, on deposit in the PID Project Fund
related to such PID Bonds, and/or (2) Assessments, including Annual Installments of such
Assessments, collected from such Improvement Area. The Parties further agree that the City's
obligation under this Agreement to reimburse the Developer for Actual Costs of Authorized
Improvements constructed for the benefit of any Improvement Area is: (1) contingent upon the City
levying Assessments against property within such Improvement Area benefitting from the Authorized
Improvements, (2) payable solely from the Assessments, including the Annual Installments of such
Assessments, collected from Assessed Property within such Improvement Area, and (3) not due and
owing unless and until the City actually adopts an Assessment Ordinance levying such Assessments.
Concurrent with the levy of Assessments against any Improvement Area,the City will: (1)establish a
separate account within the PID Reimbursement Fund relating solely to such Improvement Area, if no
PID Bonds are issued, or(2) establish a separate PID Project Fund under an Indenture if PID Bonds
are issued, out of which the City will pay its obligations related to such Improvement Area;and,until
such time,this Agreement does not create any obligations of the City with respect to any Improvement
Area for which Assessments have not been levied. Unless approved by the City, no other City funds,
revenues, taxes, or income of any kind shall be used to pay: (1) the Actual Costs of the Authorized
Improvements; (2) the Reimbursement Agreement Balance even if the Reimbursement Agreement
Balance is not paid in full on or before the Maturity Date; or(3)debt service on any PID Bonds.None
of the City or any of its elected or appointed officials or any of its officers, employees, consultants or
representatives shall incur any liability hereunder to the Developer or any other party in their
individual capacities by reason of this Agreement or their acts or omissions under this Agreement.
3.7 Obligation to Pay. Subject to the provisions of Section 3.3 and 3.6, if the Developer is in
substantial compliance with its obligations under the Development Agreement, then following the
inspection and approval of any portion of Authorized Improvements for which Developer seeks
reimbursement of the Actual Costs by submission of a Certificate for Payment or City approval of a
Closing Disbursement Request, the obligations of the City under this Agreement to pay from
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Assessment Revenue or the net proceeds of PID Bonds, as applicable, disbursements (whether to the
Developer or to any person designated by the Developer) identified in any Closing Disbursement
Request or in any Certificate for Payment and to pay debt service on PID Bonds are unconditional
AND NOT subject to any defenses or rights of offset except as may be provided in any Indenture.
3.8 City Delegation of Authority. All Authorized Improvements shall be constructed by or at the
direction of the Developer in accordance with the plans,the Development Agreement,applicable City
ordinances and regulations, and with this Agreement and any other agreement between the parties
related to property in the PID. The Developer shall perform, or cause to be performed, all of its
obligations and shall conduct,or cause to be conducted,all operations with respect to the construction
of Authorized Improvements in a good, workmanlike and commercially reasonable manner, with the
standard of diligence and care normally employed by duly qualified persons utilizing their
commercially reasonable efforts in the performance of comparable work and in accordance with
generally accepted practices appropriate to the activities undertaken. The Developer has sole
responsibility of ensuring that all Authorized Improvements are constructed in accordance with the
Development Agreement and in a good,workmanlike and commercially reasonable manner,with the
standard of diligence and care normally employed by duly qualified persons utilizing their
commercially reasonable efforts in the performance of comparable work and in accordance with
generally accepted practices appropriate to the activities undertaken. The Developer shall employ at
all times adequate staff or consultants with the requisite experience necessary to administer and
coordinate all work related to the design, engineering, acquisition, construction and installation of all
Authorized Improvements to be acquired and accepted by the City from the Developer. If any
Authorized Improvements are or will be on land owned by the City, the City hereby grants to the
Developer a license to enter upon such land for purposes related to construction (and maintenance
pending acquisition and acceptance) of the Authorized Improvements. Inspection and acceptance of
Authorized Improvements will be in accordance with applicable City ordinances and regulations.
3.9 Security for Authorized Improvements. Prior to completion and conveyance to the City of any
Authorized Improvements, the Developer shall cause to be provided to the City a maintenance bond
in the amount required by the City's subdivision regulations for applicable Authorized Improvements,
which maintenance bond shall be for a term of two years from the date of final acceptance of the
applicable Authorized Improvements.Any surety company through which a bond is written shall be a
surety company duly authorized to do business in the State of Texas, provided that legal counsel for
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the City has the right to reject any surety company regardless of such company's authorization to do
business in Texas. Nothing in this Agreement shall be deemed to prohibit the Developer or the City
from contesting in good faith the validity or amount of any mechanics or materialman's lien and/or
judgment nor limit the remedies available to the Developer or the City with respect thereto so long as
such delay in performance shall not subject the Authorized Improvements to foreclosure, forfeiture,
or sale. In the event that any such lien and/or judgment with respect to the Authorized Improvements
is contested,the Developer shall be required to post or cause the delivery of a surety bond or letter of
credit, whichever is preferred by the City, in an amount reasonably determined by the City, not to
exceed 120 percent of the disputed amount.
3.10 Ownership and Transfer of Authorized Improvements. If requested in writing by the City,
Developer shall furnish to the City a commitment for title insurance(a"Commitment")for land related
to the Authorized Improvements to be acquired and accepted by the City from the Developer and not
previously dedicated or otherwise conveyed to the City. The Commitment shall be made available for
City review and must be approved at least fifteen(15)business days prior to the scheduled transfer of
title. The City agrees to approve the Commitment unless it reveals a matter which, in the reasonable
judgment of the City, would materially affect the City's use and enjoyment of the Authorized
Improvements. If the City objects to any Commitment, the City shall not be obligated to accept title
to the applicable Authorized Improvements until the Developer has cured the objections to the
reasonable satisfaction of the City.
3.11 Remaining Funds After Completion of an Authorized Improvement. Within any applicable
Improvement Area, upon the final completion of an Authorized Improvement within such
Improvement Area and payment of all outstanding invoices for such Authorized Improvement, if the
Actual Cost of such Authorized Improvement is less than the budgeted cost as shown in Exhibit
to the SAP (a"Cost Underrun"), any remaining budgeted cost will be available to pay Cost Overruns
on any other Authorized Improvement within such Improvement Area. A City Representative shall
promptly confirm to the Administrator (as defined in the SAP) that such remaining amounts are
available to pay such Cost Overruns,and the Developer,the Administrator and the City Representative
will agree how to use such moneys to secure the payment and performance of the work for other
Authorized Improvements. Any Cost Underrun for any Authorized Improvement is available to pay
Cost Overruns on any other Authorized Improvement and may be added to the amount approved for
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payment in any Certificate for Payment,as agreed to by the Developer,the Administrator and the City
Representative.
3.12 Contracts and Change Orders.The Developer shall be responsible for entering into all contracts
and any supplemental agreements(herein referred to as"Change Orders")required for the construction
of an Authorized Improvement. The Developer or its contractors may approve and implement any
Change Orders even if such Change Order would increase the Actual Cost of an Authorized
Improvement, but the Developer shall be solely responsible for payment of any Cost Overruns
resulting from such Change Orders except to the extent amounts are available pursuant to Section 3.12
hereof. If any Change Order is for work that requires changes to be made by an engineer to the
construction and design documents and plans previously approved under the Development Agreement,
then such revisions made by an engineer must be submitted to the City for approval by the City's
engineer prior to execution of the Change Order.
SECTION 4. ADDITIONAL PROVISIONS
4.1 Term. The term of this Agreement shall begin on the Effective Date and shall continue
until the earlier to occur of the Maturity Date or the date on which the Reimbursement Agreement
Balance is paid in full.
4.2 No Competitive Bidding. Construction of the Authorized Improvements shall not require
competitive bidding pursuant to Section 252.022(a) (9) of the Texas Local Government Code, as
amended. All plans and specifications, but not construction contracts, shall be reviewed and
approved, in writing, by the City prior to Developer selecting the contractor. The City, at its
election made prior to the Developer entering into a construction contract, shall have the right to
examine and approve the contractor selected by the Developer prior to executing a construction
contract with the contractor,which approval shall not be unreasonably delayed or withheld.
4.3 Independent Contractor. In performing this Agreement, the Developer is an independent
contractor and not the agent or employee of the City.
4.4 Audit.The City Representative shall have the right,during normal business hours and upon
five(5)business days'prior written notice to the Developer,to review all books and records of the
Developer pertaining to costs and expenses incurred by the Developer with respect to any of the
Authorized Improvements. For a period of two years after completion of the Authorized
Improvements, the Developer shall maintain proper books of record and account for the
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1156.011\801090.6
construction of the Authorized Improvements and all costs related thereto. Such accounting books
shall be maintained in accordance with customary real estate accounting principles.The Developer
shall have the right, during normal business hours, to review all records and accounts pertaining
to the Assessments upon written request to the City. The City shall provide the Developer an
opportunity to inspect such books and records relating to the Assessments during the City's regular
business hours and on a mutually agreeable date no later than ten(10)business days after the City
receives such written request. The City shall keep and maintain a proper and complete system of
records and accounts pertaining to the Assessments for so long as PID Bonds remain outstanding
or Reimbursement Agreement Balance remains unpaid.
4.5 Developer's Right to Protest Ad Valorem Taxes. Nothing in this Agreement shall be
construed to limit or restrict Developer's right to protest ad valorem taxes. The Developer's
decision to protest ad valorem taxes on Assessed Property does not constitute a Default under this
Agreement.
4.6 PID Administration and Collection of Assessments. The Administrator shall have the
responsibilities provided in the SAP related to the duties and responsibilities of the administration
of the PID, and the City shall provide the Developer with a copy of the agreement between the
City and the Administrator. If the City contracts with a third-party for the collection of Annual
Installments of the Assessments, the City shall provide the Developer with a copy of such
agreement. For so long as PID Bonds remain outstanding or the Reimbursement Agreement
Balance remains unpaid, the City shall notify the Developer of any change of administrator or
third-party collection of the Assessments.
4.7 Representations and Warranties.
4.7.1 The Developer represents and warrants to the City that: (1) the Developer has the
authority to enter into and perform its obligations under this Agreement;(2)the Developer has
the financial resources, or the ability to collect sufficient financial resources, to meet its
obligations under this Agreement; (3) the person executing this Agreement on behalf of the
Developer has been duly authorized to do so;(4)this Agreement is binding upon the Developer
in accordance with its terms; and (5)the execution of this Agreement and the performance by
the Developer of its obligations under this Agreement do not constitute a breach or event of
default by the Developer under any other agreement, instrument, or order to which the
Developer is a party or by which the Developer is bound.
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1156.011\801090.6
4.7.2 The City represents and warrants to the Developer that: (1) the City has the
authority to enter into and perform its obligations under this Agreement; (2) the person
executing this Agreement on behalf of the City has been duly authorized to do so; (3) this
Agreement is binding upon the City in accordance with its terms; and(4)the execution of this
Agreement and the performance by the City of its obligations under this Agreement do not
constitute a breach or event of default by the City under any other agreement, instrument, or
order to which the City is a party or by which the City is bound.
4.8 Default/Remedies.
4.8.1 If either Party fails to perform an obligation imposed on such Party by this
Agreement (a "Failure") and such Failure is not cured after notice and the expiration of the
cure periods provided in this section,then such Failure shall constitute a"Default."If a Failure
is monetary, the non-performing Party shall have ten (10) days within which to cure. If the
Failure is non-monetary,the non-performing Party shall have thirty(30)days within which to
cure.
4.8.2 If the Developer is in Default, the City shall have available all remedies at law or
in equity; provided no default by the Developer shall entitle the City to terminate this
Agreement or to withhold payments to the Developer from the PID Reimbursement Fund or
the PID Project Fund in accordance with this Agreement and the Indenture.
4.8.3 If the City is in Default, the Developer shall have available all remedies at law or
in equity; provided, however, no Default by the City shall entitle the Developer to terminate
this Agreement.
4.8.4 The City shall give notice of any alleged Failure by the Developer to each
Transferee identified in any notice from the Developer, and such Transferees shall have the
right, but not the obligation, to cure the alleged Failure within the same cure periods that are
provided to the Developer. The election by a Transferee to cure a Failure by the Developer
shall constitute a cure by the Developer but shall not obligate the Transferee to be bound by
this Agreement unless the Transferee agrees in writing to be bound.
4.9 Remedies Outside the Agreement.Nothing in this Agreement constitutes a waiver by the City
of any remedy the City may have outside this Agreement against the Developer, any Transferee, or
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1156.011\801090.6
any other person or entity involved in the design, construction, or installation of the Authorized
Improvements. The obligations of the Developer hereunder shall be those of a party hereto and not as
an owner of property in the PID. Nothing herein shall be construed as affecting the City's or the
Developer's rights or duties to perform their respective obligations under other agreements, use
regulations, or subdivision requirements relating to the development property in the PID.
4.10 Estoppel Certificate. From time to time upon written request of the Developer, the City
Manager will execute a written estoppel certificate, in form and substance satisfactory to both Parties
that: (1) identifies any obligations of the Developer under this Agreement that are in default or, with
the giving of notice or passage of time, would be in default; or(2) states,to the extent true,that to the
best knowledge and belief of the City, the Developer is in compliance with its duties and obligations
under this Agreement.
4.11 Transfers. The Developer has the right to convey, transfer, assign, mortgage, pledge, or
otherwise encumber, in whole or in part without the consent of(but with notice to) the City, the
Developer's right,title,or interest to payments under this Agreement(but not performance obligations)
including, but not limited to, any right, title, or interest of the Developer in and to payments of the
Reimbursement Agreement Balance, whether such payments are from the PID Reimbursement Fund
in accordance with Section 3.3 or from Bond Proceeds (any of the foregoing, a "Transfer," and the
person or entity to whom the transfer is made, a "Transferee"); provided, however, that no such
conveyance,transfer,assignment,mortgage,pledge or other encumbrance shall be made without prior
written consent of the City if such conveyance, transfer, assignment, mortgage, pledge or other
encumbrance would result in:(1)the issuance of municipal securities,and/or(2)the City being viewed
as an "obligated person" within the meaning of Rule 15c2-12 of the United States Securities and
Exchange Commission, and/or (3) the City being subject to additional reporting or recordkeeping
duties. Notwithstanding the foregoing, no Transfer shall be effective until notice of the Transfer is
given to the City. The City may rely on notice of a Transfer received from the Developer without
obligation to investigate or confirm the validity of the Transfer. The Developer waives all rights or
claims against the City for any funds paid to a third party as a result of a Transfer for which the City
received notice.
4.12 Applicable Law;Venue.This Agreement is being executed and delivered and is intended to be
performed in the State of Texas. Except to the extent that the laws of the United States may apply,the
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substantive laws of the State of Texas shall govern the interpretation and enforcement of this
Agreement. In the event of a dispute involving this Agreement, venue shall lie in any court of
competent jurisdiction in Nueces County, Texas.
4.13 Notice.Any notice referenced in this Agreement must be in writing and shall be deemed given
at the addresses shown below: (1)when delivered by a nationally recognized delivery service such as
FedEx or UPS with evidence of delivery signed by any person at the delivery address regardless of
whether such person is the named addressee; or (2) 72 hours after deposited with the United States
Postal Service, Certified Mail, Return Receipt Requested.
To the City: Attn: City Manager's Office
City of Corpus Christi
P.O. Gox 9277
Corpus Christi, Texas 78469-9277
E-mail: ElsyB@cctexas.com
With a copy to: Attn: City Attorney's Office
City of Corpus Christi
P.O. Gox 9277
Corpus Christi,Texas 78469-9277
E-mail: MilesR@cctexas.com
To the Developer: Attn: Steve Yetts
Ashlar Interests,LLC
400 Las Colinas Blvd. E., Suite 1075
Irving, Texas 75039
E-mail: syetts@ashlardev.com
With a copy to: Attn: Misty Ventura
Shupe Ventura, PLLC
9406 Biscayne Blvd.
Dallas, Texas 75218
E-mail:misty.ventura@svlandlaw.com
TEL: (214) 328-1101
FAX: (800) 519-3768
Any Party may change its address by delivering notice of the change in accordance with this section.
4.14 Conflicts; Amendment. In the event of any conflict between this Agreement and any other
instrument, document, or agreement by which either Party is bound, the provisions and intent of the
applicable Indenture controls. This Agreement may only be amended by written agreement of the
Parties.
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1156.011\801090.6
4.15 Severability.If any provision of this Agreement is held invalid by any court, such holding shall
not affect the validity of the remaining provisions.
4.16 Non-Waiver. The failure by a Party to insist upon the strict performance of any provision of
this Agreement by the other Party, or the failure by a Party to exercise its rights upon a Default by the
other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance
by such other Party with the provisions of this Agreement.
4.17 Third Party Beneficiaries. Nothing in this Agreement is intended to or shall be construed to
confer upon any person or entity other than the City,the Developer, and Transferees any rights under
or by reason of this Agreement. All provisions of this Agreement shall be for the sole and exclusive
benefit of the City,the Developer, and Transferees.
4.18 Counterparts. This Agreement may be executed in multiple counterparts, which, when taken
together, shall be deemed one original.
4.19 Employment of Undocumented Workers. During the term of this Agreement, the Developer
agrees not to knowingly employ any undocumented workers and, if convicted of a violation under 8
U.S.C. Section 1324a(f),the Developer shall repay the incentives granted herein within 120 days after
the date the Developer is notified by the City of such violation, plus interest at the rate of six percent
(6%) compounded annually from the date of violation until paid. Pursuant to Section 2264.101(c),
Texas Government Code, a business is not liable for a violation of Chapter 2264 by a subsidiary,
affiliate, or franchisee of the business, or by a person with whom the business contracts.
4.20 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.
4.21 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
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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.
4.22 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 pledge to
meet environmental standards beyond applicable federal and state law; or (B) does business with a
company described by (A)above.
4.23 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:
(a) '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
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1156.011\801090.6
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;
(b) '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
(c) '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."
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4.24 Affiliate. As used in Sections 4.19 through 4.24,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.
4.25 Texas Attorney General Standing Letter. The Developer represents that it has, as of the
Effective Date,on file with the Texas Attorney General a standing letter addressing the representations
and verifications hereinbefore described in the form attached as Exhibit B to the Updated
Recommendations for Compliance with the Texas BPA Verification and Representation Requirements
(December 1, 2023) of the Municipal Advisory Council of Texas or any other form accepted by the
Texas Attorney General (a "Standing Letter"). In addition, if the Developer or the parent company, a
wholly-or majority-owned subsidiary or another affiliate of the Developer receives or has received a
letter from the Texas Comptroller of Public Accounts or the Texas Attorney General seeking written
verification that the Developer is a member of the Net Zero Banking Alliance, Net Zero Insurance
Alliance, Net Zero Asset Owner Alliance, or Net Zero Asset Managers or of the representations and
certifications contained in the Developer's Standing Letter (a "Request Letter"), the Developer shall
promptly notify the City(if it has not already done so)and provide to the City,two business days prior
to the Effective Date and additionally upon request by the City, written verification to the effect that
its Standing Letter described in the preceding sentence remains in effect and may be relied upon by
the City and the Texas Attorney General(the"Bringdown Verification").The Bringdown Verification
shall also confirm that the Developer(or the parent company,a wholly-or majority-owned subsidiary
or other affiliate of the Developer that received the Request Letter) intends to timely respond or has
timely responded to the Request Letter. The Bringdown Verification may be in the form of an e-mail.
4.26 Form 1295. Submitted herewith is a completed Form 1295 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 system 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.
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1156.011\801090.6
4.27 Changes in Law. The Parties acknowledge and expressly agree that, during the Term, either
Party may take advantage of changes in the law notwithstanding anything to the contrary in this
Agreement.
4.28 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 tenth 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.
[Execution pages follow.]
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1156.011\801090.6
CITY:
CITY OF CORPUS CHRISTI,TEXAS
By:
Paulette Guajardo,Mayo
ATTEST:
By: Or(�.d333Qa,Au1HUl�l+t��+
Rebecca Huerta, City ecretary sY COUNCIL
Lid ;
NMAtfAlf
APPRO -D AS TO FO AND LEGALITY:
By:
h4yo,,)[Assistant] City Attorney [for City Attorney]
CITY SIGNATURE PAGE TO REIMBURSEMENT AGREEMENT-WHITECAP PUBLIC IMPROVEMENT DISTRICT
1156.011\801090.6
DEVELOPER:
ASHLAR I RESTS,LLC
a Texas ' ite liability company
By:
Title: wal
RECEIV'
I
Legal Der.w . „k
DEVELOPER SIGNATURE PAGE TO REIMBURSEMENT AGREEMENT-WHITECAP PUBLIC IMPROVEMENT DISTRICT NO.1
1156.011\801090.6
EXHIBIT A
CERTIFICATE FOR PAYMENT FORM
The undersigned is an agent for Ashlar Interests, LLC (the "Developer") and requests payment
from the applicable account of the [PID Reimbursement Fund] [PID Project Fund] from the City
of Corpus Christi,Texas(the"City")in the amount of for labor,materials,fees,and/or
other general costs related to the creation, acquisition, or construction of certain Authorized
Improvements providing a special benefit to property within the Whitecap Public Improvement
District No. 1.Unless otherwise defined,any capitalized terms used herein shall have the meanings
ascribed to them in the PID Reimbursement Agreement between the City and the Developer,
effective as of , 20_(the "Reimbursement Agreement").
In connection with the above referenced payment, the Developer represents and warrants to the
City as follows:
1. The undersigned is a duly authorized officer of the Developer, is qualified to execute this
Certificate for Payment Form on behalf of the Developer and is knowledgeable as to the matters
set forth herein.
2. The payment requested for the below referenced Authorized Improvements has not been
the subject of any prior payment request submitted for the same work to the City or, if previously
requested, no disbursement was made with respect thereto.
3. The amount listed for the Authorized Improvements below is a true and accurate
representation of the Actual Costs associated with the creation,acquisition,or construction of said
Authorized Improvements, and such costs (i) are in compliance with the Reimbursement
Agreement, and(ii)are consistent with the Service and Assessment Plan.
4. The Developer is in compliance with the terms and provisions of the Reimbursement
Agreement,the Indenture,the Service and Assessment Plan and the Development Agreement.
5. The Developer has timely paid all ad valorem taxes and annual installments of special
assessments it owes or an entity the Developer controls owes, located in the Whitecap Public
Improvement District and has no outstanding delinquencies for such assessments.
6. All conditions set forth in the Indenture(as defined in the Reimbursement Agreement)for
the payment hereby requested have been satisfied.
7. The work with respect to the Authorized Improvements referenced below(or its completed
segment) has been completed, and the City has inspected such Authorized Improvements (or its
completed segment).
EXHIBIT A-PAGE 1
1156.011\801090.6
8. The Developer agrees to cooperate with the City in conducting its review of the requested
payment and agrees to provide additional information and documentation as is reasonably
necessary for the City to complete said review.
9. No more than ninety-five percent(95%)of the budgeted or contracted hard costs for major
improvements or any phase of Authorized Improvements identified may be paid until the work
with respect to such Authorized Improvements(or segment)has been completed and the City has
accepted such Authorized Improvements (or segment). One hundred percent(100%) of soft costs
(e.g.,engineering costs, inspection fees and the like)may be paid prior to City acceptance of such
Authorized Improvements (or segment).
Payments requested are as follows:
a. X amount to Person or Account Y for Z goods or services.
b. Etc.
[If the Authorized Improvements are to be paid in part from one series of PID Bonds and in part
from another, insert the following:
As required by Section of the Indenture, the costs for the Authorized Improvements that
constitutes the pro-rata share of such Authorized Improvements allocable to the designated Bonds
shall be paid as follows:
Amount to be paid Amount to be paid Total Cost
Authorized from from of Authorized
Improvements: Fund Fund Improvements
Attached hereto are receipts, purchase orders, change orders, and similar instruments which
support and validate the above requested payments.Also attached hereto are "bills paid"affidavits
and supporting documentation in the standard form for City construction projects.
Pursuant to the Reimbursement Agreement, after receiving this payment request, the City has
inspected the Authorized Improvements(or completed segment)and confirmed that said work has
been completed in accordance with approved plans and all applicable governmental laws, rules,
and regulations.
EXHIBIT A-PAGE 2
1156.011\801090.6
I hereby declare that the above representations and warranties are true and correct.
ASHLAR INTERESTS,LLC
a Texas limited liability company
By:
Title:
EXHIBIT A-PAGE 3
1156.011\801090.6
APPROVAL OF REQUEST BY CITY
The City is in receipt of the attached Certificate for Payment, acknowledges the Certificate for
Payment,acknowledges that the Authorized Improvements(or its completed segment)covered by
the certificate have been inspected by the City, and otherwise finds the Certificate for Payment to
be in order. After reviewing the Certificate for Payment, the City approves the Certificate for
Payment and shall [include said payments in the City Certificate submitted to the Trustee directing
payments to be made from the appropriate account of the PID Project Fund] [direct payment from
the PID Reimbursement Fund] to the Developer or to any person designated by the Developer.
CITY OF CORPUS CHRISTI,TEXAS
By:
Name:
Title:
Date:
EXHIBIT A-PAGE 4
1156.011\801090.6
Exhibit B
FORM OF CLOSING DISBURSEMENT REQUEST
The undersigned is an agent for (the "Developer") and requests payment to the
Developer (or to the person designated by the Developer) from the Cost of Issuance Account of
the Project Fund from (the "Trustee") in the amount of ($ )
to be transferred from the Cost of Issuance Account of the PID Project Fund upon the delivery of
the PID Bonds for costs incurred in the establishment, administration, and operation of the
Whitecap Public Improvement District No. 1 (the"District"),as follows.Unless otherwise defined,
any capitalized terms used herein shall have the meanings ascribed to them in the Indenture of
Trust by and between the City and the Trustee dated as of , 20_ (the "Indenture")
relating to the [INSERT NAME OF BONDS] (the "PID Bonds").
In connection with the above referenced payment, the Developer represents and warrants to the
City as follows:
1. The undersigned is a duly authorized officer of the Developer, is qualified to execute this
Closing Disbursement Request on behalf of the Developer and is knowledgeable as to the matters
set forth herein.
2. The payment requested for the below referenced establishment, administration, and
operation of the District at the time of the delivery of the PID Bonds have not been the subject of
any prior payment request submitted to the City.
3. The amount listed for the below costs is a true and accurate representation of the Actual
Costs associated with the establishment,administration and operation of the District at the time of
the delivery of the PID Bonds,and such costs are in compliance with the Service and Assessment
Plan.
4. The Developer is in compliance with the terms and provisions of the Reimbursement
Agreement,the Indenture,the Service and Assessment Plan, and the Development Agreement.
5. All conditions set forth in the Indenture and the Reimbursement Agreement for the
payment hereby requested have been satisfied.
6. The Developer agrees to cooperate with the City in conducting its review of the requested
payment and agrees to provide additional information and documentation as is reasonably
necessary for the City to complete said review.
Payments requested hereunder shall be made as directed below:
[Information regarding Payee, amount,and deposit instructions attached]
I hereby declare that the above representations and warranties are true and correct.
EXHIBIT B-PAGE 1
1156.011\801090.6
ASHLAR INTERESTS,LLC
a Texas limited liability company
By:
Title:
EXHIBIT B-PAGE 2
1156.011\801090.6
APPROVAL OF REQUEST BY CITY
The City is in receipt of the attached Closing Disbursement Request, acknowledges the Closing
Disbursement Request,and finds the Closing Disbursement Request to be in order.After reviewing
the Closing Disbursement Request,the City approves the Closing Disbursement Request and shall
include said payments in the City Certificate submitted to the Trustee directing payments to be
made from Costs of Issuance Account upon delivery of the PID Bonds.
CITY OF CORPUS CHRISTI,TEXAS
By:
Name:
Title:
Date:
EXHIBIT B-PAGE 3
1156.011\801090.6