Ordinance No. 10,135ORDINANCE NO. 10,135
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 A UTILITY
FUNCTIONS AND SERVICES ALLOCATION AGREEMENT WITH
BURNET BAY, LTD.; 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 City Manager to execute and the City Clerk to attest to a Utility Functions and
Services Allocation Agreement with Burnet Bay, 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 25th day of August, 2005.
CALVIN MUNDINGER, Ma
ATTEST: -
GXRY4V. SMITH, City Clerk
APPROVED AS TO FORM:
T
ACIO RAMIREZ, SR., Ci Attorney
0 RAK3ren1liles%City Counci1\0rdinances\20051August 251AIIocationAgreementOrdinance .doc
0 UTILITY FUNCTIONS AND SERVICES
ALLOCATION AGREEMENT
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 BURNET BAY, LTD., a Texas Limited
Partnership, (cumulatively "Developer "), on behalf of proposed HARRIS COUNTY
MUNICIPAL UTILITY DISTRICT NO. 473 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 403.9469 acres which is within the City's corporate limits attached hereto as
Exhibit "A" (the "Tract "); and
WHEREAS, the District is proposed to be created within the City covering the property
described on Exhibit "A" 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
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
OBIT A
® 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.
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 West 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,
16 and distribute Water to the public.
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® 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.
Developer means cumulatively BURNET BAY, LTD., a Texas Limited Partnership and
its 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. 473 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 403.9469 acres of land situated wholly.within the corporate limits of the City, as
described in Exhibit A.
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.
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 and drainage systems constructed or
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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 "D ", 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.
Stormwater Detention System means those on site 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, if any.
® Tract means the 403.9469 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 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 West 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
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• Exhibit B
In City Procedures
Exhibit C
Development Plan
Exhibit D
Point of Connection
ARTICLE II.
AGREEMENT CONCERNING WATER SUPPLY
AND WASTEWATERSERVICES 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 the Point of Connection as described in Exhibit "D." The City agrees to
provide Wastewater Services to the District to serve the Tract in accordance with the terms and
conditions of this Allocation Agreement. In order to obtain Wastewater Services, the
Developer agrees that it will connect to the Point of Connection as described in Exhibit "D."
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 III, 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 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 1523
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
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• 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 1523 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 1523 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. 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:
• Limit: $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
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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
0 Statutory amounts required by Texas law.
❑ Employer's Liability: $500,000
(2) Commercial General Liability Policy
❑ General aggregate of $1,000,000
❑ Owners' and Contractors' Protective Liability of $500,000
❑ Products and Completed Operations of $1,000,000
❑ Personal and Advertising Injury of $1,000,000
❑ Minimum of $500,000 per occurrence
❑ Coverage shall be at least as broad as ISO CG 00 01 10 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
❑ Combined single limits of $1,000,000
❑ 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.
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(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.
(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.
2.8. Ownership by City. As the Facilities are acquired and constructed, the District
shall convey the same to the City (except for any required stormwater detention) 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, any
stormwater detention.
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, 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.
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
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® acceptable to the City, but hereinafter referred to as "HOA ". Said contract shall provide that (a)
the HOA 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
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.
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.
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..
•
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 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.
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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 292 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.
(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
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t 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 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
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® 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 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 Majeure. 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
is include, without limitation of the generality thereof, acts of God, strikes, lockouts, or other
-12-
•
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 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:
-13-
• If to the City, to:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
If to the Developer, to:
BURNET BAY, LTD.
Attn: George Kopecky
7850 North Sam Houston Parkway West
Houston, Texas 77064
If to the District, to:
Harris County Municipal Utility District No. 473
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 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
-14-
• 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 (1 S) 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)
-15-
• IN WITNESS WHEREOF, the parties hereto have executed this Allocation Agreement in
multiple copies, each of equal dignity, on this _ day of , 200_.
ATTEST:
GARY W. SMITH, City Clerk
APPROVED AS TO FORM:
ACID RAMIREZ, SR., i Attorney
CITY OF BAYTOWN
Gary Jackson, City Manager
DEVELOPER
BURNET BAY, LTD.,
a Texas limited partnership
By: Hammers i Group, Inc.
A Delaw e rporation,
its Gene al inner
M
, Vice President
• STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged before me on this the day of W�
2004) by George Kopecky, authorized as general partner to sign this Agreement on behalf of
BURNET BAY, LTD., a Texas Limited Partnership on behalf of said limited partnerships.
NANCY BOOTHE
t : Notary Public
STATE OF TEXAS
My Comm. Exp. 04 -13 -2008
(NOTARY SEAL)
Notary Public
In and For thkrState of Texas
R:lKarenlFiles\Contracts\ln -City Municipal Utility District Contract & OrdinancelHarris County MUD No. 473WIIocationAgreementClean.doc
-17-
• METES AND BOUNDS DESCRIPTION
HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 473
403.9469 ACRES / 17,595,926 SQUARE FEET OF LAND
NATHANIAL LYNCH SURVEY, A -44
WILLIAM HILBUS SURVEY, A -336
HARRIS COUNTY, TEXAS
August 12, 2005
•
Description of 403.9469 acres, (17,595,926 square feet) of land described by deeds to Burnet
Bay, LTD recorded under Harris County Clerk's File Numbers X913086, Y603616, Y603617,
and Y603619, located in the Nathanial Lynch Survey, Abstract Number 44 and the William
Hilbus Survey, Abstract Number 336, Harris County, Texas, and more particularly described in
two, (2) parts by metes and bounds as follows:
TRACT 1 - 264.5684 ACRES / 11 524 599 S .FT.
264.5684 acres, (11,524,599 square feet) of land described by deeds to Burnet Bay, LTD
recorded under Hams County Cleric's File Numbers Y603616, Y603617, and Y603619, located
in the William Hilbus Survey, Abstract Number 336, Hams County, Texas;
BEGINNING at a 5/8 -inch iron rod found at the most northerly northwest corner of a called
23.1480 acre tract of land described by deed to Burnet Bay, LTD recorded under Harris County
Clerk's File Number Y603619 in the south right -of -way line of Interstate Highway 10;
THENCE, with the south right -of -way line of said Interstate Highway 10 the following five, (5)
courses and distances:
1. North 84 degrees 51 minutes 28 seconds East, a distance of 195.04 feet to a 5/8 -inch iron rod
found for angle point;
2. North 86 degrees 42 minutes 21 seconds East, a distance of 104.82 feet to a 5/8 -inch iron rod
found for angle point;
3. North 86 degrees 32 minutes 20 seconds East, a distance of 417.11 to a concrete monument
found for angle point;
4. South 78 degrees 02 minutes 09 seconds East, a distance of 190.78 feet to an angle point and
Page 1 of 7 Pages
K:1SdskLand\,SURVEY10318401M &B \031840 MUD 473 Bndy M &B 08- 12- 05.doc Cdrtern Burgess
EMIT A
• HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 473
403.9469 ACRES
Page 2 of 7 Pages
August 12, 2005
from which a concrete monument found bears North 83 degrees 20 minutes 58 seconds West,
a distance of 1.74 feet;
5. North 86 degrees 42 minutes 21 seconds East, a distance of 1,037.27 feet to a 1/2 -inch iron
rod found at the northeast corner of said 23.1480 acre tract and the northwest comer of a
called 8.92 acre tract of land described by deed to Missouri Pacific Railroad Company,
recorded under Harris County Clerk's File Number G045735
THENCE, South 02 degrees 29 minutes 21 seconds East, with the west line of said 8.92 acre
tract, a distance of 1,295.26 feet to a 5/8 -inch iron rod found at the southwest corner of said 8.92
acre tract and the southeast corner of said 23.1480 acre tract in the north line of a called 5.923
acre tract of land described by deed to Missouri Pacific Railroad Company, recorded under
Harris County Clerk's File Number G221936 for comer;
THENCE, South 86 degrees 56 minutes 56 seconds West, with the south line of said 23.1480
acre tract and the north line of said 5.923 acre tract, a distance of 5.41 feet to a 5/8 -inch iron rod
found at the northwest comer of said 5.923 acre tract and the most easterly northeast corner of a
called 201.2111 acre tract of land described by deed to Burnet Bay, LTD, recorded under Harris
County Clerk's File Number Y603616;
THENCE, South 02 degrees 30 minutes 33 seconds East, with the east line of said 201.2111 acre
tract, a distance of 2,710.87 feet to a 5/8 -inch iron rod with cap found at the southeast comer of
said 201.2111 acre tract in the north line of a called 9.057 acre tract of land described by deed to
Martin Marietta Materials, Inc. recorded under Harris County Clerk's File Number 8230583;
THENCE, North 81 degrees 30 minutes 36 seconds West, with the south line of said 201.2111
acre tract and the north line of said 9.057 acre tract, a distance of 177.02 feet to the east comer of
a called 0.1538 acre parcel of land described by deed to Bumet Bay, LTD, recorded under Harris
County Clerk's File Number Y603617;
THENCE, North 81 degrees 30 minutes 36 seconds West, with the south line of said 0.1538 acre
parcel and the south line of a called 36,190 square foot parcel of land described by deed to
Burnet Bay, LTD, recorded under Harris County Clerk's File Number Y603617, a distance of
• 4,298.93 feet to the southwest corner of said 36,190 square foot parcel and the northwest comer
Carte
r-.-.Burgess K: lSdskLand \SURVEY10318401M&B1031840 MUD 473 Bndy M &B 0 &12 -05.doc
• HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 473
403.9469 ACRES
Page 3 of 7 Pages
August 12, 2005
of a tract of land described by deed to Mary K. Ellison, et al, recorded under Harris County
Clerk's File Number V278078 in the east right -of -way line of Thompson Road;
THENCE, North 02 degrees 35 minutes 27 seconds acre West,
tract of land described by deed too
square foot parcel, the west line of a called 11.1438
Burnet Bay, LTD, recorded under Harris County ance of 937 03 Number
eet to the0northwest comer right -of -way line of said Thompson Road, a distance
said 11.1438 acre tract and the southwest comer of a called 6.00 acre tract of land described by
deed to Charles W Caldwell, et ux, recorded under Harris County Clerk's File Number 5015995;
THENCE, North 86 degrees 58 minutes 57 seconds East, with the north line of said 11.1438 acre
tract and the northerly line of said 201.2111 acre tract, tract of and described by deed 1/2-inch
to rod found at the southeast comer of a called 6.00 acre
Sterling Trust Company, trustee, recorded under Harris County Clerk's File Number 5015998 for
corner;
THENCE, North 04 degrees 52 minutes 49 seconds West, with the westerly line of said
201.2111 acre tract and the east line of said 6.00 acre Sterling Trust Company tract, a distance of
138.61 feet to a 1/2 -inch iron rod found for angle point;
THENCE, North 08 degrees 48 minutes 35 seconds 1/2-inch iron rod found at the northeast corner
201.2111 acre tract, a distance of 743.03 feet t o recorded under
of a called 10.00 acre tract of land described by deed to
of a celled 60520 acre tract
Harris County Clerk's File Number T584957 the southeast c
of land described by deed to TA Operating Corporation, recorded under Harris County Clerk's
File Number P611282, and the northwest corner of a called 3,263 square foot parcel of land
described by deed to Burnet Bay, LTD, recorded under Hams County Clerk's File Number
Y603617;
THENCE, North 86 degrees 57 minutes 43 seconds East, with the northerly line of said 3,263
acre parcel, a distance of 1,334.95 feet;
THENCE, North 02 degrees 31 minutes 20 seconds West, with a westerly line of said 3,263 acre,
iparcel, a distance of 1.08 feet to a 5/8 -inch iron rod found for comer;
Carter
��Burgess
K:\SdskLand\SURVEY\031840 \M &B \031840 MUD 473 Bndy M &B 08.12- 05.doc
HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 473
403.9469 ACRES
Page 4 of 7 Pages
August 12, 2005
THENCE, North 87 degrees 27 minutes 38 seconds East, with the north line of said 3,263 acre
parcel, a distance of 86.26 feet to a 3/4 -inch iron rod found at the northeast comer of said 3,263
acre parcel;
THENCE, North 02 degrees 37 minutes 58 seconds West, with the west line of said 201 .2111
acre tract and the west line of said 23.1480 acre tract, a distance of 1,330.78 feet to the POINT
OF BEGINNING and containing 264.5684 acres, (11,524,599 square feet) of land.
TRACT 2 - 139.3785 ACRES / 6 071,327 SO-FT.
139.3785 acres, (6,071,327 square feet) of land described by deed to Burnet Bay, LTD recorded
under Harris County Clerk's File Number X913086;
BEGINNING at the most southerly corner of said 139.3785 acre tract in the northeast right-of-
way line of Decker Drive, (also known as Spur 330);
THENCE, North 66 degrees 25 minutes 36 seconds West, with the southwest line of said
139.3785 acre tract and the northeast right -of -way line of said Decker Drive, a distance of 723.91
feet to the centerline of Spring Creek Gully;
THENCE, with the westerly line of said 139.3785 acre tract and the centerline of said Spring
Creek Gully the following ten, (10) courses and distances:
1. North 36 degrees 21 minutes 39 seconds West, a distance of 76.57 feet;
2. North 14 degrees 31 minutes 43 seconds East, a distance of 80.08 feet;
3. South 61 degrees 58 minutes 42 seconds East, a distance of 107.64 feet;
4. North 25 degrees 46 minutes 10 seconds East, a distance of 119.15 feet;
5. North 74 degrees 02 minutes 30 seconds West, a distance of 21 1.92 feet;
6. North 23 degrees 56 minutes 57 seconds West, a distance of 92.31 feet;
K:lsdskLand\SURVEY1031840UA &B \031840 MUD 473 Bndy M &B 08- 12- 05.doc
Carter Surgess
HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 473
403.9469 ACRES
Page 5 of 7 Pages
August 12, 2005
7. North 55 degrees 10 minutes 49 seconds West, a distance of 136.45 feet;
8. North 07 degrees 12 minutes 21 seconds West, a distance of 124.18 feet;
9. North 46 degrees 42 minutes 15 seconds East, a distance of 61.88 feet;
10. North 33 degrees 50 minutes 44 seconds West, a distance of 73.82 feet to the southwest
comer of a called 1.760 acre tract of land described by deed to the City of Baytown, recorded
under Harris County Clerk's File Number P029811;
THENCE, North 64 degrees 44 minutes 31 seconds East, s d. with
60 the southeast acre tractland the said
outh comer tract, a distance of 607.86 feet to the east corner of
of a called 4.896 acre tract of land described by deed to the City of Baytown, recorded under
Harris County Clerk's File Number P029811 and the beginning of a non - tangent curve to the
right;
THENCE, northeasterly, with the southeast line of said 4a89entral angle of 11 the degrees 31 minutes
tangent curve to the right having a radius of 853.65 feet,
20 seconds, a chord bearing of North 45 degrees 15 minutes 47 seconds East, a chord distance of
171.38 feet, and an arc length of 171.67 feet to the most easterly corner of said 4.896 acre tract
and the non- tangent end of said curve;
THENCE, North 25 degrees 05 minutes 45 seconds West, with the northeast line of said 4.896
acre tract, a distance of 692.30 feet to the most northerly rn the southeast right-of-way ine of
most northerly northwest corner of said 139.3785 ac e tract i
Interstate Highway 10;
THENCE, with the southeast right -of -way line of said Interstate Highway 10 the following five,
(5) courses and distances:
1. North 64 degrees 57 minutes 33 seconds East, a distance re23 of a
curve to the left and from which a concrete monument found bears North 26 deg
minutes 24 seconds West, a distance of 1.38 feet;
2. Northeasterly, with the arc of said curve to the left having a radius of 57296 feet, a central
Carter =Burgess
K:lsdskLand\SURVEY\031840W &8\031840 MUD 473 Bndy M &B 0 &12 -05.doc
• HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 473
403.9469 ACRES
Page 6 of 7 Pages
August 12, 2005
angle of 29 degrees 29 minutes 29 seconds, a chord bearing of North 50 degrees 08 minutes
08 seconds East, a chord distance of 291.67 feet, and an arc length of 294.92 feet to a
concrete monument found for point of tangency;
3. North 35 degrees 23 minutes 23 seconds East, a distance of 29.31 feet to a concrete
monument found at the beginning of a curve to the right;
4. Northeasterly, with the arc of said curve to the right having a radius of 572.96 feet, a central
angle of 29 degrees 31 minutes 28 seconds, a chord bearing of North 50 degrees 08 minutes
57 seconds East, a chord distance of 291.99 feet, and an are length of 295.25 feet to the point
of tangency of said curve and from which a concrete monument found bears North 06
degrees 25 minutes 24 seconds East, a distance of 0.54 feet;
North 64 degrees 54 minutes 41 seconds East, a distance of 933.30 feet to a 1/2 -inch iron rod
with cap found at the most northerly corner of said 139.3785 acre tract an the most westerly
comer of the residue of a called 170.974 acre tract of land described by deed to Venture
2000, LTD, recorded under Harris County Clerk's File Number V226376;
THENCE, South 55 degrees 10 minutes 43 seconds East, with the southwest line of said residue
tract and the northeast line of said 139.3785 acre tract, a distance of 635.77 feet to a 1/2 -inch iron
rod with cap found for angle point;
THENCE, South 55 degrees 29 minutes 48 seconds East, with said common line, a distance of
87.42 feet to a 1/2 -inch iron rod with cap found at the most southerly comer of said residue tract
in the southwest line of a called 25.0000 acre tract of land described by deed to CFJ properties,
recorded under Harris County Clerk's File Number V247862;
THENCE, South 25 degrees 02 minutes 55 seconds East, with the southwest line of said 25.0000
acre tract, a distance of 424.55 feet to a 1/2 -inch iron rod with cap found at the most southerly
corner of said 25.0000 acre tract;
THENCE, North 64 degrees 57 minutes 05 seconds East, with the southeast line of said 25.0000
acre tract, a distance of 1,122.04 feet to a 1/2 -inch iron rod with cap found at the southeast corner
of said 25.0000 acre tract in the west right -of -way line of Thompson Road;
•
Carter--Burgess K:% SdskLand \sURVEY10318401M&B1031840 MUD 473 Bndy M&B 08-12- 05.doc
•
•
HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 473
403.9469 ACRES
Page 7 of 7 Pages
August 12, 2005
THENCE, South 02 degrees 38 minutes 55 seconds East, with the west right -of -way line of said
Thompson Road, a distance of 1,073.82 feet to a 1/2 -inch iron rod with cap found at the
southeast corner of said 139.3785 acre tract and the northeast corner of Elena Fuit & Cotton
Farms, Unit D, Block 142, a subdivision as shown on the plat thereof recorded in Volume 7,
Page 48, of the Harris County Map Records;
THENCE, South 63 degrees 06 minutes 21 seconds West, with the southerly line of said
139.3785 acre tract and the northerly line of said Elena Fuit & Cotton Farms, Unit D, Block 142,
a distance of 3,200.21 feet to the POINT OF BEGINNING and containing 139.3785 acres,
(6,071,327 square feet) of land.
All bearings are referenced to the Texas State Plane Coordinate System, South Central Zone,
NAD83 and are based on static GPS observations.
This description is submitted in conjunction with a District Boundary Map of Harris County
Municipal Utility District Number 473, is not to be used to convey or establish interests in real
property except those rights and interests implied or established by the creation or
reconfiguration of the boundary of Hams County Municipal Utility District Number 473, for
which it was prepared.
Walter J. Wilbanks, P L.S.
Texas Registration Number 4936
CARTER & BURGESS, INC.
Project No. 031840.800.1.0002
K:I SdskLand \SURVEY10318401M&B1031840 MUD 473 Bndy M &B 0 8-12 -05.doc
PALTER .J.�'KBANK
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UTILITY FUNCTIONS AND SERVICES
ALLOCATION AGREEMENT
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 BURNET BAY, LTD., a Texas Limited
Partnership, (cumulatively "Developer"), on behalf of proposed HARRIS COUNTY
MUNICIPAL UTILITY DISTRICT NO. 473 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 403.9469 acres which is within the City's corporate limits attached hereto as
Exhibit"A" (the"Tract"); and
WHEREAS, the District is proposed to be created within the City covering the property
described on Exhibit "A" 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
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
1
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.
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 West 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.
-2-
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.
Developer means cumulatively BURNET BAY, LTD., a Texas Limited Partnership and
its 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. 473 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 403.9469 acres of land situated wholly within the corporate limits of the City, as
described in Exhibit A.
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.
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 and drainage systems constructed or
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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 "D", 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.
Stormwater Detention System means those on site 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, if any.
Tract means the 403.9469 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 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 West 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
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Exhibit B In City Procedures
Exhibit C Development Plan
Exhibit D Point of Connection
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 the Point of Connection as described in Exhibit "D." The City agrees to
provide Wastewater Services to the District to serve the Tract in accordance with the terms and
conditions of this Allocation Agreement. In order to obtain Wastewater Services, the
Developer agrees that it will connect to the Point of Connection as described in Exhibit"D."
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 III, 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 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 1523
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
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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 1523 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 1523 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. 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:
• Limit: $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
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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.
❑ Employer's Liability: $500,000
(2) Commercial General Liability Policy
❑ General aggregate of$1,000,000
❑ Owners' and Contractors' Protective Liability of$500,000
❑ Products and Completed Operations of$1,000,000
❑ Personal and Advertising Injury of$1,000,000
❑ Minimum of$500,000 per occurrence
❑ Coverage shall be at least as broad as ISO CG 00 01 10 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
❑ Combined single limits of$1,000,000
❑ 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.
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(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.
(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.
2.8. Ownership by City. As the Facilities are acquired and constructed, the District
shall convey the same to the City (except for any required stormwater detention) 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, any
stormwater detention.
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, 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.
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
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acceptable to the City, but hereinafter referred to as "HOA". Said contract shall provide that (a)
the HOA 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
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.
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.
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..
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 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.
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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 292 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.
(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
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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 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
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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 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 Majeure. 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
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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 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:
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If to the City,to:
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
If to the Developer, to:
BURNET BAY, LTD.
Attn: George Kopecky
7850 North Sam Houston Parkway West
Houston, Texas 77064
If to the District, to:
Harris County Municipal Utility District No. 473
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 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
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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)
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IN WITNESS WHEREOF, the parties hereto have executed this Allocation Agreement in
multiple copies, each of equal dignity, on this3lfday of Rugust , 2005:
CITY O AY WN
By:fet
Gary J n, City Manager
ATTEST: //
gGRY . SMITH, City Clerk
APPROVED AS TO FORM:
,deAss.,D k i2,4
ACIO RAMIREZ, SR., I I Attorney
DEVELOPER
BURNET BAY, LTD.,
a Texas limited partnership
By: Hammers, Group, Inc.
A Delaw: - ••rporation,
its Gene . r a ner
By:
eorge opecky, Vice President
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STATE OF TEXAS §
COUNTY OF HARRIS §
/this instrument was acknowledged before me on this the c 75 day of A 74
200 , by George Kopecky, authorized as general partner to sign this Agreement on behalf of
BURNET BAY, LTD., a Texas Limited Partnership on behalf of said limited partnerships.
4. <` NANCY BOOTHE
:'�0 1, Notary Public
.t `� STATE OF TEXAS ►
''.'�io�. ?`, My Comm. Exp�04-13-2008 Notary Public
In and For tate of Texas
(NOTARY SEAL)
R:\Karen\Files\Contracts\In-City Municipal Utility District Contract&Ordinance\Harris County MUD No.473\AllocationAgreementClean.doc
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