Ordinance No. 10,041' � 4
ORDINANCE NO. 10,041
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER
EXECUTE AND THE CITY CLERK TO ATTEST TO A UTILITY
FUNCTIONS AND SERVICES ALLOCATION AGREEMENT WITH MOODY
SIMMONS BAYTOWN, LTD., AND MOODY SIMMONS BAYTOWN II,
LTD.; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section l: 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 Utility Functions and
Services Allocation Agreement with Moody Simmons Baytown, Ltd., and Moody Simmons
Baytown II, Ltd. 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.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the
ATTEST:
C 466.1
C ►A -� VU f SMITK, City {
APPROVED AS TO FOI
-4 Esc «. J��
ACIO RAMIREZ, S1
0 R:AKaren\Files\City Councill0rdinanc
® UTILITY FUNCTIONS AND SERVICES
ALLOCATION AGREEMENT
L�
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS UTILITY FUNCTIONS AND SERVICES ALLOCATION AGREEMENT
( "UTILITY FUNCTIONS AND SERVICES ALLOCATION AGREEMENT (the
"Allocation Agreement ") is entered into as of the date specified in Section 7.13 hereof,
by and between THE CITY OF BAYTOWN, TEXAS (the "City"), a municipal
corporation and home -rule city situated in Harris and Chambers Counties, Texas, and
MOODY SIMMONS BAYTOWN, LTD., a Texas Limited Partnership, and MOODY
SIMMONS BAYTOWN II, LTD., Texas Limited Partnership (cumulatively
"Developer "), on behalf of proposed HARRIS COUNTY MUNICIPAL UTILITY
DISTRICT NO. 459 to be created as a body politic and corporate and a governmental
agency of the State of Texas under the provisions of Article XVI, Section 59 of the Texas
Constitution and Chapters 49 and 54 of the Texas Water Code, as amended (the
"District "). It is the intention of the parties to this Allocation Agreement that all rights,
benefits and obligations pursuant to this Allocation Agreement shall ultimately be
assigned to the District upon its creation. Thus, the representations by the District at this
time represent the Developer's commitment to cause or direct the same to occur.
Recitals
WHEREAS, the City is a home -rule city and municipal corporation that provides
various municipal services to its citizens; and
WHEREAS, the Developer has purchased three contiguous tracts of land
comprising approximately 138.439 acres which is within the City's corporate limits
attached hereto as Exhibit "A -1" (the "Tract "); and
WHEREAS, the District is proposed to be created within the City covering the
property described on Exhibit "A -1" for the purpose of, among other things, providing
water distribution, wastewater collection, wastewater treatment and drainage facilities
and services as more fully described below, (the "Facilities ") to serve the development
occurring with and near that portion of the City situated within the boundaries of the
District, by financing and purchasing the Facilities; and
WHEREAS, the development will occur in phases and the Developer anticipates
that each phase will be platted separately; and
59327 3.doc ff A
® WHEREAS, the parties recognize that the District cannot approve and execute
this Allocation Agreement until the District is created by the Texas Commission on
Environmental Quality and confirmed by a majority of the votes cast at the
confirmation election; and
WHEREAS, the City has agreed to provide the services described herein under
the conditions and terms set forth in this Utility Contract; and
WHEREAS, this Allocation Agreement is entered into under the authority of
Local Government Code Section 402.014, as amended, and applicable provisions of
Chapters 49 and 54 of the Texas Water Code, as amended, and applicable provisions of
the City of Baytown Code of Ordinances; and
WHEREAS, the City and the Developer have determined that they are
authorized by the Constitution and laws of the State of Texas to enter into this
Allocation Agreement and have further determined that the terms, provisions and
conditions hereof are mutually fair and advantageous to each; NOW THEREFORE,
AGREEMENT
For and in consideration of the mutual promises, obligations, and benefits
contained herein, and subject to the Consent Resolution of even date herewith, the City,
the Developer, and the District agree as follows:
ARTICLE I.
DEFINITIONS AND EXHIBITS
1.1 Definitions. Unless the context indicates otherwise, the following words
as used in this Allocation Agreement shall have the following meanings:
Approving Bodies shall mean the City, Harris County, Texas, the Texas
Commission on Environmental Quality, the Attorney General of Texas, the Comptroller
of Public Accounts of Texas, the United States Department of Justice and all other
federal, state and local governmental authorities having regulatory jurisdiction and
authority over the financing, construction or operation of the Facilities or the subject
matter of this Allocation Agreement.
Bonds shall mean the District's bonds, notes or other evidences of indebtedness
issued from time to time for the purpose of financing the costs of acquiring,
constructing, purchasing, operating, repairing, improving or extending the Facilities as
more fully set forth in Baytown Code of Ordinances, whether payable from ad valorem
• taxes, the proceeds of one or more future bond issues or otherwise, and including any
bonds, notes or similar obligations issued to refund such bonds.
59327_3.doc - 2 -
® City means the City of Baytown, Texas.
City Wastewater System means all the wastewater treatment facilities, lines,
components and equipment owned and used by the City to collect, convey, treat,
monitor, regulate, and dispose of Wastewater to the Northeast District Wastewater
Treatment Plant.
City Water System means. all the water production pumps, lines, meters,
components, facilities, and equipment owned and used by the City to pump, treat,
monitor, convey, supply, and distribute Water to the public.
Consent Resolution means the resolution of even date herewith adopted by the
City consenting to the creation of the District.
Commission means the Texas Commission on Environmental Quality and any
successor or successors exercising any of its duties and functions related to municipal
utility district.
Detention Tract means the approximately 16 acres located in the District and used
for detention facilities to serve the Tract, as shown in Exhibit "C."
Developer means cumulatively MOODY SIMMONS BAYTOWN, LTD., a Texas
Limited Partnership, and MOODY SIMMONS BAYTOWN II, LTD., a Texas Limited
Partnership, and their successors and assigns.
Development Plan means the conceptual plan for the development within the
District attached as Exhibit "C" and approved simultaneously herewith.
District means Harris County Municipal Utility District No. 459 to be created as a
body politic and corporate and a governmental agency of the State of Texas and to be
organized under the provisions of Article XVI, Section 59 of the Texas Constitution and
Chapters 49 and 54 Texas Water Code, as amended, and which is proposed to include
within its boundaries approximately 138.439 acres of land situated wholly within the
corporate limits of the City, as described in Exhibit A -1.
District Assets means (i) all rights, title and interests of the District in and to the
Facilities, (ii) any Bonds of the District which are authorized but have not been issued
by the District, (iii) all rights and powers of the District under any agreements or
commitments with any persons or entities pertaining to the financing, construction or
operation of all or any portion of the Facilities and /or the operations of the District, and
(iv) all books, records, files, documents, permits, funds and other materials or property
of the District.
59327_3.doc - 3 -
® District's Obligations means (i) all outstanding Bonds of the District, (ii) all other
debts, liabilities and obligations of the District to or for the benefit of any persons or
entities relating to the financing, construction or operation of all or any portion of the
Facilities or the operations of the District, and (iii) all functions performed and services
rendered by the District, for and to the owners of property within the District and the
customers of the Facilities.
Engineers or District Engineers means consulting engineers, or its replacements,
successors or assignees designated by the District as its engineer.
Engineering Reports means and refer to that certain Preliminary Engineering
Report prepared by the Engineers relating to the creation of the District and describing
the initial scope and extent of the Facilities and any additional engineering reports
prepared by the Engineers from time to time relating to the issuance of Bonds by the
District, copies of which shall be on file in the offices of the District.
Equivalent Single - Family Connection or ESFC means that daily measure of Water
and Wastewater that is attributed to one Single - Family Residential Home as determined
by the City.
Facilities means and include the water supply and distribution, sanitary sewer
collection, transportation and treatment, and storm water collection, detention and
drainage systems constructed or acquired or to be constructed or acquired by 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.
Point of Connections means the location of the connection of the wastewater
collection line from the Tract to the City's wastewater collection system as designated
on Exhibit "E ", or such other location as is mutually agreeable to the City and the
Developer.
Regional Improvements means those Facilities described in Section 2.7 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, and transportation improvements.
Single - Family Residential Home means a building designated to be used and
occupied by one family, with a detached single - family residence being one residential
• home, a duplex being two residential homes, and each unit in an apartment complex
being one residential home.
59327_3.doc - 4 -
® Stormwater Detention System means those facilities used to detain the difference in
stormwater runoff between the developed and the pre - developed run -off rate for the
100 -year flood event.
•
Temporary Wastewater Systems means those temporary systems constructed,
operated and maintained by the District used to receive treat, test, and dispose of
wastewater prior to the date that the District's wastewater treatment capacity is
provided through the City's Northeast District Wastewater Treatment Plant, including,
but not limited to the package treatment plant.
Tract means the 138.439 acres of land to be developed by the Developer as
described in Exhibit "A -I ", and to which the City has agreed to provide the services
described in this Allocation Agreement.
Wastewater means the water - carried wastes, exclusive of ground, surface, and
storm waters, normally discharged from the sanitary conveniences of residential or
commercial structure of a domestic nature (not industrial), meeting the requirements of
the City set forth in the City's Code of Ordinances.
Wastewater Service means the services provided by the City in receiving, treating,
testing, and disposing of Wastewater from the District once the District's wastewater is
sent to the City's Northeast District Wastewater Treatment Plant.
Water means potable water that meets Federal and State standards for
consumption by humans.
Water Supply Service means the services provided by the City in treating,
pumping, transporting, and delivering of Water to the District for consumption by
District customers in accordance with this Allocation Agreement.
1.2 Exhibits. The following Exhibits attached or to be attached to this
Allocation Agreement are a part of the Contract as though fully incorporated herein:
Exhibit A
Description of the District
Exhibit B
In City Procedures
Exhibit C
Development Plan
Exhibit D'
Right -of -Way and Municipal
Utility Easement
Exhibit E
Point of Connection
59327_3.doc - 5 -
® ARTICLE II.
AGREEMENT CONCERNING WATER SUPPLY
AND WASTEWATER SERVICES TO THE DISTRICT
2.1. City's Obligation to Provide Services. The City agrees to provide Water
Supply Services to the District to serve the Tract in accordance with the terms and
conditions of this Allocation Agreement. In order to obtain Water Supply Services, the
Developer agrees that it will connect to a 12" water line on Sjolander Road and extend
the line across the property frontage on Needlepoint Road to the eastern most boundary
line of the Tract.
Upon notice to the District and after completion and acceptance by the City of
the Northeast District Wastewater Treatment Plant,
a. the District agrees, within 365 calendar days of receipt of such notice,
1. to cease operations of the Temporary Wastewater System;
2. to construct, at its own cost and expense, the necessary
appurtenances to connect the wastewater facilities to the Northeast
District Wastewater Treatment Plant, including, but not limited to,
extending the sewer line from the Tract to the Point of Connection;
b. the District agrees to remove the Temporary Wastewater System within 6
months after the date the District receives wastewater treatment service
from the City's Northeast District Wastewater Treatment Plant; and
C. the City agrees to accept wastewater from and to provide Wastewater
Services to the District to serve the Tract in accordance with the provisions
of this Allocation Agreement.
All services to be provided by the City herein shall be expressly subject to the payment
of the appropriate impact fees and other fees specified in this Allocation Agreement and
the City's Code of Ordinances.
2.2. Assignment to District. The parties hereto assume that this Allocation
Agreement will be assigned by the Developer to the District after creation of the
District. Any provision of this Allocation Agreement, whether referring to the
Developer or the District, shall apply to the Developer until assigned to the District as
provided by this Allocation Agreement, thereafter all provisions, except those contained
in Article Ill, shall apply to the District.
2.3. Standard of Service. The Water Supply Services and Wastewater Services
• provided by the City to the Developer under this Allocation Agreement shall be
equivalent in quality to the water supply and wastewater services, once the Northeast
59327_3.doc - 6 -
® District Wastewater Treatment Plant is operational, the City provides to other City
customers. Nothing contained in this Allocation Agreement shall create or imply in the
Developer or the District a preferential right to the Water Supply Services or
Wastewater Services over other City customers.
2.4. Maximum Number of Connections. The City agrees to provide up to 580
ESFCs to serve the District.
2.5. Facilities. The Facilities,. as described in the Engineering Reports, will be
designed and constructed in compliance with all applicable requirements and criteria of
the City as well as the applicable Approving Bodies and will be subject to the Consent
Resolution. The design and construction of the Facilities will be subject to the review
and approval of the City. Except as otherwise provided in Section 2.1, the District shall
design, construct or extend the Facilities in such phases or stages as the District, in its
sole discretion, from time to time may determine to be economically feasible. All
designs, design standards, construction plans and drawings for any plants, facilities,
connectors or points of connection including all supporting facilities must be reviewed
by and approved by the City Engineer before any implementation or construction shall
occur as provided herein.
2.6. Letter of Assurance and Issuance of Assignments of Capacity 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 580 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 580 ESFCs.
The District shall have the right to assign all or part of its capacity on assignment
forms approved by the City for reservation of capacity to landowner(s) and
developer(s) within its boundaries. At such time as a landowner or developer located
within the boundaries of the District requests a building permit from the City, the City
shall honor such assignments of capacity or agreements; provided, however, that the
City shall have no duty to honor any assignment of capacity that in the City's sole
opinion was not validly issued or which will result in capacity which exceeds the
uncommitted capacity reserved by the District. Any such assignment shall be subject to
the restrictions noted herein.
2.7. Design and Construction of the Facilities; Regional Improvements;
Easement. The Facilities shall be constructed by or on behalf of the District at the
District's sole expense and shall be designed using the City's current standard criteria.
• It is understood and agreed that certain of the Facilities, as referenced in the Letter
Agreement concerning the annexation of Hunter's Creek Subdivision which was
59327 3.doc - 7 -
® executed by the City Manager of the City on September 1, 2004, and as herein amended
to extend to the entire Tract shall be oversized to serve areas not within the District
(hereinafter referred to as "Regional Improvements ").The District agrees that it will
provide the necessary engineering and construction for the Regional Improvements,
including all necessary appurtenances. The Developer shall require that all engineers
involved in designing the Regional Improvements tender a Certificate of Insurance
evidencing a commercial liability policy, a business automobile policy and a workers'
compensation policy with the limits established hereinbelow along with an errors and
omissions policy complying with the following:
•
• Lin-dt: $1,000,000 for this project.
• For all architects, engineers, and /or design companies
• Claims -made form is acceptable
• Coverage will be in force for three (3) years after
construction of the Project is completed.
Before commencing construction of the Regional Improvements, the District
must receive the written approval from the City of (i) the plans and specifications for
the Regional Improvements. Upon written approval of the plans and specifications by
the City, the District shall proceed to construct the Regional Improvements and
complete the same within eighteen months from the effective date of this Agreement.
The City shall have the right to inspect the construction of the Regional Improvements.
Upon completion of the Regional Improvements, the City shall inspect the same and
shall note any deficiencies in the construction of the Regional Improvements. Upon
completion, the District shall convey the Regional Improvements and any right -of -way
for the Regional Improvements to the City, subject to its acceptance, and the City shall
be responsible for the operation and maintenance of the Regional Improvements. The
District shall warrant the Regional Improvements or cause any construction contract
warranty to run to the City for a period of one year after final completion of the
Regional Improvements. Before beginning construction on the Regional Improvements,
the District shall provide the City with executed copies of payment and performance
bonds that comply with all applicable requirements of law, specifically including the
bond requirements of Texas Government Code Chapter 2253 and that name the City as
an additional obligee on such bonds. Evidence of proper authority of all signing
officers or representatives must be submitted. Additionally, prior to the construction of
the Regional Improvements the City shall be provided with a copy of a Certificate of
Insurance reflecting that the contractor has the following minimum coverage amounts:
(1) Workers' Compensation Policy
❑ Statutory amounts required by Texas law.
0 Employer's Liability: $500,000
59327_3.doc - 8 -
® (2) Commercial General Liability
Policy
❑ General aggregate of $1,000,000
0 Owners' and Contractors' Protective Liability of $500,000
❑ Products and Completed Operations of $1,000,000
0 Personal and Advertising Injury of $1,000,000
0 Minimum of $500,000 per occurrence
❑ Coverage shall be at least as broad as ISO CG 00 0110 93.
❑ No coverage exclusions shall be deleted from standard
policy without notification of individual exclusions being
attached for review and acceptance.
(3) Automobile Liability Policy
0 Combined single limits of $1,000,000
0 Coverage for "Any Auto."
All insurance certificates required in this section shall contain a provision that
coverages afforded under the policies will not be canceled, suspended, voided, or
reduced until at least thirty (30) days' prior written notice has been given to the City via
certified mail, return receipt requested. Prior to the end of each coverage period during
the term of this Agreement, a new Certificate of Insurance must be filed with the City
evidencing continuation of coverage. The contractor shall also file with the City valid
Certificates of Insurance covering all Subcontractors.
The following are general requirements, which are applicable to all policies required in
this section:
(a) General Liability and Automobile Liability insurance shall be written by a
carrier with an A.M. Best Rating of B+ or higher in accordance with the
current Best Key Rating Guide.
(b) Only Insurance Carriers licensed and admitted to do business in the State
of Texas will be accepted.
(c) Deductibles shall be listed on the Certificate of Insurance and are
acceptable only on a per occurrence basis.
(d) Claims -made policies will not be accepted.
(e) The City, its officials, agents and employees are to be added as
"Additional Insureds" to all liability policies. The coverage shall contain
• no special limitation on the scope of protection afforded to the City its
officials, agents and employees.
59327 3.doc - 9 -
® (f) A waiver of subrogation in favor of the City with respect to Workers'
Compensation Insurance must be included.
(g) Upon request, certified copies of all insurance policies and /or certificates
of insurance shall be furnished to the City at no cost to the City.
(h) The CONTRACTOR shall comply with Section 110.110 of Title 28 of the
Texas Administrative Code.
The Developer shall dedicate to the City a 10 -foot right -of -way for the widening
of Needlepoint Road abutting the south boundary line of such road and a 20 -foot
municipal utility easement adjacent to such right -of -way, which shall run the entire
length of the Tract for the construction and maintenance by the City of a sanitary sewer
line. Such right -of -way and easement are more particularly depicted in Exhibit "D."
2.8. Ownership by City. As the Facilities are acquired and constructed, the
District shall convey the same to the City (except for the Detention Tract and
Temporary Wastewater Systems) including all warranties. The conveyance to the City
shall be subject to the acceptance by the City after inspection by the City. The District
shall not convey, and the City shall not accept, the Detention Tract and Temporary
Wastewater Systems.
2.9. Operation by the City. As construction of each phase of the Facilities
(except for the Detention Tract) 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, whereupon such Facilities
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 if the defects have been corrected. During the term of this Allocation
Agreement, the City will operate the Facilities 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 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 Facilities, and the City
will comply with all contractual provisions and agreements entered into by it and with
• all valid rules, regulations, directions or orders by any governmental, administrative or
judicial body promulgating the same.
59327_3.doc -10-
® Prior to the first connection to the Water System within the Tract being made, the
District shall enter into a contract with the homeowners association within the District,
or other entity acceptable to the City, but hereinafter referred to as "HOA ". Said
contract shall provide that (a) the HOA will operate and maintain the 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 System to the HOA 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
System, including the Detention Tract, or Temporary Wastewater Systems.
2.10. Rates and Meters. The City shall bill and collect from customers of the
Facilities and shall from time to time fix such rates and charges for such customers of
the Facilities as the City, in its sole discretion, determines are necessary; provided that
the rates and charges for services afforded by the Facilities will be equal and uniform to
those charged other similar classifications of users in non - municipal utility district areas
of the City. All revenues from the Facilities shall belong exclusively to the City. The City
shall be responsible for providing and installing any necessary meters with the
individual customers. Additionally, the City shall refund forty percent (40 %) of the
sewer rates referenced in this section actually collected within the Tract during the time
that the Temporary Wastewater System is operational by the District.
2.11. Connection Charges. Notwithstanding any City ordinance to the
contrary and except as otherwise specifically set forth herein, the City may impose a
charge for connection to the Facilities at a rate to be determined from time to time by
the City, provided the charge is equal to the sums charged other City users for
comparable connections, and the connection charges shall belong exclusively to the
City.
2.12. Impact Fees. The District shall pay to the City impact fees for water
supply and wastewater services. The impact fees shall be shall be the amount as
adopted by the City Council for water and wastewater services. The District shall pay
water impact fees to the City in accordance with Section 114 -101, and as may be
hereinafter amended and wastewater impact fees to the City in accordance with such
section, as amended, regardless of the date that the that such service is available
through the Northeast District Wastewater Treatment Plant, which plant is identified in
the capital improvements plan of the City. The City has committed to the construction
of such plant within two years and to have service available within a reasonable period
of time, as determined by the City, which period of time shall not exceed five years.
2.13. Default; Remedies. Any party to this Allocation Agreement that believes
• that the other party to this Allocation Agreement has defaulted in the performance of
any condition, term, or obligation owed to that party under this Allocation Agreement
59327 3.doc - 11 -
® shall within ten (10) business days after discovery of said default, give written notice of
the default to the defaulting party, specifying in detail the provision or provisions of
this Allocation Agreement that have allegedly been breached, what specific action must
be taken to cure or correct the default, and requesting that the City Council of the City
provide the parties an opportunity to be heard in public session to discuss the default at
the next scheduled city council meeting. The City Council, after review of such request,
shall determine whether to provide the parties the opportunity to be heard in public
session to discuss the default at the next scheduled city council meeting. Should the
party receiving the notice fail to commence action to correct the default within the time
determined by City Council and/or thereafter fail to diligently pursue the completion
of the action to correct the default, or should City Council determine not to hear the
matter, the party giving the notice of default may exercise other available remedies at
law and in equity. Notwithstanding the foregoing, the parties hereto shall have all
remedies provided at law and in equity with respect to this Allocation Agreement.
is
ARTICLE III.
DEVELOPMENT PLAN
3.1. Development Plan. The Developer's Development Plan for the overall
development of the District is attached as Exhibit "C." The City and the Developer
agree that specific approvals are required for each phase or part of the Development
Plan, provided, however, that the City shall not withhold such approvals if the
applicable phase or part is in conformance with the Development Plan. In addition, the
parties agree as follows:
(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. The current Development Plan presented to the
District by the Developer provides for 122.3 net acres of single family
development and the balance of the Tract shall be for recreational
facilities, stormwater detention, open spaces and roadways, as shown on
Exhibit "C." Any material change to the Development Plan, as determined
by the City, shall be approved by the City and shall conform to the then -
current City standard criteria and Code.
59327 3.doc -12-
(b) The City, the Developer, and the District recognize the City's rights and
obligations to insure that all Facilities are constructed in accordance with
approved plans and specifications. The City, the Developer, and the
District agree that the City shall be named as an additional beneficiary on
all construction, payment, performance, and maintenance bonds and that
no additional bonds shall be required of the Developer or the District.
(c) The obligations provided in this Article shall be obligations solely of the
Developer and shall not be obligations of the District. Further, the
Developer's obligations in this Article shall survive the creation of the
District and shall exist for the term of this Allocation Agreement.
Notwithstanding any other provision of this Allocation Agreement, the
Developer may not assign any of its obligations under this Article to the
District or any other person or entity without the prior written consent of
the City.
ARTICLE IV.
FINANCING OF FACILITIES
4.1. Authority of District to Issue Bonds. The District shall have authority to
issue, sell and deliver Bonds from time to time, as -deemed necessary and appropriate
by the Board of Directors of the District, for the purposes, in such forms and manner
and as permitted or provided as federal law, the general laws of the State of Texas and
the Consent Resolution. No Bonds shall be issued by the District unless all terms and
conditions of the City's Procedures for the Creation of In -City Municipal Utility
Districts attached as Exhibit "B" and of the Consent Resolution have been followed.
4.2. Bonds as Obligation of District. Unless and until the City shall dissolve
the District and assume the District Assets and District Obligations, the Bonds of the
District, as to both principal and interest, shall be and remain obligations solely of the
District and shall never be deemed or construed to be obligations or indebtedness of the
City.
V.
DISTRICT TAXES
5.1. District Taxes. The District is authorized to assess, levy and collect ad
valorem taxes upon all taxable properties within the District to provide for (i) the
payment in full of the District's Obligations, including principal, redemption premium,
if any, or interest on the Bonds and to establish and maintain any interest and sinking
fund, debt service fund or reserve fund and (ii) for administration, operation, and
59327 3.doc -13-
® maintenance purposes, all in accordance with applicable law. The parties agree that
nothing herein shall be deemed or construed to prohibit, limit, restrict or otherwise
inhibit the District's authority to levy ad valorem taxes as the Board of Directors of the
District from time to time may determine to be necessary. The City and the District
recognize and agree that all ad valorem tax receipts and revenues collected by the
District shall become the property of the District and may be applied by the District to
the payment of all or any designated portion of the principal or redemption premium, if
any, or interest on the Bonds or otherwise in accordance with applicable law.
5.2. Sale or Encumbrance of Facilities. Except as expressly provided in
Sections 2.8 and 2.9 and as provided by applicable law, it is acknowledged that the
District may not dispose of or discontinue any portion of the Facilities.
ARTICLE VI.
DISSOLUTION OF THE DISTRICT
6.1. Dissolution of District Prior to Retirement of Bonded Indebtedness.
The City and the District recognize that, as provided in the laws of the State of Texas
and the Consent Resolution, the City has the right to abolish and dissolve the District
and to acquire the District's Assets and assume the District's Obligations.
Notwithstanding the foregoing, the City agrees that it will not dissolve the District until
the Facilities required to serve the District have been completed. To discharge any
remaining District's Obligations, the City may (i) if requested by the District in writing,
authorize the District to sell its Bonds before or during a transition period prior to the
effective date of dissolution, as established by the City, (ii) pursuant to Local
Government Code Section 43.080, as amended, issue and sell bonds of the City in at
least the amount necessary to discharge the District's Obligations, including those
under any utility development and reimbursement agreements with developers in the
District, or (iii) provide written notice to the District that the City has sufficient funds
available from other sources to discharge the District's Obligations, including those
under the utility development and reimbursement agreements with developers in the
District. Upon dissolution of the District, the City shall acquire the District's Assets and
shall assume the District's Obligations. The City further agrees that it will not dissolve
the District until the developer(s), including the Developer, developing Facilities in the
District shall have been reimbursed by the District to the maximum extent permitted by
the rules of the Commission or the City assumes any obligation for such reimbursement
of the District under such rules.
6.2. Transition upon Dissolution. In the event all required findings and
procedures for the dissolution of the District have been duly, properly and finally made
• and satisfied by the City, and unless otherwise mutually agreed by the City and the
District pursuant to then existing law, the District agrees that its officers, agents and
59327 3.doc -14-
® representatives shall be directed to cooperate with the City in any and all respects
reasonably necessary to facilitate the dissolution of the District and the transfer of the
District's Assets to, and the assumption of the District's Obligations by, the City.
ARTICLE VII.
MISCELLANEOUS
7.1. City Code of Ordinances, Permits, Fees, Inspections. The District
understands and agrees that all City ordinances and codes, including applicable
permits, fees and inspections, shall be of full force and effect within its boundaries and
shall apply in the same manner as to other areas within the City's corporate limits and
this Allocation Agreement shall at all times be subject to full compliance with the City
Code of Ordinances. The District understands and agrees that any improvements to the
Detention Tract will be done in accordance with the Development Plan and conditions
related thereto and any agreement entered into between the City and the District as
provided in Section 3.2 hereof.
7.2. Approvals and Consents. Approvals or consents required or permitted to
be given under this Allocation Agreement shall be evidenced by an ordinance,
resolution or order adopted by the governing body of the appropriate party or by a
certificate executed by a person, firm or entity previously authorized to give such
approval or consent on behalf of the party.
7.3. Force Maj eure. If any party is rendered unable, wholly or in part, by
force majeure to carry out any of its obligations under this Allocation Agreement,
except the obligation to pay amounts owed or required to be paid pursuant to the terms
of this Allocation Agreement, then the obligations of such party, to the extent affected
by such force majeure and to the extend that due diligence is being used to resume
performance at the earliest practicable time, shall be suspended during the continuance
of any inability so caused to the extent provided but for no longer period. As soon as
reasonably possible after the occurrence of the force majeure relied upon, the party
whose contractual obligations are affected thereby shall give notice and full particulars
of such force majeure to the other party. Such cause, as far as possible, shall be
remedied with all reasonable diligence. The term "force majeure", as used herein, shall
include, without limitation of the generality thereof, acts of God, strikes, lockouts, or
other industrial disturbances, acts of the public enemy including acts of terrorism,
orders of any kind of the government of the United States or the State of Texas or any
civil or military authority other than a party to this Allocation Agreement,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes,
storms, floods, washouts, drought, arrests, restraint of government and people, civil
disturbances, explosions, breakage or accidents to machinery, pipelines or canals,
partial or entire failure of water supply resulting in an inability to provide water
59327 3.doc -15-
necessary for operation of the water system and sewer system, to the extent required
herein, or in an inability of the City to provide Water or receive Wastewater in
accordance with Section 2.1, and any other inabilities of any party, whether similar to
those enumerated or otherwise, which are not within the control of the party claiming
such inability, which such party could not have avoided by the exercise of due diligence
and care. It is understood and agreed that the settlement of strikes and lockouts shall be
entirely within the discretion of the party having the difficulty, and that the
requirement that any force majeure shall be remedied with all reasonable dispatch shall
not require the settlement of strikes and lockouts by acceding to the demands of the
opposing party when such settlement is unfavorable to it in the judgment of the party
experiencing the difficulty.
7.4. Law Governing; Venue; Authority for Actions. This location Agreement
shall be governed by the laws of the State of Texas and no lawsuit shall be prosecuted
on this Allocation Agreement except in a court of competent jurisdiction located in
Harris County. The parties hereto recognize and understand that disputes may occur
or actions may be required under this Allocation Agreement and that this Allocation
Agreement involves a governmental entity and, as such, there can be no delegation to a
third party individual or third party entity of the duties and obligations of the parties as
herein provided.
7.5. No Additional Waiver Implied. No waiver or waivers of any breach or
default (or any breaches or defaults) by any party hereto of any term, covenant,
condition, or liability hereunder, or the performance by any party of any duty or
obligation hereunder, shall be deemed or construed to be a waiver of subsequent
breaches or defaults or any kind, under any circumstances.
7.6. Addresses and Notice. Unless otherwise provided in this Allocation
Agreement, any notice, communication, request, reply, or advice (herein severally and
collectively, for convenience, called "Notice ") herein provided or permitted to be given,
made, or accepted by any party to the other (except bills), must be in writing and may
be given or be served by depositing the same in the United States mail postpaid and
registered or certified and addressed to the party to be notified, with return receipt
requested, or by delivering the same to such party, addressed to the party to be notified.
Notice deposited in the mail in the manner herein above described shall be conclusively
deemed to be effective, unless otherwise stated in this Allocation Agreement, from and
after the expiration of three (3) days after it is so deposited. Notice given in any such
other manner shall be effective when received by the party to be notified. For the
purpose of notice, addresses of the parties shall, until changed as hereinafter provided,
be as follows:
• if to the City, to:
City of Baytown
59327 3.doc -16-
® Attn: City Manager
P.O. Box 424
Baytown, TX 77522
If to the Developer, to:
Moody Simmons Baytown, Ltd.
Moody Simmons Baytown II, Ltd.
Attn: Charles E. Simmons
3003 West Alabama
Houston, TX 77098
If to the District, to:
Harris County Municipal Utility District No. 459
c/o Allen Boone Humphries Robinson LLP
Attn: Stephen M. Robinson .
3200 Southwest Freeway, Suite 2600
Houston, Texas 77027
The parties shall have the right from time -to -time and at any time to change their
respective addresses and each shall have the right to specify any other address by at
least fifteen (15) days written notice to the other.
7.7. Assignability. Except as set forth below, this Allocation Agreement may
be not be assigned by either party except upon written consent of the other party hereto.
Developer shall assign this Allocation Agreement to the District within ninety (90) days
after the results of the election within the District at which the qualified voters vote in
favor of confirmation of the creation of the District are declared. If any such election
results in a vote against the confirmation of the District, Developer or the City may
terminate this Allocation Agreement upon thirty (30) days written notice to the other
party. If terminated by the District, the contract shall not be terminated until it has paid
the City all reasonable costs and expenses incurred by the City due to such termination.
7.8. Merger and Modifications. This Allocation Agreement, including the
exhibits that are attached hereto and incorporated herein for all purposes, embodies the
entire agreement between the parties relative to the subject matter hereof. This
Allocation Agreement shall be subject to change or modification only with the written
mutual consent of the parties. All agreements or parts thereof inconsistent with the
terms of this Allocation Agreement are hereby repealed, provided, however, that such
repeal shall be only to the extent of such inconsistency.
7.9. Reservation of Rights. All rights, powers, privileges and authority of the
• parties hereto not restricted or affected by the express terms and provisions hereof are
54327 3.doc -17-
® reserved by the parties and, from time to time, may be exercised and enforced by the
parties.
7.10. Captions. The captions of each section of this Allocation Agreement are
inserted solely for convenience and shall never be given effect in construing the duties,
obligations or liabilities of the parties hereto or any provisions hereof, or in ascertaining
the intent of either party, with respect to the provisions hereof.
7.11. Severability. The provisions of this Allocation Agreement are severable,
and if any part of this Allocation Agreement or the application thereof to any person or
circumstances shall ever be held by any court of competent jurisdiction to be invalid or
unconstitutional for any reason, the remainder of this Allocation Agreement and the
application of part of this Allocation Agreement to other persons or circumstances shall
not be affected thereby.
7.12. Benefits of Contract. This Allocation Agreement is for the benefit of the
City, the Developer, and the District, and shall not be construed to confer any benefit on
any other person except as expressly provided for herein.
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 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 hereof. 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, 2006. The City may terminate this Allocation
Agreement (i) after two (2) years from its effective date if the City has not, by that date,
received a properly executed copy of the assignment of the Developer's obligations
relating to Water Supply Service and Wastewater Service to the District in a form
approved by the City, (ii) after three (3) years from its effective date should Developer
fail to complete the installation of the Regional Facilities and /or (iii) after eighteen (18)
months from its effective date should the Developer fail to commence any construction
of Facilities to serve the Tract. Notice shall be given by the City in writing to the
Developer and the District at least thirty (30) days prior to the termination date.
7.14. Meetings and Notices. The District shall comply with all provisions of
the Procedures for Creation of In -City Municipal Utility Districts related to District
meetings and notices.
[EXECUTION PAGE FOLLOWS}
59327 3.doc -18-
® IN WITNESS WHEREOF, the parties hereto have e cuted t P Allocation
Agr ment in multiple copies, each of equal dignity, on this ay of IdKdL
200
•
CITY OF BAYTOWN
Name: GARY JACKSON
Title: CITY MANAGER
Date:
ATTEST: AP ROVED:
GARY W. SMITH e ikWACIO RAMIREZ, SR.
CITY CLERK CITY ATTORNEY
DEVELOPER
MOODY SIMMONS BAYTOWN, LTD.,
a Texas limited partnership
By: Moody Simmons Baytown GP, LLC
its General-Partner
Dan Moody, Jr.,
MOODY SIMMONS BAYTOWN II, LTD.,
a Texas limited partnership
By: Moody Simmons Baytown II GP, LLC
its General Partner
By:
Dan Moody, Jr., M7 6r
59327 3.doc -19-
® Thdis ins"ment was acknowledged before me on this the day of
200, by Dan Moody, Jr., authorized as general partner to sign this
Agreement on behalf of MOODY SIMMONS BAYTOWN, LTD., a Texas Limited
Partnership, and MOODY SIMMONS BAYTOWN II, LTD., a Texas Limited
Partnership, on behalf of said limited partnerships.
•
�'p¢v Huti ANGELA MARIE NICO7RA
NOTARY PU13LIC
State of Texas
Comrn. Exp. 12 -02 -2006
(NOTARY SEAL)
59327 3.doc -20-
Notar P blic
In an F r the State of Texas
® Exhibit "A"
Tract
•
The Tract is more particularly described in Exhibit "A -l" attached hereto.
Exhibit "A." Page Solo
•
HUNTER'S CREEK BOUNDARY
138.439 ACRES
138.439 ACRES OF LAND BEING ALL THAT CERTAIN 14.727 ACRE TRACT OF
LAND AS DESCRIBED IN DEED RECORDED IN CLERK'S FILE NO. X990277 OF
THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY HARRIS COUNTY,
TEXAS, ALL THAT CERTAIN 71 .570 ACRE TRACT OF LAND AS DESCRIBED IN
DEED RECORDED IN CLERK'S FILE NO. X633713 OF THE OFFICIAL PUBLIC
RECORDS OF REAL PROPERTY HARRIS COUNTY, TEXAS, AND ALL THAT
CERTAIN 52.142 ACRE TRACT OF LAND AS DESCRIBED IN DEED RECORDED
IN CLERK'S FILE NO. X961225 OF THE OFFICIAL PUBLIC RECORDS OF REAL
PROPERTY HARRIS COUNTY, TEXAS AND BEING SITUATED IN THE
WILLIAM BLOODGOOD SURVEY, A -4, HARRIS COUNTY, TEXAS AND THE
SJOLANDER SURVEY, A -1644 HARRIS COUNTY, TEXAS AND BEING MORE
PARTICULARLY DESCRIBED BY MEETS AND BOUNDS AS FOLLOWS:
BEGINNING at a found 1 inch iron pipe being the northeast corner of previously
mentioned 14.727 acre tract and the northwest corner of previously mentioned 71.570
acre tract, a point on the south line of Needlepoint Road (60' R.O.W) and having point
having State Plane Coordinates N:13866344.75, E:3257836.37, South Central Zone;
THENCE N 77037'10" W, along the north line of previously mentioned 71.570 acre
tract and the south line of Needlepoint Road, a distance of 819.64 feet to a
found l inch iron pipe located at the northeast corner of said 71.570 acre tract
and the northwest comer of previously mentioned 52.142 acre tract;
THENCE N 77 038'25" E, along the north line of said 52.142 acre tract and the south
line of Needlepoint Road, a distance of 812.21 feet to a found I inch iron
pipe located at the northeast comer of said 52.142 acre tract and the
northwest corner of that certain 43.1651 acre tract of land as described in
deed recorded in Clerk's File No. V726885 of the Official Public Records of
Harris County, Texas;
THENCE S 12 048'23" E, leaving the south line of Needlepoint Road and along the east
line of previously mentioned 52. ] 42 acre tract and the west line of previously
mentioned 43.1651 acre tract, a distance of 2,272.45 feet to a found 5/8 inch
iron rod with cap being the southeast corner of said 52.142 acre tract. Said
point also being on the southeast line of a 50 foot wide Houston Lighting and
Power Company easement as filed for record in Volume 3474, Page 14 of the
Deed Records of Harris County, Texas and a point on the northwest line of a
100 foot wide Dayton -Goose Creek Railway easement as filed for record in
Volume 390, Page 431 of the Deed Records of Harris County, Texas;
• THENCE S 24 048'51" W, along the southeasterly line of previously mentioned 52.142
acre tract, along the southeasterly line of previously mentioned Houston
Lighting and Power Company easement and along the northwesterly line of
Exhibit "A -1"
J:12003120030661WP1Hunter's Creek District Boundary.doc Page 1 of')
® previously mentioned Dayton -Goose Creek Railway easement, a distance of
1,325.49 feet to a found 5/8 inch.iron rod with cap. Said point being the
southwest comer of said 52.142 acre tract and the southeast comer of
aforementioned 71.570 acre tract:
THENCE S 24 1145'07" W, along the southeasterly line of previously mentioned 71.570
acre tract, along the southeasterly line of previously mentioned Houston
Lighting and Power Company easement and along the northwesterly line of
previously mentioned Dayton -Goose Creek Railway easement, a distance of
1291.62 feet to a found '/z inch iron rod for corner being the southwest corner
of said 71.570 acre tract and a point on the east line of Landmark Estates, a
recorded subdivision as filed for record in Volume 338, Page 106 of the Map
Records of Harris County, Texas;
THENCE N 13 035'23" W, along the west line of previously mentioned 71.570 acre
tract and the east line of previously mentioned Landmark Estates, a distance
of 965.12 feet to a found '/2 inch iron rod for corner being the northeast corner
of previously mentioned Landmark Estates and the southeast corner of
McGee Place Phase Two, a recorded subdivision as filed for record in
Volume 345, Page 60 of the Map Records of Harris County, Texas;
THENCE N 13020'13" W, along the west line of the said 71.570 acre tract and the east
line of McGee Place Phase Two, a distance of 1,530.44 feet to a found' /2 inch
iron rod for corner;
THENCE N 13 003'00" W, continuing along the west line of the 71.570 acre tract and
the east line of McGee Place Phase Two, a distance of 269.41 feet to a found
I inch iron pipe for corner, the northeast corner of McGee Place Phase Two
and the southeast comer of that certain 19.000 acre tract of land as described
in deed recorded in 5048441 of the Official Public Records of Harris County,
Texas;
THENCE N 130 05'48" W, along the west line of the said 71.570 acre tract and the east
line of previously mentioned 19.000 acre tract, a distance of 267.81 feet to a
found I inch iron pipe being the northeast corner of said 19.000 acre tract and
southeast corner of that certain 13.210 acre tract of land as described in deed
recorded in Clerk's File No. V229558 of the Official Public Records of
Harris County, Texas;
THENCE N 13 006'03" W, continuing along the west line of said 71.570 acre tract and
along the east line of previously mentioned 13.210 acre tract, a distance of
265.77 feet to a found 1 inch iron pipe being the northeast corner of said
13.210 acre tract and the southeast corner of that certain 2.542 acre tract of
land as described in deed recorded in Clerk's File No. L275249 of the
is Official Public Records of Real Property Harris County Texas;
J:12003 \2003066\WP \Hunter's Creek District Boundary.doc Page 2 of 3
® THENCE N 12 059'38" W, along the west line of said 71.570 acre tract and the east line
of previously mentioned 2.542 acre tract, a distance of 265.03 feet to a found
'/2 inch iron rod being the northeast corner of said 2.542 acre tract and the
southeast corner of that certain 10.800 acre tract of land as described in deed
recorded in Clerk's File No. M568085 of the Official Public Records of Real
Property Harris County, Texas;
THENCE N 13006'14" W, continuing along the west line of said 71.570 acre tract and
the east line of previously mentioned 10.800 acre tract, a distance of 528.80
feet to a found '/2 inch iron rod being the northeast corner of previously
mentioned 10.800 acre tract and the southeast corner of aforementioned
14.727 acre tract;
THENCE S 77 015'53" W, leaving the west line of said 71.570 acre tract and along the
south line of previously mentioned 14.727 acre tract and the north line of
previously mentioned 10.800 feet, a distance of 2,430.70 feet to a found 1
inch iron pipe being the southwest corner of said 14.727 acre tract and the
northwest comer of said 10.800 acre tract. Said point also being located on
the east line of Sjolander Road (70' R.O.W.);
THENCE N 09023'15" W, along the west line of previously mentioned 14.727 acre
tract and the east line of Sjolander Road, a distance of 263.73 feet to a found
5/8 inch iron rod being the northwest comer of said 14.727 acre tract and the
intersection of the east line on Sjolander and the south line of aforementioned
Needlepoint Road;
THENCE N 77 011'40" E, along the north line of previously mentioned 14.727 acre
tract and the south line of Needlepoint Road, a distance of 2,414.78 feet to
the POINT OF BEGINNING and containing 138.439 acres of land.
This document was prepared under Title 22 of the Texas Administrative Code, Chapter
663. It does not reflect the results of an on the ground survey, and is not to be used to
convey or establish interests implied or established by the creation or reconfiguration of
the boundary of the political subdivision for which it was prepared.
JOHN J. RO)RIOl1E2
. a...w. a. aaa.a..u.a....
S 11 �•�� 1r
-� 3 D�
John J. Rodriquez, R.P.L.S.
Texas Registration No. 2634
J: \2003 \2003066 \WP \Htinter's Creek District Boundary.doc Page 3 of 3