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Ordinance No. 13,910ORDINANCE NO. 13,910 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN INDUSTRIAL DISTRICT AGREEMENT WITH WAL-MART STORES EAST, LP; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ***************************************************************************** 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 Mayor and City Clerk of the City of Baytown to execute and attest to an Industrial District Agreement with Wal-Mart Stores East, LP. A copy of said Industrial District Agreement is attached hereto, marked 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. INTRODUCED, READ, and PASSED by the affirm at�e vote of the City Council of the City of Baytown, this the 25th day of October, 2018. �( ATTEST: LETICIA BRYSCH, City C APPROVED AS TO FORM: DONCARLOS, Ma: cobfsOIVegal\Karen\Filmicity Council`.Ordinances\2018 October 25`,IDAwithWal-MartStoresEastLP.doc Exhibit "A" Industrial District Agreement "I'his Industrial District Agreement (" ALreement") is made and entered into between the City of Baytown. Texas. a municipal corporation in Harris and Chambers Counties. Texas. hereinafter also referred to as "Baytown" or "City." and Wal-Mart Stores East. 1_11. a Delaware limited partnership. hereinafter referred to as " Propert} Owner." In consideration of the promises and of the mutual covenants and agreements herein contained. it is agreed b} and bety een the City and ProperiN Owner as Follows: I. Parties This Agreement is made under the authority of Texas Local Government Code Annotated §42.044 (Vernon 1993). article Xl. §5 ol'the Texas Constitution and other applicable ImN. The parties to the Agreement and their addresses are: The -City Cit,. ol'Baytown Attn: City Manager P.O. Box 424 Ba%no%%,n. 1'X 77522 C o p3 to: Cit} of BaNno%vn Attn: Cit% Attorney P.O. Box 424 Baytown. TX 77532 2. The "Property Owner - 'Val -Mart Stores East. LP 703 SW 8"' Street Bentonville, AR 7?7l)-6209 Tax Statement Address. Walmart Propert� Tax Attn: MS 0555 PO Box 8050 Bentonville. AR 72716-8050 Copy to: Wal-Mart Stores. Inc. Legal Dept. Real Estate and Construction Division 3001 SE I Oth Street Bentonville. AR 73716-560 (reference Baytown.'rx #7043) Copy to: Wal-Mart Stores. file. Legal Dept. Real Estate and Construction Division 1001 SE 10th Street Bentonville. AR 72716-5560 (reference Baytown. TX #7042) Il. Identification of Property and Industrial District 'Phis Agreement includes provisions concerning certain real estate and tan,Iiblc personal property owned or leased by the Property Owner. Real estate located outside the corporate limits of the City is sometimes referred to herein as the "affected area." and it is described in Exhibit A. which is attached to this Agreement and made a part hereof: Acting pursuant to the above mentioned authority. the City Council of the City has by ordinance. designated the affected area as an industrial district. the same to be known as Baytown Industrial District No. 3 (the "Industrial District"). Ill. Term The teen of this Agreement is seven tax years. from 2018 through 2024. unless it is sooner terminated under the provisions hereol; This Agreement shall be effective and binding on the parties hereto upon execution hereot'on behalf of the parties to this Agreement and shall remain in effect for seven years. This Agreement supersedes any prior existing" agreements between the Property Owner and the City relating to the subject matter specific to the term hereol: IV. Limited Imnumitv from Annexation by the City In consideration ofthe obligations ofthe Property Owner herein set forth. the Cite hereb\ guarantees for the term of this Agreement the immunity of the affected area from annexation of any type by the City except for such parts of the affected property as may he necessary to annex property owned by third parties within the Industrial District that the City may decide to annex.. Additionally. this Agreement shall not atiect the continuation of any limited purpose annexation status to which the atlected area is now subject. 2 V. Industrial District Payment As part of the consideration for the C'ite's undertakings as set forth above. the Property Owner agrees to pay to the City on or before December 31" of each year during the term hereora sum of money equal to: (1) the fair market value as agreed to and stipulated by the parties to be as fi)llows fir each year indicated: 2018 $292.342.609.00 2019 $292.342.609.00 2020 $292.342,609.00 2-021 $292.342,609.00 2022 $292.342.609.00 2023 $292.342.609.00 2024 $292.342.609.00 hereinafter referred to as the -Base Value." multiplied by (2) the property ta.x rate per $100.00 of assessed valuation adopted by the C lt\ Council for the City, multiplied by the applicable Yearly Palment Rate as detailed below: Plus TAX YEAR YEARLY PAYJW ENT RATE 2018 .66 9M66 01'- R 2023 .66 2024 .66 (3) the value of the situs inventor. which isthe personal pr��perty and inventor\ stored or held on or within the affected property which is not owned by the Property Owner, as assessed each year by the Chamhers County Appraisal District. multiplied by 3 (4) the property tax rate per $100.00 of assessed valuation adopted bN the CitN Council for the Cite, multiplied by 0.50. and multiplied bN the applicahle Yearly Pa,-ment Rate as detailed helow: TAX YEAR YEARLY PAYMENT RATE 2018 .66 2019 GG 2020 .66 2021 .66 2022 .66 2023 .GG 2024 .G6 On or herore I=ebruarN I%' of each contract year during the term of this Agreement. the Property Owner shall file separate written information reports with the Cith's Director or f=inance statim the name and address or each person to whom the Property Owner leased or otherwise provided storage space on (I) January 1" ol'the current contract year and (2) September I" orthe preceding year. Additionally. if the Property Owner on or before July I" ofeach year certifies under oath that the Property Owner has required the owner of the situs property to make the payment to the Cit% 11or that portion or the Base Value Industrial District Payment calculated pursuant to subsection (I) and (4) this Subsection A. the City shall invoice such owner for that amount. However, nothing herein shall he construed so as to relieve the Property Owner from making the lull Industrial District Payment on or before December 31" or each year should the owner of the situs property fail to timely pay that portion ofthe Base Value Industrial District Payment calculated pursuant to subsection (3) and (4) this Subsection A. VI. Valuations and Collections A. Cieneralk The parties hereto recognize that said Chambers County Appraisal District is not required to appraise ti)r the City the land, improvement~. and tangible property. real or mixed, in the affected area. which is not within the corporate limits of' the City, for the purpose or computing the payments hereunder. For the purpose or providing a procedure f'or determining and collecting the amounts payable by the Property Owner hereunder. there are hereby adopted 4 and made a part hereof all provisions of the Constitution and statutes of the State of Texas pertaining to ad valorem taxation as amended throughout the term ofthis Agreement (including. in particular. the Texas Propert% Tax Code). except. however. that (i) to the extent that anv of such provisions would require the assessment of the Property Owner's property on an equal and uniform basis with property in the general corporate limits of the City. the provisions of this Agreement %%ill control where in conflict with the provisions of such laN%s and (ii) the income method of appraisal as described in Section 23.012 of the Texas Property Tax Code shall not be limited to only properties for which a rental market exists. Specifically, nothing contained herein shall limit the income method of appraisal specified in Section 23.012 of the Texas Property. Tax Code to only properties for which a rental market exists. instead if' such method is used. the chief appraiser shall: I. use income and expense data pertaining to the property. if -possible and applicable: 2. make any projections of future income and expenses only from clear and appropriate evidence: 3. use data from generally accepted sources in determining an appropriate capitalisation rate: and 4. determine a capitalization rate I'or income-producing, property that includes a reasonable return on investment. taking into account the risk associated ►%ith the investment. The parties agree that the fair market value of the Property Owner*% land. improvements. and tangible property subject to Subsections B and C' of this section shall he determined in accordance with the market value computation contemplated in the 'I'exas Property Tax Code for the purpose of calculating the Property Owner's payment under this A�,reement on properties annexed or disannexed subsequent to the commencement of thiti Agreement. 'rhe City may choose to use the appraised value as finally determined by the Chambers County Appraisal District (or through administrative or judicial appeal of the Chambers County Appraisal District's determination), or by appraisal conducted by an independent appraiser of the City's selection at the City's expense. The determination of fair market values by the City shall be final and binding unless the Property Owner within thirty (30) days after receipt of the City's determination petitions for a Declaratory Judgment to the Civil District Court of Harris County. Texas. as provided for by Section XIII hereof. Nothing contained herein shall ever be construed as in derogation of the authority of the Chambers County Appraisal District to establish the appraised value of land. improvements. and tangible personal property in the annexed portion for ad valorem tai purposes. B. Adjustment of Base Value for Property Inside the Corporate L imits but Subscauentl% Disannexed Land. improvements and tangible property. real or mixed. of the Property Owner. %%hich is disannexed from the corporate limits of the City during the term of this Agreement. ,hall become part of the affected area immediately upon disannexation. The value for uich disannexed land. improvements and tangible property. real or mixed shall be determined as described in Subsection A of this Section based upon the year in which the propertN is 5 disannexed and shall be added to the Base Value specified in Article V each year after the disannexation for purposes of payment hereunder. C. Adjustment of Base Value for Property Outside the Corporate Limits but tiubscquentl� Anne�cd Land. improvements and tangible property. real or mixed, of tile Property O�%ncr. N%hich k annexed into the corporate limits of the City during the term of this Agreement. shall lie removed from the affected area the year after the annexation. 'rhe value for such annexed land, improvements and tangible property. real or mixed shall be determined as described in SUbtieelion A of this Section based upon the \ear in which the property is annexed and shall be subtracted from the Base Value specified in Article V each year after the annexation for purposes ofpayment hereunder. D. Statements The City shall mail one statement to the Property Owner on or about December I of each year sho%aing the total amount due on December 31 of such \ear pursuant to this Agreement. Such statement shall be mailed to the "fax Statement Address" noted in this Agreement. Any amounts due on December 31 that are not paid %%hen due shall become delinquent on January I of the following year. Provided. however. if the tax statement is mailed after December 10. the delinquency date is postponed to the first day of the next month that will provide a period of at least 21 days after the date of mailing 1'or payment of the amount due. Delinquent amounts shall be i►n►nediately subject to the same penalties. interest. attorneys' fees and costs of collection as recoverable by the City in the case of delinquent ad valorem taxes. The Cite shall have a lien upon the Property Owner's land within the allected area upon any delinquency in the Industrial District Payment. E. Valuation Contests If any differences concerning the appraised values shall not have been finally determined by the due date of the Property Owner's payment hereunder and the Propert3 Owner is pursuing through a declaratory judgment action as specified in Subsection A. the Property Owner shall. without prejudice to such action, pay to the C hN by December i I of each year (subject to the exception in the preceding paragraph for statements mailed after December 10). such amount as is provided in the "texas Property Tax Code, a5 amended throughout the term of this Agreement. I'or payments made under such conditions by o\%ners of property within the :general corporate limits ofthe City subject to ad valorem taxation. Any refund payable by the City to the Property Owner hereunder shall be paid within 60 day% after receipt by the City orboth Chambers County Appraisal District's form notification that the appraised value of the property has been reduced and a written rertnd request by the Property Owner: if not paid timely, the refund amount shall bear interest at the rate specified in Section 2251.025 of' tile Texas Government Code beginning 60 days after the City received both the Property Owner's li ►►ritten refund request and the Chambers County Appraisal District%, formal notification that the appraised value of the property has been reduced. VII. Compliance with Law The City and the Property O►►ner mutually recognize that the health and welfare of Baytown residents require adherence to high standards of quality in the air emissions. water ellluents and noise. vibration and toxic levels of those industries located in the Industrial District. and that development within the District may have an impact on the drainage of surrounding areas. To this end, the Property Owner and the City agree that the same standards and criteria relative to noise, vibration and toxic levels and drainage and flood control which are adopted by the City and made applicable to portions of the City adjacent to the Industrial District shall also be applicable to the affected area. The Property O►vner agrees that any industrial or ether activity carried on within the affected area will be constructed in strict compliance ►with all applicable valid state and federal air and water pollution control standards. If the Property Owner's property within the affected area is subject to the Occupational Safety and Health Act. 29 U.S.C, 65. ct seq., as amended, then the Property Owner shall undertake to ensure that its facilities and improvements in the of ected area comply- with the applicable fire safety standards of such act and the resolutions from time to time promulgated hereunder (the -OSI IA Standards"), but there shall be no obligation to obtain any permits orally kind Troup the Cit} in connection with the construction. operation or maintenance of improvements and facilities in the affected area not located within the corporate limits of the City. Noncthcleti5. the Property Owner agrees that any structure built within the aflccted area shall be built in accordance ►with the building code adopted by the City in ellect at the time ofconstruction. The City and the Property Owner recognise that activities in the Cit►'s industrial districts are subject to regulation by other governmental entities. including the state and federal governments and their various departments and agencies. The City andtheProperty Owner also recognize that the City tray have an interest in activities in the City's indu: trial districts that are regulated by other governmental entities. Nothing in this Agreement is intended to limit the City's right and authority to communicate its interest in, or opposition to_ those activities to the applicable regulatory agencies or to participate, to the extent allowed b,, la%%. in any related administrative orjudicial proceeding. VIII. Inspections The Chief Appraiser of the Chambers County Appraisal District and the City or its independent appraiser shall ha%e the same right to enter and inspect the Property O►vncr's premises and the same right to examine the Property Owner's books and records to determine the value of the Property Owner's properties as are provided in the Texas Property Tax Code ati amended. 7 IX. Default A. Default by Propert\ Owner In the event ot'default by the Property Owner in the performance of any of the terms of this Agreement. including the obligation to male the payments above provided tor. the Cite shall have the option. if such default is not fully corrected within sixty (60) days Irom the giving of written notice of such default to the Property Owner to either (i) declare this Agreement terminated or (ii) continue the term of this Agreement and collect the payments required hereunder. Notwithstanding any to the contrary contained herein. should the City determine the Property- Owner is in default according to the terms and conditions of Section VII hereof: the City shall notify the Property Owner in writing by U.S. Mail. certified return receipt requested. at the address stated in this Agreement. and if such default is not cured within sixty (60) days from the date of such notice (the "Cure Period") then such failure to cure shall constitute a material breach of this Agreement: provided that. in the case of a default under Section V11 for causes beyond the Property Owner's control that cannot with due diligence be cured within such sixty (60) day period or in the event that the failure to cure results from ongoing negotiations with federal or state officials. administrative proceedings or litigation regarding the necessary cure steps. then the cure period shall be extended until such negotiations. administrative proceedings or litigation are concluded. B. Default by City In the event of default by the City. the Propertv Owner may, if such default is not fitly corrected within 60 days from giving written notice of such default to the City, terminate this Agreement. I Ipon such termination. both the Property Owner and the City shall be relieved of all further obligations hereunder. but the Property Owner shall not be relieved of the obligation to pay any amounts that accrued prior to such termination. In the event of termination. the City shall have the right to repeal the ordinance designating the affected area as an industrial district. Provided. however. if the termination occurs as a result of' tile City's exercising its option to terminate (as provided in the first sentence of this Section IX), the City shall not have the right to annex the affected area into the general corporate limits of the City so as to subject the affected area to ad valorem taxes tar any part of the period covered by the Property Owner's last pay ment hereunder. X. Notice Any notice to the Property Owner or the City concerning the matters to which the Agreement relates may be given in writing by re-istered or certified mail addressed to the Property Owner or the City at the appropriate respective addresses set forth on the cover page of this Agreement. Any such notice in writing may be given in any other manner. If given by registered or certified mail. the notice shall be effective when mailed. With the exception of S annual bills fbr payments due herein. notice given in an% other manner ,hall be el'lective when received b% the Property O�%ner or the Cit1. as the case 11 be. XI. No further Expansion ofTaxim, Jurisdiction Nothing herein contained shall be construed to change or enlarge the jurisdiction. po%%er or authorit% of the Cit% over or i%ith respect to the affccted area as prescribed by applicable la%\. except as specifically provided in this Agreement. rhe Property Owner shall not be obli(Tated by virtue of this Agreement. or the establishment of the industrial district covering the affccted area not %\ ithin the corporate limits of the C'it\. to make an\ payments to the Citi in the nature of a tax or assessment based upon the value of the Property Owner's propert% in the aflcetcd area during the term of this Agreement other than the payments specified herein. Speciticalk. the Property Owner shall not be liable for any Cil) taxe% within the affccted area. including. without limitation. City ad valorem taxes on taxable property within the affccted arca. XII. Reimbursement for Services If the Propert\ Owner requests and receives mutual aid firefighting assistance and is a member of Channel Industries Mutual Aid organization ("LIMA") or similar organization. the PropertN Owner shall reimburse the Cit\ for costs incurred b} the City in providing fire protection services to the Propert% Owner as shall be provided in the charter. bylaws and agreements pursuant to which C'IMA or such similar organization is organized and operate~. II' the Property Owner requests and receives mutual aid firefighting assistance and is not a member of CDMA or a similar on anization. then the Property Owner shall be required to reimburse the City 1'or costs actually expended b\ the C'it% in providing ani firefighting assistance to the Propert) O\\ ner. including chemical and personnel costs. XI11. DeclaratorN Judgment Action If an} disagreement arises between the parties concerning the interpretation of this A-reement. it is agreed that either of the said parties may petition an% Civil District Court of Harris County. Texas. For a Declarator) Judgment determining Said controverm and the cause shall be tried as other civil causes. If the controversN affects an Industrial District Pa%ment. the Property Owner shall. pending final determination ofsaid controversy, pay to the C'it\ on the due date the sante amount which was paid to the Cit) for the last precedingperiod as to which there was no controversy concerning the amount owed by the Property Owner to the Cit.. The Property Owner agrees to tender any additional amount of potential liability to the resistr� ol'thc Civil District Court. Ilarris County. Texas. pending linal determination of the controvers% beyond any further appeal. 9 XIV. Assignment This Agreement shall not bestow any rights upon any third part, but rather. shall hind and benefit the Property Owner and the Cite only. If the Property Owner convcys all or anN part ofthe property then covered hereby, the Property Owner shall notify the City within 30 days of the conveyance and shall thereafter cease to be obligated with respect to the property so conveyed and the fuse Year Value plus the Added Value shall be apportioned between the Property Owner and the grantee based upon the property conveyed, only if the grantee thereof - enters into an Industrial District Agreement with the City with respect to such property so conveyed. No right or obligation under this Agreement may be sold, assigned or transferred. X V. Authority The Property Owner covenants that it has the authority to enter into this Agreement b% virtue of being either the legal or equitable owner of a possessory estate (including- a leasehold estate) in the land comprising the affected area, which will not terminate before the expiration date of this Agreement. Additionally. the officers executing this Agreement on behalf of the parties hereby represent that such oliicers have full authority to execute this Agreement and to bind the party he represents. XV1. No Municipal Services It is a, -,reed that during the term of this Agreement, the City is under no obligation to provide ani governmental. proprietary or other municipal services to the affected area. Specifically, but without limitation, it is agreed that the City shall not be required to tiurnish ( I ) sewer or water service. (2) police protection. (i) fire protection (4) road or street repairs. and (5) garbage pickup service. XVII. Severabilitv Ifany provision of this Agreement, or any covenant, obligation or agreement contained herein. including, without limitation. that term hereof. is determined by a court to be invalidated or unenforceable. such provision. covenant, obligation or agreement shall be reformed so as to comply with applicable law. If it is not possible to so reform such provision, covenant. obligation or agreement..such determination shall not affect any other provision. covenant. obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. Provided, tiurther that such invalidity or unenforceabilitN shall not affect any valid and enibrceable provision thereof. and each titch provision. covenant. ohligation or agreement shall be deemed to be effective, operative. made. entered into or taken in the manner and to the liull extent permitted by law. Notwithstanding the above. if the application of this Section XVII requires reformation or revision of any term that removes or materially diminishes the obligation of the Property Owner to make the payment~ to 10 the City described herein (except in the event of a reformation that shortens the tern} of this Agreement). the City shall have the option to declare this Agreement terminated. XVIII. C'om�lete Agreement This Agreement contains all the agreements of the parties relating to the subject matter hereol'and is the full and final expression ofthe agreement between the parties. XIX. Non -waiver Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a %vaiver of the right to insist on and to enfiorce bN an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result ofany future default or failure of performance. XX. AmblguitieS In the event of ani ambiguity in an} of the terms of this Agreement. it shall not be construed Ior or against any party hereto on the basis that such party did or did not author the same. XXI. Ifeadinss The headings appearing at the first of each numbered section in this Agreement are inserted and included solely for convenience and shall never be considered or given ani effect in construing, this Agreement or any provision hereof: or in connection with the duties. obligation~ or liabilities of the respective parties hereto or in ascertaining intent. if any question of intent should arise_ XXII. Choice of Law: Venue This Agreement shall in all respects be interpreted and construed in accordance %%ith and governed by the la%%s of the State of Texas and the City. regardless of the place of its execution or performance. fhe place of making and the place of performance I'or all purposes shall be Baytown. Harris Count. Texas. XXIII. Agreement Read 'file parties acknowledge that they have read. understand and intend to be bound b% the terms and conditions of this Agreement. IN wri—NESS WHEREOF. this Agreement is executed in multiple counterparts on behalf ol'the Property Owner this Mi -day of i I)t.� , 2013. and on behalf of the CitN this day of WAL-MART STORES EAST, LP. a Delaware limited partnership By: WSE MANAGEMENT. LI -C. its neneral partner Signature _( 1 dN� rA1`70-- Printed Name Title — STATE 01= ll' .It"Su'S S COUNTY OF a C.� Bcl'ore me. the ndersigned notary public. on this day personally appea ed LU SFT ,the <<r the weer ol'the affected property. known to me to be the whose hose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes. in the capacity. and for the consideration therein expressed. SUBSCRIBED AND SWORN before me this/T�ae of CfCb('f� ,plg CYNTHIA M. VANDEVORT Washington Coun NOTARY PUBLIC - ARKANSAS My Commimion Exp res October 20, 2024 Commissim No. 12401481 4taris in and �fi3rtljc-,St'ate0I'-1L Ki -TEST: LETICIA BRYSC H. City Clerk CITI OF BAYTOWN STEPHEN 1-1. DONCARLOS. Mayor ,\PPROVED AS TO FORM: IGNACIO RAMIRL-;7 SR.. City Attornc,, WADE NIC'KERSON. Finance Director cubl.ttlticgaVK&C [IILNt( (1ntractchtdustnnl Dtstnct Acrcemcnts t1'al-�Idn Stores I asr-AkaP lart Scor, I - .,.%I if ),N 2(114 diw 13 473.8 ACRES EXHIBIT A DESCRIPTION OF A 473.8 ACRE TRACT OF LAND SITUATED IN THE JOHN IJAMS SURVEY, A-15 AND THE JOHN STEEL SURVEY, A-227 CHAMBERS COUNTY, TEXAS 10B NO.CRT02-T1 AUGUST 6, 2004 BEING a 473.8 acre (20,637,424 square feet) tract of land situated in the John Ijams Survey, Abstract Number 15 and the John Steel Survey, Abstract Number 227, Chambers County, Texas and being out of a certain called 1028.275 acre tract of land described as "Part Se ven" in a deed from USX Corporation to Cedar Crossing, L.P. and riled for record under Volume 456, Page 155 of the Official Public Records of Chambers County, Texas, said 473.8 acre tract of land being more particularly described by metes and bounds as follows: COMMENCING at a 3/4 -inch iron rod having a coordinate value of Y=13,829,506.210, X=3,270,715.82 (NAD -83) found for the most northerly -northwest corner of the Main Mill Plat recorded in Volume 'B", Page 13 6 of the Chambers County Plat Records; THENCE EAST - a distance of 110.87 feet along the north line of said Main Mill Plat to a 5/8 -inch iron rod with cap stamped "Sury con" found for corner in a west line of a called 82.662 acre tract of land described as "Part 2, Exhibit "A", Tract II of II - Railroad" in a deed from USX Corporation to Cedar Crossing, L.P. and filed for record under Volume 456, Page 155 of the Official Public Records of Chambers County, Texas; THENCE the following courses and distances along a west line of said called 82.662 acre tract; N 000 00' 44 " W, a distance of 78.43 feet to a 5/8 -inch iron rod with cap stamped "S urvcon" found for corner; N 05° 33' 01 " W, a distance of 128.60 feet to a 5/8 -inch iron rod with cap stamped "Sury curt" found for corner, N 04° 26' 33 " W. a distance of 255.28 feet to a 518 -inch iron rod with cap stamped "Sury con" found for corner; N 00° 00' 04 "E, a distance of 536.00 feet to a 5/8 -inch iron rod with cap stamped "Brow n & Gay" found for a point of reference; THENCE over and across said called 1028.275 acre tract the following courses and distances: S 65° 17' 32" W, a distance of 93.57 feet to a 518 -inch iron rod with cap stamped "Brow n & Gay" found for corner and the POINT OF BEGINNING of the herein described 473.8 acre tract of land; S 65° 17' 32" W, a distance of 3507 42 feet to a 518 -inch iron rod with cap stamped "Bro wn & Gay" found for corner; WEST - a distance 1166.38 feet to a 518 -inch iron rod with cap stamped "Brow n & Gay" found for corner; NORTH - at a distance of 1394.35 pass through a 5/8 -inch iron rod with cap -tamped "Bro wn & Gay" found for the southeast corner of that certain 3 807 acre tract described as a 100 foot road easement to Chambers County as recorded under Volume 683, Page 93 of the Official Public Records of Chambers County, Texas, in all a total distance of 1494.35 feet to a 5/8 -inch iron rod with cap stamped "Brown & Ga v" found for an interior corner and same being the northeast corner of the said 3.807 acre tract; HOU:3381461.1 473 8 ACRES AUGUST 6, 2004 PAGE 2 WEST — a distance of 100.00 fee al ng the north line of the said 3.807 acre tract, to a 54 -inch iron rod with cap stamped "Brown & Ga round, same being in the north line of the said 3 807 acre tract. NORTH — a distance of 2393 42 fee to a 5 8 -inch iron rod with cap stamped " Brown & Gay found for corner and being in a south line of a called 82.662 acre tract of land described as "Part 2, Exhibit "A", Tract 11 of 11— Railroad" in a deed from USX Corporation to Cedar Crossing. L.P. and tiled for record under Volume 456, Page 155 of the Official Public Records of Chambers County, Texas; THENCF the following courses and distances along a south and west line of the said called 82.662 acre tract; N 52° 20' 00 "E, a distance of 2516.50 feet to a 5/8 -inch iron rod with cap stamped Sury can" found for the beginning of a tangent curve to the right; In a northeasterly direction, a distance of 672.35 feet along the arc of last said curve to the right having a radius of 1105.92 feet, a central angle of 340 50' 00" and a chord which bears N 690 45' 00 "E, 662.04 feet to a 5/8 -inch iron rod with cap stamped "Sur vcon found for the point of tangency; N 87 10' 00 " E. a distance of 796.31 feet to a 5/8 -inch iron rod with cap stamped "S urvcon" found for the beginning of a tangent curve to the right; In a southeasterly direction, a distance of 1791.62 feet along the arc of the last said curve to the right having a radius of 1105.92 feet, a central angle of 920 49' 14" and a chord which bears S 460 25' 23" E. 1602.03 feet to a 5/8 -inch iron rod with cap stamped "Su rvcon" found Er the point of tangency; S 00° 00' 46" E, a distance of 484.50 feet to a 5/8 -inch iron rod with cap stamped "Brow n & Gay" found for corner, and from which a found 5/8 -inch iron rod with cap stamped "S urvcon" bears S 00° 00' 4 6" E, 12.00 feet; THENCE over and across said called 1028.275 acre tract the following courses and dlstances- N 89° 59' 56 " W. a distance of 116.42 feet to a 518 -inch iron rod with cap stamped "Bro wn & Gay" found for corner; S 000 00' 04" W. a distance of 2639.14 feet to the POINT OF BEGINNING and containing 473.8 acres (20,637,424 square feet) of land. Bearing orientation is based on the Texas State Plane Coordinate System, Sou -h Central Zone 4204, North American Datum of 1983 (NAD -83). Revised August 19. 2004 Alan M. McLain RPLS No. 4511 Brown & Gay Engineers, Inc. 11490 Westheimer Road, Suite 700 Houston, Texas 77077 Telephone: (281) 558-8700 HOU 233141 I