HomeMy WebLinkAboutRES 052416-I (group 1) - MUD CreationRESOLUTION NO. OS a4 l 1, —
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GEORGETOWN,
TEXAS REGARDING THE CREATION OF A MUNICIPAL UTILITY
DISTRICT IN THE CORPORATE LIMITS OF THE CITY OF GEORGETOWN
ON 278 +/- ACRES OF LAND.
WHEREAS, Owner is the owner of that certain real property described by metes and
bounds and sketch on Exhibit A. consisting of approximately 278 +/- acres of land (the "Land").
The Land lies entirely within the City's corporate limits.
WHEREAS, on October 15, 2015, Owner filed with the City Secretary s office a petition
requesting the consent of the City to the creation of a municipal utility district on the Land (the
"Creation Petition').
WHEREAS, the City and Owner intend to enter into a Consent Agreement pertaining to
creation of a municipal utility district on the Land to be known as Williamson County Municipal
District No. 34 (the "District "
WHEREAS, Section 42.042 of the Texas Local Government Code and Section 54.016 of the
Texas Water Code require the City's written consent to create a municipal utility district within a
City's corporate limits. Section 13.10 of the City's Unified Development Code ("UDC") sets forth
the City's requirements for requests to create a special district.
WHEREAS, the City desires to consent to creation of the District bn the Land subject to
the terms and conditions of this Resolution and the Consent Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS THAT:
SECTION 1: The City Council hereby finds that the statements set forth in the preamble
of this Resolution are true and correct, and the recitals are hereby incorporated by reference
herein and shall have the same force and effect as if set forth in this Section.
SECTION 2: The City Council hereby approves creation of a municipal utility district on
the Land, subject to the terms and conditions of the Consent Agreement, which is attached
hereto as Exhibit B. The City Council also hereby authorizes the Mayor or the Mayor Pro Tem
to execute the Consent Agreement on behalf of the City of Georgetown, Texas, subject to the
requirements to have public hearings if required by law.
Resolution Consenting to MUD Creation
Williamson County MUD No. 34— Shadow Canyon
Page 1 of 3
SECTION 3. The City Manager, City Attorney, and City Secretary are hereby authorized,
empowered, and directed to do and perform all such acts as may be necessary to execute,
acknowledge, and deliver in the name of and on behalf of the City of Georgetown, Texas, the
Consent Agreement substantially in the form attached hereto as Exhibit B.
SECTION 4: City's consent given herein is expressly subject to the requirement that the Owner
shall have no authority to commence development on the Land and City shall have no
obligation to process applications or requests for development authorizations prior to the City
and the Owner or District executing the Consent Agreement. City's consent given herein is also
expressly subject to the requirement that each District's Board of Directors must accept the
assignment of the Consent Agreement, ratify and agree to be bound by the terms thereof.
Ratification and acceptance of the Consent Agreement shall be the first substantive order of
business following the District's organization, confirmation election and other preliminary
matters necessary to constitute the District's governing body. A District shall have no authority
to issue bonds prior to its ratification and acceptance of the Consent Agreement.
SECTION 5. It is hereby officially found and determined that the meeting at which this
Resolution was considered was open to the public, and public notice of the time, place, and
purpose of said meeting was given, all as required by the Texas Open Meetings Act, Chapter
551, Texas Government Code.
SECTION 6: The Mayor (or Mayor Pro Tem) is hereby authorized to sign this Resolution and
the City Secretary is authorized to attest. This Resolution shall become effective immediately
upon its passage and shall prevail over conflicting provisions in prior Resolutions or City
Council actions, if any. In the event of any conflict between this Resolution and provisions in
the Consent Agreement the provisions in the Consent Agreement shall control.
EXHIBIT LIST:
Exhibit A Land (metes and bounds)
Exhibit B Consent Agreement
RESOLVED thiQL0 day of KW( 12016.
THE CITY OF GEORGETOWN, TEXAS:
Dale Ross, Mayor
Resolution Consenting to MUD Creation
Williamson County MUD No. 34 - Shadow Canyon
Page 2 of 3
ATTEST:
6
Shelley Nowling, 'ty Secretary
APPROVED AS TO FORM:
Charlie McNabb, City Attomey
Resolution Consenting to MUD Creation
Williamson County MUD No. 34 - Shadow Canyon
Page 3 of 3
Exhibit
Page I of 10
}ne
1'
Land Surveyors, Inc,
n33 Grarr O.hrktdrJsx
)lua* T&W 787S4
#10015100
O�rered'Fire
fira� SIZ374.9722
Par. 572.873-9743
METES AND BOUNDS DESCRIPTION
BEING 278.21 ACRES OF LAND OUT OF THE ISAAC DONAGAN SURVEY, A➢STRACT
NUMBER 178 AND THE JOSEPH THOMPSON SURVEY, ABSTRACT NUMBER 609; BOTli
IN WILLIAMSON COUNTY, TEXAS, AND BEING THAT RAMS TRACT OF LAND
CONVEYED AS 278212 ACRES TO 278 GEORGETOWN INC. BY INSTRUMENT OF
RECORD IN DOCUMENT NUMBER 2014094143 OF THE OFFICIAL PUBLIC RECORDS OF
WILLIAMSON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY
METES AND BOUNDS AS FOLLOWS:
BEGINNING at a 12" rebar found for the northernmost northeast camer'of said 278.212 acre bract,
being the northwest comer of a 10.550 am tract of land conveyed to MGC Highway 29
Development, LLC by instrument of record in DocumentNumber 2007014835 of the Official Public
Records of Williamson County, Texas and also betng in line scut[ right -cif -way lbw of State Highway
Number 29 (R.O. W. vadoa);
THENCE along the north line of the 278.212 acro tract and the west and soidh lines of said 10.550
nor mist the following four (4) courses:
1. South 04928'24" West (record: South 04"31'00" Wast), passing at a distance of 18.38 Riess
VT' rebar found with plastic cap, whioh reeds "G & R Survaying" and continuing for a betel
distanceof71.56 feet (rword: 71.55 feat) to a 12"robar found;
a
2. South 72046'33" East a distsnce of 55693 feet (record: South 72-48145" Pest a distance of
556.79 feet) to a 12" mbar setwith plastic cep,.vfiich reads'Baselire, Inc.";
3. South 79a18'22" East n dismanm of 70.58 feet (rc=M: South 79022115" East a distance of
70.62 feet) to a 5/8" mbarfound;
4. Northh 69e16'34" East a dinonce of 197.69 feet (exord: North 69°18'00" East a distance of
197.85 rest) to a 12" tabor set wits plastic cap, which reads 'Baseline, Inc." for the
easternmost northeast comer often 278.212 acre tract:
THENCE South 25'58.40" East (record: South 2e0l'IS' East), along 0e east line of the
278212 acre Urea and continuing along the south line ofthe 10.550 am tract a distance 01`51.59
feel (record: 51.61 fbct) to a 12" rebat set with plastic cap, which reads "Baaelime lie." Por an
angle point in the south line of the 10.550 scro tract and being the northwest comor of a 291.09
am tract of land conveyed to Judy Dean Wolf Hindelang, Susan Inc Wolf Robcrtsun, Jay Leon
Wolf, Jr. and Iva WolfMeladhlan by instrument ofrecord in Document Number 2009090679 of
the Official Public Records of Williamson County, T= and known therein as "pact FYve-
Pareel T hree,
(W06527o6.31 A-1
Page 2 of 10
THENCE along the east line ofthe 278.212 acre tract and the west line ofsed 291.09 acre tract
the following eight (8) courses:
I. South 21 `O8'52" East a distanceof 692.23 feet (record: South 21009'15" Fast a distance of
692.23 feet) to a 12" rebar found;
2. Sou(1121 ° 15'01" Enst a distance of 393.09 fact (record: South 21017'00" Ezst a distance of
393.39 feet) to a 12 rebarfound with rap, starnped "Pape Dawson":
3. South 24059'27" Fast a distance of 88,15 feet (record: South 24058' 15' East a distance of
88.21 ken) to a 12" rebar frond;
4. South 19'39'10" Last a distance of 207.78 feet (record: South 190391OD" Best a distance of
207.78 fit) to a 12" raWr found;
5. South 2105711 P Easta distance of 450AI feet (record: South 21058'45" East a distance of
450.41 fag to 12"rebarfound;
6. South 20055'39" Fast a distance of911.42 feet (record: South 20056' 15' East a distanceof
911.34 feet) to a 12" tabor found;
7. South 21040'94" East a distance of30BA9 feet (record: South 21*41'00" East a distane of
3HAS feet) to a 12" rebw found for the southeast comer of the 279212 acra tract, being the
southwest comer of Ore 291,09 am net and being in the north line of a 457 am tract of
land conveyed to W.T. Guy by instrument of record in Volume 345, Page 460 of the Deed
Records of Williamson County, Texas;
THENCE South 49050'28" West (record: South 49049'00" Wash), crossing through said 457 acre
tract, along the called south line of the 278212 acmtram, passing at a distance of 215.95 feel (rocerd:
215.93 foot) a 12" rebar found with cap, stamped "RPLS 5784 on the edge of a bluff and continuing
for a total distance of 295,28 feet (aecord: 295.15 feat) to a calculated point in the west line of the
457 am tract, being the north line of a 104920 acre tract of land conveyed to A.C. Weir and Esther
Weir by instrument of record In Volume 522, Page 451 of de Deed Records of Williamson County,
Texas and designated ss 'first Tract" therein and being the approximate centerline of the San
Gabriel River,
THENCE North 81057'47' West (record: North 81059,001, West), along the called south line Mite
278,212 acre tract, the west line of the 457 am tract, the east line of said 1048.20 am tract and the
approximate centerline of the San Gabriel River, passing at a distance of 195.03 fat a calculated
point at the approximate intersection of flue waterline of the San Gabriel River with the south line of
the Isaac Donegan Survey, Abstract Number 178, being the north line of the Joseph Thompson
Survey, Abstract Number 608 and being the northwest comer of the 457 am beet aril continuing
along the called south lire of the 278.212 acm tmc6 the north lino of the 104VO arm tract and the
approximate interline of the San Gabriel River for a total distance of 645.06 Get (record: 644.97
flat) to a calculated point;
THENCE along the south line of the 273.12 am tract, the north line of the 1048.20 am tract and the
approximate centerline of the San Gabriel River The following six (6) courses:
I. South 55006'29" Wasl a distance of 519.75 fret (record: Sough 55005,15" West a distance
of 519.75 feet) to a calculated point;
JM6,927o(5.3) A-2
Page 3 of 10
2. South 23001'29" West a distance of 1534,01 feu (record: South 23e00'15" Westa distance
of 1534.01 feet) to a calculated peing
3, South 69008'29" West a distance of32636 feet (record: South 69TVIV West a distance
of 326.36 feet) to a calculated point;
4 South 85"42'29" West a distance of 621.76 feel (record: South 85"41' 15" West a distance
of 621.76 feat) to a calculated point;
5. South 57°11129" Wam u distance of 268.60 fact (record: South srio,i " West a distance
of 269.60 feu) to a calculated point;
6. South 70004'29"welt a distanceof755.32 feel(record: South70°0315"Weaudisteneeof
755.32 feu) to a calculated point for the northwest comerofthe 104820 acre tree and being
the northeast comer of a 190A0 acre tract of lend conveyed to Texas Crushed Stoma
Company by instrument of record in Volume 743, Page 47 of the Deed Records of
Williamson County, Taxes;
THENCE South 75°49.12" West (record: South 75°48'15" West), along the south line of the
278212 we tract, the north line of said 190.40 acre tract and the approximate interline of 010
San Gabriel River a distance of 116.10 feel (record: 116.10 feel) to a calculated point for the
southwest comer of the 278212 am tract and bung thcsonNeast comer of a 103.9327 acre tract
of land conveyed to Elbert L. Brown and Beverly D. Brown by Instmment of record in V olume,
2189, Page 585 of the Official Records of W illiomson County, Texas;
THENCE along the wan line of the 278,212 acm tract and the east line of said 103.9327 acre tract
the following tan (10) courses:
J. North 01 V13" West a distance of 1,64238 feet (record: North 01"28' 15" Waste distance
of 1.642.61 feet) to a 1/2" must found;
2. North 84056'46" Basta distance of 498.41 feet (record: North 84"56'W' Bast a distance of
493,38 feet) to a 12" mbar found;
3. North 09"53'36" Wost a distance of 350.08 feet (record: North 09'54'4S" West a distance of
350.05 fact) to a 12" rebor found;
4. North 11618'36" Waste distance of383.88 feet (record: North I M V46' West a distance of
333,76 feet) to a 1/2" rebar found;
5. North 04046'49" East a distance of 575.81 feet (record: North 04-47100" East a distance of
575.94 feet) to a 1/2" robar found;
6. North 10"12' 10" West a distance of 192. 13 feet (record: North 10°II115" West a distance of
192.14 feet) to a nail found;
7, North 40'55'15" East a distance of 13.10 fed (record: Noah 40032'15" East a distance of
13.02 feet) to a nail found;
8. North 00917'06" Fast a distance, of 34330 fed (record: North 00015'45" Fast a distance of
343.66 fed) to a I/2" robi rwith plastic cap set which reada "BASELINE INC.";
{Wo652706.3} A-3
Pogo 4 of 10
9. North 0261 P06" West a distance of320.09 fed (record: North 02611'15" West a distance of
319.98 real) to a UV rebar found with Illegible cap;
10. North 01"54'34" West a distance of) 74.14 fed (record: North 01"56'00" West a distance of
174.07 fact to a IIV mbar found for the northwest censor of the 278.2I2 am tract, being the
southwest comer of Shadow Canyon Commercial Soot in 3; n subdivision of record is)
Document Number 2014085365 of the Official Public Records of Williamson County,
Texas; from which a IR" saber found in lire west line of said Shadow Canyon Commercial
Section 3 mid the east line of the 103.9327 acm tract bears North 01"54'34" West a dishanec
of 1,049.31 feet (record: North 01054'08" West a distance of 1,049.26 ihet);
THENCE along the north line of the 273212 anre (mot and the south and seat lines of Shadow
Canyon Commercial Section 3 the following 5 courses;
1. North 83037124" East a distance of 248.64 feet (mend: North 83°33'I5" East a distance of
248.63 feet) to a 112- rebar found with cap, stamped "RPIS 5784" fora point of curvature;
2. Along a mm-tengental ourvcto die right having a radius of345.00 fed, (record; 345.00 fact)
a length of 155.98 fat, (retard: 156.12 feel) a delta angle of 25a54' 14" and a chord which
bears North 64"39'03" Eau a distance of 154.65 led, (record: North 64042'00" Fast a
distance of 154.79 rest) to a nail found;
3. North 77.42135"fart a distance of 499.24 feel (record: Nardi 77640'00" Fad a distance of
498.83 feat) to a 12" recur found;
4. North 2093'52X'West a distance of402,50 foot (record: North 20"14'00"West a distance of
402,27 feet) to a 12" mbar found with cap, stamped"RPLS 5784" for a point ofcurvature;
5. Along a tangential curvc m the right having a radius of 150.00 feet, (record: 150,00 feet) e
length of235.69 fat, (record: 235.76 feet) a delta angle of 90.01141"and a chord which
bears North 2201 P49" East a distance of 212.18 feet. (record: North 2708'00" East a
distance of 21223 feet) to a 12" mbar found with cap, stamped "RPIS 5734" for an angle
point in the as# line of Shadow Canyon Commercial Section %being an angle point in the
west Una of Shadow Canyon Commercial Sectloo 2; a subdivision of record in Document
Number 2010086635 of die Official Public Records of W101amsan County, Taxes;
THENCE along the north line oftlre 278.212 acre treat and the south and east Una of said Shadow
Carryon Commercial Section 2 the following fora (4) courses:
1. Continue along a tangential wive to die fight, having a radius of 150.00 Rat (record: 150.00
Real a length of235.41 feet (tccord: 235.67 foot), a delta angle of 89"55' 18" and a chord,
whiolh beets Soutr 67"48'02" Feat a distance of211.99 feet (re rd: South 67"51' 14" But a
distance of212.17 feet) to a 12" rabor found with cap, stamped "RPIS 5784' far a point of
Insurgency;
2. South 22159'17'Fast adistahnceof68.03 frat(moord: South 22"51'54" But a distance of
68.24 feet) to a 12" rebarfixed with cap, stamped "RPLS 5784" for a pointereurvaturc;
3. Along a tmhgential ourveto the right, having a radius of797.62 feet(record: 797.62 feal),a
length of 343.26 feet (record: 343,51 feet), a delta migle of24039126" and a chord, which
{Wo652706.3} A-4
Page 5 of 10
bears South 37011'42" Best a distance of 340.61 fml (rtmtd: South 3712' 18" Fast a
distance of340.86 feet to a 12" robot (bud with cap, stamped "CCC 4835";
4 North 09a49'27" East (record: North 09645108" East), passing at a distance of 654.97 feet
(record: 655.00 fact) a calculated point for an angle point in the cast line of Shadow Canyon
Commercial Section 2, behtg gas south comer of Shadow Canyon Commercial Section 1; a
subdivision of record in Document Number 2008045660 of the Official public Records of
Williamson County, Taxes and passing at an additional distance of 72.93 ibet a 12" rebar found
with illegible plastic cup and continue anothu 215 feu for a distance of 75.06 feet (record:
75.06 feu) fm n said sough comer of Shadow Canyon Commercial Section I for an overall
distance of 730.04 feet (record: 730.06 feet) to a 12" mbar set Willi plastic cap, which reads
"Baseline, Ina" for a point of curvature;
THENCE along the north line ofthe 278.212 acre tract and the east line of said shadow Canyon
Commercial Section I the following two (2) courses:
I. Along a tangential curve to the left, havinga radius of567.50 Feet(recurd: 567.501beeQ,a
length of260.39 feet (record: 26039 feet), a delta mrglo of26"17'21"(record: 26017'22'7
and a chord, which boars North 03"21 f52" West adislance of 258.11 feet (record: Noah
03"22'43" West a distance of 258.1 I feet) to a 12" racer found with illegible plastic cap for
a point of tangency;
2. North 16°30'33"Westadlstanceof 114.79feet(record: North IM'24"Westadistance
of 114,87 Rat) to a 12" rabar set with pleslie cap, which reads "Baseline, Inc." for an angle
point in the north line of the 218.212 acre tract, being the northernmost northeast comer of
Shadow Canyon Commemial Section I and aim being in the south right-of-way line of said
State Highway Number29;
THENCE North 73"29'52" Bast (record: North 73"28'45"East), along In north line of the 278212
Rare lmu and the south righ4of--way line of State Highway Number29 a distance of289.31 rest
(record: 289.39 feet) to the POINT OF BEGINNING.
This tract wntaima 279.21 acres. of land more or less, out of the Isaac Donagan Survey, Abstract
Number 179 and the Joseph Thompson Survey, Abobaet Number 508 in Williamson Comity, Texas.
Bearing Basis: Texas State Plpne Coordinates, Cenual2onq NAD.83196CORS.
Ronnie Wallace, Dote
Registered Professional land Surveyor
State of Texas No. 5222
File: S:1PmjeuslShadow CanyunlDocslFicld Notes%Boundary 278 Ao.dco
{W06527o6.3) A-5
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I S.H. 29 (R.O.W. VARIES)
SHAOOW CANYON
COMMERCIAL
SECTION 2
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278 GEORGETOWN INC.
278.212 AC,
DOC, NO. 2014094143
O.P.R.W.C.T.
DETAIL
MCC HIGHWAY 29
DEVELOPMENT. LLC
10.550 AC.
DOC. NO. 2007014835
O.P.R.W.C.T.
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SEE SHEET 7
FOR LEGEND
SEE SHEET 10
FOR LINE & CURVE TABLES YME
0
GRAPHIC SCALE
300 150 0 300
IN FEET
MATCHLINE SHEET-6
—� MATCHEIN�E SHEE7
ZVEY, ABSTRACT NUMBER 178 AND
IN SURVEY, ABSTRACT NUMBER 606;
111AMBON COUNTY, TEXAS
LME TRACT OF LAND CONVEYED AS
TO 278 GEORGETOWN, INC. BY
{Wo652706.3} A-6
ASELiNE LAND SURVEYORS, II
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MATCHLINE SHEET 7
SEE SHEET 7
278 GEORGETOWN INC.
FOR LEGEND
278.212 AC.
1
SEE SHEET 10
DOC. NO. 2014094143
1
FOR LINE & CURVE TABLES
O.P.R.W.C.T.
278.21 AC.1
JUDY DEAN WOLF
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SUSAN d�WOLF
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DOC. NO.
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IN FEET 55500 25 �519.," • (NB1, g>4� 2 qg],
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OF NUMBER 608 A ,R.�'� Q15+1
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A.C. WOR h EETHFR WEIR W 0<tyQ,A'4
�. 1048.20 AC. "FIRST TRACT' \ O'
VOL. 522, PAGE 451
A D.R.W,C.T.
•
1/2" IRON BEHAR FOUND (NOTED, IF CAPPED)
O
1/2" IRON REBAR SET WITH CAP, -BASELINE, INC.'
A
NAIL FOUND
A
CALCULATED POINT
R.O.W.
RIGHT OF WAY
D.R.W.C.T.
DEED RECORDS WILLIAMSON COUNTY, TEXAS
O.P.R.W.C.T.
OFFICIAL PUBLIC RECORDS WILLIAMSON COUNTY, TEXAS
O.R.W.C.T.
OFFICIAL RECORDS WILLIAMSON COUNTY. TEXAS
( )
RECORD INFO. DOC. NO, 2014094143 O.P.R.W.C.T.
( )
RECORD INFORMATION-DOC. NO. 2002093326, O.P.R.W.C.T.
[ ]
RECORD INFORMATION-00C, NO. 2008045600, O.P.R.W.C.T.
[[ ]]
RECORD INFORMATION-DOC. NO. 2010086635, O.P.R.W.C.T.
[[[ ]]]
RECORD INFORMATION-DOC. NO. 2014085365, O.P.R.W.C.T.
BASIS OF BEARINGS: TEXAS STATE PLANE COORDINATES, CENTRAL ZONE, HAD 83/96 CORS
-SIMTCH TO ACCOMPANY FIELD NOT1:0
BASELINE LAND SURVEYORS, INC.
OF 278.21 ACRES OF LAND OUT OF TBB
ISAAC DONAGAN SURVEY, ABSTRACT NTIMBER 17B AND
PROFE55fOPL1l IAAD SVRTEY1NGSfRW23
THE JOSEPH THOMPSON SURVEY, ABSTRACT NUMBER 808:
ema�,v4arwns 4ieT+b msmiss
BOTH IN WILUAMSON COUNTY. TEXAS
vmnevn,mNurosslw
AND BEING THAT SAME TRACT OF LAND CONVEYED AS
orgm Rzuams Fsesumasw
�.N•wsn.R,�
278.212 ACRES TO 278 GEORGETOWN, INC. BY
INSTRUMENT OF RECORD IN DOCUMENT NUMBER
ems..
SHEET
2014D04143 OF THE OFFICIAL PUBLIC RECORDS OF
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SKETCH TO AC 'UMPANY FIELD NOTE�
BASELINE LAND SURVEYORS, INC
OF 275.21 ACRES OF LAND OUT OF THE
ISAAC DONAGAN SURVEY, ABSTRACT NUMBER 178 AND
p8pf65BxWlJANo 6118VEtTN65E7fNQ5
THE JOSEPH THOMPSON SURVEY, ABSTRACT NUMBER 008;
VMO1II�0Ri1E A�
BOTH IN BILLTAMSON COUNTY, TEXAS
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AND BEING THAT SAME TRACT OF LAND CONVEYED AS
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270,212 ACRES TO 276 GEORGETOWN, INC. BY
J°`°
SHEET
INSTRUMENT OF RECORD IN ➢OCUMENT NUMBER
sy
2014094L43 OF THE OFFICIAL PUBLIC RECORDS OF
70 d l0
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RILLIAMSON COUNTY, TEXAS
CURVE
TABLE
CURVE
RADIUS
LENGTH
DELTA
BEARING
CHORD
Cl
.0 '
S
25'
a• 9'
ILLCUILL34S.ow-
166
'4 ' 0'
54. 9'
02
1 0'
23 .
B
711'49'
212.113,
CZ
0.00'
2 .7 '
N OB'00'E
C3
15 .
235 ai'
6
C3
p '
S
04
7 7.8 '
9'2 '
1'
4 .61'
C4
797.62'
343.51'
3T7 B"
340.88'
C5
56750'
6 . 9'
'2 "
T
C5..........
LINE TABLE
UNE
BEARING
LENG7H
LI
{'28'24'W
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9 of IO
CONSENT AGREEMENT
BY AND BETWEEN:
THE CITY OF GEORGETOWN, TEXAS
AND
278 GEORGETOWN, INC.
AND
WILLIAMSON COUNTY MUNICIPAL UTILITY DISTRICT NO. 34
DA
[W0692132.71
Contents
ARTICLE I INTRODUCTION....................................................................................................1
ARTICLEII DEFINITIONS........................................................................................................ 2
2.01
Definitions..................................................................................................................
2
ARTICLE III EXECUTION OF AGREEMENTS......................................................................
7
3.01
Execution of this Agreement....................................................................................
7
3.02
Execution of Consent to the Partial Assignment of Receivables Agreement
... 8
3.03
Organizational Meeting of the District's Board ....................................................
8
3.04
Limit on Authority....................................................................................................
8
3.05
Effect of Failure to Timely Execute and Return Documents ...............................
8
3.06
Withdrawal of Consent.............................................................................................
9
3.07
Required Submittals to the City Prior to Creation of the District.....................10
3.08
No Other Special Districts......................................................................................10
3.09
Limit on Exercise of Eminent Domain Powers....................................................10
3.10
Service Contracts and Interlocal Agreements.....................................................10
3.11
District Property ......................................................................................................11
ARTICLE
IV ISSUANCE OF BONDS.....................................................................................11
4.01
Issuance of Bonds....................................................................................................11
4.02
Authorized Purposes..............................................................................................11
4.03
Timing of Issuances.................................................................................................12
4.04
Amount of Bonds.....................................................................................................13
4.05
Bond Requirements.................................................................................................13
4.06
Economic Feasibility ................................................................................................14
4.07
Notice of Bond Issues..............................................................................................14
4.08
Compliance with All Agreements.........................................................................14
4.09
Certifications............................................................................................................14
4.10
Bond Objections.......................................................................................................15
4.11
Official Statements...................................................................................................15
4.12
Limitation on Bond Issuance..................................................................................15
ARTICLE
V TAXES, FEES AND CHARGES.........................................................................16
5.01
Tax Rate Considerations for Proposed Bonds.....................................................16
5.02
District Fees..............................................................................................................17
5.03
Reimbursement of City Expenses.........................................................................17
5.04
City Operations Compensation Fee......................................................................17
ARTICLEVI LAND DEVELOPMENT...................................................................................17
6.01
General......................................................................................................................17
6.02
PUD Ordinance Adoption and Amendment.......................................................18
Consent Agreement
Williamson County MUD #34
Page
ARTICLE VII PUBLIC INFRASTRUCTURE..........................................................................18
7.01
On -Site Water and Wastewater Public Infrastructure........................................18
7.02
On -Site Drainage and Water Quality Public Infrastructure..............................18
7.03
Off -Site Water Public Infrastructure.....................................................................18
7.04
Transfer of Ownership, Operation and Maintenance of Public Infrastructure
18
7.05
Capacity Interest Rights..........................................................................................19
ARTICLEVIE SERVICES.........................................................................................................
20
8.01
Wastewater Services................................................................................................
20
8.02
Water Services..........................................................................................................20
8.03
Garbage Services......................................................................................................
21
8.04
Police, Fire and EMS Services; SIP Fees................................................................
21
8.05
Services Outside the District..................................................................................
21
ARTICLEIX Annexation..........................................................................................................
21
9.01
General......................................................................................................................21
9.02
Filing of Notices.......................................................................................................
21
9.03
In -City MUD.............................................................................................................
21
9.04
Zoning.......................................................................................................................
21
9.05
Annexation by the District.....................................................................................
22
ARTICLEX AUTHORITY........................................................................................................
22
10.01
Authority ...................................................................................................................22
ARTICLEXI Reporting.............................................................................................................
22
11.01
Information to be Provided to the City ................................................................
22
11.02
Financial Dormancy Affidavit, Financial Report or Audit ................................
23
11.03
Other Documents.....................................................................................................
23
ARTICLE XII TERM, ASSIGNMENT AND REMEDIES......................................................
23
12.01
Term...........................................................................................................................23
12.02
Delegation and Assignment...................................................................................
23
12.03
Other Limitations on Delegation and Assignment .............................................
25
12.04
Default and Rights and Remedies for Default ....................................................
25
12.05
City's Remedies During Owner's or District's Cure Periods ............................
25
12.06
Rights and Remedies for Default..........................................................................
26
12.07
City's Right to Terminate.......................................................................................
26
ARTICLE
XIII MISCELLANEOUS PROVISIONS................................................................
27
13.01
Cooperation.........................................................................................:....................27
13.02
Notice.........................................................................................................................27
13.03
Severability; Amendment; Waiver........................................................................
29
13.04
Applicable Law and Venue....................................................................................
29
13.05
Entire Agreement.....................................................................................................
29
Consent Agreement
Williamson County MUD #34
Page ii
13.06 Exhibits, Headings, Construction and Counterparts
13.07 Time.................................................................................
13.08 Notice to End Buyer ......................................................
13.09 Authority for Execution ................................................
13.10 Exhibits............................................................................
13.11 Recordation.....................................................................
Consent Agreement
Williamson County MUD #34
Page iii
.... 29
.... 30
.... 30
.... 30
.... 30
.... 31
CONSENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This Consent Agreement (this "Agreement ) is between the City of Georgetown,
Texas (the "Q ), a home -rule city located in Williamson County, Texas, and 278
Georgetown, Inc., a Texas corporation (the "Owner"). Upon final creation of
Williamson County Municipal Utility District No. 34, a municipal utility district to be
created pursuant to Article XVI, Section 59 of the Texas Constitution and under
Chapters 49 and 54 of the Texas Water Code (the "District"), the District shall join in
this Agreement and be bound by its provisions.
ARTICLE I
INTRODUCTION
1.01 Owner is the owner of that certain real property consisting of
approximately 278.21 +/- acres of land described by metes and bounds and by sketch on
Exhibit A (the "Land"). The Land lies entirely within the City's corporate limits.
1.02 Section 42.042 of the Texas Local Government Code and Section 54.016 of
the Texas Water Code require the City's written consent to create a municipal utility
district within a city's corporate limits or extraterritorial jurisdiction. Section 13.10 of
the City's Unified Development Code sets forth the City s requirements for requests to
create a special district.
1.03 On October 15, 2015, Owner filed with the City Secretary's office a petition
requesting the consent of the City to the creation of a municipal utility district on the
Land (the "Creation Petition").
1.04 On May 24, 2016 the City Council of the City adopted Resolution
No. consenting to creation of the District, subject to the
terms and conditions of this Agreement.
1.05 There are several Related Agreements (defined herein) related to the
provision of services to and the development of the Land, compliance with which by
Owner and the District is required as part of this Agreement.
1.06 Owner and the City intend that the purpose of this Agreement and the
Related Agreements is to set out the mutually agreeable terms and conditions relating
Consent Agreement
Williamson County MUD #34 Page 1 of 34
to the creation and operation of the District and development of the Land consistent
with this Agreement, and that this Agreement and the Related Agreements are essential
elements of the granting of the City s consent to creation of the District.
NOW, THEREFORE, for and in consideration of the mutual agreements,
covenants, and conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties (defined herein) contract as follows.
ARTICLE II
DEFINITIONS
2.01 Definitions. In addition to the terms defined elsewhere in this
Agreement, the following terms and phrases used in this Agreement shall have the
meanings set out below:
(a) Agreement: means this Consent Agreement between the City of
Georgetown, Texas, the Owner and, upon its creation, the District,
pertaining to creation of the District on the Land.
(b) Assignee: means a successor to Owner, as permitted under Article XU of
this Agreement.
(c) Bond: means (1) any instrument, including a bond, note, certificate of
participation, or other instrument evidencing a proportionate interest in
payments, due to be paid by the District, or (2) any other type of
obligation that (a) is issued or incurred by the District under the District's
borrowing power, without regard to whether it is subject to annual
appropriations, and (b) is represented by an instrument issued in bearer
or registered form or is not represented by an instrument but the transfer
of which is registered on books maintained for that purpose by or on
behalf of the District. The term shall include obligations issued to refund
outstanding Bonds, but shall not include Developer (defined herein)
reimbursement agreements entered into between the District and Owner
or Developer, or bond anticipation notes.
(d) Bond Limit Amount: means the maximum amount of Bonds, excluding
refunding Bonds, which may be issued by the District pursuant to Section
4.04 of this Agreement.
(e) City Attorney: means the City Attorney for the City.
Consent Agreement
Williamson County MUD #34 Page 2 of 34
(f) City Council: means the City Council of the City.
(g) City Manager: means the City Manager of the City.
(h) City Objection: means an objection by the City to a Bond issue as defined
in Section 4.10 of this Agreement.
(i) City Secretary: means the City Secretary of the City.
(j) CU: means the City of Georgetown, Texas, a home rule city located in
Williamson County, Texas.
(k) Creation Petition: means the petition submitted by Owner to the City
dated October 15, 2015 requesting the City's consent to the creation of the
District and development of the Land.
(1) Developer: means "Developer" as that term is defined in Section 54.238(1)
of the Texas Water Code, as the same may be amended from time to time.
(m) District: means Williamson County Municipal Utility District No. 34.
(n) District's Board: means the Board of Directors of the District.
(o) District Creation Date: means the date that the TCEQ (defined herein)
issues an order creating the District or the effective date of any legislation
passed by the Texas Legislature creating the District.
(p) Effective Date: means the latest date that one or more counterparts to this
Agreement, taken individually or together, bear the signatures of duly
authorized representatives of both the City and Owner. This Agreement
shall be effective as to the District when signed by a duly authorized
representative of the District.
(q) Environmental Permits: means the Section 10(a)(1)(B) Endangered Species
Incidental Take Permit No. TE-116313-0 issued by the United States
Department of the Interior, U.S. Fish & Wildlife Service ("USFWS") on
July 23, 2007; the January 23, 2015 Nationwide Permit Section 29
application requesting authorization to place fill in unregulated waters of
the United States submitted to the United States Army Corps of Engineers
pursuant to Section 404 of the Clean Water Act ("404 NWP"), including
rights under that certain final biological opinion dated December 1, 2014
Consent Agreement
Williamson County MUD #34 Page 3 of 34
issued by the USFWS and related to the 404 NWP, copies of which are
attached hereto as Exhibit E as the foregoing relate to the Land.
(r) Finance Director: means the City s Director of Finance.
(s) Finance Plan: The Finance Plan dated May 10, 2016 prepared by Public
Finance Group LLC, and attached hereto as Exhibit K.
(t) Financial Advisor: means the District's Financial Advisor.
(u) Governing Regulations: means, collectively, the following laws,
regulations and documents pertaining to development of the Land,
subject to Owner's Vested Rights as of the Vesting Date (as defined in
Section 10.03 of this Agreement):
(1) this Agreement;
(2) the Related Agreements (defined herein);
(3) the City's Code of Ordinances;
(4) The City's UDC (defined herein), as modified by the PUD
Ordinance (defined herein);
(5) the City's Development Manual (including, without limitation, the
fee schedule), including amendments that may be approved from
time to time by the City;
(6) the City's Construction Specifications and Standards Manual,
including amendments that may be approved from time to time by
the City;
(7) the City's Drainage Criteria Manual, including amendments that
may be approved from time to time by the City;
(8) the City's Traffic Calming Standards, including amendments that
may be approved from time to time by the City;
(9) preliminary and final plats for portions of the Land that are
approved, from time to time, by the City;
Consent Agreement
Williamson County MUD #34 Page 4 of 34
(10) ordinances that the City is required to adopt from time to time by
state or federal law, including amendments that may be adopted
from time to time by the City;
(11) the PUD Ordinance (defined herein), as the same maybe amended
from time to time by the City Council;
(12) all national and international residential and commercial building
codes adopted by the City, (e.g., electric codes, building codes,
plumbing codes, mechanical codes, energy conservation codes and
fire codes), including changes and local amendments thereto that
may be adopted from time to time by the City; and
(13) the Environmental Permits.
(v) Interlocal Agreements: means agreements between or among the District
and another local government for purposes permitted by the Interlocal
Cooperation Act, Chapter 791, Government Code; and Section 552.014 of
the Texas Local Government Code, and this Agreement.
(w) Land: means approximately 278.21 (+/-) acres of land located in the City's
corporate limits, described by metes and bounds and by sketch on Exhibit
A.
(x) Notice: means notice as described in Section 13.02 of this Agreement.
(y) Off -Site Public Infrastructure: means the Public Infrastructure located
outside the boundaries of the Land and necessary to serve the Land.
(z) On -Site Public Infrastructure: means the Public Infrastructure located
within the boundaries of the Land and necessary to serve the Land.
(aa) Owner: 278 Georgetown, Inc., a Texas corporation, and/or its Assignees
as permitted by this Agreement.
(bb) Partial Assignment of Receivables Agreement: means the agreement
between the City and Owner relating to assignment of certain Bond
receivables to fund the Master Development Fee described in Section 5.04
of this Agreement, and attached hereto as Exhibit F, and which agreement
is an essential element of the granting of the City's consent to creation of
the District.
Consent Agreement
Williamson County MUD #34 Page 5 of 34
(cc) Parties: means, collectively, the City, and the District, and their respective
successors, and Owner and its Assignees as permitted by this Agreement.
(dd) Pam: means, individually, the City, or the District, or their respective
successors, or Owner or its Assignees as permitted by this Agreement.
(ee) Planning Director: means the City's Director of Planning and
Development.
(ff) Preliminary Engineering Report: means the Preliminary Engineering
Report dated May 6, 2015 prepared by Gray Engineering, Inc. attached
hereto as Exhibit B.
(gg) Public Infrastructure: means the water, wastewater, drainage, detention,
retention, stormwater, water quality, transportation, and related
infrastructure acquired, installed or constructed to serve the Land
(including both the On -Site Public Infrastructure and the Off -Site Public
Infrastructure) the major components of which are described in the
Preliminary Engineering Report attached hereto as Exhibit B.
(hh) PUD Ordinance: means Ordinance No. approved
and adopted by the City Council on even date herewith and attached
hereto as Exhibit as said ordinance may be amended from time to time
by the City Council pursuant to the terms of this Agreement.
(ii) Related Agreements: means, collectively, the Wastewater Services
Agreement (defined herein), the Water Services Agreement (defined
herein); and the Partial Assignment of Receivables Agreement.
(jj) Service Contract: means any contract with the District for goods or
services, but specifically excluding professional services contracts and
contracts for design, permitting, and construction of Public Infrastructure.
(kk) TCEO: means the Texas Commission on Environmental Quality, or its
successor agency.
(ll) UDC: means the City's Unified Development Code, as the same may be
amended from time to time.
(mm) Utifity Director: means the City's Director of Utilities.
(nn) Vesting Date: means October 15, 2015.
Consent Agreement
Williamson County MUD #34 Page 6 of 34
(oo) Wastewater Services Agreement: means the "Tri-Party Agreement
Among the City of Georgetown, San Gabriel Harvard Limited Partnership
and ABG Development LP" dated 12/1/2006 and the "Offsite Utility
Construction Cost Reimbursement Agreement for Shadow Canyon by and
between the City of Georgetown and San Gabriel Harvard Limited
Partnership dated 8/16/2005, as assigned to Owner pursuant to the
"Assignment of Wastewater Reimbursements and Wastewater Service"
recorded as Document No. 2015009038 in the Official Public Records of
Williamson County and attached hereto as Exhibit C, compliance with
which is an essential element of the granting of the City s consent to
creation of the District.
(pp) Water Services Agreement: means the "Non -Standard Water Service
Agreement between San Gabriel Harvard Limited Partnership and
Chisholm Trail Special Utility District" dated 9/1/2005, as amended by the
"First Amendment to Non -Standard Water Service Agreement (Shadow
Canyon)" between San Gabriel Harvard Limited Partnership and
Chisholm Trail Special Utility District dated effective September 19, 2013,
as assigned to Owner and to the City of Georgetown pursuant to the
"Assignment of Water Living Unit Equivalents and Water Impact Fee
Credits" recorded as document No. 2015009037 in the Official Public
Records of Williamson County and attached hereto as Exhibit D,
compliance with which is an essential element of the granting of the City's
consent to the creation of the District.
ARTICLE III
EXECUTION OF AGREEMENTS
3.01 Execution of this Agreement.
(a) Owner shall execute this Agreement and return same to the City within
fourteen (14) days after the City Council has approved same and
delivered three (3) executable originals of same to Owner.
(b) At its organizational meeting, the District's Board must approve this
Agreement, cause this Agreement to be signed by a duly authorized
representative of the District's Board, and return a fully executed, certified
copy of this Agreement to the City within thirty (30) days after the date of
the organizational meeting of the District's Board.
Consent Agreement
Williamson County MUD #34 Page 7 of 34
3.02 Execution of Consent to the Partial Assignment of Receivables
Agreement.
(a) Owner shall execute the Partial Assignment of Receivables Agreement
and return same to the City within fourteen (14) days after the City
Council has approved same and delivered three (3) executable originals of
same to Owner.
(b) At its organizational meeting, the District's Board must consent to the
Partial Assignment of Receivables Agreement attached hereto as Exhibit F
cause the consent to Partial Assignment of Receivables Agreement to be
signed by a duly authorized representative of the District's Board, and
return a fully executed, certified copy of the consent to Partial Assignment
of Receivables Agreement to the City within thirty (30) days after the date
of the organizational meeting of the District's Board.
3.03 Organizational Meeting of the District's Board. The organizational
meeting of the District's Board must be held within one hundred and eighty (180) days
after the District's Creation Date.
3.04 Limit on Authority. Prior to the time that this Agreement and the Partial
Assignment of Receivables Agreement are executed by Owner and the District,, and all
are returned to the City, the District shall not issue Bonds or enter into Developer
reimbursement agreements (unless such Developer reimbursement agreements provide
that they are only effective if, and when, the foregoing documents have been executed
and delivered to the City) and shall be prohibited from taking any affirmative act to do
so. Notwithstanding the notice and cure provisions of Section 12.04 of this Agreement,
if the District or Owner fail to approve, execute, and deliver to the City this Agreement
or the Partial Assignment of Receivables Agreement within the time frames required by
Article III of this Agreement, and such failure is not cured within fourteen (14) days
after the date of the Notice from the City to Owner and the District, such failure shall
constitute a material breach of this Agreement and shall operate to prohibit the District
from taking any affirmative act to issue Bonds or executing Developer reimbursement
agreements until the failure has been cured.
3.05 Effect of Failure to Timely Execute and Return Documents.
Notwithstanding anything in this Agreement or the Partial Assignment of Receivables
Agreement to the contrary, this Agreement shall be void and have no further force or
effect if this Agreement and the Partial Assignment of Receivables Agreement are not
executed and delivered to the City within the timeframes (including the 14-day cure
period) required by Article III of this Agreement. The effectiveness of all Developer
Consent Agreement
Williamson County MUD #34 Page 8 of 34
reimbursement agreements executed by the District and land development agreements
executed by Owner or the District shall be expressly conditioned upon approval and
execution by Owner the District's Board of this Agreement and the Partial Assignment
of Receivables Agreement.
3.06 Withdrawal of Consent.
(a) The City's consent to the creation of the District shall be deemed
withdrawn if:
(1) TCEQ or Legislative creation of the District is not effective within
twenty-four (24) months after the Effective Date; or
(2) Owner fails to commence actual construction of any portion of the
Public Infrastructure within five (5) years after the Effective Date.
(b) The City's consent to the creation of the District shall be deemed
withdrawn and the District shall be dissolved if:
(1) the District has not held a confirmation election within two (2)
years after the Effective Date; or
(2) the District has been inactive for a period of five (5) consecutive
years and has no outstanding bonded indebtedness as provided in
Section 49.321, Texas Water Code; or
(3) Owner or the District is in default of any of the Related Agreements
and the default has not been fully cured before expiration of the
applicable cure period in the applicable Related Agreement.
(c) If an event described in Section 3.08(a) occurs, the intent of the Parties is
that the District is not to be created and Owner hereby agrees that all
applications or other documents pertaining to creation of the District or
issuance of Bonds submitted to the TCEQ, the Attorney General, or the
state legislature shall be withdrawn, no District confirmation election shall
be called or held, and Owner shall forbear from executing any documents
or instruments or taking any other actions enabling the creation, or
confirmation of the creation, of the District. If an event described in
Section 3.08(b) occurs, the intent of the Parties is that the District is to be
immediately dissolved, and Owner and the District hereby agree to
promptly execute and deliver all documents and instruments and take all
reasonable actions as may be necessary or appropriate cause the
Consent Agreement
Williamson County MUD #34 Page 9 of 34
dissolution of the District to occur as soon as possible. Neither Owner nor
the District shall contest or appeal TCEQ proceedings or decisions to
dissolve the District. Further, if any event described in either Section
3.08(a) or Section 3.08(b) occurs, the District and Owner expressly and
irrevocably waive any claims against the City for repayment of costs and
expenses that would otherwise be eligible to be reimbursed to Owner by
the District pursuant to the rules and regulations of the TCEQ or other
applicable law.
3.07 Required Submittals to the City Prior to Creation of the District.
Concurrently with the submission of the District creation application to the TCEQ
Owner agrees to submit to the City a copy of the draft application and all supporting
documents, including (without limitation) evidence that the land to be included in the
District is coterminous with the boundaries of the Land and is in the City's corporate
limits, and a financial statement of Owner as required by TCEQ rules. The City shall
have ten (10) business days to review the draft application and provide comments to
Owner.
3.08 No Other Special Districts. In furtherance of the purposes of this
Agreement, the District on behalf of itself and its successors and Owner on behalf of
itself and its Assignees, covenant and agree that, except upon express prior written
consent of the City Council, neither the District nor Owner shall sign, join in, associate
with, or direct to be signed any petition seeking to incorporate the Land or seeking to
include the Land within the boundaries of any other special district, assessment
governmental jurisdiction, other municipality, or any other incorporated governmental
entity other than the City.
3.09 Limit on Exercise of Eminent Domain Powers. The District shall not be
authorized to exercise the power of eminent domain to acquire any interest in property
that is located outside the boundaries of the Land except (a) when necessary to
construct Off -Site Public Infrastructure, or (b) when such power is exercised with the
express prior written consent of the City Council.
3.10 Service Contracts and Interlocal Agreements. The District shall not,
without the prior written approval of the City Manager or the City Manager's designee,
enter into any Interlocal Agreements or Service Contracts with terms that (a) require the
payment of a "termination" or similar fee for termination; or (b) are not unilaterally
terminable by the District upon (x) sixty (60) days' prior written notice or (y) the end of
the District's then -current fiscal year, whichever is later. The City shall timely review all
contracts submitted under this Section and either approve them or provide written
comments specifically identifying any changes required for approval within thirty (30)
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Williamson County MUD #34 Page 10 of 34
days of receipt. If no City comments are received within such time, the City's consent
to such contract will be deemed to have been granted.
3.11 District Property. Except as provided below in this Section or elsewhere
in this Agreement, the District shall not sell, convey, lease, mortgage, transfer, assign or
otherwise alienate any of the District's water, reclaimed water, wastewater, or drainage,
detention, retention, stormwater, or water quality improvements, or other property to
any third party other than the City without the prior written approval of the City
Manager or the City Manager's designee; provided, however, that the foregoing
condition shall not apply to the following property:
(a) the District's disposal or replacement of equipment or material which has
passed its useful life;
(b) the grant of easements necessary for the development of the Land;
(c) the grant or commitment of capacity in any water, sewer, drainage
facilities owned or controlled by the District in order to provide service to
lands within the District;
(d) the conveyance of any roads to Williamson County as permitted or
required by applicable law;
(e) the sale of property deemed to be surplus by the District; or
(f) the sale, conveyance, lease, mortgage, transfer, assignment or other
alienation of any such property that is not in conflict with this Agreement.
ARTICLE IV
ISSUANCE OF BONDS
4.01 Issuance of Bonds. Except as authorized by Section 4.02 of this
Agreement, the District shall not issue Bonds (a) without the prior approval of the City
Council and (b) until the documents required by Article III of this Agreement are
executed and delivered to the City in accordance therewith.
4.02 Authorized Purposes. The purposes for which the District may issue
Bonds without prior approval of the City Council shall be restricted and limited to the
following:
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(a) purchase, construction, acquisition, repair, extension, enlargement,
modification, improvement and replacement of land, easements, works,
improvements, facilities, plants, equipment, and appliances to:
(1) provide a water supply for the District for municipal, domestic and
commercial uses; and
(2) collect, transport, process, dispose of, and control all domestic,
commercial, industrial or communal wastes from the District,
whether in fluid, solid or composite state; and
(3) gather, conduct, divert and control local storm water or other local
harmful excesses of water in the District; and
(4) construct "Road 1" and "Road 2" identified on the Concept Plan
attached to and made a part of the PUD Ordinance; and
(5) preserve natural resources and endangered species as required by
the Environmental Permits relating to the Land; and
(b) reimbursement of City impact fees paid by Owner for construction of
Public Infrastructure, less any such fees to be reimbursed by the City
under the Wastewater Services Agreement or the Water Services
Agreement; and
(c) payment of organization expenses, initial operation expenses, cost .of
issuance, interest during construction, capitalized interest and similar
expenses typically incurred by municipal utility districts in the issuance of
bonds such as the Bonds, including issuance, administrative, insurance
and regulatory expenses related to issuance of any Bonds and the land,
easements, works, improvements, facilities, plants, equipment, and
appliances being financed by the Bonds; and
(d) refunding of any outstanding Bonds of the District for a debt service
savings; provided, however, that any such refunding Bonds otherwise
satisfy the requirements of this Agreement.
4.03 Timing of Issuances. The District contemplates that it may be able to
issue Bonds generally as set forth in the Preliminary Engineering Report attached hereto
as Exhibit B and the Finance Plan attached hereto as Exhibit However, the Parties
understand that the actual timing, size and issuance of Bonds will be subject to market,
economic and other variables that occur and, therefore, Exhibit B and Exhibit are
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Williamson County MUD 934 Page 12 of 34
purely informational and not binding on the Parties. In order to provide the City with
some assurance as to the timing of the District's issuance and retirement of its debt, the
District shall use good faith efforts, subject to market conditions and a sufficient tax
base existing, to sell its last issue of Bonds (excluding refunding Bonds) on or before the
date that is ten (10) years after the date of issuance of the District's first bond issue. If
the District fails or is unable to do so, the City shall have the authority to revoke the
District's authority to issue its remaining but unissued Bonds.
4.04 Amount of Bonds. In consideration of the City's consent to the creation of
the District, the District agrees that the total amount of Bonds issued by the District for
all purposes, excluding refunding Bonds, shall not exceed NINETEEN MILLION NINE
HUNDRED TWENTY-FIVE THOUSAND U.S. DOLLARS ($19,925,000.00) (the "Bond
Limit Amount"), unless specifically approved by the City Council. Owner and the
District acknowledge and agree that the Bond Limit Amount is sufficient to accomplish
the purposes of the District, and that Owner and the District have voluntarily agreed to
the Bond Limit Amount. As to any Public Infrastructure, the cost of which exceeds the
Bond Limit Amount, shall be dedicated to the City without reimbursement, unless
otherwise expressly approved by the City Council.
4.05 Bond Requirements. The District shall obtain all necessary authorizations
for Bonds to finance the acquisition or construction of Public Infrastructure for the
benefit of the District in accordance with this Agreement and the laws applicable to the
District. To the extent of a conflict with Section 13.10 of the UDC, the terms of this
Agreement shall control. In addition to the limitations in Section 4.04 of this
Agreement, all Bonds issued by the District shall comply with the following
requirements:
(a) maximum maturity of twenty-five (25) years after the date of issuance of
the District's first Bond issue; and
(b) interest rate that does not exceed two percent (2°/o) above the highest
average interest rate reported by the Daily Bond Buyer in its weekly "20
Bond Index" during the one (1) month period immediately preceding the
date that the notice of sale of such Bonds is given; and
(c) the Bonds shall expressly provide that the District shall reserve the right
to redeem Bonds at any time beginning not later than the tenth (10th)
anniversary of the date of issuance, without premium. No variable rate
Bonds shall be issued by the District; and
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Williamson County MUD #34 Page 13 of 34
(d) any refunding Bonds of the District must (i) provide for a minimum of
three percent (3%) present value savings, (ii) provide that the latest
maturity of the refunding Bonds may not extend beyond the latest
maturity of the refunded Bonds, (iii) be preceded by delivery of a
certificate from the Financial Advisor that demonstrates that the proposed
refunding complies with this Section within three (3) business days after
the execution of the purchase agreement for the refunding; and
(e) no Bonds (excluding refunding Bonds) shall be issued having an issuance
date more than ten (10) years after the date of the first issuance of bonds
by the District.
4.06 Economic Feasibility. Before any submission of an application for
approval of issuance of Bonds to the TCEQ or to the Attorney General, whichever
occurs first, the Financial Advisor shall certify in writing to the City that the Bonds are
being issued within the then -current economic feasibility guidelines established by the
TCEQ for districts in Williamson County and in conformity with this Agreement.
4.07 Notice of Bond Issues. At least thirty (30) days before the submission of
an application for approval of issuance of Bonds, except refunding Bonds, to the TCEQ
or to the Attorney General, whichever occurs first, the District shall deliver to the City
-(a) the certification required Section 4.09 of this Agreement; (b) a copy of its completed
application to the TCEQ (without attachments); and (c) a statement from the Financial
Advisor containing (i) the amount of Bonds being proposed for issuance; (ii) a general
description of the projects to be funded and/or the Bonds to be refunded by such Bonds;
and (iii) the proposed debt service and District tax rate after the issuance of the Bonds.
If the District is not required to obtain TCEQ approval of the issuance of the Bonds, the
District shall nonetheless deliver such certifications and notices to the City at least thirty
(30) days prior to the issuance of Bonds, except refunding Bonds, by the District.
4.08 Compliance with All Agreements. At least ten (10) business days before
submission of an application for issuance of Bonds to the TCEQ or the Attorney
General, whichever occurs first, the District shall certify in writing to the City that the
District and Owner are not in breach of any material provision of this Agreement or the
Related Agreements, as those may be amended from time to time.
4.09 Certifications. With respect to any matter required by this Article IV to be
certified in writing, this Agreement also requires, and the District hereby warrants, that
every statement in any certification shall be true and correct in all material respects and
that the person signing the certification has been given the requisite authority to do so
on behalf of the District. All certifications shall be delivered to the City.
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Williamson County MUD #34 Page 14 of 34
4.10 Bond Objections. The City shall have a period of thirty (30) days after
receiving the last of the certifications and notices required by Sections 4.06, 4.07, 4.08
and 4.09 of this Agreement within which to object to the Bonds by delivering a City
Objection (defined herein) to the District pursuant to this Section 4.10. The only basis
for an objection by the City to a proposed Bond issue shall be that the District or Owner
is in material default of a provision of this Agreement or the Related Agreements. If the
City objects to a proposed Bond issue ("City Objection"), such an objection (a) shall be
in writing, (b) shall be given to the District; (c) shall be signed by the City Manager or
the City Manager's designee, and (d) shall specifically identify the provision(s) of this
Agreement or the Related Agreements for which the District or Owner is in default. It
shall not be a basis for a City Objection that the City disagrees with the Financial
Advisor as to the financial feasibility of the Bonds so long as the proposed Bonds are
approved by the TCEQ and the Attorney General. In the event a City Objection is
timely given to the District with respect to a specific Bond application as required by
this Section 4.10, the City and the District shall cooperate to resolve the City Objection
within a reasonable time, and the sale of the Bonds to which the City Objection applies
shall be delayed until the City Objection has been cured or waived. A City Objection
may be expressly waived by the City at any time. Unless otherwise cured by written
agreement of the Parties, a City Objection shall only be deemed cured if (x) the District
files a petition seeking declaratory judgment in state district court, (y) not less than
thirty (30) days before filing the petition the District gives the City Notice of, and
waives any objections to the City's right to intervene in, such a declaratory judgment
action, and (z) the district court (or an appellate court, if an appeal is filed) determines
that the District or Owner is not in default with respect to any provision of this
Agreement or the Related Agreements, or, alternatively, finds that if such a default had
previously occurred, the default has been cured. A City Objection may be expressly
waived by the City at any time.
4.11 Official Statements. Within thirty (30) days after the District closes the
sale of each series of Bonds, the District shall deliver to the City a copy of the final
official statement for such series of Bonds at no cost to the City.
4.12 Limitation on Bond Issuance. In addition to the limitations on Bond
issuance set forth elsewhere in this Agreement, the District agrees not to issue Bonds for
purposes of reimbursing Owner or Developer for any costs or expenses paid by Owner
or Developer after the tenth (10f) anniversary of the date of the first issuance of bonds
by the District, which costs and expenses would otherwise be eligible to be reimbursed
by the District pursuant to the rules and regulations of the TCEQ or other applicable
law. The District and Owner expressly and irrevocably waive any claims against the
City for repayment of such indebtedness. The District agrees that all reimbursement
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Williamson County MUD #34 Page 15 of 34
agreements that it enters into with Owner or Developer, or any subsequent Owner or
Developer, shall include the following provision (subject to modification to use
alternative defined terms if necessary to be consistent with the reimbursement
agreement):
If Owner/Developer has completed the construction of or financed any
facilities or undivided interests in facilities on behalf of the District in
accordance with the terms of this agreement, but the District has not
issued Bonds to reimburse Owner/Developer for the cost of such facilities
or undivided interests in facilities, Owner/Developer agrees that it will
convey the facilities or undivided interests in question to the City, free and
clear of any liens, claims or encumbrances and at no cost to the City, and
Owner/Developer hereby waives any payment by the City to which it
otherwise would have been eligible for reimbursement from Bond
proceeds or any other source.
ARTICLE V
TAXES, FEES AND CHARGES
5.01 Tax Rate Considerations for Proposed Bonds. Before the issuance of
Bonds, the District must provide to the City a final TCEQ order approving the Bond
issue (and the accompanying staff memorandum) that indicates concurrence by the
TCEQ made in accordance with the TCEQ's then -existing rules, that it is feasible to sell
the Bonds and maintain a projected District tax rate that is not more than $0.6660 per
$100.00 (the "Feasibility Tax Rate") in assessed valuation on an annual basis, which the
District agrees is sufficient to pay debt service on the Bonds in accordance with the
terms of each resolution or order approving the issuance of its Bonds in each year while
such Bonds are outstanding. The District agrees to adopt its annual tax rate in
compliance with the legal requirements applicable to municipal utility districts, to
report the tax rate set by the District each year to the District's tax assessor/collector,
and to perform all acts required by law for its tax rate to be effective. The District shall
maintain all debt service tax revenues in a separate account or accounts from the
District's general operating funds. The District shall also require that its bookkeeper
provide an accounting allocation of the debt service fund among the various categories
of Bond -funded facilities. The City, Owner and the District acknowledge and agree that
the Feasibility Tax Rate is sufficient to accomplish the purposes of this Agreement and
that Owner has voluntarily agreed (and the District upon creation will voluntarily
agree) to the Feasibility Tax Rate. Notwithstanding the foregoing or anything else in
this Agreement to the contrary, however, the District and the City understand that the
District's power to levy taxes to pay the principal of and interest on Bonds up to the
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Williamson County MUD #34 Page 16 of 34
Bond Limit Amount will be unlimited as to rate and amount as necessary to make Bond
payments.
5.02 District Fees. The District agrees that the City shall be exempt from, and
will not be assessed, any District fees.
5.03 Reimbursement of City Expenses. As additional consideration for this
Agreement, pursuant to Section 13.10.050(AC) of the UDC, District, or Owner on behalf
of the District, shall pay City's staff and outside expert and consultant costs, fees and
expenses associated with formation of the District, and the negotiation, drafting and
preparation of this Agreement. In addition, during the term of this Agreement, Owner
or the District shall pay to the City any additional fees, costs and expenses in connection
with the amendment, implementation or administration of the parts of this Agreement
and the Related Agreements related to the City's supervision of the District's activities
under this Agreement. The costs, fees and expenses required to be paid by this Section
5.03 shall be paid in full to the City within thirty (30) days of receipt of a statement
regarding same from the City. Without limiting the City's right to seek an award of
attorney's fees, this Section does not apply to costs, fees or expenses incurred as a result
of litigation.
5.04 City Operations Compensation Fee. As additional consideration for this
Agreement, Owner shall pay to the City a fee (the "Master Development Fee" or
"MDF"), payable out of proceeds from the issuance of Bonds by the District. Unless
specified otherwise by the City as provided below, the MDF shall be paid at the rate of
ten percent (10%) of each net bond reimbursement received by Owner calculated in
accordance with the formula attached hereto as Exhibit F, up to a maximum MDF of
ONE MILLION FIVE HUNDRED THOUSAND U.S. DOLLARS ($1,500,000.00). The
District and the Owner shall ensure that each MDF installment payment will be paid to
the City in conjunction and simultaneously with Owner's reimbursement from the
Bonds, and that the full amount of the MDF is paid to the City no later than the date
specified in Section 4.12 of this Agreement; therefore, the percentage from each net
bond reimburse is subject to increase as the City may determine is necessary to achieve
timely payment of the full amount of the MDF. Owner hereby makes a partial
assignment of its reimbursement rights to the City, as evidenced by the "Partial
Assignment of Receivables Agreement" attached hereto as Exhibit G.
ARTICLE VI
LAND DEVELOPMENT
6.01 General. All development on the Land must be in compliance with the
Governing Regulations.
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6.02 PUD Ordinance Adoption and Amendment.
(a) The PUD Ordinance and its terms and conditions are hereby incorporated
herein by reference for all purposes, including enforcement of the terms
and conditions of the PUD Ordinances, as if set forth in full. If the terms
of the PUD Ordinance conflict with the Governing Regulations, the PUD
Ordinance shall control.
(b) The PUD Ordinance shall not be amended or altered except upon (1)
approval by the City Council of an ordinance amending the PUD
Ordinance processed in accordance with the UDC, and (2) approval by all
Parties of an amendment to this Agreement incorporating the amended
PUD Ordinance by reference into this Agreement.
ARTICLE VII
PUBLIC INFRASTRUCTURE
7.01 On -Site Water and Wastewater Public Infrastructure. Owner or the
District shall construct all water and wastewater On -Site Public Infrastructure,
including (i) the water system, including all piping, valves, and hydrants within
designated easements or rights of way up to the customer side of the meter; and (ii) the
wastewater system, including all piping, manholes, and lift stations located within
designated easements or rights of way up to the point of service entry by a single
customer. All water and wastewater On -Site Public Infrastructure shall be designed
and constructed in accordance with the Governing Regulations and the requirements of
any other entity with jurisdiction.
7.02 On -Site Drainage and Water Quality Public Infrastructure. Owner or
the District shall construct all drainage, retention, detention, stormwater and water
quality On -Site Infrastructure as an integrated regional system that complies with the
Governing Regulations.
7.03 Off -Site Water Public Infrastructure. Owner or the District shall
construct all Off -Site Public Infrastructure in according with the Governing Regulations
and the requirements of any other entity with jurisdiction.
7.04 Transfer of Ownership, Operation and Maintenance of Public
Infrastructure.
(a) General. For any Public Infrastructure to be conveyed to the City for
ownership, operation and maintenance, Owner or the District shall
provide the following information to the City: (a) one (1) complete set of
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Williamson County MUD #34 Page 18 of 34
as -built plans in the format requested by the City; (b) copies of all
documents evidencing transfer or assignment of all contractual rights,
warranties, guarantees, assurances of performance, and bonds related to
the Public Infrastructure; (c) lien waivers and releases acceptable to the
City demonstrating that the Public Infrastructure is free and clear of all
liens and encumbrances; and (d) two (2) year maintenance bonds in favor
of the City. The City's acceptance of the Public Infrastructure shall be
documented in a letter from the City to Owner and the District.
(b) Wastewater. If under the Wastewater Services Agreement the City agrees
to accept the wastewater Public Infrastructure for ownership, operation
and maintenance, then within ninety (90) days after completion of
construction, Owner or the District shall convey the wastewater Public
Infrastructure to the City for ownership, operation and maintenance and
deliver to the City the documentation required by Section 7.04(a) of this
Agreement.
(c) Water. If under the Water Services Agreement the City agrees to accept
the water Public Infrastructure for ownership, operation and maintenance,
then within ninety (90) days after the completion of construction, Owner
or the District shall convey the water Public Infrastructure to the City for
ownership, operation and maintenance and deliver to the City the
documentation required by Section 7.04(a) of this Agreement.
(d) Drainage and Water OUallty. Upon completion of construction, the
drainage, detention, retention, stormwater and water quality Public
Infrastructure shall be dedicated or transferred to the District or, with
prior City approval or at the City's request, to a property owners
association ("POA") for ownership, operation and maintenance as and
when any portion of the Land on which Public Infrastructure is located is
platted or when otherwise required under the Governing Regulations.
Such improvements shall be maintained to City standards by the District
or POA, as applicable.
7.05 Capacity Interest Rights. Owner and District, as appropriate, shall
reserve capacity interest rights sufficient to provide service to the District in any Public
Infrastructure conveyed or otherwise transferred to the City sufficient to serve the Land
as contemplated by this Agreement and the Related Agreements. Any such conveyance
or other transfer shall not affect Owner's right to reimbursement from the District for
the cost of any improvements or capacity in improvements constructed or financed by
Owner, or the District's right to effect such reimbursement.
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Williamson County MUD #34 Page 19 of 34
ARTICLE VIII
SERVICES
8.01 Wastewater Services.
(a) Wastewater services to the Land shall be governed by the Wastewater
Services Agreement.
(b) Wastewater impact fees shall be governed by the Wastewater Services
Agreement.
(c) Owner shall not submit an application for and the City shall not approve
any preliminary or final plat or any other development or plan review
application for any portion of the Land that:
(1) requires a lift station or any other non -gravity means for the
provision of collectivized wastewater service; or
(2) is to be served by on -site sewage facilities (septic systems), it being
the intent of the Parties that wastewater collection service be
provided to the Land solely via the means described in the
Wastewater Services Agreement.
8.02 Water Services.
(a) Water Services to the Land shall be governed by the Water Services
Agreement.
(b) Water impact fees, to the extent pre -paid by Owner or its predecessor in
interest under the Water Services Agreement, shall be governed by the
Water Services Agreement.
(c) Water impact fees, to the extent not pre -paid by Owner or its predecessor
in interest under the Water Services Agreement, shall be assessed and
collected as set forth in the City's Code of Ordinances at the time the final
plat containing the service connection is approved by the City, and
collected at the time of application for each building permit issued on such
portion(s) of the Land. The amount of the City's impact fee shall be the
amount in effect at the time of final platting under the applicable
provision of the City's Code of Ordinances for the impact fee service area
that includes the portion(s) of the Land being served
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8.03 Garbage Services. Garbage pick-up services shall be provided by the
City's solid waste services provider, and customers located on the Land shall be Tier I
Customers, as that term is defined in the City's Code of Ordinances Chapter 13.04.
8.04 Police, Fire and EMS Services; SIP Fees.
(a) The City will provide police, fire and EMS services to the Land on the
same terms and conditions as such services are provided to other similarly
situated areas within the corporate limits of the City.
(b) Owner agrees to pay or cause to be paid to the City a fee for fire services
in the amount of SIX HUNDRED THIRTY U.S. DOLLARS ($630.00) per lot
(the "Fire SIP Fee") at the time of building permit application for such lot.
8.05 Services Outside the District. Owner and the District shall not be
authorized to provide water, wastewater, garbage, fire, police, EMS or other services
outside the boundaries of the District without the express prior written consent of the
City Council, at the City Council's sole discretion.
ARTICLE IX
ANNEXATION
9.01 General. The Parties acknowledge and agree that the Land lies wholly
within the corporate limits of the City and the District is an in -City, City -service
municipal utility district. The Parties further acknowledge and agree that the creation of
the District, and the City's consent thereto, are for purposes that include promoting the
orderly development and extension of City services to the Land.
9.02 Filing of Notice. Within thirty (30) days after the District Creation Date,
the District shall file in the Official Public Records of Williamson County, a notice
required by Section 49.452 of the Texas Water Code in the form of Exhibit H attached
hereto, stating the extent of City services.
9.03 In -City MUD. OWNER, THE DISTRICT AND ALL FUTURE OWNERS
OF THE LAND HEREBY ACKNOWLEDGE THAT THE LAND IS LOCATED WITHIN
THE CORPORATE LIMITS OF THE CITY AND IS ALSO SUBJECT TO TAXATION BY
THE CITY. OWNER, THE DISTRICT AND ALL FUTURE OWNERS OF THE LAND
HEREBY WAIVE ALL OBJECTIONS TO TAXATION OF THE LAND BY THE CITY.
9.04 Zoning. The PUD Ordinance governs zoning of the Land.
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Williamson County MUD #34 Page 21 of 34
9.05 Annexation by the District. The District may not annex any additional
land into its boundaries without the prior written consent of the City Council. Any
attempted annexation of land into the boundaries of the District without the prior
written consent of City Council is void.
ARTICLE X
AUTHORITY
10.01 Authority. This Agreement is entered into under the statutory authority
of Section 54.016 of the Texas Water Code. The Parties intend that this Agreement
provide for infrastructure for the Land; specify the uses and development of the Land
consistent with the PUD Ordinance; and provide other lawful terms and considerations
relating to the Land.
10.02 Intent of Parties Related to Allocation Agreement. Under Section
54.016(f) of the Texas Water Code, the City, as a city providing written consent for the
inclusion of land in a district, may provide for a contract, designated as an "allocation
agreement," to be entered into between the City and the District. The Parties
acknowledge that the provision for an allocation agreement under Section 54.016(f) is at
the City's discretion. The City confirms that it is intentionally not providing for an
allocation agreement. The Parties agree that this Agreement does not constitute and
will not be deemed to constitute an allocation agreement within the meaning of Section
54.016(f).
10.03 Vesting of Rights. The City and Owner mutually agree that Owner has
vested authority to develop the project contemplated in this Agreement and the Related
Agreements on the Land pursuant to Texas common law and Chapter 245 of the Texas
Local Government Code, as amended ("Vested Rights"), as of October 15, 2015 (the
"Vested Date"). It is the intent of the City and Owner that development of the project
on the Land will be subject to the Governing Regulations in effect as of the Vesting
Date, subject to any exceptions contained in this Agreement, the Related Agreements,
Texas common law or Chapter 245 of the Texas Local Government Code, as amended.
ARTICLE XI
REPORTING
11.01 Information to be Provided to the City. The District shall provide a copy
of the following documents to the City within the timeframes specified below:
(a) Agendas: a copy of the agenda for each meeting of the District's Board
concurrently with the posting of such agenda.
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Williamson County MUD #34 Page 22 of 34
(b) Minutes: a copy of the minutes of all meetings of the District's Board and
of any committees or subcommittees created by the District's Board within
ten (10) business days after the date of approval of such minutes by the
District's Board, committee, or subcommittee, as applicable.
(c) Tax Rate: a copy of each order or other action setting an ad valorem tax
rate within ten (10) business days after the date on which the District's
Board adopts the rate.
(d) Budgets: a copy of the District's budget for each fiscal year within ten (10)
business days the date on which the District's Board approves the budget.
11.02 Financial Dormancy Affidavit, Financial Report or Audit. The District
shall file a copy of its annual financial dormancy affidavit, annual financial report or
annual audit of its debt service and general fund accounts, whichever is required under
the Texas Water Code, with the City, within ten (10) business days after the date on
which the District's Board approves each financial dormancy affidavit, financial report
or audit.
11.03 Other Documents. The District shall provide copies of any other material
event notices filed under applicable federal securities laws or regulations to the City
within thirty (30) days after filing such notices with the applicable federal agency.
ARTICLE XII
TERM, ASSIGNMENT AND REMEDIES
12.01 Term. This Agreement shall be effective as to Owner and the District
from the Effective Date and shall continue in effect until the District's obligations are
fully assumed by the City, at the City's sole election, unless terminated by the City
pursuant to Sections 3.06, 12.06 or 12.07 of this Agreement or in writing by mutual
agreement of the Parties. This Agreement shall be recorded in the Official Public
Records of Williamson County and shall run with the Land.
12.02 Delegation and Assignment.
(a) Delegation of Performance Obligation(s). Subject to the additional terms
and conditions set forth in Section 12.03 of this Agreement, no Party may
delegate any of its obligations to perform under this Agreement, except
upon delivery to the non -delegating Parties, at least twenty (20) business
days before the delegation, of a written agreement executed by authorized
representatives of the delegating Party and the delegate stating the
specific performance obligations delegated and containing the delegate's
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Williamson County MUD #34 Page 23 of 34
express consent to perform the delegated obligations as set forth in this
Agreement with regard to the obligations delegated.
(b) Assignment of Rights to Performance. No Party may assign its rights to
performance by another Party under this Agreement (including but not
limited to its rights to any claim for damages arising out of or related to
the non -assigning Parry's breach of this Agreement), voluntarily or
involuntarily, whether by merger, consolidation, dissolution, operation of
law, or any other manner except, upon delivery to the non -assigning
Parties at least twenty (20) business days before the assignment of a
written agreement stating the specific rights to performance assigned
executed by the assigning Party and the assignee together with all
supporting documentation relating to the assignment. Subject to the
terms and conditions of Section 12.03 of this Agreement, Owner may
assign its rights to performance under this Agreement only to:
(1) a lender to the extent necessary to obtain financing for
development of the Land and if the assignment to the lender occurs
after the recordation of this Agreement as required by Section 13.11
of this Agreement; or
(2) a successor owner to Owner of all or any part of the Land who is
also an assignee of the Related Agreements; or
(3) to the District.
Any such assignment shall be subject to the terms of this Agreement. Assignment by
Owner to any other persons or entities is not permitted.
(c) Effect of Delegation or Assignment.
(1) Delegation of obligations as allowed by this Agreement shall not
operate to release or discharge the delegating Party of the
delegated obligations, and the delegating Party guarantees
performance of the delegated obligations.
(2) Assignment of rights to performance as allowed by this Agreement
shall extinguish the assigning Parry's right to receive performance
of the assigned rights during the term of the assignment, except to
the extent that the assigning Party retains a lien on the Land or any
part thereof accompanying the assignment.
Consent Agreement
Williamson County MUD #34 Page 24 of 34
(d) Effect of Delegation or Assignment in Violation of this Section. Any
purported assignments or delegations in violation of Section 12.02 (a) or
(b) are void.
12.03 Other Limitations on Delegation and Assignment. Notwithstanding
anything to the contrary in this Agreement, Owner shall not have the right to assign
rights in or delegate performance of obligations under this Agreement until after the
District becomes a Party and after this Agreement is recorded in the Official Public
Records of Williamson County, and any purported assignments or delegations in
violation of these two conditions are void and shall have no force or effect.
12.04 Default and Rights and Remedies for Default.
(a) Notification of Default. Any material breach of this Agreement shall be a
default of this Agreement. If any Party commits a default of this
Agreement, the non -defaulting Party shall give Notice to the defaulting
Party that describes the default in reasonable detail.
(b) Cure of Default. For any default that can be cured by the payment of
money (a "Monetary Default"), the defaulting Party shall be allowed
thirty (30) days after the date of the Notice to cure the Monetary Default
(the "Monetary Default Cure Period"). For any default that is not a
Monetary Default (a "Non -Monetary Default"), the defaulting Party must
commence the cure of any Non -Monetary Default specified in the Notice
within thirty (30) days after the date of the Notice, and thereafter
diligently pursue such cure to completion but in no event longer than
ninety (90) days after the date of the Notice (the "Non -Monetary Default
Cure Period").
12.05 City's Remedies During Owner's or District's Cure Periods. No Bonds
shall be issued by the District and the City shall have all rights to enjoin the issuance of
Bonds during the applicable Cure Period for an Owner or District default. In addition,
the City shall be relieved of all of its obligations under this Agreement and all Related
Agreements, including, without limitation, obligations to process or approve
applications, permits, plats, utility connections, utility taps, or any other development
or utility -related applications pertaining to the Land, during the applicable Cure Period
for an Owner or District default. During the Cure Period, the actions authorized by this
Section are the City's exclusive remedies for delay. If Owner's or the District's default
remains uncured after the applicable Cure Period, the City shall also be entitled to all
rights and remedies available to it by law or in equity or by statute or otherwise.
Consent Agreement
Williamson County MUD #34 Page 25 of 34
12.06 Rights and Remedies for Default.
(a) If the defaulting Party does not cure the default within the applicable
Cure Period, and if the non -defaulting Party has not waived the default in
writing, then after the expiration of the applicable Cure Period, the non -
defaulting Party may, in its sole discretion, and without prejudice to any
other right or remedy allowed under this Agreement or a Related
Agreement, seek any other relief available at law or in equity, all of which
are cumulative and are in addition to any other right or remedy given
under this Agreement or a Related Agreement which may now or
subsequently exist in law or in equity by statute or otherwise, and the
exercise of any one remedy does not preclude the exercise of another.
(b) Damages, if any, to which any non -defaulting Party may be entitled shall
be limited to actual damages and shall not include special, incidental, or
consequential damages.
(c) To the extent that any course of dealing, act, omission, failure, or delay in
exercising any right or remedy under this Agreement constitutes the
election of an inconsistent right or remedy, that election does not constitute
a waiver of any right or remedy, or limit or prevent the subsequent
enforcement of any provision of this Agreement. No single or partial
exercise of any right or remedy under this Agreement precludes the
simultaneous or subsequent exercise of any other right or remedy.
12.07 City's Right to Terminate. After the expiration of the applicable Cure
Period, without regard to Owner's or the District's partial performance, if any, the City
is entitled to terminate this Agreement upon written notice to Owner and the District,
with the effect set forth in this Section 12.07, if Owner or the District has failed to cure a
default under this Agreement or a Related Agreement within the applicable Cure
Period, and the City has not waived the default in writing, or Owner or the District has
failed to satisfy a condition precedent and the City has not waived performance of the
condition precedent in writing. Termination of this Agreement pursuant to this Section
does not terminate, limit or restrict the rights and remedies of the City and is without
prejudice to the City's claim for damages. IN ADDITION TO THE CITY'S RIGHT
UNDER COMMON LAW TO REDRESS FOR ANY BREACH OR UNCURED
DEFAULT, OWNER AND THE DISTRICT SHALL EACH INDEMNIFY AND DEFEND
THE CITY AGAINST ALL LOSSES, DAMAGES (INCLUDING, WITHOUT
LIMITATION, CONSEQUENTIAL DAMAGES) COSTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, INTEREST (INCLUDING PREJUDGMENT
INTEREST IN ANY LITIGATED MATTER), PENALTIES, COURT COSTS, AND
Consent Agreement
Williamson County MUD #34 Page 26 of 34
ATTORNEYS FEES AND EXPENSES) ASSERTED AGAINST, IMPOSED UPON OR
INCURRED BY THE CITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR
RESULTING FROM THE BREACH OR UNCURED DEFAULT AND TERMINATION
OF THE AGREEMENT AND ENFORCEMENT OF THIS SECTION.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.01 Cooperation.
(a) The City, Owner and the District each agree to execute such further
documents or instruments as may be necessary to evidence their
agreements hereunder or enable the fulfillment of their respective
obligations hereunder, provided in either case the terms of this Agreement
are not modified or amended thereby.
(b) In the event of any third party lawsuit or other claim relating to the
validity of this Agreement or any part hereof or any actions taken
hereunder by any Party, the City, Owner and the District agree to
cooperate in the defense of such suit or claim, and to use their respective
best efforts to resolve the suit or claim without diminution in their
respective rights and obligations under this Agreement while allowing
each Party to effect the benefits of this Agreement to it.
13.02 Notice. Any notice given or documentation required to be delivered
under this Agreement to a Party must be in writing and may be given: (i) by depositing
it in the United States mail, certified, with return receipt requested, addressed to the
Party to be notified and with all charges prepaid; or (ii) by depositing it with Federal
Express or another nationally recognized delivery service guaranteeing "next day
delivery", addressed to the Party to be notified and with all charges prepaid; or (iii) by
personally delivering it to the Party, or any agent of the Party listed in this Agreement.
Notice by United States mail will be effective on the earlier of the date of receipt or three
(3) days after the date of mailing. Notice given in any other manner will be effective
when received. For purposes of notice, the addresses of the Parties, until changed as
provided below, will be as follows:
City: City of Georgetown
P. O. Box 409
Georgetown, Texas 78627
Attn: City Manager
Consent Agreement
Williamson County NIUD #34 Page 27 of 34
and (for overnight mail or personal delivery)
City of Georgetown
113 E.8th Street
Georgetown, Texas 78626
Attn: City Manager
With a copy to: City Attorney
P. O. Box 409
Georgetown, Texas 78627
Attn: City Attorney
and (for overnight mail or personal delivery)
City of Georgetown
113 E.8th Street
Georgetown, Texas 78626
Attn: City Attorney
Owner: 278 Georgetown, Inc.
4408 Spicewood Springs Road
Austin Texas 78759
Attn: Joseph W. Straub, President
With a copy to: Armbrust & Brown, PLLC
100 Congress Avenue, Suite 1300
Austin, Texas 78701
Attn: Kevin M. Flahive
District: Williamson County Municipal Utility District No. 34
c/o Armbrust & Brown, PLLC
100 Congress Avenue, Suite 1300
Austin, Texas 78701
Attn: Kevin M. Flahive
The Parties may change their respective addresses to any other address within the
United States of America by giving at least five (5) days' written notice to the other
Party. A Party may, by giving at least five (5) days' written notice to the other Parties,
designate additional persons to receive copies of notices under this Agreement.
Consent Agreement
Williamson County MUD #34 Page 28 of 34
13.03 Severability; Amendment; Waiver.
(a) If any provision of this Agreement is illegal, invalid, or unenforceable,
under present or future laws, it is the intention of the Parties that the
remainder of this Agreement not be affected, and, in lieu of each illegal,
invalid, or unenforceable provision, that the Parties have a thirty (30) day
period to negotiate a provision be added to this Agreement by mutual
agreement of the Parties which is legal, valid, and enforceable and is as
similar in terms to the illegal, invalid or enforceable provision as is
possible. If no agreement can be reached to modify the illegal, invalid, or
unenforceable provision, and the provision is an essential element of this
Agreement, this Agreement shall be null and void.
(b) The Parties may not amend this Agreement, except in a written agreement
executed by duly authorized representatives of the Parties.
(c) The Parties may not waive any provision in this Agreement, except
pursuant to a writing executed by the Party or Parties against whom the
waiver is sought to be enforced. A wavier made in writing on one
occasion is effective only in that instance and only for the purpose it is
given and is not to be construed as a waiver on any future occasion or
against any other Party.
13.04 Applicable Law and Venue. The interpretation, performance,
enforcement and validity of this Agreement are governed by the laws of the State of
Texas. Venue shall be in a court of appropriate jurisdiction in Williamson County,
Texas.
13.05 Entire Agreement. This Agreement and the Exhibits attached hereto,
together with the Related Agreements and the exhibits attached thereto, collectively
contain the entire agreement of the Parties. There are no other agreements or promises,
oral or written, between the Parties regarding the subject matter of those agreements.
13.06 Exhibits, Headings, Construction and Counterparts. All exhibits referred
to in or attached to this Agreement are incorporated into and made a part of this
Agreement for all purposes. The paragraph headings contained in this Agreement are
for convenience only and do not enlarge or limit the scope or meaning of the
paragraphs. Wherever appropriate, words of the masculine gender may include the
feminine or neuter, and the singular may include the plural, and vice -versa. The Parties
acknowledge that each of them have been actively and equally involved in the
negotiation of this Agreement. Accordingly, the rule of construction that any
Consent Agreement
Williamson County MUD #34 Page 29 of 34
ambiguities are to be resolved against the drafting Party shall not be employed in
interpreting this Agreement or any exhibits hereto. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and all of
which shall together constitute the same instrument. This Agreement shall become
effective only when one or more counterparts, individually or taken together, bear the
signatures of all of the Parties.
13.07 Time. Time is of the essence of this Agreement. In computing the
number of days for purposes of this Agreement, all days will be counted, including
Saturdays, Sundays and legal holidays; however, if the final day of any time period falls
on a Saturday, Sunday or legal holiday, then the final day will be deemed to be the next
day that is not a Saturday, Sunday or legal holiday.
13.08 Notice to End Buyer. At the time each prospective End Buyer (defined
herein) contracts for the purchase of a lot or a home in the District, and at the time each
End Buyer closes on the purchase of a lot or a home in the District, the seller shall give
the End Buyer the disclosure notices required by Section 49.452 in the form attached as
Exhibit H, and 54.016(h)(4)(i) of the Texas Water Code. For the purposes of this
Agreement, the Parties agree that the term "End -Buyer" shall mean any owner, Owner,
tenant, user, or occupant of any part of the Land, regardless of proposed use, for which
a City -approved final plat has been recorded in the Official Public Records of
Williamson County. This obligation of sellers of real property to give notice shall be a
covenant and shall run with the Land.
13.09 Authority for Execution. The City certifies, represents, and warrants that
the execution of this Agreement is duly authorized and adopted in conformity with its
City Charter and City ordinances. Owner hereby certifies, represents, and warrants that
the execution of this Agreement is duly authorized and adopted in conformity with the
certification of formation and bylaws or partnership agreement of each entity executing
on behalf of Owner. The District certifies, represents, and warrants that the execution of
this Agreement is duly authorized and adopted in conformity with all laws,. rules,
regulations and orders governing or pertaining to the District.
13.10 Exhibits. The following exhibits are attached to this Agreement, and are
made a part hereof for all purposes:
Exhibit A Land — metes and bounds description and surveyor's sketch
Exhibit B Preliminary Engineering Report, May 6, 2015 by Gray Engineering Inc.
Exhibit C Wastewater Services Agreement
Exhibit D Water Services Agreement
Exhibit E Environmental Permits
Consent Agreement
Williamson County MUD 434 Page 30 of 34
Exhibit F
Master Development Fee Calculation Form
Exhibit G
Partial Assignment of Receivables Agreement
Exhibit H
Notice to Purchaser (TWC 49.452 notice) - form
Exhibit I
PUD Ordinance
Exhibit J
Finance Plan, May 10, 2016, by Public Finance Group, LLC
13.11 Recordation. This Agreement shall be recorded in the Official Public
Records of Williamson County at Owner's expense. Owner shall obtain and record
subordination agreements to the City's interests under this Agreement and the Related
Agreements for any lender liens on the Land or other interests in the Land, and on the
City's interests under this Agreement and the Related Agreements that are prior to the
time of recordation of this Agreement and/or the Related Agreements.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK.]
[SIGNATURE PAGES IMMEDIATELY FOLLOW.]
Consent Agreement
Williamson County MUD #34 Page 31 of 34
IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement on the
dates indicated below.
CITY:
CITY OF GEORGETOWN, TEXAS
a
Date:
M61V
Shelley Nowling, City Secretary
APPROVED AS TO FORM:
Charlie McNabb, City Attorney
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
Dale Ross, Mayor
This instrument was acknowledged before me the _ day of
2016, by Dale Ross, Mayor of the City of Georgetown, Texas, a
home -rule city, on behalf of the City.
Notary Public Signature
Printed Name:
My Commission Expires:
Consent Agreement
Williamson County MUD 434 Page 32 of 34
OWNER:
278 GEORGETOWN, INC.,
a Texas Corporation
Date:
STATE OF TEXAS §
COUNTY OF §
Joseph W. Straub, President
This instrument was acknowledged before me the _ day of
, 2016, by Joseph W. Straub, in his capacity as President of 278
Georgetown, Inc., a Texas corporation, on behalf of said corporation.
Notary Public Signature
Printed Name:
My Commission Expires:
Consent Agreement
Williamson County MUD #34 Page 33 of 34
DISTRICT:
WILLIAMSON COUNTY MUNICIPAL
UTILITY DISTRICT NO. 34
M
Title:
Date:
ATTEST:
Title:
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me the _ day of
201� by President of Williamson
County Municipal Utility District No. 34, a special district formed and operating under
Chapters 49 and 54 of the Texas Water Code.
Notary Public Signature
Printed Name:
My Commission Expires:
Consent Agreement
Williamson County MUD #34 Page 34 of 34
Exhibit
Page I or I o
_ axe
Gal Su oyo!s, Inc.
�n� 8333 GYarra?rrk mrhv
1luas ; T%78754
(Q/yirrerad, 7,n #10o1S100
0--J1Z374.9722
(Far SJZ8739743
METES AND BOUNDS DESCRIPTION
BEING 278.21 ACRES OF LAND OUT OF THE ISAAC D014AGA14 SURVEY, ABSTRACT
NUMBER 178 AND THE JOSEPH THOMPSON SURVEY, ABSTRACT NUMBER 608; BOTH
IN WIL-DAMSON COUNTY, TEXAS, AND BEING THAT SAME TRACT OF LAND
CONVEYED AS 279212 ACRES TO 278 GEORGETOWN INC BY INSTRUMENT OF
RECORD IN DOCUMENT NUMBER 2014094143 OF THE OFFICIALPUBLIC RECORDS OF
WILLIAMSON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY
METES AND BOUNDS AS FOLLOWS:
BEGINNING at a la" mbar found for the nw0i mmost northeast comer of said 278.212 acre tmci,
being the northwest comet of a 10.550 ncm tract of land conveyed to MCC Highway 29
Development, L)LZ by inshumcnt of record in Dacumn=tNumber 2007014935 of the Official Public
Records of W iliiamson County, Texas and also being in Ore south right-ofway Ih1e of State Highway
Number 29 (R.O.W. variea7
THENCE along the north line of dre 278.212 acm tractam1 the west and smith lines of said 10.550
some tract the following tow (4) courser.
1. South 04s28'24" West (record: South 04a31'00" Wes0, passing at o distmeo of 18.38 there
la" rebw found with plastic, cap, which reeds "G 8c R Surveying" and continuing for a total
distance of 71.56 feu (record: 71.55 fat) m a la" mbar Pound;
2. South 72a46'33" Past &•distance of556,b3 feet (record: "South 72648145" East a distance of
556.79 fmt) to a la" mbar setwith plastic eap,.which reads "Baselfrle, lne.';
3. Soug179PIO'22" past n disunm of 70.58 feu (record: South 7902TIV East s distona of
70.62 feat) to a 5/8" mbar found;
4. North 69a16'34" Best a distance of 197.69 Rat (mcord: North 69a18'00" East a distance of
197.85 fear) to a la" mbar set with plastic cap, which roads "Baselim, Inc." for the
castemmost northeast comerof the 278.212 acre tract;
THENCE South 25"58'40" Past (record: South 2e0l'15' Best), along the earl line of the
278.212 acm tract and continuing along tho south line of the 10.550 acre tract a distance of 51.58
feet (record: 51.61 fat) to a la" mbar set with plastic cap, which Wads "Beetling Inc." for an
angle, point in the south line of the 10.550 acre tract and being the northwest comer of a 291.09
acre tract of land comeyod to JudyDcea Wolf Hindelang, Susan lane Wolf Robamou, Jay Lan
Wolf, Jr. and Iva Wolf McWilm by Inshument ofrecord in Docornent Number 2009090679 of
the Official Public Records of Williamson County, Tom and known therein as' tact Five -
Forced Three,,.
{Wo652706.3} A-1
Page 2 of 10
'HENCE along the east line ofihe 278.212 acre (mat and the west line of sold 291.09 acre rmcl
the following eight (9) courses:
I. South 21 °08'52" Costa distance of 692.23 feet (word: South 21°09'15" Earl u distance of
692.23 fwt) to a 12" robarfound;
2. South 21°I5'01"Enstadisianceaf393.09 fbct(record: South2l°17'00"Eastodisianceof
393.3 9 feet) to a 12 mbar found with cop, stamped "Pape Dawson";
3. South 24059'27" East a distance of 98.15 feet (record; South 24058' 15" East a distance of
88.21 feet) to a 12" rebar found;
4. South 1903890" Cast a distance of207.78 fed (reoord: South 19°39'00" East a distance of
207.78 feet) to a 12" robar found;
5. South21°57111"E,astadistanceof450Al feet(record: South 21058'45" East adistanecof
450.41 fce) to a 12" rebut found;
6. South 20°55'39" East a distance of 911.42 feel (record: South 20o%' I5" Easta distance of
91134 feet) to a l2"rebar found;
7. South 21040'34" Best a distance of 388,49 feet (record: South 21141'00" East a distance of
388A9 feet) to a 12" rebarfound for the southeast comer of the 278212 acre tact, being the
southwest comer of Ore 291.09 acre tract and being in (he north line of a 457 acre tract of
land wnvo)td to W.T. Guy by instrument of record in Volume 345, Page 460 of die Deed
Records of Williamson County, Taxes;
THENCE South 49°50'28" West (record: South 49°49'00" Wes), creasing through sold 457 acre
tract, along the called south line of the 278212 acre tract, passing at a distance of 215.95 feet (record:
215.93 fact) a 12" rebar found with cap, stomped "RPIS 5784 on the edge of a bluff and continuing
for a total distance of 295.28 feel (record: 295.15 feet) to a Calculated point in the west line of the
457 am tact, being We north lino of 104820 acre tract of land conveyed to A.C. Weir and Esther
Weir by insbumonl of record in Volume 522, Page 451 oftre Deed Records of Williamson County,
Tom and designated as 'rim[ Trace' therein and being the approximate centerline of the San
Gabriel River,
THENCP. North B I °5T4r' West (record: North 81 "59'00" West), along the Called south lino of the
278,212 acre tract, the west line of the 457 am i'raot, thereat line of said 1048.20 acre tract and the
approximate ceneerlino of the San Gabriel River, passing at a dh6ce of 195.03 fact a calculated
point at the approximate intersection of to waterline of the Son Gabriel liver with the south line of
the Isaac Donegan Survey, Abstract Number 178, being the north line of the Joseph Thompson
Survey, Abstract Number 608 and being the northwest comer of the 457 acre tact and confirming
along the called south line of the 278,212 acre tract, the north lino of the 104820 acre tract and the
approximate wnterline of the San Gabriel River for a total distance of 645.06 feet (record: WS7
fed) to a calculated point;
THENCE along the South line of the 278.12 acre rivet, the north line of the 1048.20 acts tract and the
approximate centerline of the San Gabriel River the following six (6) Courses:
1, South 55°06'29" West a distance of 519.75 feet (record: South 55°05'15" West a distinct
of519.75 feet) to a Calculated point;
Mo6527o6.31' A-2
Page 3 of 10
2. South 23'01'29" West a distance of 1534.01 feat (record: South 23000' 15" West a distance
of 1534.01 feet) to a calculated point;
3. South 69"08'29" West a distance of 326.36 feet (accord: South 69*07'15" West a distance
of326.36 feet) to a calculated point;
4 South 85°42'29" West a distance of 621.76 fact (record: South 85*4P)5" West a distance
of621.76 feet) to a calculated point;
S. South 57011'29" Wesl a distanceof 268.60 foot (record: South 57"10'15" West a distance,
of 268.60 fee) to a calculated point;
6. South 70'04'29" west a distance of755.32 fact(recmd: South 70°03'15" West a distance of
755.32 feet) to a calculated point for the northwest coma•ofthe 104820 acre tract and being
the northeast corner of a 190AO acre Imd of lend conveyed to Texas Crushed Stone
Company by instrument of record lit Volume 743, Page 47 of the Deed Records of
Williamson County, Texas;
THENCE South 75-49'12" West (record: South 75048'15" West), along tha south line of the
278212 sue tract, the north line of said 190AU acre tract and the approximate ocMafine of the
San Gabriel Rlvcr a distance of 116.10 feet (record: 116.10 iced) to a calculated point for the
southwest comer of the 278212 acre tract and being the southeast corner of a 103.9327 acre tract
Of land conveyed to Elbat L. Brown and Bmrly D. Brown by instrum at of record in Volume
2189, Page 585 of the Official Records of W illinmson County, Texas;
THENCE along the west line OF the 278.212 acre tract and the east line of said 1039327 acre tract
the following tan (10) curses:
1. North 01'27'13" West a distanco of 1,64233 fact (record: North 01"2S'l5" West a distance
of 1,642.61 feet)toa 12"rebarfound;
2. North 84"56'46" Best a distance of 498.41 feel (record: North 84'56'00" East a disuuta of
498.38 feet) to a M2" rebar found;
3. North 09"53'36" West a distance of 350.08 feet (record: North 09054.45"West a distance of
350.05 feet) to a 12" rebor found;
4. North 11*18'36" West a distance of 383.88 fat (record: North 11'21'45" West a distance of
383,76 fat) to a 12" robot found;
5. North 04046'49" East a distance of 575.81 fed (record: North 04147'00" East a distance of
575.94 fat) to a 12"tabor found;
6. North 10012'10" Westadistanceof 192.13 feet(record: North 10-11'1$" Wag a distanceof
192.14 feel) to a nail found;
7. North 40055'l5" East a distance of 13.10 fed (record: North 40-32'15" East a distance of
13.02 feet) to a nail found;
8. North 00°17'06" East a distancoof 343.70 fed (record: North 00015'45" East a distance of
343.66 that) to a 12" tebar with plastic cap set which reeds "BASELINE INC.";
(Wo6527o6.3} A-3
Page 4 of I0
9. North 02011'06" West n distance of320.09 fed (record: North 0291.15" West a distance of
319.98 rest) to a 12" mbar frond with Illegible cap;
10. North 01"5414" West a distance of 174.14 fed (record: North 01056'00" Wed a dfstance of
174.07 fat to a W' mbar found for The northwest comer of the 278.212 awe tract, being the
southwest comer of Shadow Canyon Commercial Section 3; a subdivision of record in
Document Number 2014095365 of the Official Public Records of Williamson County,
Texas; from which a )2" rebar found in the west line of said Shadow Canyon Commercial
Section 3 and the east line ofthe 1039327 am tract bears North 01"54134" West a distance
of 1,049.31 fed (record: North 01"54108" West a distance of 1,049.26 imet);
THENCE along the north line of the 278212 am tract and the south mid cast lines of Shadow
Canyon Commercial Section 3 the following 5 courses;
1. North 83"37'24" East a distance of 248,64 fed (record: North 83-3315* Past a distance of
248.63 feet) to a 12" mbar found with cap, stamped "RP1S 5784" Fir a point of curvature;
2. Along non•tangwinl curve to dun right having a radius of345.00 fed,(mourd: 345.00 fee()
a length of 155.98 fat, (record: 156.12 fed) a delta angle of 25054' 14" and a chord which
been North 64"39'03" Past a distance of 154.65 ih4 (mcord: North 64%2'00" East a
distance of 154.79 fee) to a nail found;
3. North 77°4235" Past a distance of49924 fact (record: North 77040'Od'East a distance of
498.83 feet) to a 12" mbar found;
4. North 20"13'52" West a distance of 402,50 fed (retool: North 20014'00" West adisimce of
402.27 fed) to a 12" mbar found wi0h cap, stemped'RPLS 5784" I'rapoint ofcurvature;
5. Alonga tangential curve to the right having a radius of 150.00 fed, (record: 150d10 foal) a
length of 235.69 fed, (record: 235.76 fa) a delta angle of 90*01141" and a chord which
bears North 22011'49" East a distance of 212.18 feet, (meonl: North 22"08'00" East a
distance of 21223 fat) to 12" niter found with cap, stamped "RPM 5784" for an angle
point in the cast line of Shadow Canyon Commercial Section 3, bang an angle point in the
west line of Shadow Canyon Commemial Section 2; a subdivision of retard in Documen(
Number 2010086635 of Ow Official Public Records of Wi0lamsan County, Texas;
THENCE along the north It= of the 278212 acre tract and the south and most lines of mid Shadow
Canyon Commercial Section 2 the following four (4)courses:
1. Continue along a tangential curve to dun rIA having a radius of 150.00 fbet(record: 150.00
fat), a length of 235.41 feet (marl 235.67 fat), a dolts angle of 89"55' I S"and a chord,
whiolr boars South 67"48'02" Pad a distance of 211.99 fat (record: South 67"51' 14" East a
distance of212.17 fa) to a 12" mbar found with cep, stamped'RP1S 5784" for a point of
tangency;
2. South 22"59'17'Paaladistanceof6g.03fat(reomd: South 22"51'54"East a distance of
68.24 fce) to a 12" reber found with cep stamped "RPIS 5784" for a point of eurvatum;
3. Almga tangetvial curve to the right, having a radius of797.62 feet(rmord: 797.62fee),a
length of 343.26 fat (record: 343.51 Fed), a delta migleof24"39'26" and a elmrd, which
JM652706.3) A-4
Pages of t0
bears South 3701 INZ" Beat a distance of 340.61 feet (record: South 37012'18" Last a
distanceof340.86 feel to a If2" rebar fband wish cap, stamped "CCC 4935';
North 09"49'27" East (record: North 09"45'OS" Bast), passing of a distance of 654.97 feet
(record: 655.00 fat) a calculated point for an angle point in the cast lime of Shadow Canyon
Commercial Section 2, being the south caner of Shadow Canyon Commercial Section 1; a
Subdivision of record in Document Number 2008045660 of the Official Public Records of
Williamson County, Texas and passing at an additional distance of 72.93 feet a 12" rebar found
with illegible pladio cap and continue another 2.15 fed for a distance of 75.06 feet (record:
75.06 fed) from Said south comer of Shadow Canyon Commercial Section I for an overall
disumee of 730.04 fed (record: 730.06 feet) to a If2" rebar set with plastic cap, which reads
"Basoline, Inc." fora point of curvature,
THENCE along The north line of the 279.212 acre tract and the east lino of said shadow Canyon
Commercial Section 1 the following two (2) courses:
1. Alcngatangential curve to the left, havinga radius of 567.50 faet(rown1: 567.50feet),a
length of26039loot (record: 26039 feet), a delta mrgle of 26"17121"(record: 26017122/1
and a chord, which bears North 03021'52" West a distance of258.11 fed (record: North
03"22'43" West a distance of 258.11 feat) to a 12" mW found with illegible plastic cap for
a point of tangency;
2. North 16"30'33" West a distance of i 14.79 fed (roconk North 16031'24" Wen a distance
of 114.87 fact) to a 12" mbor set with plastic cnp, which reeds "BasellnS Inc." for an angle
point In the north line of the 279.212 awe tract, being the northernmost northeast comer of
Shadow Canyon Commercial Section 1 and also bang in the south righFof-way line of said
State Highway Number29,
THENCE North 734291524Best (record: North 73"28'45" Barth along tiro north line of the 278212
acre truck and the South righl-ef--way line of State Highway Number29 a distance of289.31 feat
(record: 28939 fact) to tic POINT OF BEGIMINO.
This tract cootains 27821 acres. of land, more w less, out of the Isaac Donegan Survey, Absirnct
Number 178 and the Joseph Thompson Survey, Abstract Number 508 in Williamson County, Texas
Bearing Basis: Trams State Plpnc Coordinates, Central Zone, NAA83196CORS.
Ronnie Wallace Duo
Regustcsed Professional land Surveyor
State of Texas No. 5222
File: S.%Pmjacts%Shadow Canyonl)acs1F5oh1 NoteMoundary 278 Ac.doe
1W06527o6.3) A-5
S.H. 29 (R.O.W. VARIES)
SHADOW CANYON
I
COMMERCIAL
SECTION 2
DOC. NO.
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�S 278.212 AC.
DOC. NO. 2014094143
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(NOT TO SCALE)
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MATCHEINE SHEET 7
MCLACHNAN
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MATCHLINE SHEET 7
SEE SHEET 7
278 GEORGETOWN INC.
FOR LEGEND
278,212 AC.
I SEE SHEET 10
DOC, NO. 2014094143
1 FOR LINE & CURVE TABLES
O.P.R.W.C.T.
278.21 ACII
478
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VOL. 522, PAGE 451
D.R•W.C.T.
•
1/2" IRON REBAR FOUND (NOTED, IF CAPPED)
O
1/2- IRON REBAR SET WITH CAP: 'BASELINE, INC.'
♦
NAIL FOUND
A
CALCULATED POINT
R.O.W.
RIGHT OF WAY
D.R.W.C.T.
DEED RECORDS WILLIAMSON COUNTY, TEXAS
O.P.R.W.C.T.
OFFICIAL PUBLIC RECORDS WILLIAMSON COUNTY, TEXAS
O.R,W.C.T.
OFFICIAL RECORDS WIWAMSON COUNTY, TEYS
( )
RECORD INFO. DOC. NO. 2014094143 O.P.R.W.C.T.
( [
RECORD INFORMATION-DOC. NO. 2002093326, O.P.R.W.C.T.
[ ]
RECORD INFORMATION-DOC, NO. 2008045600, O.P.R.W.C.T,
[[ 11
RECORD INFORMATION-DDC. NO. 2010088635, O.P.R.W.C.T.
[[[ ]]]
RECORD INFORMATION-DOC. NO. 2014055365, O.P.R.W.C.T.
BASIS OF BEARINGS: TEXAS STATE PLANE COORDINATES, CENTRAL ZONE, HAD 83/96
52TCH TG ACCOMPANY FIELD NOTES SASEUNE LAND SURVEYORS, INC
OF 278.21 ACRES OF LAND OUT DF T8E
ISAAC DONAGAN SURVEY, ABSTRACT NUMBER 178 AND PAOFE557GTV.IN08URVEYING3EAWLR
THE JOSEPH THOMPSON SURVEY, ABSTRACT
BOTH IN WHUAMSON COUNTY, TEXAS
AND BEDJG THAT SANE TRACT OF LAND CON7EYBD AS a0avn.Fm FAnsuman,r
SHEET
7 al 10
(Wo6527o6.3) A-7
CURVE
TABLE
CURVE
RADIUS
LENGTH
DELTA
BEARING,
CHORD
CI
. 0'
S
5' '
9'
1=
3 5
56
N84'42'00'
154. '
C2
00'
1'49'E
1 .
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0'
2 .76'
N 06' '
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2 41'
C3
. 0'
. 7'
5 '
C4
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7 7.8 '
3
61'
797.62'
343.51'
7 ' 8'
40.8 '
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5 50'
26
6'17'21'
1'
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7'
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LINE TABLE
LINE
BEARING
LEN1H
LI
P2V2'W
7156'
LI
SO4'31'00'W
71. '
L2
0' 6'22'E
70.58'
12
S]8'22 16 E
70.82
L3
N 9 6' '
3
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197.85'
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51.61'
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TML AMSON COUNTY TEXAS
.. MW o avcn:ta a..4-ury
{4Vo6827o6.3} A-9
O 512.452.0371 : F 512.454.9933
grayengineering inc.com
8834 North Capital of Texas Highway, Suite 140
Austin, Texas 78759
ENG- IN lEERING5 TBPE2946
PRELIMINARY ENGINEERING REPORT
FOR
SHADOW CANYON
CONSENT TO CREATE
A
MUNICIPAL UTILITY DISTRICT
Prepared For:
278 Georgetown, Inc.
Prepared By:
Gray Engineering, Inc.
8834 North Capital of Texas Highway, Suite 140
Austin, Texas 78759
TBPE Firm #2946
G )' }(a•,
May 6, 2015 ` C
RRj/l� C yq
GEI No.1628-10941-54
This report presents the preliminary engineering information about the tract to show that it is plausible
for creation of a Municipal Utility District (MUD) on the tract.
The development is currently planned to be comprised of the Shadow Canyon tract consisting of
278.212 acres, more or less, tract of land out of the Issac Donagan Survey, Abstract No. 178 and
the Joseph Thompson Survey, Abstract No. 608, Williamson County, Texas. The tract is located on
the west side of Georgetown south of State Highway 29. See Exhibit A.
The tract topography consists of flat plateaus located between steeply sloping ravines with grades
approaching in excess of 25%. The natural drainage is to the south terminating into the South San
Gabriel River along the southern boundary of the 278 Tract.
There is an existing 24" waterline located immediately across SH 29 in front of the tract. This line was
originally installed by the Chisolm Trail SUD but it is now being operated by the City of Georgetown.
Water service is expected to be provided to the 278 Tract by the city of Georgetown by connection to
this line. The City of Georgetown operates a wastewater treatment plant located east of IH 35. A newly
installed gravity wastewater interceptor along the South San Gabriel River will connect the 278 Tract
to this plant allowing wastewater treatment and disposal to be provided by the City of Georgetown.
In general the tract has very favorable relatively flat plateau topography for residential development
with water and wastewater facilities in close proximity for services.
PRELIMINARY DRAINAGE STUDY
As previously noted, the 278 Tract has two main drainage basins that drain southward through the tract
terminating into the South San Gabriel River. The drainage basins for excellent conveyance of storm
water flows directly to the river.
Each of the drainage ways will be preserved intact to accept storm water runoff from the project which
will be designed to the City of Georgetown Standards and include curb and guttered streets, curb inlets,
storm sewer pipes and headwalls discharging into the existing drainage ways. Precautions will be
taken to ensure that the development flows will not create erosion problems in the natural waterways
with onsite water quality ponds being incorporated into the overall project.
The waterways and water quality pond areas may be able to be incorporated into recreational parkways
to provide additional benefits to the project.
PRELIMINARY ROAD STUDY
The 278 Tract borders SH 29 on the north side of the project. This will provide both eastbound access
to IH 35 and westbound access to both Ronald Reagan Blvd. and US 183-A.
TRAFFIC STUDY
A TIA had been previously prepared for the 278 Tract. During the project planning meetings with the
City, any revisions or updates to the TIA will be discussed and provided, if needed.
PRELIMINARY COST ESTIMATES
With the proximity of existing water and wastewater facilities to the 278 Tract, the estimated water
distribution, wastewater collection and storm drainage improvements costs is $12,180,375. A
detailed Estimate of Probable Construction Costs is attached as Appendix D to this report.
278 Georgetown, Inc. Preliminary Engineering Report for Possible
MUD Creation
LIST OF ATTACHMENTS:
Appendix A:
Location Map
Appendix B:
Concept Plan
Appendix C:
Utility Layouts
Appendix D:
Estimate of Probable Construction Costs
Appendix A
IL®caf o n Map
A
Saul. 1"=800'
DRAW seals m CRT
SHADOW CANYON
SITE EXHIBIT
Appendix B
Concept Plan
N�CaNWp�z9
ACCESS TO
ADJACENT PROPERTY
PARCEL1
RESIDENTIAL - RS
29.6 AC.
ACCESS TO
ADJ PROPERTY PARCEL3
RESIDENTIAL -RS
7.1 AC. 3
ACCESS TO
"'`•� ADJACENT PROPERTY
PARCEL2
RESIDENTIAL -RS
21.6 AC.
PARCEL4
RESIDENTIAL -RS
OPEN s 36.9 AC.
SPACE
J-�
PARCELS
RESIDENTIAL - RS
21.8 AC.
ACCESS TO
ADJACENT PROPER—MTRAIL
PARCEL6
RESIDENTIAL -RS y�
17.1 AO -aT}
'W RESIDENTIAL LAND USE SUMMARY
<y LOT TYPE ACRES MAXIMUM UNITS
E� RESIDENTIAL (RS) 160.3 AC.
PARCEL?
RESIDENTIAL -RS o RESIDENTIAL TOTAL 160.3AC. 600units
26.2 AC. S
® Amenity Center 3.4 AC.
0 0 Major Row 9.1AC.
Open Space' 34.3 AC.
HabltatlKarstBulfers 49.1 AC.
APPROXIMATE FORMER USFW HABITAT BOUNDARY
O Public ParMand Dedication 22.0 AC.
Notes: TOTAL 278.2 AC.
Open space includes greenbelts, easements and
landscape buffers
o a5o 700 140
Scale: 1'=70V
SEC Planning, LLC EXHIBIT C NORTH Apl2]2016
' n,��"�N�nIYDAte,
L,nn wamma• lanasUpenrtnaen„a. Grnmuniiy eanems v...uw
278 GEORGETOWN, INC. "A
m.wmawwod- �i.J—wimoai.aca6w,wcaw
yumamvs .nwme..owa.i.a.. w.e,a,®y. a=adwaamua. wa
GEORGETOWN, TEXAS wbw..ow.y.. W.i.nap.nI mn p..nam.-dc mnm
ow`wwtwn1"M aa,,wwI. w 15wq.emaago,
Appennfflx C
Ufflity Layo nas
SCALE: 1"=500'
CM!F m SCALE IN f'EET
SHADOW CANYON 0 250 No 750 1000
WATER EXHIBIT
SCALE: 1 "=500'
GRAPHIC SCALC IN FEEL
SHADOW CANYON o zw - 500 - 750 1600
WASTEWATER EXHIBIT
SCALE: 1"=500'
GRAPHIC SCALE RI FEET
SHADOW CANYON o no 50D 750 10G0
STORM SEWER EXHIBIT
Appendix
Estimate of ProbabRe
Construction Costs
WILLIMASON. COUNTY MUNICIPAL UTILITY DISTRICT NO.34
SUMMARY OF CONSTRUCTION COSTS
Construction Costs
A. Developer Items
1.
Water Distribution
2.
Wastewater Collection
3.
Storm Drainage
4.
Road No. 1
5.
Road No. 2
Subtotal
6. Contingencies (10%)
7. Engineering, Fees, Permits (15%)
Total Developer Items
B. District Items
1. Capital Recover Fees
a. Water (591 Connections@ $5,139/LUE)
b. Wastewater (591 Connections @ $2,997/LUE)
c. Watewater- South Fork (591 Connections @ $4,452/LUE)
2. Water Quality Ponds (24ac @ $36,500/ac)
Total District Items
Total Estimated Costs
$ 2,812,500
4,845,000
4,522,875
670,100
627,940
$ 13,478,415
1,347,942
2,021,762
$ 16,848,019
$ 3,037,149
$ 1,771,227
$ 2,631,132
$ 876,000
$ 8,315,508
TOTAL CONSTRUCTION COST $ 25,163,527 I'I
NOTES: (i)
Total construction costs do not include the following estimated non -construction related
costs, which are also appropriate to be considered for reimbursement:
a. Environmental Mitigation
b. City Contributions
C. Developer Interest
d. Creation Costs
Total
GEI Job No. 1628-10941-54
Revised 5/10/2016
$ 3,000,000.00
$ 1,500,000.00
$ 1,850,000.00
$ 200,000.00
$ 6,550,000.00
a
STATE OF TEXAS § OFFSITE UTILITY CONSTRUCTION
§ COST REIMBURSEMENT
COUNTY OF WILLIAMSON 4 AGREEMENT FOR SHADOW CANYON
1. The parties to this Offsite Utility Construction Cost Reimbursement Agreement for
Shadow Canyon (the "Agreement") are tire CITY OF GEORGETOWN, a Texas Home
Rule Municipal Corporation (the "City"); and San Gabriel Harvard, L.P., an Arizona
limited partnership ("Developer").
Recitals
2. WHEREAS, the Developer is the owner of the property consisting of approximately 306
acres (+/-) for which the City Council approved a Preliminary Plat for the project to be
known as Shadow Canyon (the "Property") on December 14, 2004, a copy of which
preliminary plat is attached hereto as Exhibit `A "; and
WHEREAS, the City's Unified Development Code ("Code") requires that the Developer
extend wastewater lines that satisfy the current Wastewater Master Plan and the needs for
the Property at Developer's expense; and
4. WHEREAS, Section 13.09.030(C )(1) of the Code also provides that: "The City may, at
its sole discretion, participate with the sub -divider in the cost of oversized facilities based
upon, but not limited to the following factors: (1) the approved utility budget for the
current year, (2) the ability of the specific utility to fund any future costs, (3) the degree
to which the project conforms to and accomplishes the utility 5-year CIP priorities (4) the
degree to which the project accomplishes the utility Master Plan, and (5) the impact to
system operations;" and
5. WHEREAS, Section 13.09.030(D) of the Code also states, "When the sub -divider
constructs line extensions included in the ten-year Impact Fee CIP, the sub -divider may
be eligible for an Impact Fee Credit on the fee assessment for each lot in the planned
development. Impact Fee Credit shall be calculate based upon the number and size of
service connections and the allocation of costs in the most recent Impact Fee
Calculation;" and
6. WHEREAS, a 12" wastewater lint is necessary to serve the Property, and the City's
current Wastewater Master Plan requires the installation of a 21" wastewater gravity
collection main from IH-35 to he Property and beyond (the "South San Gabriel
Interceptor"); and
WHEREAS, the portion of the South San Gabriel Interceptor from its inception at the
Lift Station west of IH-35 to the westernmost edge of the property being developed as the
Wolf Ranch shopping center is currently under construction pursuant to the terms of that
certain Development Agreement between the City and Forestville Associates; and
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
Page 1 of 13
EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 1 of 75
8. WHEREAS, the City's current 10-year Impact Fee CIP provides for the extension of the
South San Gabriel Interceptor to the Property some time after 2010, but the City staff is
currently in the process of updating the Impact Fee CIP and anticipates that the extension
will be included in the new 10-year Impact Fee CIP and Impact Fee amount that is
expected to be presented to the City Council in time for possible adoption by October 1,
2005; and
9. WHEREAS, Developer has agreed to construct the extension of the 21" South San
Gabriel Interceptor beginning at the westernmost edge of the Wolf Ranch shopping mall
property and ending at the westernmost edge of the Property (such extension being
hereinafter referred to as the "Offsite Wastewater Improvement") to service the needs
of the development on the Property as well as the surrounding area and to finance the
design and construction of such improvement in accordance with this Agreement; and
10. WHEREAS, in order to obtain approval for City wastewater utility service to the
Property, Developer has requested the approval of wastewater utility service extensions
necessary to connect the Property to existing City wastewater utility facilities with
reimbursement for the wastewater lines included in the City's Impact Fee calculation;
and
11. WHEREAS, if the City Council approves a New Wastewater Impact Fee as described in
Paragraph 23 below, and after considering the factors set forth in Section 13.09 of the
Code, the City Council finds and determines that it would be appropriate to reimburse
Developer for utility line costs in accordance with the terms of this Agreement; and
12. WHEREAS, the City and Developer are entering into this Agreement to more
particularly set forth the rights and obligations of the City and Developer with respect to
the design, construction, and payment for the Mite Wastewater Improvement; and
13. WHEREAS, this Agreement is necessary to protect the health, safety, and general
welfare of the community and to limit the harmful effects of substandard subdivisions; to
facilitate Developer's construction of the offsite wastewater facilities; and to protect the
City from bearing any unnecessary expense of constructing or completing subdivision
improvements; and
14. WHEREAS, this Agreement is authorized by and consistent with state law and the City's
other ordinances, regulations, and other requirements governing development of
subdivisions and provision of utility services to customers of Georgetown Utility
Systems.
NOW, THEREFORE, IN CONSIDERATION of the foregoing recitals and the mutual
covenants, promises, and obligations by the parties set forth in this Agreement, the parties agree
as follows:
Design and Construction
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 2 of 75
15. Developer agrees to arrange for a professional engineer registered in the State of Texas to
prepare design drawings and bid documents for the construction and installation of the
Offsite Wastewater Improvement. Except as otherwise provided herein or agreed upon
by the City and Developer, the Offsite Wastewater Improvement shall be designed in
conformance with the City's design criteria, construction standards, and specifications for
utility construction (including, without limitation, environmental protection requirements
such as erosion controls and site restoration). The City shall be authorized to review and
approve the design drawings (which approval shall not be unreasonably conditioned,
withheld or delayed).
16. Developer shall diligently attempt to obtain all easements necessary for the construction
of the Off -site Wastewater Improvement at Developer's expense, except that the City will
make available, at no cost to Developer, the right to use any rights of way or easements
held by the City. If Developer is unable to obtain all required off -site easements, the City
shall attempt to acquire the easements, using its powers of eminent domain if necessary,
at Developer's sole expense; provided specifically that such expenses shall include but
not be limited to City staff time for oversight and project management; attorneys' fees;
survey fees and expenses; appraisal fees and expenses; expert fees and expenses, and all
other fees, costs and expenses associated with the acquisition.
17. Developer shall competitively bid the project in accordance with all applicable City
procedures. Developer shall enter into a contract for the construction of the Offsite
Wastewater Improvement in accordance with the terms and conditions of this Agreement
and with the approved construction plans. Any and all change orders shall be jointly
agreed to by the City and the Developer.
18. Developer shall exercise reasonable diligence to assure the substantial completion of the
Offsite Wastewater Improvement and acceptance of the improvement(s) by the City
occurs on or before October 1, 2008.
19. The City shall have the right to inspect the construction .of the Offsite Wastewater
Improvement, and, upon completion of the final stage of construction in accordance with
all applicable City, state and federal standards, Developer may request that City finally
accept the improvements.
Fiscal Surety
20. Developer shall post fiscz! security in the form of an irrevocable Letter of Credit in the
amount of 110% of the estimated cost for design and construction of the Offsite
Wastewater Improvement to secure the proper design and actual completion of the
Offsite Wastewater Improvement in accordance with the terms of this Agreement.
Developer agrees to post such fiscal security within ten (10) days of the Effective Date of
this Agreement.
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 3 of 75
21. If the construction of the Offsite Wastewater Improvement proceeds in discrete phases
(as defined in the approved Plans and Specifications and the construction contract), the
fiscal security may be reduced by an amount equal to the cost of the completed work for
each defined phase of construction, at the written request of the Developer (such requests
to be made no more frequently than once every three (3) months) and if Developer is not
then in Default under this Agreement or the letter of credit or other obligations relating to
the project.
22. If at any time during the course of the work on the Offsite Wastewater Improvement the
cost estimate for the remaining work exceeds, or is expected to exceed, the amount of the
Letter of Credit, the City shall so advise Developer in writing, and Developer shall remit,
within thirty (30) days of the receipt of the notice, a new or replacement Letter of Credit
for the required amount.
Impact Fees
23. Impact Fees associated with development on the Property shall be those newly revised
impact fees adopted by the City Council in 2005, except that the Wastewater Impact Fee
shall be reduced by an Impact Fee Credit, currently estimated at $400 per service unit as
shown in "Exhibit B".
Construction Cost Reimbursement
24. The City and the Developer have estimated the actual design and construction costs for
the Offsite Wastewater Improvement, (excluding items such as, but not limited to,
financing, interest, fiscal security, accounting, project management, inspections, permits,
and legal services) to be $1,900,427.00 as shown on "Exhibit B." The parties
acknowledge that the actual costs may be greater or less than $1,900,427.00 and further
agree that such cost underages or overages shall be addressed as provided for herein.
25. Developer will pay all costs associated with the design and construction of the Offsite
Wastewater Improvement, subject to the reimbursement rights provided herein. The
City's reimbursement obligations will extend only to the Proportional Cost associated
with the capacity of the Offsite Wastewater Improvement not attributed to the Property
and subject to the terms of this Agreement. For the purposes of this Agreement, the term
"Proportional Cost" as 1 sed herein shall mean the product of the actual construction cost
of the Offsite Wastewater Improvement and one minus the percentage obtained by
dividing the maximum flow of a pipe sized for the Property by the maximum flow of
Offsite Wastewater Improvement as shown in "Exhibit B."
26_ Based upon the cost estimate shown in "Exhibit B," the Proportional Cost of the Offsite
Wastewater Improvement, and the maximum amount subject to reimbursement under this
agreement, is $1,473,111.00. In the event the costs of the Offsite Wastewater
Improvement are greater or less than the estimated amounts shown on "Exhibit B," the
City's reimbursement obligation to Developer will be the lesser of the actual proportional
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
Page 4 of 13
EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 4 of 75
cost of the Offsite Wastewater Improvement or the proportional cost of the Offsite
Wastewater Improvement included in the wastewater Impact Fee(s).
27. The City shall not be obligated to reimburse any sums for "Contingency" shown on
"Exhibit B" unless and until the Developer submits a change order describing the need
for the expenditure of such contingency funds, and the City's Utility System Engineering
Department issues its written approval of the actual expenses shown on the change order.
28. If Developer allows work to commence on any change order before receiving City
approval as required under this Paragraph , any costs incurred on that change order that
are not approved by the City are not eligible for reimbursement.
29. Provided that the Developer has constructed the Offsite Wastewater Improvement and
complied with the terms and conditions of this Agreement, and provided further that the
City has accepted the Offsite Wastewater Improvement, then City shall pay to Developer
on an annual basis, but in any event not later than January 30 of the following year, an
amount based upon the Wastewater Impact Fees received by the City in that year that are
specifically associated with the Offsite Wastewater Improvement from new wastewater
connections served by the Offsite Wastewater Improvement off the Property. The
payments to be made to Developer by the City shall be payable, if paid, solely from
annual Wastewater Impact Fees received by the City and specifically associated with the
Off -Site Wastewater Improvement. The City's obligation to make payments to Developer
for the Offsite Wastewater Improvement shall expire upon the earlier of (i) payment to
Developer of $1,473,111.00 or the sum calculated pursuant to Paragraph 28 of this
Agreement, whichever is less, and shall not include interest; or (ii) the date that is 10
years following the date of the first payment made pursuant to this Paragraph. Any
payments yet to be paid after the end of the 10 year term described in this Paragraph shall
be deemed unearned and the City shall have no further obligation to Developer for same.
30. Within thirty (30) days of final acceptance by the City of the Offsite Wastewater
Improvement, Developer must submit a report to the City of the total costs of the project
that includes the supporting information.
31. The obligations of the City under this Agreement to make payments in any fiscal year
shall constitute a current expense for that fiscal year payable solely from the revenues of
the Wastewater Capital Fund for that fiscal year. The obligation of the City to make
payments does not constitute a general obligation or indebtedness of the City for which
the City is obligated to levy or pledge any form of taxation.
Default and Termination
Offsite Utility Construction Cost Reimbursement Agreement! Shadow Canyon
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 5 of 75
32. Developer shall be in default under this Agreement upon the occurrence of one or more
of the following events (an "Event of Default"):
a. Developer fails to commence or complete design or construction of the Offshe
Wastewater Improvement as provided herein; or
b. Developer fails to post the required fiscal security or to increase the amount of
fiscal security when requested to do so by the City under this Agreement; or
c. Developer transfers or conveys the Property or a portion of the Property through
foreclosure or an assignment or conveyance in lieu of foreclosure.
33. Anything in Paragraph 32 to the contrary notwithstanding, it shall be an Event of Default
in the event Developer does not cure a failure described in Paragraph 32 above within
fifteen (15) days of receipt of written notice thereof from the City.
34. At any time following the occurrence of an Event of Default and Developer's continued
failure to cure the same, the City may provide one or more notices to Developer stating
that the City intends to perform none, some or all of Developer's outstanding obligations
under this Agreement for construction of the Offsite Wastewater Improvement.
35. If after notice and an opportunity to cure as provided for in Paragraph 33 of this
Agreement Developer does not commence work on the Offsite Wastewater
Improvement, or commences but does not complete such work as required by the terms
of this Agreement, the Developer shall be in default of this Agreement and the City shall
have the right but not the obligation, to draw on the fiscal security posted by the
Developer and complete some, none, or all of the Offsite Wastewater Improvement. The
City may draw on the Letter of Credit following an Event of Default to pay for the costs
and expenses incurred by the City in the completion of Offsite Wastewater Improvement
or to correct defects in the Offsite Wastewater Improvement. The City may perform such
construction and repairs itself, or engage a third party to complete such construction and
repairs on behalf of the City.
36. If the City elects to complete the Offsite Wastewater Improvement, Developer agrees to
provide all plans, designs, easements, and other documents related to the design and
construction of the Offsite Wastewater Improvement to the City within five (5) business
days of the dat - that the City requests same. If the City elects to complete the Offsite
Wastewater Improvement as allowed by this Agreement the City will have no obligation
to provide, and Developer shall not be entitled to receive, reimbursement for any costs or
expenses incurred with regard to the Wastewater Utility Improvement.
37. If Developer does not commence or complete construction of the Wastewater
Improvement as required by this Agreement and if the City elects not to draw on the
fiscal security in order to complete the Wastewater Improvement the City will have the
right, in its sole discretion, to terminate this Agreement
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 6 of 75
38. If the City elects to terminate this Agreement for reasons allowed by Paragraph 37 of this
Agreement, or if this Agreement expires on its own tetras before completion or
acceptance of any portion of the Offsite Wastewater Improvement, the City will have no
obligation to provide wastewater service to the Property and Developer shall not be
entitled to reimbursement for any costs or expenses incurred with regard to the
Wastewater Utility Improvement.
39. The measure of damages for breach of this Agreement by Developer is the reasonable
cost of completing the Offsite Wastewater Improvement in conformance with the City's
requirements, procedures, and specifications set forth herein, including without
limitation, any and all associated administrative expenses, less the City's share of the
costs as set out herein. For work on the Offsite Wastewater Improvement upon which
construction has not begun, the estimated cost of the Offsite Wastewater Improvement
shown in the bid documents will be prima facie evidence of the minimum cost of
completion; however, that amount does not establish the maximum amount of
Developer's liability.
Ownership of Facilities
40. From and after the time of final completion and acceptance of the Offste Wastewater
Improvement by the City, the City shall own, operate and maintain the same. Developer
agrees to execute and deliver to the City within 30 days after the time of final completion
and acceptance of the Offsite Wastewater Improvement such bills of sale, assignments, or
other instruments of transfer as may be deemed reasonably necessary by the City.
Developer will also deliver all warranties secured for construction of the Offsite
Wastewater Improvement. Upon execution and delivery of such instruments, Developer
will have no further obligations or responsibility for the Offsite Wastewater
Improvement. Within said thirty (30) day period, Developer shall also deliver to the City
all bonds, warranties, guarantees, an other assurances of performance, record drawings,
easements, project manuals, and all other documentation related to the Offsite
Wastewater Improvement.
41. Developer agrees that the City will not accept any Offsite Wastewater Improvement
burdened by any lien or any other encumbrance.
Provision of Utility Service
42. The parties agree and acknowledge that from and after the time of final acceptance by the
City of t:-e Offsite Wastewater Improvement, the City, as owner of them, will operate and
maintain said improvements and will provide wastewater utility service to customers
within the Property subject to the conditions stated in this Agreement and according to
the City's policies and ordinances, as amended from time to time. Nothing in this
Agreement will be construed to limit, restrict, modify, or abrogate the City's
governmentatl authority or ordinances respecting the operation and maintenance of its
wastewater systems nor its duty to provide for the public health, safety, and welfare in
the operation and maintenance of the same.
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
Page 7 of 13
EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 7 of 75
43. Upon final acceptance of the Offsite Wastewater Improvement by the City, the City
agrees that Developer may after that apply for wastewater service following applicable
City policies and ordinances, provided, however, that:
(a) This Agreement will not be construed to guarantee wastewater service to the
Property; such service may be guaranteed only upon the City's approval of the
Final Plat and the recording of same in the Final Plat records of Williamson
County in accordance with the requirements of the Code;
(b) This Agreement in no way obligates the City to approve service extension
requests not conforming to the requirements of the City's policies and ordinances
nor otherwise binds the governmental powers of the City with respect to the
approval or denial of the same;
(c) This Agreement does not exempt Developer, or its successors and assigns, from
the requirements of any ordinance applicable to development within the acreage
covered by the service extension requests;
(d) This Agreement does not guarantee approval of the final plat of Shadow Canyon
or the approval of any other applications or permits related to the project;
(e) This Agreement will not be construed to create or confer upon Developer, or its
successors and assigns, any ov nership rights in or monopoly regarding capacity
in the Offsite Wastewater Improvement, whether total or partial, after final
acceptance of the project by the City;
(f) This Agreement will not be construed to create or confer upon Developer, or its
successors or assigns, any manner of legal title to, equitable interest in or other
claim of joint ownership with respect to property, whether real, personal or mixed
comprising the Offsite Wastewater Improvement, after final acceptance of the
project by the City; and
(g) This Agreement will not be construed to guarantee any particular level of service
to the Property.
General Provisions
44. Other Infrastructure Improvements. Developer agrees that it shall construct all other
infrastructure improvements required for the project and/or the Property at its sole
expense and in conformance with the Code and all other applicable City standards and
requirements.
45. Remedies. The remedies available under this Agreement and the laws of Texas are
cumulative in nature.
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EXHIBITI) WASTEWATER SERVICES AGREEMENT Page 8 of 75
46. Third Party Rights. No person or entity who or which is not a party to this Agreement
shall have any right of action under this Agreement, not shall any such person or entity
other than the City (including without limitation a trustee in bankruptcy) have any
interest in or claim to the funds described in Paragraph 20 of this Agreement.
47. By submitting plans or specifications for the City for review, the DEVELOPER
PARTIES (as that term is defined below) each agree to waive all claims, fully release,
indemnify, defend and hold harmless the City, and all of its officials, officers, agents,
consultants, employees, attorneys, and invitees in both their public and private capacities
(collectively, the "CITY PARTIES") from any and all liability, claims, lawsuits, demands
or causes of action,. including all expenses of litigation and/or settlement which may arise
by injury to property or person occasioned by error, omission, intentional, or negligent
act of the Developer, its officers, agents, engineers, consultants, employees or invitees
(collectively, the "DEVELOPER PARTIES") arising out of or in connection with
submission of drainage plans, construction plans, or any other plans or specifications
submitted to the City. The DEVELOPER PARTIES further agree that they each will, at
their own cost and at their own expense, defend and protect the CITY PARTIES from
any and all such claims, losses, damages, causes of action, suits, and liability of any kind,
including all expenses of litigation, court costs and attorneys' fees for injury to or death
of any person or for any damage to any property arising out of or in connection with the
error, omission, intentional or negligent acts of any of the DEVELOPER PARTIES.
Nothing in this provision shall waive the City's defenses or immunities under Section
101.001 et. seq. of the Texas City Practice & Remedies Code or any other applicable
statutory or common law.
Approval of the City Engineer or any other of the CITY PARTIES of any plans, designs
or specifications submitted pursuant to the requirements of the Unified Development
Code or any other provision of the City Code of Ordinances or technical manuals shall
not constitute or be deemed to be a release of the responsibility and liability of any of the
DEVELOPER PARTIES (as defined above) for the accuracy and competency of their
designs or specifications. Such approval shall not be deemed to be an assumption of such
responsibility or liability by the City for any defect in the design or specifications
prepared by any of the DEVELOPER PARTIES. Approval by the City Engineer or any
other of the CITY PARTIES signifies the City approval of only the general design
concept of the improvements to be constructed or the drainage plan to be implemented.
In this connection, the DEVELOPER PARTIES shall each indemnify and hold harmless
the CITY PARTIES from any loss damage, liability or expense on account of damage to
property and injuries, including death, to any and all persons which may arise out of any
defect, deficiency or negligence of any of the DEVELOPER PARTIES designs and
specifications to the extent prepared or caused to be prepared by any of the
DEVELOPER PARTIES and incorporated into any improvements constructed in
accordance therewith, or plans implemented thereby, and the DEVELOPER PARTIES
shall defend at their own expense any suits or proceedings brought against any of the
CITY PARTIES on account hereofy and to pay all expenses and satisfy all judgments
�.� Offsite Utility Construction Cost Reimbursement Agreement I Shadow Canyon
Page 9 of 13
EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 9 of 75
which may be incurred by or rendered against them, collectively or individually,
personally or in their official capacity in connection herewith.
48. In addition to the foregoing Release and Indemnity, in further consideration for the City's
agreement to reimburse Developer in accordance with the terms of this Agreement and
other promises herein, the receipt and sufficiency of which is hereby acknowledged,
Developer agrees to fully and completely release and forever discharge the City, its
employees attorneys and officers, in both their individual and official capacities, and its
successors, agents, representatives, servants, and any other related or affiliated persons,
natural or corporate, in privity with them from any and all possible claims, demands,
actions, causes of action, costs, expenses, obligations, liabilities, suits, and damages of
every kind and character whatsoever, now existing or that may arise hereafter, whether
known or unknown, at law or equity, however, whenever, and by whomever caused,
whether solely, jointly, or otherwise, including, without limitation, any and all causes of
action directly or indirectly arising out of, resulting from, or attributable to the Offsite
Wastewater Improvement that the Developer is required to construct by the terms of the
Code and this Agreement.
49. No Waiver. No waiver of any provision of this Agreement will be deemed or constitute a
waiver of any other provision, nor will it be deemed or constitute a continuing waiver
unless expressly provided for by a written amendment to this Agreement; nor will the
waiver of any default under this Agreement be deemed a waiver of any subsequent
defaults of the same type. The failure at any time to enforce this Agreement or covenant
by the City, Developer, or their respective heirs, successors or assigns, whether any
violations thereof are known or not, shall not constitute a waiver or estoppels of the right
to do so.
50. Assignability. Except as otherwise provided herein, this Agreement is binding upon
Developer, and the successors and assigns of Developer. Developer's obligations under
this Agreement may not be assigned without the express written approval of the City,
which shall not be unreasonably withheld or delayed. An assignment shall not be
construed as releasing Developer from Developer's obligations under this Agreement,
and Developer's obligations hereunder shall continue notwithstanding any assignment
approved pursuant to this Paragraph, unless and until the City executes and delivers to
Developer a written release of Developer from the obligations imposed by this
Agreement.
51. Notice. Any notice required or permitted by this Agreement is effective when personally
delivered in writing or three (3) days after notice is deposited with the U.S. Postal
Service, postage prepaid, certified with return receipt requested, and addressed as
follows:
If to Developer: Harvard Investments, Inc.
Mr. Christopher J. Cacheris
17700 North Pacesetter Way
Scottsdale, Arizona 85255
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
Page 10 of 13
EXHIBITI) WASTEWATER SERVICES AGREEMENT Page 10 of 75
If to City: City Manager
City of Georgetown
P.O. Box 409
Georgetown, Texas 78627
52. Change of Address for Notice. The parties may, from time to time, change their
respective addresses listed above to any other location in the United States for the
purpose of notice under this Agreement. A party's change of address shall be effective
when notice of the change is provided to the other party in accordance with the
provisions of Paragraph 32, above.
53. Severability. If any part, term, or provision of this Agreement is held by the courts to be
illegal, invalid, or otherwise unenforceable, such illegality, invalidity, or unenforceability
shall not affect the validity of any other party, term, or provision, and the rights of the
parties will be construed as if the part, term, or provision was never part of this
Agreement.
54. Personal Jurisdiction and Venue. Personal jurisdiction and venue for any civil action
commenced by any party to this Agreement, whether arising out of or relating to the
Agreement or the Security, will be deemed to be proper only if such action is commenced
in District Court for Williamson County, Texas, or the United States District Court for
the Western District of Texas, Austin Division.
55. Captions Immaterial. The numbering, order, and captions or headings of the paragraphs
of this Agreement are for convenience only and shall not be considered in construing this
Agreement.
56. Entire Agreement. This Agreement contains the entire agreement between the parties
and correctly sets forth the rights, duties, and obligations of each to the other as of the
Effective Date. Any oral representations or modifications concerning this Agreement
shall be of no force or effect excepting a subsequent written modification executed by
both parties.
57. Binding Agreement. The execution and delivery of this Agreement and the performance
of the transactions contemplated thereby have been duly authorized by all necessary
corporate and governmental action of the City. This Agreement, when duly executed and
delivered by each party, constitutes a legal, valid, and binding obligation of each party
enforceable in accordance with the terms as of the Effective Date.
58. Recording. The parties agree that this Agreement may be recorded in the Real Property
Records of Williamson County, Texas at the expense of Developer.
59. Further Assurances. The City and Developer agree to take such actions and execute and
deliver such documents as may be reasonably necessary or appropriate to effect the
provisions of this Agreement.
OfEsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
Pagf, 11 of 13
EXHIBITI) WASTEWATER SERVICES AGREEMENT Page 11 of 75
60. Term. Unless sooner terminated under the provisions of this Agreement, this Agreement
shall expire of its own terms and without further notice .upon the earlier of (i) payment to
Developer of $1,473,111.00 or the sum calculated pursuant to Paragraph 28 of this
Agreement, whichever is less, and shall not include interest; or (ii) the date that is 10
years following the date of the first payment made pursuant to the terms of Paragraph 29.
61. Effective Date. This Agreement will be effective on the later of either (i) the latest date
accompanying the signature lines below; or (ii) the date that the City Council finally
adopts impact fee schedules or other funding mechanisms necessary to reimburse
Developer in accordance with the terms of this Agreement.
EXECUTED by the parties on the dates indicated below:
CTPYOF GEORGETOWN, TEXAS
("CITY")
By: 4ii��
Prin ed N e: A!�
Title:
Date: /0 — 20— 05'
Appr ved as to Form:
Patricia E. Carls, City Attorney
Brown & Carls, LLP
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
SAN GABRIEL AARVARD, L.P.
("DEVELOPER")
By:
Print ame: 41te 03
Title: ✓. ?.
Date: JO&Aas
This instrument was acknowledged before me on the c:;20Af— day of A-1-0her ,
2005, by Gary Nelon, Mayor, City of Georgetown, a Texas home rule municipal corporation, on
behalf of said City.
SANDRA.D. LEE
Notary Put6c, Slate ofTexes
*' + lay Cenmtsshn Fires /
JANUARY 3, 2006
Notary Public in and for
Offsite Utility Construction Cost Reimbursement Agreement / Shadow Canyon
Page 12 of 13
EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 12 of 75
the State of Texas
THE STATE OF ARIZONA
COUNTY OF MARICOPA
This instrument was acknowledged before me on the jbm day of ,tom
2005, by Christopher J. Cacheris, Vice President, of Harvard Investments, Inc., the mart er of
Georgetown 308, L.L.C., the General Partner of San Gabriel Harvard L.P.
i
Notary Public kand for
wm7n
the State of 'ono
-- Offsite Utility Construction Cost Reimbursement Agreement /Shadow Canyon
Page 13 of 13
EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 13 of 75
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EXHIBITI) WASTEWATER SERVICES AGREEMENT Page 14 of 75
Shadow Car -on Cost Reimbursement Ngreement
Exhibit "B"
Construction Estimate and Cost Reimbursement Calculation
Project: Shadow Canyon Wastewater
v ffm a 0 WIN K FYXO IT9 Mon
MMEO-
Construction
21" SDR 26 Piping 1
$120.001
12,100
$1,452,000
Trench Safety 1
$1.001
12,1001
$12,100
Standard Manhole 1
$4,200.00
28
$117,600
Extra Depth for Manholes 1
$150.00
100
$15,000
Silt Fence
$2.00
12,1001
$24,200
Restoration
$0.75
7,500
$5,625
Contingency 10%)
1 $162,653
Design
Engineering & Environmental
$73,250
Design Survey
$24,000
Permitting
$14,000
TOTAL ESTIMATE
$1,900,428
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 15 of 75
TRI-PARTY AGREEMENT
This Agreement (herein so called) is entered into on the Effective Date (hereinafter
defined) by and between the CITY OF GEORGETOWN, a Texas home rule municipal
corporation (the "City"), SAN GABRIEL HARVARD LP, an Arizona limited partnership
("Harvard'), and ABG DEVELOPMENT, LTD., a Texas limited partnership ("ABG") (the City,
Harvard and ABG sometimes collectively referred to herein as the "Parties").
RECITALS
A. WHEREAS, the Parties desire that Phase A, Phase B, Phase C I and Phase C2 of the
extension of the wastewater line and related improvements known as the South San Gabriel
Interceptor (the "SSGI") be designed and constructed in accordance with the line sizes and
alignment shown on Exhibit A attached hereto and made a part hereof;
B. WHEREAS, Phase A of the SSGI shall be a 42" wastewater line and related
improvements crossing the Simon Tract (as hereinafter defined) as approximately shown on
Exhibit A (the "Simon WW Line"), which Simon WW Line shall be constructed by the City;
C. WHEREAS, Phase B of the SSGI shall be a 36" wastewater line and related
improvements crossing the Harvard Tract (as hereinafter defined) as approximately shown on
Exhibit A (the "Harvard WW Line");
D. WHEREAS, Phase Cl of the SSGI shall be a 30" wastewater line and related
improvements crossing the ABG Tract (as hereinafter defined) and a portion of the Watson Tract
(as hereinafter defined) as approximately shown on Exhibit A ("Phase C1 of the ABG WW
Line");
E. WHEREAS, Phase C2 of the SSGI shall be a 30" wastewater line and related
improvements crossing the balance of the Watson Tract as approximately shown on Exhibit A
("Phase C2 ol'the ABG WW Line");
F. WHEREAS, the Simon Tract, the Harvard Tract, the ABG Tract and the Watson
Tract are all more particularly described and/or depicted on Exhibit B attached hereto and made
a part hereof;
G. WHEREAS, pursuant to that certain Offsite Utility Construction Cost Reimbursement
Agreement for Shadow Canyon executed by the City on October 20, 2005, and by Harvard on
August 16, 2005 (the "Harvard Offsite Agreement'), a copy of which is attached hereto and
made a part hereof as Exhibit C, Harvard is required to design and construct a 21" wastewater
line across the Harvard Tract (the "Original Harvard WW Line").
H. WHEREAS, pursuant to that certain Offsite Utility Construction Cost Reimbursement
Agreement for ABG Subdivision dated of even date herewith (the "ABG Offsite Agreement'),
ABG is required to design and construct Phase Cl and Phase C2 of the SSGI (collectively, the
"ABG WW Line");
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 16 of 75
L WHEREAS, pursuant to the Harvard Offsite Agreement, Harvard has posted fiscal
security for one hundred and ten percent (110%) of its estimated design and construction costs
for the Original Harvard WW Line in the form of a letter of credit dated November 9, 2005,
issued by Comerica Bank in the amount of $2,090,470.00 (the "Original Letter of Credit"), a
copy of which is attached hereto as Exhibit D;
J. WHEREAS, the Harvard Offsite Agreement provides that Harvard shall exercise
reasonable diligence to complete construction of the Original Harvard WW Line by no later than
October 1, 2008 (the "Harvard WW Line Completion Deadline");
K. WHEREAS, in order to accommodate the timing of its development, ABG intends to
commence and possibly complete construction of the ABG WW Line prior to the expiration of
the Harvard WW Line Completion Deadline;
L. WHEREAS, until completion of the Harvard WW Line, ABG will not be able to
connect the ABG WW Line to the City's wastewater treatment plant;
M. WHEREAS, in order to expedite ABG's connection to the City's wastewater
treatment plant, the Parties agree that ABG may elect to design and construct the Harvard WW
Line in accordance with the terms of the Harvard Offsite Agreement, as modified hereby; and
N. WHEREAS, if ABG designs and constructs the Harvard WW Line, the Parties agree
that $1,900,000.00 of any fiscal security posted by Harvard for the wastewater improvements
contemplated by this Agreement shall be released to ABG in accordance with the terms and
provisions of Section 8 hereof.
NOW THEREFORE, in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated herein by reference
as though fully stated in this paragraph.
2. Status of Harvard Offsite Agreement. The City and Harvard hereby represent and
warrant to ABG that, as of the Effective Date hereof, (a) the Harvard Offsite Agreement is in full
force and effect, (b) there have been no amendments or modifications to the Harvard Offsite
Agreement other than those set forth in this Agreement, and (c) the Harvard Offshe Agreement,
as modified by this Agreement, the Original Letter of Credit and the New Original Letter of
Credit constitutes the entire agreement between the City and Harvard with respect to the subject
matter thereof.
3. Replacement of Original Letter of Credit. The City and Harvard hereby represent and
warrant to ABG that, as of the Effective Date hereof. (a) the Original Letter of Credit attached
hereto as Exhibit D has been replaced and superseded by the New Letter of Credit (herein so
called) attached hereto and made a part or as Exhibit E, and (b) the New Letter of Credit is in full
force and effect and has not been amended, revoked or replaced. The City and Harvard hereby
further represent and warrant to ABG that, notwithstanding Section 21 of the Harvard Offsite
Agreement, the New Letter of Credit shall remain in full force and effect and shall not be
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 17 of 75
reduced or otherwise amended, revoked or replaced at any time prior to its full release or draw in
accordance with the terms thereof.
4. ABG Obligations. Subject to the terns, provisions and conditions of this Agreement,
the Parties agree as follows:
4.1 ABG shall construct the Harvard WW Line on or before the Completion Date
(herein so defined) and in that regard shall perform Harvard's obligations under the
Harvard Offsite Agreement with respect to the engineering, design and construction of
the Harvard WW Line (as such Harvard WW Line may be modified, redesigned,
enlarged or expanded pursuant to the ABG Ofl'site Agreement).
4.2 The City shall look initially to ABG for performance under the Harvard
Offsite Agreement, provided, however, that Harvard shall not be released from any
obligations or liabilities under said Agreement, and the City and Harvard hereby
acknowledge and agree that, notwithstanding ABG's agreement to design and construct
the Harvard WW Line, ABG is not assuming any of Harvard's obligations or liabilities
under the Harvard Offsite Agreement.
4.3 ABG's agreements and obligations hereunder are subject to satisfaction of the
following actions by Harvard:
4.3.1 Within seven (7) business days after the Effective Date,
Harvard shall provide ABG with a fully executed, recordable Right of
Entry document in form and substance reasonably acceptable to ABG (the
"Right of Entry"), which Right of Entry shall, in part, authorize ABG and
its representatives to access and work on such portions of the Harvard
Tract as are reasonably necessary to permit ABG to design and construct
the Harvard WW Line in accordance with this Agreement, the Harvard
Offsite Agreement and the ABG Offsite Agreement.
4.3.2 Within seven (7) business days after the Effective Date,
Harvard shall provide to ABG in both CAD and hard copy format all
current design documents including, but not limited to, surveying files,
engineering files, design calculations, temporary and permanent
easements, field notes, construction easements and access easements.
4.3.3 Within seven (7) business days after the Effective Date,
Harvard shall deliver to ABG and the City copies of any and all recorded
or unrecorded easements in existence as of that date for the Harvard WW
Line over and across any property not owned or controlled by Harvard.
4.3.4 Within seven (7) business days after receiving a written
request from ABG, to be accompanied by metes and bounds descriptions
and surveys, Harvard shall execute utility easements in a form acceptable
to the City, Harvard and ABG for the Harvard WW Line over and across
the Harvard property.
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 18 of 75
5. Limited Option of Harvard
If ABG does not complete construction of the Harvard WW Line by the
Completion Deadline (herein so defined), the City shall provide Harvard a thirty
(30) day written option to elect to complete the construction, and shall allow
Harvard to complete construction of the IIarvard WW Line, if Harvard submits a
schedule to the City demonstrating that the Harvard WW Line can be completed
within six (6) months after the Completion Deadline ("Harvard Completion
Deadline") and either (i) submits a written bid to the City within such ten (10) day
period to complete the Harvard WW Line for an amount which does not exceed
the full $2,090,470.00 amount of the New Letter of Credit; or (ii) submits a
revised letter of credit in the amount of the estimated cost to complete
construction of the Harvard WW Line, If the foregoing conditions are met,
Harvard shall have the right to pursue such completion of the Harvard WW Line
in a diligent and workmanlike manner and in accordance with all approved plans
and specifications, and shall complete construction by the Harvard Completion
Deadline.
6. Option of the City
6.1 If Harvard does not elect or fails to meet the requirements set forth in Section
5 above, then the City shall have the right, but not the obligation, to draw on the Letter of
Credit referenced in and required by the ABG Offsite Wastewater Agreement ("ABG
Letter of Credit") in an amount equal to difference between the cost to complete the
Harvard WW Line and the amount of the New Letter of Credit, and if it does so elect to
draw on the ABG Letter of Credit, the City shall complete as much of the construction of
the Harvard WW Line as can be completed using such letters of credit itself, or engage a
third party to complete such construction on behalf of the City.
6.2 Under the circumstances described in Section 6.1, above, the following
additional provisions shall apply:
6.2.1 The City shall have no obligation to complete construction
of the Harvard WW Line by the Completion Date or the Harvard
Completion Date.
6.2 2 Notwithstanding anything to the contrary hi the I•Iarvard
Offsite Agreement or the ABG Offsite Agreement, neither Harvard nor
ABG shall receive any impact fee credits or any reimbursements for the
Harvard WW Line.
7. Effect of Performance by ABG or Harvard
7.1 If either ABG or Harvard complete the Harvard WW Line in accordance with
the terms of this Agreement, then notwithstanding Paragraphs 24-30 of the Harvard
Offsite Agreement, Harvard shall be entitled to receive impact fee reimbursements in the
amount of $400 for each new wastewater connection in the Eligible Area (as hereinafter
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 19 of 75
defined) up to a maximum of $1,900,000.00, as shown on the Reimbursement Schedule
set forth on Exhibit F attached hereto and made a part hereof. As used herein, the term
"Eligible Area" shall mean the South Fork of the San Gabriel River Basin as more
particularly described and/or depicted on Exhibit G attached hereto and made a part
hereof.
7.2 If either ABG or Harvard complete the Harvard WW Line in accordance with
the terms of this Agreement, then Paragraph 23 of the Harvard Offsite Agreement is
hereby revised to provide as follows:
Impact Fees
23. Impact Fees associated with development on the Property
shall be those newly revised impact fees adopted by the City
Council in 2005.
8. Draws on and Payments from Proceeds of the Letters of Credit
8.1 The City shall draw down the entire $2,090,470.00 of the fiscal security
evidenced by the New Letter of Credit within ten (10) days after the earlier of (a) October
1, 2008, or (b) completion of the Harvard WW Line and the City's acceptance of the
same. Said $2,090,470.00 shall be held in escrow by the City until such time as it is
either released to the Completing Party (herein so defined) or retained by the City, in
accordance with the terms and provisions of this Agreement.
8.2 If either ABG or Harvard completes the construction of the Harvard WW Line
by the Completion Deadline or the Harvard Completion Deadline, as applicable, then the
City shall remit the sums held in escrow pursuant to Paragraph 8.1 of this Agreement not
later than fifteen (15) days after the City's completion and acceptance of the Harvard
WW Line as follows: (a) the City shall remit $1,900,000.00 to ABG, and remit
$190,470.00 to Harvard il' ABG completes the construction of the Harvard WW Line by
the Completion Deadline or (b) the City shall remit $2,090,470.00 to Harvard if Harvard
completes the construction of the Harvard WW Line by the Harvard Completion
Deadline. IF Harvard completes the construction of the Harvard WW Line, then Harvard
shall, within ten (10) days after its receipt from the City of the $2,090,470.00, remit a
sum to ABG equal to the amount due for work performed by ABG prior to Harvard's
exercise of its option under Section 5 of this Agreement.
8.3 If neither Harvard nor ABG completes construction of the Harvard WW Line,
then the City shall be entitled to retain all proceeds from the New Letter of Credit and the
Letter of Credit referenced in the ABG Offsite Agreement, and shall not be required to
reimburse either Harvard or ABG for any partial performance by either of them unless
the proceeds of the respective letters of credit are greater than all costs incurred by the
City to complete construction of the Harvard Wastewater Line. In such event, any sums
remitted to Harvard shall not exceed the value of the New Letter of Credit and any sums
remitted to ABG shall not exceed the value of the Letter of Credit referenced in the ABG
Offsite Agreement.
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 20 of 75
9. Reporting. ABG shall keep Harvard reasonably informed as to the construction
progress of the Harvard WW Line by providing Harvard with quarterly reports outlining ABG's
progress.
10. Definitions and Miscellaneous.
10.1 "Completion Deadline" shall mean October 1, 2008, except that such
Completion Deadline shall be automatically extended to a date not later than December
31, 2008 if completion of the Harvard WW Line is being diligently pursued and work is
proceeding in a workmanlike manner and in accordance with all plans and specifications,
but is delayed due to a Force Majeure Event or Condition.
10.2 "Completing Party" shall mean the party that finally completes or causes
the final completion and acceptance by the City of the Harvard WW Line.
10.3 "Force Majeure Event or Condition" shall mean the existence or
occurrence of any of the following: Acts of God (including fire, flood, earthquake, storm,
hurricane or other natural disaster), governmental restrictions (including the denial of any
permits), the failure to timely obtain all necessary easements required for the construction
of the Harvard WW Line (whether by eminent domain or otherwise), war, government
sanction, or any other cause beyond the reasonable control of the Completing Party and
occurring without its fault or negligence.
10.4 "Effective Date" of this Agreement shall be deemed the date signed by
the last party hereto.
10.5 Effect of this Agreement on the Preliminary Plat for the Shadow Canyon
Subdivision. Nothing in this Agreement shall operate to extend the Preliminary Plat for
the Shadow Canyon Subdivision approved by the City Council on December 14, 2004.
Such Preliminary Plat may be extended only in accordance with the provisions of the
City's Unified Development Code.
10.6 Recording, The parties agree that this Agreement shall be recorded in the
Real Property Records of Williamson County, Texas at the expense of ABG.
10.7 Counterparts. The Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. The parties further agree that the Agreement
may be transmitted between them by facsimile machine. The parties intend that faxed
signatures constitute original signatures, and that a faxed copy of the Agreement
containing the signatures (original or faxed) of all the parties is binding upon the parties.
10.8 Controlling Agreement. The Parties acknowledge and agree that the
provisions of this Agreement control over any conflicting provisions set forth in the
Harvard Offsite Agreement and in the ABG Offsite Agreement.
[Signature Pages to Follow]
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EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 21 of 75
EXECUTED by the parties on the dates indicated below.
CITY OF GEORGETOWN, TEXAS
SAN GABRIEL HARVARD LP,
an Arizona limited partnership
By: 31�0`3,
its General Partner
ply: ljwvrrJ - ny�}rrw�.li, L�e, q Nrirad4 cr�P%
its) N1ggagW
By: Cl
Nam r' S
Title: vie ferLOW&
Date: to-)-olo
ABG DEVELOPMENT, LTD.
a Texas limited partnership
By: GALO, INC., a Texas corporation,
its General Partner
By:
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Name:.A . 9ti<r o Fa Gva c-o
Title: V (Le s %at N T
Date: I t - r7 - v (e
Final 11114r1006 - 7 -
EXHIBIT D WASTEWATER SERVICES AGREEMENT Page 22 of 75
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