Ordinance No. 10,355 ORDINANCE NO. 10,355
AN ORDINANCE OF TI-IE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, CONSENTING TO THE ASSIGNMENT AND ACCEPTANCE OF THE
UTILITY FUNCTIONS AND SERVICES ALLOCATION AGREEMENT FROM
MOODY SIMMONS BAYTOWN, LTD.,AND MOODY SIMMONS 13AY-FOWN
II, LTD., TO HARRIS COUNTY MUNICIPAL UTILITY DISTRICT NO. 459:
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 consents to the
assignment and acceptance of the Utility Functions and Services Allocation Agreenient from Moody
Sirnn-ions Baytown, LTD_, and Moody Simmons Baytown II, LTD., to Harris County Municipal
Utility District No. 459. A copy of said assignment 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 22nd day of_Irene, 2006.
ST PHEN H_ DONCARLOS, Mayor
ti- i4
Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., Ci y Attorney
RAKarcnlFi 1—\Cily 22\Conscn6 ib2Assignncit£orRfond ySinwiorsRcviscd.doc
ASSIGNMENT AND ACCEPTANCE OF AGREEMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This Assignment and Acceptance of Agreement (this "Assignment") is made this
day of June, 2006, by MOODY SIMMONS BAYTOWN, LTD. a Texas Limited
Partnership, and MOODY SIMMONS BAYTOWN II, LTD., a Texas Limited Partnership
(jointly defined as the "Assignors") and HARRIS COUNTY MUNICIPAL UTILITY
DISTRICT NO. 459, a body politic and corporate and a political subdivision of the State
of Texas organized and operating under the provisions of Article XVI, Section 59 of the
Texas Constitution and Chapters 49 and 54 of the Texas Water Code (herein called the
"District"), and consented to by the City of Baytown, a home-rule municipality located
in Harris and Chambers Counties,Texas (herein called the"City").
I.
Assignment
Assignors hereby assign all rights, obligations, title and interests in and to that
certain Agreement listed below:
UTILITY FUNCTIONS AND SERVICES
ALLOCATION AGREEMENT
dated March 18, 2005 (herein called the "Allocation Agreement"), except for those
specific provisions contained in Article 111, to the District pursuant to Sections 2.2 and
7.7 of the Allocation Agreement.
II.
Acceptance and Assumption
By execution of this Assignment, the District hereby accepts such assignment and
assumes all of Assignors' rights, obligations, title, and interests in and to the Allocation
Agreement, except for the obligations contained within said Article III of the Allocation
Agreement.
III.
Consent
Subject to the conditions listed herein, the City hereby consents to the assignment
of all of Assignors' rights and obligations under the Allocation Agreement to the
District as provided by Article I of this Assignment and the assumption of such rights
Assignment and Acceptance of Agreement,Page 1
[' A
and obligations by the District as provided by Article II of this Assignment. It is
expressly agreed that the consent given in this article is subject to the following terms
and conditions:
(a) Upon the City's written approval of the plans and specifications, the
Assignor and/or the District shall proceed to construct the Regional
Improvements and shall complete and obtain the City Engineer's
approval of the same on or before August 21, 2006. Failure to complete
the Regional Improvements within this time period shall constitute a
breach of the Allocation Agreement for which the City may terminate said
agreement.
(b) The City shall have the authority to, and shall not be deemed to have
waived the right to, pursue and/or resolve any and all outstanding
matters, including, but not limited to, any breach of contract concerns,
with the District;
(c) The City shall have the authority to require strict compliance with any and
all terms of the Allocation Agreement,
(d) The District shall assume all obligations and liabilities under the
Allocation Agreement accruing prior to and after the date of the effective
date of this Assignment, except for those obligations and liabilities under
Article III of the Allocation Agreement; and
(e) Assignors and the District, or any person or entity acting by, through, or
on behalf of the Assignor and/or the District shall not contest the City's
authority to impose these additional conditions on the consent granted
herein.
IV.
No Expansion of Rights
Notwithstanding any language in the Allocation Agreement or this Assignment
to the contrary, the City's consent granted herein shall not be deemed to expand the
rights and privileges specified in the Allocation Agreement and originally granted to
Assignor.
Assignment and Acceptance of Agreement,Page 2
Y/1.
Further Assurances
The District, the Assignor and the City shall execute such additional agreements
as may be reasonably necessary in the opinion of the City to reflect the foregoing
assignment, assumption, and consent among the parties hereto.
VII.
Severability
All parties agree that should any provision of this Assignment be determined to
be invalid or unenforceable, such determination shall not affect any other term of this
Assignment or the Allocation Agreement, which shall continue in full force and effect.
VIII.
Ambiguities
In the event of any ambiguity in any of the terms of this Assignment or the
Allocation Agreement, it shall not be construed for or against any party hereto on the
basis that such party did or did not author the same.
IX.
Agreement Read
The parties acknowledge that they have read, understand and intend to be
bound by the terms and conditions of this Assignment and the Allocation Agreement.
X.
Authoritv
The officers executing this Agreement on behalf of the parties hereby represent
that such officers have full authority to execute this Assignment and to bind the party
he/she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
multiple copies, each of which shall be deemed to be an original, but all of which shall
constitute but one and the same Assignment on the_ day of June, 2006, the date of
execution by the City Manager of the City of Baytown.
[EXECUTION PAGES FOLLOW]
Assignment and Acceptance of Agreement,Page 3
"ASSIGNORS"
MOODY SIMMONS BAYTOWN,LTD.,
a Texas limited partnership
By: Moody Simmons Baytown GP, LLC
its Gen ral Partner
By:
John S. Moody, .
Executive Vice-President
MOODY SIMMONS BAYTOWN II, LTD.,
a Texas limited partnership
By: Moody Simmons Baytown II GP,LLC
its General/Partner
By: 5_i
ohn S. Moo ,Jr.
Executive Vice-President
THE STATE OF TEXAS §
COUNTY OF f 6 §
This instrument was acknowledged before me on this o?)day of June,2006, by
John S. Moody, Jr., Executive Vice-President, of Moody Simmons Baytown GP, LLC, as
general partner of Moody Simmons Baytown, Ltd., and Executive Vice-President of
Moody Simmons Baytown II GP, LLC, as general partner of Moody Simmons Baytown
I1, Ltd., on behalf of said entities.
(NOTARY SEAL) -\
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"THE DISTRICT"
HARRIS COUNTY MUNICIPAL UTILITY DISTRICT
NO. 459
Byc —
Name:
Title: President, Board of Directors
ATTEST:
B /�/k4�Name: �m4-s �. 4;0-b,�ic,cs
Title: Assist. Secretary, Board of Directors
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"THE CITY"
City of Baytown
By:
Gary Jackson
City Manager
ATTEST:
By:
Lorri Coody
City Clerk
(SEAL)
ASsjZ=ent and Acceptance of Agreement,Page 6