Ordinance No. 13,660ORDINANCE NO. 13660
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AND THE CITY CLERK TO ATTEST TO THE FIRST
AMENDMENT TO THE UTILITY FUNCTIONS AND SERVICES
ALLOCATION AGREEMENT WITH HARRIS COUNTY MUNICIPAL
UTILITY DISTRICT NO. 473; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the City Manager to execute and the City Clerk to attest to the First Amendment to
the Utility Functions and Services Allocation Agreement with Harris County Municipal Utility
District No. 473. A copy of such agreement is attached hereto as Exhibit "A" and incorporated
herein for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown. X7
INTRODUCED, READ and PASSED by the affirmative
City of Baytown this the 14th day of December, 2017.
ATTE T:
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L TICIA BRYSCH, C Clerk 2
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APPROVED AS TO FORM:
NACIO RAMIREZ, S ., ity Attorney
of the City Council of the
DONCARLOS, Mayor
J.cobfsO111ega11Karenv.File§iCity Council.Ordinances\2017\December 14\FirstAmendment2AllocationAgreementwithHCMUD4730idinance.doc
Exhibit "A"
FIRST AMENDMENT
TO UTILITY FUNCTIONS AND SERVICES ALLOCATION AGREEMENT
This First Amendment to Utility Functions and Services Allocation Agreement
(this "Amendment") is made and entered into this _ day of , 2017 (the
"Effective Date") by and between CITY OF BAYTOWN, TEXAS, a municipal
corporation and home -rule city of the State of Texas (the "City"); FULLER
THOMPSON TEN, LTD., a Texas limited partnership (the "Developer"); and HARRIS
COUNTY MUNICIPAL UTILITY DISTRICT NO. 473, a political subdivision of the
State of Texas, created under the authority of Article XVI, Section 59 of the Texas
Constitution and operating under and governed by the provisions of Chapters 49 and
54, Texas Water code, as amended (the "District").
RECITALS
WHEREAS, the City and Burnet Bay, Ltd., (on behalf of the District) (the
"Original Developer") entered into that certain Utility Functions and Services
Allocation Agreement, effective as of August 31, 2005, (the "Agreement"), which details
the terms and conditions pursuant to which the District will acquire for the benefit of
and conveyance to the City the water distribution, wastewater collection, and drainage
facilities needed to serve lands being developed within and near the boundaries of the
District;
WHEREAS, the Original Developer assigned and transferred to the Developer all
of its rights, title and interest in the Agreement;
WHEREAS, the District has been created by order of the Texas Commission on
Environmental Quality dated March 1, 2006, pursuant to Article XVI, Section 59 of the
Texas Constitution and Chapters 49 and 54 of the Texas Water Code, but the District has
not yet held its confirmation election;
WHEREAS, by special legislation codified as Chapter 8250 of the Special District
Local Laws, the District acquired the authority to finance and construct roadways
pursuant to Article III, Section 52 of the Texas;
WHEREAS, the District has held its organizational meeting but not yet held its
confirmation, bond and tax election;
WHEREAS, the District has excluded a portion of the original land included in
the District and the District's current boundaries are more fully described in the metes
and bounds description attached hereto as Exhibit A (the "Tract");
First Amendment to (lie Utility Functions and
Services Allocation Agreement, Page I
WHEREAS, the District has the authority to enter into this First Amendment and
bind the District to the terms hereof; and
WHEREAS, the District, the Developer and the City wish to amend certain terms
of the Agreement and the terms of the Agreement shall remain in full force and effect
except as specifically altered by the terms of this Amendment.
NOW, THEREFORE, in consideration of the premises, mutual promises,
covenants, obligations and benefits herein contained, the City, the Developer and the
District agree as follows:
AGREEMENT
1. The recitals set forth above are declared true and correct and are hereby
consented to, ratified and incorporated as part of this Amendment.
2. The following definitions contained in Section 1.1 "Definitions" of the
Agreement are hereby amended as follows:
Developer means Fuller Thompson Ten, Ltd., a Texas limited partnership, and its
successors and assigns.
Facilities means and include the water supply and distribution, sanitary sewer
collection, transportation and treatment, and storm water collection and drainage
systems, and roadway facilities constructed or acquired or to be constructed or
acquired by or on behalf of the District to serve lands within and adjacent to its
boundaries, and all improvements, appurtenances, additions, extensions,
enlargements or betterments thereto, together with all contract rights, permits,
licenses, properties, rights-of-way, easements, sites and other interests related
thereto, all as more fully described in the Engineering Reports,
Regional Improvements means those Facilities which serve areas outside and inside
the District and which may include, but not be limited to: sanitary sewer trunk
lines, lift stations and force mains, water trunk lines, offsite drainage right-of-
way and ditch improvements, transportation and roadway improvements.
Tract means the 139.3785 acres of land to be developed by the Developer as
described in Exhibit A and to which the City has agreed to provide the services
described in the Agreement.
3. Section 2.4 "Maximum Number of Connections" of the Agreement is hereby
deleted and replaced with the following:
first Amendment to the Utility Functions and
Services Allocation Agreement, Page 2
2.4. Maximum Number of Connections. The City agrees to provide up to 511
ESFCs to serve the District.
4. The first paragraph of Section 2.6 "Letter of Assurance and Issuance of
Assignments of Capacity by the District" of the Agreement is hereby deleted and
replaced with the following:
2.6. Letter of Assurance and Issuance of Assignments of Cal2acity by the
District. The City agrees that, at such time as the District has acquired
Water Supply Service or Wastewater Service from the City up to 511
ESFCs. The City shall, upon reasonable request, issue a letter of assurance
that the District is entitled to the use and benefit of such capacity. The
letter of assurance shall provide for the use and benefit of quantities of
services up to, but not in excess of, the capacities as provided for herein
necessary for the District to provide water and wastewater services up to
511 ESFCs.
5. Section 2.9 "Operation by the City" of the Agreement is hereby deleted and
replaced with the following:
2.9. Operation by the City. As construction of each phase of the Facilities is
completed, representatives of the City shall inspect the same and, if the City
finds that the same has been completed in accordance with the final plans and
specifications, the City will accept the same with the exception of the Stormwater
Detention Systems, whereupon such Facilities with the exception of the
Stormwater Detention Systems shall be conveyed to the City as provided in
Section 2.8 and operated and maintained by the City at its sole expense as
provided herein. In the event that the Facilities have not been completed in
accordance with the final plans and specifications, the City will advise the
District in what manner said Facilities do not comply, and the District shall
immediately correct the same; whereupon the City shall again inspect the
Facilities and accept the same, with the exception of the Stormwater Detention
Systems, if the defects have been corrected. During the term of this Allocation
Agreement, the City will operate the Facilities with the exception of the
Stormwater Detention Systems and provide Water Supply Service and
Wastewater Service, only to the extent necessary to satisfy the City's obligations
as specified in Section 2.1, to all users within the District without discrimination.
The City shall at all times maintain the Facilities, with the exception of the
Stormwater Detention Systems, or cause the same to be maintained, in good
condition and working order and will operate the same, or cause the same to be
operated, in an efficient and economical manner at a reasonable cost and in
accordance with sound business principles in operating and maintaining the
such facilities, and the City will comply with all contractual provisions and
agreements entered into by it and with all valid rules, regulations, directions or
First Amendment to the Utility Functions and
Services Allocation Agreement, Page 3
orders by any governmental, administrative or judicial body promulgating the
same.
Prior to the first connection to the Water System within the Tract being trade. the
District shall either (i) enter into a contract with a third party acceptable to the
City as described herein; or (ii) accept ownership of the Stormwater Detention
Systems and agree to maintain such Stormwater Detention Systems. If the
District elects to enter into a contract with a third party, said contract shall
provide that (a) the third party will operate and maintain any Stormwater
Detention Systems from inception at no cost to the District or the City, (b) the
Developer will convey fee title to any Stormwater Detention Systems to the third
party and retain a drainage easement on behalf of the District, it being
understood and agreed that the City will not have the obligation to own, operate
or maintain any Stormwater Detention Systems. Exhibit C to the Agreement is
replaced with the attached Development Plan labeled Exhibit C.
6. Exhibit D to the Agreement is replaced with attached Exhibit D showing Points
of Connection.
7. Subsection (a) of Section 3.1 "Development Plan" of the Agreement is hereby
deleted and replaced with the following:
(a) The Developer understands and agrees that a portion of the consideration
for the City to enter into this Allocation Agreement is the Developer's
obligation to develop the property consistent with the Development Plan.
The creation of the District was predicated on the Developer's ability to
develop the Property in conformance with the Development Plan. The
City, the Developer, and the District agree that the Developer shall
develop, and the City shall allow development of, the Tract in accordance
with the Development Plan; provided that the same complies with the
Code of Ordinances and all applicable rules and regulations. The
Development Plan presented to the District by the Developer provides for
approximately 106 net acres of light industrial space complexes, and the
balance of the Tract shall be for stormwater detention, open spaces,
roadways and public utilities, as shown on Exhibit "C." Any material
change to the Development Plan, as determined by the City, shall be
approved by the City in writing and shall conform to the then -current
City standard criteria and Code.
8. Pursuant to Section 7.6 "Addresses and Notice" of the Agreement, the
Developer's address for notice is:
Fuller Thompson Ten, Ltd.
Attn. Stephen Darnall
First Amendment to the Utility Functions and
Services Allocation Agreement, Page 4
1800 Augusta, 4th Floor
Houston, Texas 77057
9. Section 7.13 "Term and Effect" of the Agreement is hereby deleted and replaced
with the following:
7.13. Term and Effect. Except as otherwise specifically set forth herein,
including in this Section below, this Allocation Agreement shall become
effective on the date of execution of the First Amendment by the City and
shall remain in effect until the earlier to occur of (i) the dissolution of the
District by the City or (ii) the expiration of thirty -five (35) years from the
effective date of the First Amendment. Further, this Allocation
Agreement shall automatically terminate unless extended in writing by
mutual agreement between City and Developer in the event that the
Commission does not adopt an order consenting to the creation of the
District on or before December 31, 2018. The City may terminate this
Allocation Agreement (i) after three (3) years from its effective date should
Developer fail to complete the installation of the Regional Facilities
and or (ii) after eighteen (18) months from its effective date should the
Developer fail to commence any construction of Facilities to serve the
Tract. Notice and opportunity to cure shall be given by the City in writing
to the Developer and the District at least thirty (30) days prior to the
termination date
10. Except as specifically amended in this Amendment, no other terms of the
Agreement are modified and amended, and except as otherwise modified herein,
the Agreement shall remain in full force and effect in accordance with its original
terms and conditions.
11. The parties understand that this Agreement is entered into under the authority of
Section 552.014, Texas Local Government Code and pursuant to Article VII,
Chapter 98 of the Code of Ordinances Baytown, Texas. This Agreement is not an
"allocation agreement" within the meaning of Texas Water Code, Section
54.016(f).
12. The provisions of this amendment and the Agreement should be read together
and construed as one Agreement provide that, in the event of any conflict or
inconsistency between the provision of this Amendment and the Agreement, the
provisions of this Amendment shall control.
13. Capitalized terms used herein shall have the same meanings given them in the
Agreement.
First Amendment to the Utility Functions and
Services Allocation Agreement, Page 5
IN WITNESS WHEREOF, the parties hereto have executed this first Amendment
in multiple copies, each of equal dignity, effective as of this day of , 2017.
CITY OF BAYTOWN, TEXAS
RICHARD L. DAVIS, City Manager
ATTEST:
LETICIA BRYSCH, City Clerk
HARRIS COUNTY MUNICIPAL UTILITY
DISTRICT NO. 473
President, Board of Directors
ATTEST:
Secretary, Board of Directors
FULLER THOMPSON TEN, LTD.,
a Texas limited partnership
By: Fuller Thompson Ten GP, LLC, a
Texas limited liability company,
its General Partner
Name 7•.* 4 r M do
Title: ¢ -- C. Pre r b� 9")-t
Hirst Amendment to the Utility Functions and
Services Allocation Agreement, Page 6
EXHIBIT A TO THE FIRST AMENDMENT
District Boundary Description
Exhibit "A," Page 1
EXHIBIT A
METES AND BOUNDS DESCRIPTION
HARRIS COUNTY MUNICIPAL UTUM DISTRICT No. 473
TRACT 2
1393785 ACRES
HARRIS COUN'T'Y, TEXAS
September 18, 2017
All that 139.3785 acre (6,071,327 square foot) tract of land being all of a called 139.3786 acre tract of
land as described in a conveyance to Burnet Bay, Ltd., a Texas limited partnership by Special Warranty
Deed with Vendor's Lien recorded Harris County Clerk's File (H.C.C.F.) Number X913086, and being
situated in the Nathaniel Lynab Survey, Abstract Number 44, Harris County, Texas, and being more
particularly described by metes and bounds as follows: (all bearings herein are based on the Texas State
Plane Coordinate System of 1983, South Central Zone 4204)
BEGINNING at the most southerly corner of said Burnet Bay, Ltd. tract of land in the northeast right -of
way (R.O.W.) line of Decker Drive (also known as Spur 330) (width varies);
THENCE, North 66025'36" West, along the northeast RO.W line of said Decker Drive, a distance of
723.91 feet to the centerline of Spring Creek Gully for corner,
'i-EMNCE, along the •westerly line of said Burnet Bay, Ltd. tract and cite centerium of said Spnng Creek
dully, the following ten (10) courses and distances;
1) North 3621'39" West, a distance of 76.57 feet to a point;
2) North 14'31'43" East, a distance of 80.08 feet to a.point;
3) South 61°58'42" East, adistance of 107.64 feet to a point;
4) North 25046'10" East, a distance of 119.15 feet to a point;
5) North 74°02130" West, a distance of 211.92 feet to a point;
6) North 23°5657" West, a distance of 92.31 feet to a point;
7) North 5510'49" West, a distance of 136.45 feet to a point;
8)North 07°12'21" West, a distance of 124.18 feet to apoint;
9) North 46"42'15" East, a distance of 61.88 feet to a point;
10) North 33050144" West; a distance of 73.82 feet to the southwest corner of a called 1.760 acre but of
land as described by a Decd to the City of Baytown recorded under H.C.C.F. Number P029811;
Pago 1 Ora pages
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flarrits County Municipal UMty Dighid No. 473
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September 13, 2017
TEWNM North 64°4431" East, along tate southeast line of said 1.760 acre tract; a distance of 607.86
feet to the east corner of said 1.760 acre tract and being the south corner of a called 4.896 acre tract of
land as described by a Deed to the City of Baytown recorded under H.C.C.F. Number P029311, also
being the beginning of a non-tangent curve to the right;
THENCE, northeasterly, along the southeast lime of said 4.896 acre tract, a distance of 171.67 feet along
tiro arc of said non-tangent curve to the right having a radius 853.65, a central angle of 11 °31'20" and a
chard that bears North 45° 15'47" East, a distance of 17138 feet to the east corner of said 4.896 acre tract;
TE NCIE, North 25005'45" West, along the northeast line of said 4.896 acre tract, a distance of 69230
feat to a point in southeast RO.W. line of Interstate Highway 10 (width varies) to the north corner of said
4.9% acre tract and being the atost northerly northwest corner of said Burnet Bay, Ltd. tract;
TEMNCE, along the southeast R.O.W. line of said interstate Highway 10, the following five (5) courses
and distances;
1) North 64°57'33" East, a distance of 257.17 feet to the begimning of a curve to the tell, and from which
a concrete monument found bears North 26°2324" West, a distance of 1.38 feet;
2) Northeasterly, a distance of 294.92 feet along the we of said curve to the left having a radius of 572.96
fact* a central angle of 29029'29" and a chord that bears North 50°08'08" East, a distance of291.67 feet
to a concrete monument found at the point of tangency of said curve;
3) North 35°2323" Fast, a distance of 29.31 feet to a concrete monument found at the beginning of a
curve to the right;
4) Northeasterly, a distance of 29525 feet along the arc of said curve to the right having a radius of
572.96 fleet, a central angle of 29°31'28" and a chord that bears North 50°08' 57" East, a distance of
291.99 feet to a concrete monument found at the point of tangency of said curve,
5) North 64054141" But, a distance of 933.30 feet to a 1/2-inch iron rod with cap found at the most
westerly corner of the residue of a called 170.974 acre tract of land as described in a conveyance to
Venture 2000, Ltd. by a Deed recorded under I3.C.C.F. Number V226376 and being the most northerly
caner of said Burnet Hay, Ltd. tract;
T=NCE, South 5510'43" Eask along the southwest line of the residue of said 170.974 acre tract and
along the nortbeast line of said Burnet Bay, Ltd, tract, a distance of 635.77 feet to a i/2-inch iron rod with
cap found at an angle point;
TllMNCE, South 551*2948" East; continuing along the southwest line of the residue of said 170.974 acre
treat and along the northeast line of said Barnet Bay, Ltd tract, a distance of 87.42 feat to, a 1/2-Inch iron
rod with cap found in the southwest line of a called 25.0000 acre tract of Jana as described in a
conveyance to CFJ Ptopertles by a Dead recorded under ILC.C.F. Number V247962 at the south comer
of the residue of said 170.974 acre tract for an angle point of the heroin described tract;
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September 18, 2017
THENCE, South 25002'55" East, along the southwest line of said 25.0000 acre tract and continuing
along the northeast line of said Burnet Bay, Ltd. tract, a distance of 424.55 feet to a 1/2 -inch iron rod with
cap found at the southwest corner of said 25.0000 tract and being an interior corner of the herein
described tract;
THENCE, North 6457'05" East, along the southeast line of said 25.0000 acre tract and along an interior
line of said Bumet Bay, Ltd. tract, a distance of 1,122.04 feet to a 112 -inch iron rod with cap found in the
west KO.W, line of Thompson Road (width varies) at the southeast corner of said 25.0000 am tract for
the northeast corner of the herein described tract
THENCE, South 02038'55" Fast; along said west R.O.W. line, a distance of 1,073.82 feet to a 112 -inch
iron rod with cap found at the northeast corner of Unit D, in Block 142, of ELENA FRUIT do COTTON
FARMS, a Subdivision as Frown on the Plat thereof recorded in Volume 7, Page •48 of the Harris Courtly
Map Records (KC.MIL) for the southeast comer of said Burnet Bay, Ltd. tract;
""^T?CE South 63°06'21" West, along the northerly line of said Unit D and along the southerly line of
said Burnet Bay, Ltd. tract, a distance of 3,20021 feet to the POINT OF REGK*QNG and containing a
computed area of 139.3785 acres (6,071,327 square feet) of land.
"ThiB fiit%Lq dW—bdttt M a►a9 jiYepsr'r68'utid6e 22 -TAC §663.21, does not reflect the results of an on the
ground survey, and is not to be used to convey or establish interests in neat property except those rights
and interests implied or established by the creation or reconfiguration of the boundary of the political
subdivision for which it was prepared."
Ronald G! Harrison, R.P.L.S.
Tom Registration No. 5342
TBPLS Firm Registration Number 10009000
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Exhibit "C"
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REVISIONS
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HARRIS COUNTY TX
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