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Home My WebLink AboutRES 071018-V - Agmt Berry Creek MUDRESOLUTION NO. D -1_ 0j A RESOLUTION OF THE CITY COUNCIL OF GEORGETOWN, TEXAS, CONDITIONALLY CONSENTING TO CREATION OF A MUNICIPAL UTILITY DISTRICT OVER APPROXIMATELY 314.54 ACRES OF LAND, MORE OR LESS, HAVING THE STREET ADDRESSES OF 2451 SH 195 AND 2453 SH 195, GEORGETOWN, WILLIAMSON COUNTY, TEXAS, AND BEING GENERALLY LOCATED ON THE WEST SIDE OF HIGHWAY 195 AT THE SOUTHWEST CORNER OF BONNET LANE AND HWY 195 IN GEORGETOWN, TEXAS, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN A "CONSENT AGREEMENT" BETWEEN THE CITY, THE LAND OWNERS, AND THE DEVELOPER; APPROVING A RELATED PARKLAND IMPROVEMENTS AGREEMENT; MAKING CERTAIN FINDINGS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Janis K. Johnson, individually, Janis K. Johnson, Trustee of JKJ Heritage Trust; Richard W. Johnson, individually; John B. Schneider, individually; John B. Schneider, Trustee of the JBS Heritage Trust; W. Charles Schneider, individually; and W. Charles Schneider, Trustee of the WCS Heritage Trust (collectively, "Owner") is the owner of that certain property consisting of approximately 314.54 acres, more or less, having the street addresses of 2451 and 2453 SH 195, Georgetown, Williamson County, Texas and being generally located on the west side of SH 195 at the southwest corner of SH 195 and Bonnet Lane, which is more particularly described by metes and bounds and surveyors sketch attached as Exhibit A to the Consent Agreement attached to this Resolution as Attachmeid I f the "Land"). WHEREAS, BERRY CREEK (GEORGETOWN) ASLI IX, LLC. a Delaware limited liability limited company ("D(,, ,clo )car") has a contract to purchase the Land from Owner. WHEREAS, on or about March 2, 2018 Owner filed a Letter of Intent and Petition for Annexation of a 314.54 Acre Tract of Land in Williamson County, Texas WHEREAS, the Land was annexed into the city limits of the City of the Georgetown, Texas via Ordinance No. 2018-16 (as to 106.213 acres) and Ordinance No. 2018-17 (as to 208.327 acres) adopted by the City Council of the City of Georgetown, Texas on May 8, 2018. Resolution No. _Q:z 10 � g- V Berry Creek Highlands MUD (or WCMUD No. ) Conditional Approval of Creation Per Terms of Consent Agreement and Parkland Improvements Agreement Page 1 of 3 WHEREAS, on or about March 2, 2018 Owner also filed a Petition for Consent to Creation of a Municipal Utility District requesting the consent of the City Council of the City of Georgetown, Texas to the creation of a municipal utility district on the Land. WHEREAS, Owner, Developer and the City have agreed to the creation of one (1) "in - city" or "city service" municipal utility district pursuant to Section 54.016 of the Texas Water Code, subject to the terms and conditions of the Consent Agreement attached hereto as Attachment 1. WHEREAS, the City and Developer have also entered into that certain Parkland Improvements Agreement ("PIA") which is attached to Attachment 1 as Exhibit K pertaining to Parkland Improvements (defined in the PIA) to be constructed on the Parkland (defined in the PIA) on the Land, which agreement is additional consideration for the City's consent to creation of a municipal utility district on the Land. WHEREAS, the City and Developer have also reached agreement regarding certain utility and transportation matters pertaining to, among other things, the financial contribution to, and/or construction of, certain utility and transportation public improvements and the provision of city services to the Land as additional consideration for the City's consent to creation of a municipal utility district on the Land WHEREAS, the City Council held a public hearing on July 10, 2018 on Consent Agreement, including the PIA attached thereto. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS THAT: 1. The City Council hereby finds that the foregoing recitals are true and correct and the recitals are hereby incorporated into this Resolution by reference for all purposes as set forth in full. 2. The City Council hereby approves the Consent Agreement attached hereto as Attachment 1, including the PIA attached thereto as Exhibit K. 3. The City Council hereby grants its conditional consent to creation of a municipal utility district on the Land, as those conditions are set forth in the Consent Agreement attached hereto as Attachment 1. 4. The Mayor is authorized to sign this Resolution, the Consent Agreement attached hereto as Attachment 1, and the PIA attached to Attachment 1 as Exhibit K, and the City Secretary is authorized to attest. 5. This Resolution shall be effective immediately upon its adoption. Resolution No. C2:7 I o \'s — v Berry Creek Highlands MUD (or WCMUD No. ) Conditional Approval of Creation Per Terms of Consent Agreement and Parkland Improvements Agreement Page 2 of 3 Attachment List: Attachment 1- Consent Agreement PASSED AND APPROVED on the _day of , k . 2018. ATTEST: Shelley Nowli City Secretary APPROVED AS TO FORM: Charlie McNa U, City Attorney THE CITY OF :57ov,-,, �Ae ss yor Pro - -e „ Resolution No. —D-71 0 00—\/ Berry Creek Highlands MUD (or WCMUD No. ) Conditional Approval of Creation Per Terms of Consent Agreement and Parkland Improvements Agreement Page 3 of 3 CONSENT AGREEMENT BY AND AMONG: THE CITY OF GEORGETOWN TEXAS AND JANIS K. JOHNSON, INDIVIDUALLY; JANIS K. JOHNSON, TRUSTEE OF JKJ HERITAGE TRUST; RICHARD W. JOHNSON, INDIVIDUALLY; JOHN B. SCHNEIDER, INDIVIDUALLY; JOHN B. SCHNEIDER, TRUSTEE OF JBS HERITAGE TRUST; W. CHARLES SCHNEIDER, INDIVIDUALLY; AND W. CHARLES SCHNEIDER, TRUSTEE OF WCS HERITAGE TRUST "04M BERRY CREEK (GEORGETOWN) ASLI IX, LLC, a Delaware limited liability company. AND BERRY CREEK HIGHLANDS MUNICIPAL UTILITY DISTRICT TABLE OF CONTENTS ARTICLE I INTRODUCTION................................................................................................... 1 ARTICLE II DEFINITIONS..................................................................................................... 2 ARTICLE III CONDITIONS PRECEDENT........................................................................ 13 3.01 Required Easements for the BCI.......................................................................... 13 3.02 Acquisition of Land by Developer......................................................................... 13 3.03 Acquisition of Off-site Portion of Shell Spur Road by Developer . ..................... 13 3.04 Acquisition of Right -of -Way for the SH 195/Shell Spur Road Intersection by Developer................................................................................................................................... 13 3.05 Delivery of SH 195/Shell Spur Road Intersection Signalization Fiscal Security 14 3.06 Reimbursement of City Expenses......................................................................... 14 3.07 Execution of this Agreement.................................................................................. 14 3.08 Execution of the Parkland Improvements Agreement . ....................................... 14 3.09 Effect of Failure to Perform Conditions Precedent . ............................................ 14 ARTICLE IV DISTRICT CREATION...................................................................................15 4.01 Execution of this Agreement.................................................................................... 15 4.02 Organizational Meeting........................................................................................... 15 4.03 Limit on Authority.................................................................................................. 15 4.04 Effect of Failure to Timely Execute and Return Documents . ............................. 15 4.05 Withdrawal of Consent............................................................................................ 15 4.06 Required Submittals to the City.............................................................................. 16 4.07 No Other Districts or Jurisdiction........................................................................ 16 4.08 Limit on Exercise of Eminent Domain Powers . ................................................... 16 4.09 Interlocal Agreements.............................................................................................. 17 4.10 Other Contracts...................................................................................................... 17 4.11 District Property..................................................................................................... 17 4.12 District Election; Temporary Residency.............................................................. 18 ARTICLEV ANNEXATION................................................................................................... 18 5.01 Prior Annexation by the City................................................................................ 18 5.02 Annexation by the District....................................................................................... 18 ARTICLE VI ISSUANCE OF BONDS; SETTING TAX RATES ...................................... 19 6.01 Issuance of Bonds.................................................................................................... 19 6.02 Authorized Purposes................................................................................................ 19 6.03 Unauthorized Purposes.......................................................................................... 20 6.04 Amount of Bonds...................................................................................................... 20 6.05 Bond Requirements.................................................................................................. 21 6.06 Economic Feasibility............................................................................................... 22 6.07 Notice of Bond Issues.............................................................................................. 22 6.08 Compliance with Agreements................................................................................ 22 6.09 Certifications...........................................................................................................22 6.10 Bond Objections....................................................................................................... 22 6.11 Official Statements................................................................................................. 23 6.12 Dissolution of District; Reimbursement Agreements.: .......................................... 23 ARTICLE V11 TAXES, FEES, AND CHARGES.................................................................. 24 (W0794214.111 Original Consent Agreement Berry Creek Highlands MUD (Berry Creek Highlands Subdivision) 7.01 Tax Rate Limitation............................................................................................... 24 7.02 District Fees............................................................................................................... 25 ARTICLE VIII REPORTING.................................................................................................. 25 8.01 District Information to be Provided to the City. :.................................... ............ 25 8.02 Financial Dormancy Affidavit, Financial Report or Audit . ............................... 25 8.03 Other Documents.................................................................................................... 25 ARTICLE IX FACILITIES AND SERVICES - GENERAL ................................................ 26 9.01 Potable Water Services.......................................................................................... 26 9.02 Wastewater Services.. ............................................................................................. 26 9.03 Electric Services...................................................................................................... 26 9.04 Water Quality Facilities and Services................................................................... 26 9.05 Greenbelts, Open Spaces, Non -City Parks, Recreation Facilities, Services. ..... 26 9.06 Garbage Services.................................................................................................... 26 9.07 Police, Fire, and Emergency Medical Services . ................................................... 27 9.08 Gas Services............................................................................................................. 27 9.09 Services Outside the District.................................................................................. 27 9.10 Ownership and Conveyance of District Facilities and Lands ............................... 27 ARTICLE X ADDITIONAL CONDITIONS OF WATER SERVICE .............................. 27 10.01 On -Site Water Improvements................................................................................. 27 10.02 Master -Planned Elevated Water Storage Tank Contribution . .......................... 27 10.03 City Obligations...................................................................................................... 27 ARTICLE XI ADDITIONAL CONDITIONS OF WASTEWATER SERVICE ............. 28 11.01 On -Site Wastewater Improvements. .......................... ................... ........................ 28 11.02 Developer's BCI Spur Contribution - Payment and Fiscal Security . ............... 28 11.03 Developer's BCI Contribution - Payment............................................................ 28 11.04 Developer's BCI Contribution - Financial Security..... .......................................... 28 11.05 City Obligations........................................................................................................ 29 11.06 Temporary Wastewater Facilities........................................................................... 29 ARTICLE XII LAND USE AND DEVELOPMENT STANDARDS; FIRE STATION SITE............................................................................................................................................. 31 12.01 Concept Plan........................................................................................................... 31 12.02 Modifications to Concept Plan . ....................................................... ...................... 31 12.03 Fire Station Site. r..................................................................................................... 31 ARTICLE XIII PUBLIC PARKLAND, DEVELOPER'S PREPAID PARK FEES; TRAILHEAD REQUIREMENTS; AND PRIVATE AMENITIES ....................................... 32 13.01 Parkland.. ... . . ............ ................................................................................................ 32 13.02 Parkland Improvements........................................................................................ 36 13.03 Private Amenity Center......................................................................................... 36 ARTICLE XIV TRANSPORTATION IMPROVEMENTS ................................................ 36 14.01 Bridge Responsibilities........................................................................................... 36 14.02 SH 195/Shell Spur Road Intersection..................................................................... 36 14.03 Shell Spur Road. . ................................. . ............ ...................................................... 38 ARTICLE XV REQUIRED EASEMENTS AND SHELL SPUR ROAD DEED .............. 43 15.01 Applicability............................................................................................................43 15.02 Delivery of Easement Documentation................................................................... 43 (W0794214.111 Original Consent Agreement Berry Creek Highlands MUD (Berry Creek Highlands Subdivision) ii 15.03 Title Commitment/Insurance — Required Easements . ........................................ 43 15.04 Form of Easement . .............................................. ................ 44 15.05 Costs.........................................................................................................................44 15.06 Recording................................................................................................................44 15.07 Shell Spur Road Documentation........................................................................... 44 15.08 Title Commitment/Insurance — Shell Spur Road Related Easements . .............. 45 15.09 Form of Deed........................................................................................................... 45 15.10 Costs...........................................................................................................................45 15.11 Recording.................................................................................................................45 ARTICLE XVI IMPACT FEES................................................................................................ 46 16.01 Impact Fee Assessment and Payment..................................................................... 46 16.02 Capacity Interest....................................................................................................... 46 16.03 Other Development and Utility Fees..................................................................... 47 ARTICLE XVII Authority............................................................................. 48 AR`T'ICLE XVII I TERM, ASSIGNMENT AND REMEDIES ............................................ 48 18.01 Term...........................................................................................................................48 18.02 Assignment and Delegation.................................................................................... 48 18.03 Default and Rights and Remedies for Default....................................................... 48 18.04 City's Remedies During Developer's or District's Cure Periods . ...................... 49 18.05 Rights and Remedies for Default After Expiration of Cure Period ..................... 49 18.06 Governmental Powers and Immunity..................................................................... 50 ARTICLE XIX MISCELLANEOUS PROVISIONS............................................................ 50 19.01 Cooperation...............................................................................................................50 19.02 Notice.......................................................................................................................50 19.03 Severability; Amendment; Waiver......................................................................... 52 19.04 Applicable Law and Venue. ................................................................................... 53 19.05 Entire Agreement................................................................................................... 53 19.06 Exhibits, Headings, Construction, and Counterparts. ........................................ 53 19.07 Time.........................................................................................................................53 19.08 Notice to End Buyer............................................................................................... 54 19.09 Authority for Execution . ......................... ............. 54 19.10 Joinder by Owner................................................................................................... 54 19.11 Exhibits....................................................................................................................54 19.12 Recordation........................................:....................................................................55 (W0794214.111 Original Consent Agreement Berry Creek Highlands MUD (Berry Creek Highlands Subdivision) iii CONSENT AGREEMENT THE STATE OF TEXAS § COUNTY OF WILLIAMSON § This Consent Agreement ( "A reentenf") is entered into by and among the City of Georgetown, Texas a home -rule city located in Williamson County, Texas ("CLtIL"), Janis K. Johnson, individually, Janis K. Johnson, Trustee of JKJ Heritage Trust; Richard W. Johnson, individually; John B. Schneider, individually; John B. Schneider, Trustee of the JBS Heritage Trust; W. Charles Schneider, individually, and W. Charles Schneider, Trustee of the WCS Heritage Trust (collectively, "Owner"); Berry Creek (Georgetown) ASLI IX, LLC, a Delaware limited liability company ("Develvlier"); and, upon its creation, Berry Creek Highlands Municipal Utility District, a district to be created under Chapters 49 and 54 of the Texas Water Code (the "District"). ARTICLE I INTRODUCTION 1.01 Owner is the owner of that certain property consisting of approximately 314.54 acres, more or less, as more particularly described by metes and bounds and surveyor's sketch attached hereto as Ex)zibit A (the "Land"). 1.02 Developer has a contract to purchase the Land from Owner. 1.03 On or about March 2, 2018 Owner filed a Letter of Intent and Petition for Annexation of a 314.54 Acre Tract of Land in Williamson County, Texas, and the Land was annexed into the city limits of the City of the Georgetown, Texas via Ordinance No. 2018-16 (as to 106.213 acres) and Ordinance No. 2018-17 (as to 208.327 acres) adopted by the City Council of the City of Georgetown, Texas on May 8, 2018. 1.04 On or about March 2, 2018 Owner filed a Petition for Consent to Creation of a Municipal Utility District requesting the consent of the City Council of the City of Georgetown, Texas to the creation of a municipal utility district on the Land. 1.05 Owner, Developer and the City have agreed to the creation of one (1) "in - city" or "city service" municipal utility district pursuant to Section 54.016 of the Texas Water Code, subject to the terms and conditions of this Agreement. 1.06 The City and Developer have also entered into that certain Parkland Improvements Agreement dated to be effective on even date herewith pertaining to (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 1 of 66 Parkland Improvements (defined herein) to be constructed on the Parkland (defined herein) on the Land, which agreement is additional consideration for the City's consent to creation of a municipal utility district on the Land. 1.07 The City and Developer have also reached agreement regarding certain utility matters pertaining to, among other things, the financial contribution to, or construction of, water and wastewater improvements and the provision of other public utility services to the Land as additional consideration for the City's consent to creation of a municipal utility district on the Land 1.08 The City has determined that, pursuant to the terms of this Agreement, the City will benefit from: (i) the quality of the development that will result on the Land; (ii) the creation of the District to finance the water, wastewater, drainage, and roadway systems, park and recreational facilities, and other improvements authorized in the Parkland Improvements Agreement (defined herein) for the District; (iii) and the extension of the City's wastewater and transportation network. The Owner and Developer have determined that, pursuant to the terms of this Agreement, they will benefit from: (i) the certainty and assurance of the development regulations applicable to the development of the Land in accordance with the Parkland Improvements Agreement; (ii) the commitment for City utility services to the Land in accordance with the Parkland Improvements Agreement; and (iii) the ability to obtain the financial commitments that are necessary for a development of this scope to become competitive in the marketplace. NOW, THEREFORE, in consideration of the forgoing recitals and mutual agreements set forth herein, and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are all hereby acknowledged, the City, Owner, Developer, and the District agree as follows: ARTICLE II DEFINITIONS 2.01 Definitions. In addition to the terms defined elsewhere in this Agreement or in the City's ordinances, the following terms and phrases used in this Agreement have the meanings set out below: (a) Agreement: means this "Consent AMeement" between the City, Owner, Developer, and the District, together with all exhibits listed below and attached to this Agreement. 1W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 2 of 66 (b) Approved Plans: means the design and construction plans and specifications for the Off -Site Public Improvements (defined herein), On -Site Wastewater Improvements (defined herein); On -Site Water Improvements (defined herein); Internal Facilities (defined herein); Trailhead Parking Lot (defined herein); Parkland Improvements (defined herein); Parkland Trail (defined herein); SH 195/Shell Spur Road Intersection (defined herein), all improvements or facilities to be transferred by Developer to the City or to TxDOT (defined herein) for ownership, operation and maintenance under this Agreement; and the Temporary Wastewater Facilities (if such are to be constructed under Section 11.06 of this Agreement), which shall be prepared by a registered professional engineer licensed to practice in the State of Texas retained by Developer to prepare the design drawings and construction plans for same, as those documents are approved by the City and/or TxDOT in their regulatory capacity. (c) Assignee: means a successor -in -interest to Owner or Developer, as permitted under Section 18.02 of this Agreement. (d) BCI: means the Berry Creek Interceptor, a master -planned gravity wastewater interceptor line to be constructed and which, when constructed and accepted for ownership, operation, and maintenance by the City, will connect to the City's existing Sun City Lift Station and thence to the City's Pecan Branch Wastewater Treatment Plant, and the approximate location of which is shown on the Major Wastewater Improvements Plan attached hereto as Exhibit B. (e) BCI Spur: means the Berry Creek Interceptor Spur, a master -planned gravity wastewater interceptor line to be constructed and which, when constructed and accepted by the City for ownership, operation, and maintenance, will connect to the BCI and provide wastewater collection capacity for part of the Land, and the approximate location of which is shown on the Major Wastewater Improvements Plan. (f) Bond: means (i) any instrument, including a bond, note, certificate of participation, or other instrument evidencing a proportional interest in payments, due to be paid by the District (defined herein) or (ii) 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 reimbursement agreements entered into between the District and Developer, or bond anticipation notes. {W0794214.1 l) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 3 of 66 (g) Bond Limit Amount: means the maximum amount of Bonds, excluding refunding Bonds, which can be issued by the District pursuant to Section 6.04 of this Agreement. (h) City: means the City of Georgetown, Texas, a home rule city located in Williamson County, Texas. (i) City Attorney: means the City Attorney for the City. 0) City Council: means the City Council of the City. (k) City Objection: means an objection by the City to a Bond issue as defined in Section 6.10 of this Agreement. (1) City Secretary: means the City Secretary of the City. (m) Closing Date: means September 30, 2018 before 5:00 PM Central Daylight Time (CDT). (n) Concept Plan: means the Concept Plan prepared by SEC Planning LLC, dated June 1, 2018, attached hereto as Exhibit C. (o) Connection: means a connection to the On -Site Water Improvements (defined herein) or to the On -Site Wastewater Improvements (defined herein) on the Land, the cumulative number of which shall not exceed the Connection Limit (defined herein). For the purposes of this Agreement, the physical connection into the On -Site Water Improvements that corresponds to the number of water service connections with a 5/8" or 3/4" meter (as allowed by the Governing Regulations) shall represent one (1) Connection. For the purposes of this Agreement, the physical sewer connection into the On -Site Wastewater Improvements that corresponds to the number of water service connections with a 5/8" or 3/4" meter (as allowed by the Governing Regulations) shall also represent one (1) Connection. The number of Connections represented by water meters larger than 5/8" or 3/4" in size (as allowed by the Governing Regulations) shall be the same as the number of water "Service Units" calculated using the City's meter equivalency standards set forth in Section 13.32.050 of Georgetown's Code of Ordinances, as that ordinance may be amended from time to time by the City Council. (p) Connection Limit: means the maximum number of Connections on the Land, which shall not exceed ONE THOUSAND FIVE HUNDRED EIGHTY-THREE (1,583) Connections (defined herein) for water services and ONE THOUSAND FIVE HUNDRED EIGHTY-THREE Connections (defined herein) for wastewater services. { W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 4 of 66 (q) Developer: means Berry Creek (Georgetown) ASLI IX, LLC, a Delaware limited liability company. (r) Developer's BCI Contribution: means TWO MILLION U.S. DOLLARS ($2,000,000) to be paid to the City pursuant to Section 11.03 of this Agreement. (s) Developer's BCI Financial Security: means a deposit of funds to be made by Developer to City and replenished from time to time in accordance with Section 11.04 of this Agreement to secure Developer's obligations relating to the Developer's BCI Contribution (defined herein). (t) Developer's BCI Financial Security Deadline: means 5:00 PM CDT on the date that is ninety (90) days after the Effective Date of this Agreement. (u) Developer's BCI Spur Contribution: means FIVE HUNDRED FORTY- -NINE THOUSAND THREE HUNDRED NINETY-TWO U.S. DOLLARS ($549,392), to be paid to the City when required by Section 11.02 of this Agreement. (v) Developer's Park Fees: means FOUR HUNDRED TWENTY-FIVE THOUSAND U.S. DOLLARS ($425,000), which is the amount that Developer must expend towards construction of the Parkland Improvements (defined herein) within the Parkland (defined herein) on the Land (defined herein). The term does not include design or other non -construction costs, expenses, or fees. (w) District: means the Berry Creek Highlands Municipal Utility District (or some other named municipal utility district) to be created over the Land (defined herein), with the City's consent but subject to the terms and conditions of this Agreement and the Parkland Improvements Agreement (defined herein). (x) District's Board: means the Board of Directors of the District. (y) District Creation Date: means the date of the order issued by the Texas Commission on Environmental Quality, or the effective date of any legislation, creating the District. (z) District Creation Deadline: means the date that is twenty-four (24) months after the Effective Date. (aa) Dwelling Unit: means a building or portion thereof that includes sleeping, cooking, eating, and sanitation facilities, designed and used for residential occupancy by a single household. Dwelling units do not include overnight accommodations. {W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 5 of 66 (bb) Easement Documentation: means and includes all of the following documents: a draft form of easement; legal description (metes and bounds or platted lot) of the proposed easement area prepared by a licensed surveyor registered to practice in the State of Texas; a map or sketch of the proposed easement area prepared by a licensed surveyor registered to practice in the State of Texas; a draft title commitment conforming to the provisions of Section 13.01(c) of this Agreement; and drafts of all documents required by the title company and the City that are necessary to convey an easement to the City free of liens and encumbrances. (cc) Effective Date: means the date means the date that the last of the conditions precedent set forth in Article III of this Agreement has been performed by Developer, and this Agreement has been signed by duly authorized representatives of the Parties. (dd) Eligible Reimbursement Costs: means the actual construction costs directly related to construction of Phase 4 of Shell Spur Road (defined herein). The term does not include any design costs for Phase 4 of Shell Spur Road, or any design, construction, or other costs related to Phases 1, 2, or 3 of Shell Spur Road (defined herein), or any SH 195/Shell Spur Road Intersection Costs (defined herein). (ee) Finance Director: means the City's Director of Finance, or such other person designated by the City Manager. (ff) Governing Regulations: means, collectively, the following laws and regulations pertaining to development of the Land: (1) this Agreement and the Exhibits to this Agreement; (2) the Approved Plans (defined herein); (3) the PUD Ordinance (defined herein); (4) the City's Construction Specifications and Standards Manual, including amendments that may be approved from time to time by the City; (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 Drainage Criteria Manual, including amendments that may be approved from time to time by the City; (W0794214.1 l ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 6 of 66 (7) the City's Traffic Calming Standards, including amendments that may be approved from time to time by the City; (8) the City's Unified Development Code (defined herein), except as modified by this Agreement or the PUD Ordinance (defined herein); (9) the agreement(s) to be entered into by and between Developer and TxDOT (defined herein) pertaining to the design and construction of the SH 195/Shell Spur Road Intersection (defined herein) and/or access to and/or from the Land onto SH 195; (10) all federal, state, and local laws, rules, regulations, standards, manuals, specifications, policies, and any other requirements of any governmental entity having jurisdiction over SH 195 that are applicable to the SH 195/Shell Spur Road Intersection and/or to access to and/or from the Land onto SH 195; (11) 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; (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) all orders, standards, ordinances, rules, regulations, and specifications of the TCEQ, the City, and any other entity having jurisdiction over the improvements and facilities described in the Parkland Improvements Agreement (herein defined) (14) all federal, state and local agreements, rules, regulations, standards, specifications, plans, policies, manuals, studies, reports, guidelines, administrative decisions, and other requirements of TxDOT (defined herein), the Federal Highway Administration, or the City pertaining to the design and construction of the SH 195/Shell Road Spur Intersection (including but not limited to the signalization thereof and "warrant studies,") and to access to and from the Land onto SH 195 that are necessary or required to develop the Land in accordance with the PUD Ordinance. (W0794214.1 11 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 7 of 66 (gg) Impact Fees: means the fees adopted by the City Council in accordance with Chapter 395, Texas Local Government Code, as the same may be revised from time to time by the City Council. (hh) Internal Facilities: means the internal water and wastewater subdivision infrastructure to be constructed by or on behalf of Developer and the District and dedicated to the City for providing retail water and wastewater service to Connections within the Land. (ii) Internal Trails: means any trails to be constructed by or on behalf of the Developer or the District that are located on the Land and outside of any public right- of-way and the Parkland and which are to be owned and maintained by a POA (defined herein). 6j) Land: means the 314.54 acres of land located in the City limits of the City of Georgetown, Texas as more specifically described by metes and bounds and surveyor's sketch on ExhibitA. (kk) Letter of Acceptance: means written confirmation from an authorized representative of the City accepting an On -Site Water Improvement, On -Site Wastewater Improvement, Parkland Improvements, Off -Site Public Improvement, or any other infrastructure to be conveyed to the City for ownership, operation, and maintenance by the City. (11) Major Collector: has the same meaning as set forth in Table 12.02.030 and related sections of the UDC (defined herein). (mm) Master -Planned Elevated Water Storage Tank: means the minimum two (2) million -gallon elevated water storage tank identified in the City's current Water Master Plan. (nn) Master -Planned Elevated Water Storage Tank Contribution: means FIVE HUNDRED THOUSAND U.S. DOLLARS ($500,000), to be paid to the City pursuant to Section 10.02 of this Agreement. (oo) Maximum Reimbursement Amount: means the amount of cash, if any, that the City has received from other developers for construction of Shell Spur Road at the time that the City issues the "Citii's Phase 4 Funding Notice" under Section 14.03(c)(4) of this Agreement. The term does not include funds or monies from any other source. (pp) Notice: means notice as described in Section 19.02 of this Agreement. { W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 8 of 66 (qq) Off -Site Portion of Shell Spur Road: has the meaning set forth in Section 2.01(jjj) of this Agreement pertaining to the definition of "Shell Spur Road", which is more particularly depicted on the Shell Spur Phasing Plan attached hereto as Exhibit D. (rr) Off -Site Public Improvements: means the BCI Spur and the Off -Site Portion of Shell Spur Road. (ss) On -Site Portion of Shell Spur Road: has the meaning set forth in Section 2.01(jjj) of this Agreement pertaining to the definition of "Shell Spur Road." (tt) On -Site Wastewater Improvements: means and includes the wastewater system facilities necessary for the City to provide retail wastewater collection and treatment service to Connections on the Land in accordance with the Governing Regulations, including but not limited to all piping, and manholes located within designated easements or rights-of-way up to the point of service entry by a single customer. (uu) On -Site Water Improvements: means and includes the water system facilities necessary for the City to provide retail potable water service to Connections on the Land in accordance with the Governing Regulations, including but not limited to all piping, valves, and hydrants within designated easements or rights of way up to the customer side of the meter. (vv) Owner: means Janis K. Johnson, individually; Janis K. Johnson, Trustee of JKJ Heritage Trust; Richard W. Johnson, individually; John B. Schneider, individually; John B. Schneider, Trustee of JBS Heritage Trust; W. Charles Schneider, individually; and W. Charles Schneider, Trustee of WCS Heritage Trust; or their respective successors or Assignees as permitted by this Agreement. (ww) Parkland Improvements Agreement: means the Parkland Improvements Agreement attached hereto as Exhibit E and incorporated herein by reference as if set forth in full. (xx) Parkland Improvements Completion Deadline: means the first to occur of any of the following events: (i) recordation of any final plat within Parcel 3 (as Parcel 3 is shown on Concept Plan (defined herein); (ii) one hundred eighty (180) days after the City provides Notice to Developer of the City Council's appropriation of or receipt of funds for Phase I development of the City's future Westside Park (as the term "Phase I" is further described in Section 14.03(c) of this Agreement); or (iii) December 31, 2023. (yy) Parkland Improvements: means, at a minimum, the following improvements to be constructed within the Parkland (defined herein): one (1) a shade (W0794214.11 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 9 of 66 pavilion; one playscape (1) for children 2-5 years of age; one (1) playscape for children 5- 12 years of age; active areas for unorganized play or practice; picnic area with benches, picnic tables and cooking grills; trash cans; landscaping; and an irrigation system. The term does not include the Trailhead Parking Lot (defined herein). (zz) Parkland Trail: means a ten foot (10') wide concrete looped hike and bike trail to be constructed by Developer from the Private Amenity Center (defined herein), past the Trailhead Parking Lot, looping through the Parkland, thence continuing off of the Land to the City's Westside Park (herein defined) alongside Berry Creek, in the location generally shown on the Concept Plan and designed in accordance with the Parkland Trail Design Standards attached hereto as Exhibit T. (aaa) Parkland: means the twenty (20) acres of the Land situated on the southwest corner of the Land on the south side of the planned Shell Spur Road and adjacent to and north of the City's Westside Park, the approximate location of which is shown on the Concept Plan. (bbb) Parties: means, collectively, the City, the Owner, the Developer, and the District, and their respective successors and Assignees permitted by this Agreement. (ccc) Party: means, individually, the City, the Owner, the Developer, or the District, and their successors and Assignees permitted by this Agreement. (ddd) Phases 1, 2, 3 and 4 hof Shell Spur Road]: means those portions of Shell Spur Road further described in Section 2.01(jjj) of this Agreement and generally shown on the Shell Spur Phasing Plan. (eee) Private Amenity Center: means the private amenity center to be constructed by Developer south of the planned Shell Spur Road immediately adjacent to the Parkland, the approximate location of which is generally shown on the Concept Plan and the minimum requirements for which are more particularly described in Section 13.03 of this Agreement. (fff) PER: means that certain "Preliminary Engineering Report for Berry Creek Highlands Consent to Create Berry Creek Highlands Municipal Utility District" by Kimley-Horn, 10814 Jollyville Road, Avallon IV, Suite 300, Austin TX 78759 (last updated January 26, 2017). (ggg) Property Owners Association (POA): means a property owners association formed and operating under the laws of the State of Texas and authorized to perform the duties described in this Agreement in Sections 9.05, 9.10, and 13.01(8)(4) and (5) of this Agreement. { W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 10 of 66 (hhh) PUD Ordinance: means the City Council -approved planned unit development (PUD) zoning ordinance pertaining to the Land, as the same may be amended from time to time by the City Council. (iii) Required Easements: means, collectively, but without limitations, the temporary construction and access easements, and the permanent (or temporary, in the case of the lift station component of the Temporary Wastewater Facilities) utility and access easements, necessary for installing, placing, constructing, operating, using, maintaining, repairing, modifying, upgrading, rebuilding, replacing, upgrading, monitoring, inspecting, replacing, making connections with, removing, relocating, decommissioning and/or accessing the BCI, BCI Spur, Internal Facilities, Temporary Wastewater Facilities, and all related appurtenances. 6J) Shell Spur Road: means a road to be constructed at no cost to the City, except for Phase 4, if constructed by Developer under the terms and conditions of Section 14.03 of this Agreement, and classified as a Major Collector under the Governing Regulations, having a minimum right of way width of ninety-four feet (94'), commencing at the boundary of the SH 195/Shell Spur Road Intersection (defined herein) and the Off - Site Portion of Shell Spur Road (defined below), continuing westward across on the Land on the On -Site Portion of Shell Spur Road (defined below) and ending within the Land at the westernmost boundary of the Parkland, and also including a roadway segment connecting the On -Site Portion of Shell Spur Road to Cowboy Canyon Drive, to be constructed by Developer in phases when and as required by the terms and conditions of this Agreement. For the purposes of this Agreement, Shell Spur Road includes right- of-way that is located partially on the Land and off of the Land. The Off -Site Portion of Shell Spur Road (herein so called) is located on land not owned by Developer or Owner as of the Closing Date of this Agreement but which must be acquired by Developer or Owner and transferred to the City as a condition precedent to the effectiveness of this Agreement. The On -Site Portion of Shell Spur Road (herein so called) must be acquired by Developer as a condition precedent to the effectiveness of this Agreement. The general location of Shell Spur Road is shown on the Shell Spur Phasing Plan. The term does not include the SH 195/Shell Spur Road Intersection (defined herein). (kkk) SH 195/Shell Spur Road Intersection: means the new, realigned, and signalized intersection at SH 195 and the proposed Shell Spur Road to be designed and constructed by Developer at no cost to the City in accordance with the Governing Regulations in accordance with Article XIV of this Agreement, including, without limitation, all elements of the intersection such as traffic lanes, turn lanes, deceleration lanes, medians, median cuts, traffic signals, ADA accessible ramps and sidewalks, drainage and storm water management facilities, utilities, and all other features required (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 11 of 66 by the Governing Regulations pertaining to the SH 195/Shell Spur Road intersection project. (111) SH 195/Shell Spur Road Intersection Costs: means and includes all costs, expenses, fees, charges, and payment obligations of any type or related to the SH 195/Shell Spur Road Intersection, including, without limitation, engineering fees, construction oversight fees, project management fees, construction costs, real property acquisition costs, costs of utility work, environmental assessment and remediation costs, preliminary and final design costs, construction and construction management costs, attorney's fees, other outside consulting fees, and all other costs related to the SH 195/Shell Spur Road Intersection. (mmm)SH 195/Shell Spur Road Intersection Signalization Fiscal Security: means either an irrevocable letter of credit to be provided by Developer in favor of the City having a payment amount specified in Section 14.02(b) or (c) of this Agreement, as applicable, issued by an issuing bank meeting the City's minimum standards and being in form and substance acceptable to the City, and continuously remaining in place until drawn upon or released by the City under the terms and conditions of this Agreement; or a cash deposit received by the City from Developer in the amount specified in Section 14.02(b) or (c) of this Agreement, as applicable, which shall be deposited by the City in an escrow account and remain in place until drawn upon or released by the City under the terms and conditions of this Agreement. (nnn) Temporary Wastewater Facilities: means the two (2) temporary lift stations and the temporary force main to be constructed by Developer on the Land, if necessary under Section 11.06 of this Agreement, in accordance with all Governing Regulations and this Agreement sized to serve the allowed Connections on the Land (with the final diameter(s) and capacity(ies) to be determined by the City during design) and constructed in the approximate locations generally shown on the Major Wastewater Improvements Plan. (000) TCEQ: means the Texas Commission on Environmental Quality, or its successor state agency having jurisdiction over municipal utility districts. (ppp) Trailhead Parking Lot: means a public parking lot to be constructed by Developer in accordance with the Governing Regulations and this Agreement situated at the boundary of the Private Amenity Center (defined herein) and the Parkland (defined herein) in the approximate location shown on the Concept Plan and having access to it from Shell Spur Road (defined herein) and having a minimum of fifteen (15) parking spaces, including two (2) spaces that are handicap accessible. (W0794214.1 11 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 12 of 66 (qqq) Transportation Improvements: means, collectively and without limitation, Shell Spur Road (defined herein) and the SH 195/Shell Spur Road Intersection (defined herein). (rrr) TxDOT: means the Texas Department of Transportation. (sss) UDC: means the City's Unified Development Code, as the same may be amended from time to time by the City Council. (ttt) Warrant Study: means an engineering and traffic study of the SH 195/Shell Spur Road Intersection performed, or caused to be performed, by the City and/or TxDOT to determine whether traffic conditions at the SH 195/Shell Spur Road Intersection meet any of the federal, state, or local minimum standards or "warrants" for placement of traffic signalization improvements at the SH 195/Shell Spur Road Intersection. (uuu) Westside Park: means the public parkland owned by the City abutting and directly adjoining the western -most portion of the southern boundary of the Land, in the approximate locations shown on the Concept Plan. ARTICLE III CONDITIONS PRECEDENT 3.01 Required Easements for the BCI. The City acknowledges that Developer provided all Easement Documentation for the BCI and for all other Required Easements related to the BCI to the City prior to the Effective Date of this Agreement. 3.02 Acquisition of Land by Developer. Developer shall acquire all rights, title, and interest in the Land on or before the Closing Date and shall also provide to the City Attorney a copy of the recorded deed evidencing its ownership of the Land on or before the date that is five (5) days after the Closing Date. 3.03 Acquisition of Off-site Portion of Shell Spur Road by Developer. Developer shall acquire all rights, title, and interest in the Off-site Portion of Shell Spur Road on or before the Closing Date and shall also provide to the City Attorney a copy of the recorded deed evidencing its ownership of the Off-site Portion of Shell Spur Road on or before the date that is five (5) days after the Closing Date. 3.04 Acquisition of Right -of -Way for the SH 195/Shell Spur Road Intersection by Developer. Developer shall acquire all rights, title, and interest for all right of way necessary for the construction of the SH 195/Shell Spur Road Intersection on or before (W0794214.1 1) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 13 of 66 the Closing Date and shall also provide to the City Attorney a copy of the recorded instruments evidencing such acquisition(s) by Developer of sufficient right-of-way for the SH 195/Shell Spur Road Intersection on or before the date that is five (5) days after the Closing Date. 3.05 Delivery of SH 195/Shell Spur Road Intersection Signalization Fiscal Security. Developer shall obtain and deliver to the City SH 195/Shell Spur Road Intersection Signalization Fiscal Security conforming to the requirements of Sections 2.01(mmm) and 14.02(b) of this Agreement not later than the date that is ninety (90) days after the Effective Date of this Agreement. 3.06 Reimbursement of City Expenses. As additional consideration for this Agreement, Developer shall pay City's staff and outside consultant and legal fees and expenses associated with negotiation and preparation of this Agreement, which amounts for all invoices sent by the City to the Developer on or before August 1, 2018 must be received by the City on or before August 15, 2018, and all remaining or additional amounts must be received by the City on or before the Effective Date. Payment by check to the City must be remitted to the City Manager at the address for Notice provided in this Agreement. Developer shall request wiring instructions from the City Manager prior to remitting payment by bank wire. 3.07 Execution of this Agreement. As a condition precedent to the effectiveness of this Agreement, Developer's authorized representative shall execute this Agreement on or before the Closing Date. In addition, as a condition precedent to the effectiveness of this Agreement, Owner's authorized representative must sign this Agreement on or before the Closing Date solely for purposes of evidencing Owner's consent to the terms and conditions of this Agreement and recordation of this Agreement in the Official Public Records of Williamson County, Texas. 3.08 Execution of the Parkland Improvements Agreement. As a condition precedent to the effectiveness of this Agreement, Developer's authorized representative shall execute the Parkland Improvements Agreement on or before the Closing Date. In addition, as a condition precedent to the effectiveness of this Agreement, Owner's authorized representative must sign the Parkland Improvements Agreement on or before the Closing Date solely for purposes of evidencing Owner's consent to the terms and conditions of the Parkland Improvements Agreement and recordation of all Parkland Improvements Agreement as stand-alone documents and as attachments to this Consent Agreement in the Official Public Records of Williamson County, Texas. 3.09 Effect of Failure to Perform Conditions Precedent. This Agreement shall be void ab initio and shall have no force or effect if any one or more of the conditions (W0794214.1 1) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 14 of 66 precedent described in Sections 3.01 through 3.08 of this Agreement are not fully performed on or before the dates such performances are required by this Agreement. ARTICLE IV DISTRICT CREATION 4.01 Execution of this Agreement. At its organizational meeting, the District's Board must approve this Agreement and the Parkland Improvements Agreement, cause this Agreement and the Parkland Improvements 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 Attorney within thirty (30) days after the date of the District's Board meeting. 4.02 Organizational Meeting. The organizational meeting of the District Board must be held within ninety (90) days after the District Creation Date. 4.03 Limit on Authority. Prior to the time that this Agreement and the Parkland Improvements Agreement are executed by the District and returned to the City Attorney, (a) the District shall not issue Bonds and shall be prohibited from taking any affirmative act to issue Bonds, and (b) neither Owner nor Developer shall enter into any agreements with the District or seek reimbursement from the District for development of the Land. 4.04 Effect of Failure to Timely Execute and Return Documents. Notwithstanding anything in the Consent Resolution or this Agreement, this Agreement shall be void and shall have no further force or effect if this Agreement and the Parkland Improvements Agreement are not executed by Owner and Developer in the timeframes specified in Sections 3.05 and 3.07 of this Agreement and returned to the City Attorney within the timeframes required by those Sections. This Agreement shall also be void and shall have no further force or effect if this Agreement and the Parkland Improvements Agreement are not executed by the District in the timeframe specified in Section 4.01 of this Agreement, and returned to the City Attorney within the timeframe required by Section 4.01 of this Agreement. 4.05 Withdrawal of Consent. (a) The City's consent to the creation of the District shall be deemed withdrawn if: (1) An order approving creation of the District is not issued by the TCEQ, or bill passed by the Texas Legislation approving creation of f W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 15 of 66 the District, on or before the Creation Deadline, unless the creation petition is protested at the TCEQ or by litigation, in which case the Creation Deadline will be extended for an additional twelve (12) months or the duration of the administrative or legal proceedings, whichever is longer; or (2) The District has not held a confirmation election within one (1) year from the District Creation Date. 4.06 Required Submittals to the City. (a) Developer shall submit to the City a satisfactory review of Developer's financial position, certified by a third party financial analyst approved by City, within thirty (30) days after the Effective Date of this Agreement., The City shall have ten (10) business days to review and comment on the financial information and to request additional information. (b) At least ten (10) days before the submission of the District creation application to the TCEQ, Owner or Developer agree to submit to the City (1) a draft of application and all supporting documents, including evidence that the land to be included in the District is coterminous with the Land; and (2) the names, addresses, and a summary of qualifications for each individual designated as a proposed initial director of the District. The City shall have those ten (10) days to review and comment on the draft application and to request additional information about the application, including, without limitation, each individual designated as a proposed initial director of the District. 4.07 No Other Districts or Jurisdiction. In furtherance of the purposes of this Agreement, the District, the Developer, and the Owner, on behalf of themselves and their respective successors and Assignees, covenant and agree that, except upon written consent of the City evidenced by a resolution passed and approved by the City Council, neither the District, the Developer, nor the Owner shall initiate, seek, petition, sign, support, join in, associate with, consent to, or direct to be signed any petition or request seeking the creation of any other special taxing or assessment jurisdiction over the Land, other than with the City. 4.08 Limit on Exercise of Eminent Domain Powers. Except as otherwise approved by the City as evidenced by a resolution or ordinance passed and approved by the City Council, 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 (W0794214.1 1 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 16 of 66 District except when necessary to construct the facilities and improvements required to be constructed under the Agreement or the Parkland Improvements Agreement. 4.09 Interlocal Agreements. Subject to Sections 4.11 and 4.12 of this Agreement, the District is authorized to enter into interlocal agreements with other local governments and the City 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. All interlocal agreements between the District and one or more of the governmental entities must be submitted to the Planning Director and the Utility Director and shall be subject to their review and approval prior to execution. The Planning Director and the Utility Director will timely review all interlocal agreements submitted under this Section and either approve them or provide written comments specifically identifying any changes required for approval within forty-five (45) days of receipt. Notwithstanding the foregoing, no approval from the City shall be applicable to interlocal agreements entered into by the District for administrative functions, including for tax collection, for appraisal services, for election services and similar matters. 4.10 Other Contracts. The District shall not, without the prior approvals of the Planning Director and the Utility Director, enter into any service contracts (other than professional service contracts or contracts that will not bind the City upon dissolution of the District) with terms that (a) would require the payment of termination fee for their termination; or (b) are not unilaterally terminable upon sixty (60) days' notice or less. The Planning Director and the Utility Director 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 forty-five (45) days of receipt. 4.11 District Property. The District shall not sell, convey, lease, mortgage, transfer, assign or otherwise alienate any of its water, reclaimed water, wastewater, or drainage improvements, or other District property, including any improvements or property deemed to be surplus, to any third party other than the City without the prior approval of the Utility Director. The foregoing prohibition shall not apply to the District's disposal or replacement of equipment or material which has passed its useful life or the grant of easements necessary for the development of the Land, for which no approval shall be required. The foregoing prohibition shall also not apply to the conveyance in accordance with the terms and conditions of the Parkland Improvements Agreement of any water quality, irrigation, greenbelt, landscaping and other District improvements to a property owners association prior to dissolution of the District. { W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 17 of 66 4.12 District Election; Temporary Residency. Subject to the terms and conditions of this Section, the City agrees that one or more individuals may establish residency within the Land for the sole purposes of qualifying for Director of the District and voting in the initial District confirmation, bond and tax elections, provided that all of the following conditions are met: (x) only one (1) temporary residency shall be allowed; (y) the temporary residency must be a HUD -certified manufactured home; and (z) a temporary use permit must be obtained from the City prior to construction or installation of the temporary residency. In connection therewith, the City agrees that for purposes of establishing and maintaining temporary residency only, and provided that the foregoing conditions are met, conveyance by metes and bounds or otherwise of any portion of the Land will not be subject to the City's subdivision platting requirements. ARTICLE V ANNEXATION 5.01 Prior Annexation by the City. The Parties acknowledge and agree that as of the Effective Date, the Land lies wholly within the corporate limits of the City. 5.02 Annexation by the District. (a) Any petition or request for annexation of additional land into the District shall be: (1) Made in writing and submitted to the City Secretary, with a required copy to the City's Planning Director; and (2) Compliant with all applicable TCEQ statutes and rules and this Agreement; and (3) Accompanied by: i. a properly executed application and fees relating to amendment of this Agreement and the Parkland Improvements Agreement; ii. a concept plan for the land proposed to be annexed into the District, and iii. a Traffic Impact Analysis (TIA) for the land proposed to be annexed into the District, if a TIA would be otherwise be required by the UDC for the Land and prepared in accordance with Section 12.05.030(B) — (F) of the UDC. (W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 18 of 66 (b) In addition, the District shall not annex any additional land into its boundaries without prior written consent of the City evidenced by a resolution or ordinance passed and approved by the City Council. (c) Nothing in this Agreement shall be construed as granting the City's consent to the annexation of any additional land into the District, and the City hereby reserves all of its rights to consent, or to withhold its consent, to annexation of additional land into the boundaries of the District. ARTICLE VI ISSUANCE OF BONDS; SETTING TAX RATES 6.01 Issuance of Bonds. The District may issue Bonds as permitted by applicable state laws and this Agreement, as each may be amended from time to time. Except as authorized by this Agreement, the District shall not issue Bonds without the prior approval of the City Council, and not until the documents required by Article VII are executed in accordance therewith. 6.02 Authorized Purposes. The purposes for which the District may issue Bonds without prior approval of the City Council shall be restricted to the following, subject to the limitations, terms, and conditions of this Agreement: (a) Purchase, construction, acquisition, repair, extension, and improvement of land, easements, works, improvements, facilities, plants, equipment, and appliances necessary to: (1) Water. Provide a water supply for the Land for municipal, domestic and commercial uses, including potable water transmission and distribution facilities and non -potable water supply and irrigation facilities, subject to the terms of this Agreement; and (2) Wastewater. Collect, transport, process, dispose of, and control all domestic, commercial, industrial or communal wastes from the Land, whether in fluid, solid or composite state subject to the terms of this Agreement; and (3) Stormwater. Gather, conduct, divert and control local storm water or other local harmful excesses of water in the District subject to the terms of this Agreement; and {W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 19 of 66 (4) Trams ortatign. Design, acquire, construct, finance, issue bonds for, and convey to the City for operation and maintenance of, roads or improvements in aid of roads in compliance with Texas Water Code Section 54.234, or other statutory authority, and subject to the terms of this Agreement; and (b) Payment -of Expenses. Pay expenses under Texas Water Code Section 49.155 subject to the terms of this Agreement; and (c) Recreational Amenities. Parks, landscaping, parkways, greenbelts, sidewalks, trails, public right-of-way beautification projects, the Private Amenity Center, other amenity centers (if any), the Trailhead Parking Lot, and recreational equipment and facilities in compliance with Texas Water Code Chapter 49, Subchapter N, subject to the terms of this Agreement and PUD Ordinance; and (d) Refunding Bonds. 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. 6.03 Unauthorized Purposes. Notwithstanding anything to the contrary in this Agreement or the Parkland Improvements Agreement, the District may not issue Bonds or use Bond proceeds for operation, maintenance, repair, or replacement of any infrastructure, facilities, or improvements that are owned or operated by the District or a property owners association or any person or entity other than the City. Without limitation, the District may not issue Bonds or use Bond proceeds for ongoing operation, maintenance, repair and replacement of the Parkland, Parkland Improvements, Parkland Trail, Internal Trails, Temporary Wastewater Facilities, as such terms are defined this Agreement, or any other improvements constructed by the Developer on behalf of the District. In addition, the District may not issue Bonds or use Bond proceeds for that portion of impact fees for which Developer will receive reimbursement or credit from the City pursuant to this Agreement. The intent of this Agreement is that District Bond proceeds may be used solely to reimburse the Developer for initial construction costs only, and for payment of routine District expenses of the type described in Texas Water Code Section 49.155. 6.04 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 shall not exceed THIRTY MILLION ONE HUNDRED FIFTY THOUSAND U.S. DOLLARS ($30,150,000) (the "Bond Limit Ainoynt") for all purposes. City, Owner, Developer, and the District acknowledge and agree that the Bond Limit Amount is sufficient to accomplish the purposes of the District, and that Developer and the District (W0794214.1 l ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 20 of 66 have voluntarily agreed to the Bond Limit Amount. Improvements or facilities, if any, which exceed the Bond Limit Amount, shall be dedicated to the District without reimbursement unless otherwise approved by the City Council. The District must issue its Bonds for the purpose of financing reimbursable expenses under Section 49.155 of the Texas Water Code and for the purposes authorized in this Agreement prior to or simultaneously with issuance of Bonds for any other purpose. 6.05 Bond Requirements. The District shall obtain all necessary authorizations for Bonds in accordance with this Agreement and with Section 13.10 of the City's Unified Development Code. To the extent of a conflict with Section 13.10 of the City's UDC, the terms of this Agreement shall control. All Bonds issued by the District shall comply with the following requirements: (a) The last Bond issuance shall be not later than the date that is ten (10) years after the date of the first Bond issuance. (b) Maximum maturity of twenty five (25) years from date of issuance for any one series of Bonds; and (c) Interest rate that does not exceed two percent (2%) above the highest average interest rate reported by the Daily Bond Buyer in its weekly "20 Bond Index" during the one month period immediately preceding the date that the notice of sale of such Bonds is given; and (d) 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 (e) Any refunding Bonds of the District must (i) provide for a minimum of three percent (3%) net 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 District financial advisor that demonstrates that the proposed refunding shall comply with this Section at least three (3) business days before execution of the purchase agreement for the refunding and (iv) be accompanied by the delivery evidence of their compliance with the requirements of this Section to the City within three (3) business days after the execution of the purchase agreement for the refunding; and (f) No Bonds shall be issued having an issuance date after the date specified in Section 6.05(a) of this Agreement. If the District fails or is unable to issue (W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 21 of 66 Bonds before that date, the City shall have the authority to revoke the District's authority to issue its remaining but unissued Bonds under this Agreement. 6.06 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 District's financial advisor shall certify in writing to the City Secretary, City Manager, and the Finance Director, 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 Article VI of this Agreement. 6.07 Notice of Bond Issues. At least thirty (30) days before the submission of an application for approval of issuance of Bonds to the TCEQ or to the Attorney General, whichever occurs first, the District shall deliver to the City Secretary, City Manager, and Finance Director, the certification required by Section 6.09 of this Agreement, and Notice containing (a) the amount of Bonds being proposed for issuance; (b) a general description of the projects to be funded and/or the Bonds to be refunded by such Bonds; and (c) 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 certification and notice to the City Secretary, City Manager, and Finance Director at least thirty (30) days prior to the issuance of Bonds, except refunding Bonds, by the District. 6.08 Compliance with Agreements. At least ten (10) 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 Secretary, City Manager, and Finance Director that the District is not in breach of this Agreement or the PUD Ordinance, as they may be amended from time to time. 6.09 Certifications. With respect to any matter required by this Article VI to be certified in writing, the Agreement also requires, and the District warrants, that every statement in any certification by the District 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. 6.10 Bond Objections. The City shall have a period of thirty (30) days after receiving the last of the certifications and notices required by this Article VI within which to object to the Bonds. The only basis for an objection by the City to a proposed Bond issue shall be that the District or Developer is in default of a material provision of this Agreement, the Parkland Improvements Agreement, or the PUD Ordinance. If the City objects to a proposed Bond issue ("Cb 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 (W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 22 of 66 the City Manager's designee, and (d) shall specifically identify the provision(s) in this Agreement, the Parkland Improvements Agreement, the PUD Ordinance, or Section 13.10 of the UDC for which the District or Developer is in material default. It shall not be a basis for a City Objection that the City disagrees with District's 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, 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. Unless otherwise cured by written agreement of the Parties, a City Objection shall be deemed cured if (x) the District files a petition seeking declaratory judgment in state district court, and (y) not less than thirty (30) days before filing the petition the District gives the City Attorney and the City Manager Notice of, and waives any objections to, the City's right to intervene in, such a declaratory judgment action, and (z) the district court determines that the District or Developer is not in default with respect to any material provision of this Agreement, the PUD Ordinance, or Section 13.10 of the UDC, or alternatively, finds that if such a material default had previously occurred, the material default has been cured. A City Objection may be expressly waived by the City in writing at any time. 6.11 Official Statements. Within thirty (30) days after the District closes the sale of each series of Bonds, the District shall deliver to the City Secretary, City Manager, and Finance Director a copy of the final official statement for such series of the Bonds, and the District shall promptly provide such information at no cost to the City. 6.12 Dissolution of District; Reimbursement Agreements. The City agrees that it will not seek to dissolve the District, including pursuant to the authority set forth in Section 43.074 of the Texas Local Government Code, until after the expiration of the authorized period for the issuance of Bonds by the District set forth in Section 6.02 above. Except as otherwise approved by the City Council, the District agrees not to issue Bonds for purposes of reimbursing Developer for any costs or expenses paid Developer after the expiration of that period, which costs and expenses would otherwise be eligible to be reimbursed to Developer by District pursuant to the rules and regulation of the TCEQ or other applicable law, and Developer and the District expressly and irrevocably waive any claims against the City for repayment of such indebtedness. The District agrees that all reimbursement agreements that it enters into with the Developer shall include the following provision relating to any sums payable by the City upon dissolution of the District: (W0794214.1 t } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 23 of 66 "If, at the time of dissolution of the District, 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 Developer for the cost of the facilities or undivided interests in facilities, 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 agree that Developer has waived any payment by the City to which it otherwise would have been eligible for reimbursement from bond proceeds or from any other source." ARTICLE VII TAXES, FEES, AND CHARGES 7.01 Tax Rate Limitation. Before the issuance of Bonds, the District must provide to the City a certificate from the District's Financial Advisor, together with supporting data (including, but not limited to, documentation from the TCEQ), demonstrating that it is feasible to sell the Bonds and maintain a projected District -only debt service tax rate of not more than $0.55 per $100 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 (collectively, the "Tax Rate Limit"). The District agrees to adopt its annual tax rate in compliance with the legal requirements applicable to municipal utility districts and this Agreement, 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 bonded facilities in order to simplify the City's internal allocation of the debt service fund. The City and Developer acknowledge and agree that the Tax Rate Limit is sufficient to accomplish the purposes of this Agreement and the Parkland Improvements Agreement, and the and that Developer has voluntarily agreed (and the District upon its creation will voluntarily agree) to the Tax Rate Limit. Notwithstanding the foregoing or anything else in this Agreement to the contrary, 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 Bond Limit will be unlimited as to rate and amount as necessary to make bond payments. f W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 24 of 66 7.02 District Fees. The District agrees that the City shall be exempt from, and will not be assessed, any District fees. ARTICLE VIII REPORTING 8.01 District Information to be Provided to the City. The District shall provide a copy of the following documents to the City Secretary, Planning Director, and Utility Director in the manner provided in Section 19.02 of this Agreement pertaining to Notices 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 the agenda at the Williamson County Courthouse. (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 five (5) business days of 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 to the within five (5) days after the District's Board adopts the rate. (d) Budgets: a copy of the District's budget for each fiscal year within five (5) days after approval of each budget by the District's Board. 8.02 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 Finance Director, within ten (10) days after approval of each financial dormancy affidavit, financial report or audit by the District's Board. Any audit must be prepared by an independent certified public accountant. 8.03 Other Documents. The District shall provide copies of any other material event notices filed under applicable federal securities laws or regulations to the City Secretary, City Manager, and Finance Director within thirty (30) days after filing such notices with the applicable federal agency. (W0794214.1 11 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 25 of 66 ARTICLE IX FACILITIES AND SERVICES - GENERAL 9.01 Potable Water Services. Subject to the additional terms and conditions of this Agreement and to Owner's and Developer's compliance with the Governing Regulations, upon completion of construction by Owner or Developer and acceptance by the City of the required improvements, retail water service for the Land shall be provided by the City on the same basis as provided by the City to its similarly classified retail water customers located within the City. 9.02 Wastewater Services. Subject to the additional terms and conditions of this Agreement and to Owner's and Developer's compliance with the Governing Regulations, upon completion of construction by Owner or Developer and acceptance by the City of the required improvements, retail wastewater service for the Land shall be provided by the City on the same basis as provided by the City to its similarly classified retail wastewater customers located within the City. No septic tanks or On - Site Sewage Systems (OSSFs) (as that term is defined in the regulations of the TCEQ) shall be permitted on the Land. 9.03 Electric Services. The Land is outside of the City's certificated electric service area; therefore, the City shall have no responsibility or liability for the provision of electric services to the Land. 9.04 Water Quality Facilities and Services. The District may own and operate water quality facilities pursuant to the terms and conditions of this Agreement. 9.05 Greenbelts, Open Spaces, Non -City Parks and Recreation Facilities and Services. The District may own and operate greenbelt areas, open spaces, and parks and recreation facilities other than the Parkland and the Parkland Improvements, and similar areas and improvements that are not acquired by or transferred to the City pursuant to the terms of this Agreement, and may provide park and recreational services to residents of the District; provided however, that: (i) proceeds from Bond issuances may not be used to operate, maintain, repair or replace same; and (ii) ownership of any such greenbelt, park and recreational facilities must transfer to a POA on or prior to dissolution of the District by the City. The City agrees that the District may enter into a lease conveyance agreement with the POA pursuant to which the POA will operate the facilities on behalf of the District and pursuant to which ownership of the facilities shall automatically transfer to the POA upon dissolution of the District. 9.06 Garbage Services. Subject to the terms and conditions of Chapter 13.12 of the City's Code of Ordinances, garbage pick-up services shall be provided by the City's (W0794214.1 ]) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 26 of 66 solid waste services provider, and customers located on the Land shall be Tier I or in - City Customers, as set forth in the City's Code of Ordinances Section 13.04.180. 9.07 Police, Fire, and Emergency Medical Services. Police, fire, and emergency medical services to serve the Land will be provided by City on the same basis as those services are provided to similarly classified City residents and businesses. 9.08 Gas Services. The Developer shall be solely responsible for providing gas services to the Land. Nothing in this Agreement provides franchise rights to gas service providers or authorization to use City easements or rights of way for the provision of gas services to the Land, any gas service provider will have to comply with the City's applicable franchise ordinances to secure such rights. 9.09 Services Outside the District. The Developer and District shall not provide potable water, irrigation, wastewater, garbage, fire, police, and emergency medical or other services outside the boundaries of the District. 9.10 Ownership and Conveyance of District Facilities and Lands. In the event the District acquires ownership of any facilities or lands, the District shall provide for ownership thereof to convey to a POA on or prior to dissolution of the District. ARTICLE X ADDITIONAL CONDITIONS OF WATER SERVICE 10.01 On -Site Water Improvements. Developer shall, at no cost to the City, design and construct the On -Site Water Improvements in accordance with the Governing Regulations. In addition, Developer shall design and construct, at no cost to the City, any and all other water improvements necessary if fire flow greater than ONE THOUSAND FIVE HUNDRED (1,500) gallons per minute (gpm) is required by the applicable provisions of the Governing Regulations. 10.02 Master -Planned Elevated Water Storage Tank Contribution. Owner and Developer agree that, as a condition of approval by the City of the first preliminary plat for all or any part of the Land, Owner or Developer shall pay, or cause to be paid, to the City the Master -Planned Elevated Water Storage Tank Contribution. The Master -Planned Elevated Water Storage Tank Contribution must be paid as a lump sum and must be received and confirmed as on deposit in readily available funds to the City. 10.03 City Obligations. After receipt of the Master -Planned Elevated Water Storage Tank Contribution, and completion of construction by Developer of the (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 27 of 66 On -Site Water Improvements and acceptance of same by the City for operation and maintenance as evidenced by the City's issuance of a Letter of Acceptance, and after payment of water impact fees by each applicant for service (or as otherwise provided herein with respect to any school lands), the City shall provide retail water services to the Land at a level not to exceed the Connection Limit, and provide fire flow to the Land not to exceed 1,500 gpm (defined in Section 10.01 of this Agreement) or, at the City's sole discretion, at such greater flow rate as may be desired if Developer funds and constructs all improvements necessary to provide greater flow. ARTICLE XI ADDITIONAL CONDITIONS OF WASTEWATER SERVICE 11.01 On -Site Wastewater Improvements. Developer shall, at no cost to the City, design and construct the On -Site Wastewater Improvements in accordance with the Governing Regulations. The Developer may construct the On -Site Wastewater Improvements in phases as allowed by the Governing Regulations. 11.02 Developer's BCI Spur Contribution — Payment and Fiscal Security. Owner and Developer agree that, as a condition of approval by the City of the first final plat for any portion of the Land having Connections that would use the BCI Spur for wastewater service as determined by the City during design, Owner or Developer shall pay, or cause to be paid, to the City the Developer's BCI Spur Contribution. The requirement to pay the Developer's BCI Spur Contribution shall be in addition to the requirement for Developer to post fiscal security under the UDC for the portion of the BCI Spur being final platted by Developer, and Developer shall also comply with the security requirements set forth in the UDC. 11.03 Developer's BCI Contribution - Payment. Developer shall pay, or cause to be paid, the Developer's SCI Contribution as set forth in this Section. Developer shall pay, or cause to be paid, the Developer's BCI Contribution (i) on a per Connection basis in the amount of TWO THOUSAND SIX HUNDRED SEVENTY SEVEN U.S. DOLLARS ($2,677.00 received from the first SEVEN HUNDRED FIFTY (750) Connections on the Land (the "Developer's BCI Corzf jbytion Per Connection Fee") and paid to the City at the time of building permit issuance, and/or (ii) in a lump sum upon the issuance of a building permit for the seven hundred and fiftieth (750th) Dwelling Unit (less the amount of Developer's BCI Contribution Per Connection Fees actually received by the City up to and including the 750th building permit issued on the Land. 11.04 Developer's BCI Contribution - Financial Security. (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 28 of 66 (a) General. To secure its obligations under this Agreement and to fund Developer's BCI Contribution, Developer shall cause to be issued, at no cost to the City, the Developer's BCI Financial Security. The Developer's BCI Financial Security shall be made to the City in immediately available funds in a form acceptable to the City. The issuer of the Developer's BCI Financial Security shall have an A.M. Best's rating of no less than A:VII. The Developer's BCI Financial Security must be received by the City on or before the Developer's BCI Financial Security Deadline. (b) Request for Reduction of Developer's BCI Financial Security. No more frequently than annually, after calculation of the Developer's BCI Contribution Payment as of the end of the preceding City fiscal year under Section 11.03 of this Agreement, Developer may request reduction in the amount of the BCI Financial Security in an amount not to exceed the total Developer's BCI Contribution payment(s) received by the City during the preceding City fiscal year. 11.05 City Obligations. After receipt of the Developer's BCI Fiscal Security, payment of the portion of the Developer's BCI Contribution Fees due when and as required by Section 11.03 of this Agreement, and after construction of the On - Site Wastewater Improvements necessary for each final plat of the Land and acceptance of same by the City for operation and maintenance as evidenced by the City's issuance of Letter(s) of Acceptance, and after receipt of payment of all applicable wastewater impact fees and other fees from each applicant for service for that portion of the Land shown on each final plat, the City shall provide retail wastewater services to the individual applicants for service within the portion of the Land being final platted in accordance with the terms and conditions of this Agreement and the Parkland Improvements Agreement. The total wastewater service furnished by the City within the Land shall not exceed the Connection Limit. 11.06 Temporary Wastewater Facilities. (a) Construction. If Developer submits an application for a final plat for any portion of the Land prior to construction and acceptance by the City of the BCI and the BCI Spur, Developer shall, prior to final plat recordation, construct, or cause to be constructed, in accordance with the Governing Regulations and this Agreement, the Temporary Wastewater Facilities. The Temporary Wastewater Facilities shall be constructed to the same standards applicable to permanent wastewater facilities. On completion of construction of the Temporary Wastewater Facilities and acceptance of same by the City, the City will own, operate, and maintain the Temporary Wastewater Facilities; provided, however, that Developer must pay all cost and expenses associated with decommissioning the Temporary Wastewater Facilities. (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 29 of 66 (b) Cost of Decommissioning (1) To secure the Developer's obligation to pay all costs and expenses associated with decommissioning of the Temporary Wastewater Facilities, within ten (10) days after the City's acceptance of the Temporary Wastewater Facilities Developer shall remit to the City $25,000 in cash via wire transfer (in accordance with wiring instructions to be provided by the City) for each temporary lift station ("Escrowed Amount"), which is 125% of the engineer's estimated cost for decommissioning and removal from service of the Temporary Force Main by abandonment in place and complete removal of one Temporary Lift Station. If two (2) Temporary Lift Stations are constructed, then Developer shall remit to the City an additional $25,000 in cash via wire transfer (in accordance with wiring instructions to be provided by the City) for the second Temporary Lift Station. The City agrees to deposit the Escrowed Amount(s) into escrow and maintain the Escrowed Amount(s) until the City confirms in writing that the Temporary Wastewater Facilities all have been decommissioned in accordance with all Applicable Laws. (2) Developer agrees that the City will not allow reductions of the Escrowed Amount(s) prior to the City's written acceptance of the decommissioning of all Temporary Wastewater Facilities and such written acceptance shall not be unreasonably withheld by the City. (3) If at any time during the decommissioning work, the actual decommissioning costs exceed or are expected by the City to exceed the Escrowed Amount(s), the City shall so advise Developer in writing, and Developer shall remit, within thirty (30) days of the Developer's receipt of the Notice, the required additional amount of cash for escrow. City agrees that it shall, not later than sixty (60) days after final decommissioning of the last of the Temporary Wastewater Facilities, release the Escrowed Amount(s) or unused proceeds drawn therefrom. Developer agrees that until the City releases the Escrowed Amount(s) or unused proceeds, Developer shall have no claim or rights to the Escrowed Amount(s) or to any accrued interest earned on the funds. (W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 30 of 66 ARTICLE XII LAND USE AND DEVELOPMENT STANDARDS; FIRE STATION SITE 12.01 Concept Plan. The City hereby approves the Concept Plan attached hereto as Exhibit B. All development on the Land shall comply with the Concept Plan, the Governing Regulations, and the terms and conditions of this Agreement. 12.02 Modifications to Concept Plan. Before the effective date of any City zoning ordinance for all or any part of the Land, modifications or amendments to the Concept Plan shall be processed as amendments to this Agreement. Except as otherwise provided in this Section, after the effective date of any City zoning ordinance for all or any part of the Land, modifications or amendments to the Concept Plan shall be processed in accordance with pertinent provisions of UDC pertaining to Zoning Map Amendments. Notwithstanding the foregoing, the following modifications or amendments to the Concept Plan shall not be effective unless and until approved by the City Council: (a) Any modification that would be a "Major Modification" under the PUD Ordinance; (b) Modifications or amendments increasing the number of Dwelling Units on the Land to more than one thousand five hundred (1,500) units; (c) Modifications or amendments reducing the size of the Parkland or the Trailhead Parking Lot described in Article XIII of this Agreement; (d) Modifications or amendments to the vehicular (streets) and pedestrian (trials) connectivity points shown on the Concept Plan; (e) Modifications or amendments to the Transportation Improvements described in Article XIV of this Agreement; or (f) Increases the water or wastewater Connection Limit. 12.03 Fire Station Site. As a condition of final plat approval for any plat containing the Fire Station Site (defined herein), but in no event by deed recorded later than simultaneously with the recordation of the final plat containing the portion of Shell Spur Road providing access to the Fire Station Site is approved by the City, Owner or Developer shall convey to the City a 2.50 acre tract of land ("Fire Station Site"), in the location generally shown on the Concept Plan and situated so as to have direct, unshared access to Shell Spur Road and through a break in the raised medium in a (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 31 of 66 design reviewed and accepted by the City. Owner and Developer shall also construct, or cause to be constructed, a public sidewalk along the entire length of the frontage of the Fire State Site no later than at the time of construction of the ultimate cross-section of the adjacent public street. Owner and Developer agree to convey the Fire Station Site to the City at no cost and agree that conveyance will be by special warranty deed, free of all liens and encumbrances, and accompanied by a title commitment having only those standard pre-printed exceptions that are part of the promulgated form of Texas title insurance policies and exceptions acceptable to the City Attorney, in the City Attorney's sole discretion. The recording costs and preparation of conveyance documents and the title commitment and policy required by this Section shall be at no cost to the City, such costs being the responsibility of Owner and Developer. ARTICLE XIII PUBLIC PARKLAND, DEVELOPER'S PREPAID PARK FEES; TRAILHEAD REQUIREMENTS; AND PRIVATE AMENITIES 13.01 Parkland (a) Size and Location. Developer shall dedicate and develop twenty (20) acres out of the Land as a public park, which shall be out of that portion of the Land having future direct access on to Shell Spur Road (as required by Article XIII of this Agreement), which location is generally shown on the Concept Plan (the "Parkland"). (b) Parkland Documentation. On or before the date that is ninety (90) days after the date of the City's Notice accepting the Parkland Improvements for ownership and maintenance (the "Parkland Notice"), Developer shall, at no cost to the City, provide to the City the following documents: draft form of special warranty deed; legal description (metes and bounds or platted lot) of the proposed Parkland prepared by a licensed surveyor registered to practice in the State of Texas; map or sketch of the proposed Parkland prepared by a licensed surveyor registered to practice in the State of Texas; draft title commitment conforming to the provisions of Section 15.03 of this Agreement; and drafts of all documents required by the title company and the City necessary to convey title to the City at closing free of liens and encumbrances (collectively, the "Parkland DocumeWation"). The City will review the Parkland Documentation and provide comments on same to Developer. Developer shall revise and resubmit the Parkland Documentation, making such revisions as necessary to conform to the City's comments on same not later than thirty (30) days from the date of receipt of the City's comments. This process shall continue until the City approves the Parkland Documentation, in its sole discretion. Access to and from the Parkland and thence via Required Easement along Shell Spur Road to the boundary of the City's future Westside Park must be provided. Closing on the Parkland shall occur not later than thirty {W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 32 of 66 (30) days after the City's written acceptance of the Parkland Improvements for ownership and maintenance. Prior to the closing, and after the closing by a property owners' association if pursuant to a separate agreement approved by the City Council, a property owners' association shall maintain the Parkland and Parkland Improvements, provided that any such maintenance shall be to standards at least as stringent as the City's maintenance standards for similar parkland and parkland improvements. (c) Title Commitment/Insurance. Developer shall, at no cost to the City, obtain title commitment(s) and title insurance polic(ies) in favor of the City for the Parkland, with the title polic(ies) having only those standard, pre-printed exceptions that are part of the promulgated form of Texas title insurance policy and exceptions acceptable to the City Attorney, in the City Attorney's sole discretion. To the extent any person has granted a lien or other encumbrance on all or any portion of the land upon which the above -referenced improvements will be constructed or which will be used for permanent access prior to the date the Parkland deed related thereto is recorded, Developer shall cause the holder of such lien or encumbrance to execute such instruments as the City Attorney and title company may require to evidence the fact that the lien or other encumbrance has been subordinated by the holder in favor of the City. (d) Form of Deed. The Parkland must be conveyed to the City via special warranty deed that is acceptable in form and substance to the City Attorney. (e) Costs. The recording costs and preparation of the Parkland Documentation shall be at no cost to the City, such costs being the responsibility of Developer. Developer shall pay all property taxes, liens, and closing costs so that the City takes the Parkland free of all taxes and liens (including any rollback taxes). (f) Recording. No Parkland deed may be recorded in the Official Public Records of Williamson County, Texas unless and until the City Attorney has approved the instrument as to form, as evidenced by the City Attorney's signature on the instrument. Developer shall pay all recording costs. (g) Parkland Trail and Internal Trails. (1) Requirement to Construct. Developer shall construct the Parkland Trail and the Internal Trails connecting with the Parkland Trail in accordance with this Agreement. (2) Parkland_ Trail Specifications. The Parkland Trail must be ten feet (10') wide and made of concrete and conform to the Parkland Trail Specifications. Developer shall deliver drafts of the Parkland Trail (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 33 of 66 Approved Plans to the City simultaneously with the submittal of the Parkland Improvements Plans (in accordance with the Parkland Improvements Agreement), but no later than the date that is six (6) months prior to the Parkland Improvements Completion Deadline. The City shall provide comments on the original draft and any subsequent drafts within twenty (20) business days of receipt by the City of same. In the event that the City fails to respond to within that twenty (20) business day timeframe, consent by the City shall be deemed, implied, and presumed. The City shall promptly provide comments on the original draft and any subsequent drafts after receipt thereof. If the City disapproves any drafts, the foregoing process shall be repeated until the Parkland Trail Approved Plans are approved. (3) Parkland Trail Location. Developer shall construct the Parkland Trail so that it commences at the Trailhead Parking Lot, loops through the Parkland, and continues, to a point of connection with the planned trail in the City's Westside Park, as generally shown on the Concept Plan. Developer shall convey, or cause Owner to convey, all of the land or easements necessary to construct the entire length of the Parkland Trail to the City, at no cost to the City, not later than the Parkland Improvements Deadline, via either (x) general warranty deed; or (y) exclusive, permanent, perpetual easement, and that deed or easement must be free of all liens and encumbrances, accompanied by a title commitment having only those standard pre-printed exceptions that are part of the promulgated form of Texas title insurance policies and exceptions acceptable to the City Attorney, in the City Attorney's sole discretion. The recording costs and preparation of conveyance documents and the title commitment and policy required by this Section shall be at no cost to the City, such costs being the responsibility of Developer. (4) Internal Trails. Developer shall construct Internal Trails on the Land in the general locations shown on the Concept Plan. The Internal Trails may vary in width and materials. The Internal Trails shall be conveyed to the District or POA for ownership, operation, maintenance, repair, and replacement, subject to the terms and conditions of this Agreement and the Governing Regulations, including but not limited to prohibitions against use of District bond { W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 34 of 66 proceeds for ongoing operation, maintenance, repair and replacement. (5) Timetable for Construction. The Parkland Trail and the respective connecting Internal Trails may be constructed in the phases if and as allowed under the PUD Ordinance. Notwithstanding the foregoing, the City agrees that Developer shall not be obligated to construct Parkland Trail and the respective connecting Internal Trails on any lands other than the Land. After issuance by the City of a Letter of Acceptance for the final section of the Parkland Trail required by this Agreement to be constructed on the Parkland, the City shall own the Parkland Trail; prior to such time, the Parkland Trail shall be owned and maintained by Developer, the District or the POA. (6) Additional Desi n and Signage Requirements. Developer shall register the Parkland Trail and trailheads with the Texas Department of Licensing and Regulation (TDLR) and designed and constructed to meet the requirements of the Texas Accessibility Standards (TAS). Trailhead signage acceptable to the City must be provided by Developer at no cost to the City and installed not later than the date of recordation of a final plat containing a trailhead is recorded in the Official Public Records of Williamson County. (7) Parkland Trail Access Easement. Developer shall grant to the City, at no cost to the City, one or more permanent and/or temporary easements on the Land in locations acceptable to the City's Director of Parks and Recreation for the purpose of allowing the City access to Parkland Trail, if necessary and as determined by the City, from a public roadway for the purpose of operation, maintenance, repair and replacement of Parkland Trail, including but not limited to access by City personnel and their authorized agents, vehicles and other heavy equipment, and equipment storage and material stockpiling. The easement location(s) may change as the Land is final platted, provided that the replacement easement location also conforms to the requirements of this Section. (h) Trailhead Parking Lot. Developer shall construct, or cause to be constructed, the Trailhead Parking Lot. Developer shall complete construction of, or cause completion of construction of, the public Trailhead Parking Lot not later than the Parkland Improvement Completion Deadline (as that term is defined in the Parkland Improvement Agreement). On completion of construction and after issuance of a Letter { W0794214.1 I) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 35 of 66 of Acceptance for the Trailhead Parking Lot, the City shall own and maintain the Trailhead Parking Lot. 13.02 Parkland Improvements. Developer shall construct, or cause to be constructed, all Parkland Improvements on or before the Parkland Improvement Completion Deadline pursuant to the Parkland Improvements Agreement. Developer's expenditure for construction of the Parkland Improvements shall not be less than the Developer's Park Fees amount. 13.03 Private Amenity Center. Developer agrees to construct, or cause to be constructed, the Private Amenity Center located on 3.0 acres within the Land as shown on the Concept Plan. The private amenity center shall include a clubhouse that has restrooms and showers as well as approximately 500 square feet of meeting space, a pavilion with picnic tables and chairs, a covered grill area, lounge chairs, a swimming pool, a children's play area, at least seven (7) parking spaces in the front of the private amenity center and thirty-eight (38) spaces parking spaces adjacent to the clubhouse. Additionally, the private amenity center site shall include a soccer field, a basketball court, and other playing fields located outside the fence around the amenity center. Developer agrees to commence construction of the private amenity center and fields and courts on the private amenity center site not later than the date that a certificate of occupancy (or the equivalent thereof) is issued by the City for the two hundred fiftieth (25011) single-family residential home on the Land, and to complete construction within eighteen (18) months thereafter. ARTICLE XIV TRANSPORTATION IMPROVEMENTS 14.01 Bridge Responsibilities. The City agrees that the future bridge shown in the City's current Overall Transportation Plan ("OTP") as being south of the Land and adjoining the Land and Westside Park is not part of Developer's offsite Transportation Improvements; and the City agrees that neither the Developer nor the District is obligated contribute any funds toward the design or construction of the bridge. 14.02 SH 195/Shell Spur Road Intersection. (a) Developer Responsibilities. Developer shall, at no cost to the City, construct, or cause to be constructed, the SH 195/Shell Spur Road Intersection in accordance with the Governing Regulations. Developer's obligations include, without limitation, acquisition of right-of-way for the SH 195/Shell Spur Road Intersection; design of the SH 195/Shell Spur Road Intersection in conformance with TxDOT requirements {W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 36 of 66 and agreements and the Governing Regulations; securing TxDOT approval(s) for the design, plans, and specifications of the SH 195/Shell Spur Road Intersection; paying all SH 195/Shell Spur Road Intersection Costs and all amounts due to TxDOT when and as required by the Governing Regulations; complying, or causing compliance, with all applicable Governing Regulations relating to the SH 195/Shell Spur Road Intersection; and providing the SH 195/Shell Spur Road Intersection Signalization Fiscal Security in the Initial Payment Amount and the Adjusted Payment Amount when and as required under this Agreement, and maintaining the Shell Spur Road Intersection Signalization Fiscal Security in continuous force and effect, until the City approves release or reduction of it in writing as further provided in this section. (b) SH 195/Shell Spur Road Intersection Signalization Fiscal Security - Initial Payment Amount. Developer shall provide the SH 195/Shell Spur Road Intersection Signalization Fiscal Security when required by Section 3.05 of this Agreement. The SH 195/Shell Spur Road Intersection Signalization Fiscal Security must meet the requirements of Section 2.01(mmm) of this Agreement as to form and substance, and must have a payment amount of FOUR HUNDRED THOUSAND U.S. DOLLARS ($400,000) (the "Initial Payment Amount"). (c) SH 195/Shell Spur Road Intersection Signalization Fiscal Security - Adjusted Payment Amount. If at any time(s) during the term of this Agreement a Warrant Study indicates that traffic signal(s) are warranted at the SH 195/Shell Spur Road Intersection, Developer and TxDOT or the City (whichever of TxDOT or the City has jurisdiction over the SH 195/Shell Spur Road Intersection) shall update, or cause to be updated, the estimated cost of the traffic signal improvements to be constructed at the SH 195/Shell Spur Road Intersection as a result of the Warrant Study(ies). Thereafter, Developer shall provide, or cause to be provided, an SH 195/Shell Spur Road Intersection Signalization Fiscal Security having a payment amount equal to the Adjusted Payment Amount when and as required by this subsection. For the purposes of this Agreement, the term "Adjusted Pa ent Amount" means the amount that is ONE HUNDRED TWENTY-FIVE PERCENT (125%) of the then most current engineered cost estimate for the traffic signal(s) to be installed at the SH 195/Shell Spur Road Intersection as indicated in a Warrant Study. If the Adjusted Payment Amount is greater than the Initial Payment Amount (defined in Section 14.02(b) of this Agreement), Developer shall within thirty (30) days after receipt of Notice of the Adjusted Payment Amount, provide an amended or substituted SH 195/Shell Spur Road Intersection Signalization Fiscal Security in favor of the City with a payment amount equal to the Adjusted Payment Amount. If the Adjusted Payment Amount is less than the Initial Payment Amount, the City shall consent to a partial reduction of the payment amount to an amount that is equal to the Adjusted Payment Amount. {W0794214.1I) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 37 of 66 (d) Disposition of the SH 195/Shell Spur Road Intersection Signalization Fiscal Security. (1) Developer acknowledges and agrees that it is likely that the traffic signalization improvements at the SH 195/Shell Spur Road Intersection will be constructed after the roadway portion of the SH 195/Shell Spur Road Intersection, and that Developer is responsible for funding the cost of constructing the traffic signalization improvements at the SH 195/Shell Spur Road Intersection. The Parties acknowledge and agree that either the City or the Developer may construct the traffic signalization improvements at the SH 195/Shell Spur Road Intersection. (2) If the traffic signalization improvements at the SH 195/Shell Spur Road Intersection are to be constructed by the Developer, then after receipt by the City of: (1) a Warrant Study confirming that construction of traffic signalization improvements at the SH 195/Shell Spur Road Intersection are "warranted"; (2) an engineer's cost estimate for design and construction of traffic signalization improvements at the SH 195/Shell Spur Road Intersection approved by the City; and (3) documentation that (x) TxDOT and the Developer have entered into a contract pursuant to which Developer will design and construct the traffic signalization improvements at the SH 195/Shell Spur Road Intersection; and (y) Developer has deposited with TxDOT all funds required under the contract, then the City shall release the SH 195/Shell Spur Road Intersection Signalization Fiscal Security to Developer. (3) If the traffic signalization improvements at the SH 195/Shell Spur Road Intersection are to be constructed by the City, then the City shall have the right to use and/or draw on the SH 195/Shell Spur Road Intersection Traffic Signalization Fiscal Security for the purposes of designing and constructing the traffic signalization improvements, and Developer shall have no further rights thereto. 14.03 Shell Spur Road. (a) Shell Spur Road Right of Way. Developer shall, at no cost to the City, obtain and transfer to the City a strip of land that is ninety-four feet (94') wide and approximately five thousand seven hundred linear feet (5,700') long for right of way purposes for Shell Spur Road. Developer acknowledges that a portion of the land (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 38 of 66 required for the construction of Shell Spur Road is located within the boundaries of the Land (the "air -Site Portion of Shell S. ))yr Road ROW'), ), and a portion is located outside the boundaries of the Land (the "Off-site Portion of Shell Spyr Road ROW'). Developer understands and agrees that its acquisition of the Off -Site Portion of Shell Spur Road ROW is a condition precedent to the effectiveness of this Agreement, per the terms and conditions set forth in Article III of this Agreement. Developer and the City agree that Developer can convey the On -Site Portion of Shell Spur ROW to the City with each final plat containing all or a portion of the On -Site Portion of Shell Spur Road. (b) Design of Shell Spur Road. Developer agrees to fund 100% of the design cost of Shell Spur Road (full cross section as a Major Collector) at no cost to the City. (c) Construction of Shell Spur Road. Developer shall fund 100% of the construction costs for Phases 1, 2 and 3 of Shell Spur Road without any right to reimbursement from the City, and shall construct Phase 4 of Shell Spur Road under the terms and conditions of this Agreement subject to a right of reimbursement from the City as more fully set forth in Sections 14.03(d)( -(f) of this Agreement. Shell Spur Road may be constructed in phases as described below: (1) Phase 1 — Developer shall construct, or cause to be constructed, in accordance with the Governing Regulations and this Agreement, the following two roadway segments as part of Phase 1: i. SEGMENT 1/PHASE 1: that portion of Shell Spur Road consisting of a four (4) lane roadway commencing at the SH 195/Shell Spur Road Intersection on the Off -Site Portion of Shell Spur Road and continuing westward across on the Land to the western -most boundary of the Fire Station Site, where SEGMENT 1/PHASE 1 transitions to a two (2) lane roadway and continues westward across the Land to its intersection with a Neighborhood Collector; and ii. SEGMENT 2/PHASE 1: an extension of the existing Cowboy Canyon Drive consisting of a two (2) lane roadway commencing at the existing terminus of Cowboy Canyon Drive located in Sun City (Neighborhood 86), extending south into the Land, and intersecting with Shell Spur Road at the approximate point shown on the Shell Spur Road Phasing Plan. {W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 39 of 66 Developer shall complete, or cause completion of, construction of both Segment 1/Phase 1 and Segment 2/Phase 1 and cause acceptance of all of Phase 1 by the City for operation and maintenance to occur on or before, and as a condition of, the City's recordation of any final plat, or combination of final plats, that contains, or collectively will contain, more than thirty (30) residential lots, or includes any part of the Land containing the Fire Station Site, Parcel 2, Parcel 3, Parcel 4, and Parcel 5, as the Fire Station Site and those Parcels are identified on the Shell Spur Road Phasing Plan. After completion of construction and final acceptance by the City, Segment 1/Phase 1 and Segment 2/Phase 1 roadways shall be transferred to the City for operation and maintenance. (2) Phase 2 — After the City's final acceptance of Phase 1 (described above) for ownership, operation and maintenance, Developer shall construct, or cause to be constructed, in accordance with the Governing Regulations and this Agreement, Phase 2, which is the two (2) lane portion of Shell Spur Road commencing at the end of Phase 1 (i.e., at the intersection of Shell Spur Road and the Neighborhood Collector in the general location shown on the Shell Spur Road Phasing Plan) consisting of a two (2) lane roadway, continuing the Private Amenity Center, and ending in front of the Parkland and the Trailhead Parking Lot, providing adequate street frontage for access to the Parkland and the Trailhead Parking Lot, with a turnaround that meets the City's then -current standard. Developer shall complete, or cause completion of, construction of Phase 2 of Shell Spur Road and acceptance by the City of Phase 2 for operation and maintenance on or before, and as a condition of, recordation of any final plat that includes any part of the Land containing the following: the Private Amenity Center, Parcel 1, any portion of Parcel 2 that abuts Phase 2, Parcel 11 and/or Parcel 12 of the Land, as the Private Amenity Center and those Parcels are identified on the Shell Spur Phasing Plan (collectively, the Phase 2 Parcels"). Developer may construct Phase 2 in subsections corresponding to the final plat(s) for any portion of the Land within the Phase 2 Parcels. After completion of construction and final acceptance by the City, Phase 2 of Shell Spur Road shall be transferred to the City for operation and maintenance. (W0794214.111 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 40 of 66 (3) Phase 3 — After the City's final acceptance of Phase 1 (described above) for ownership, operation and maintenance, or concurrently with the construction of Phase 1, Developer shall construct, or cause to be constructed, in accordance with the Governing Regulations and this Agreement, two (2) lanes of Shell Spur Road commencing at the western boundary of the Fire Station Site and at the terminus of the Yd and 41h lanes of Shell Spur Road constructed as part of Phase 1 in an manner that continues the two (2) lanes of Shell Spur Road and continuing westward to the intersection with the Neighborhood Collector and paralleling that two (2) -lane portion of Shell Spur Road constructed during Phase 1 as generally shown on the Shell Spur Road Phasing Plan. Developer shall complete, or cause completion of, construction of Phase 3 of Shell Spur Road and acceptance by the City of Phase 3 for operation and maintenance prior to the recordation of any final plat for the Land that includes the 3001h single-family residential lot on the Land. After completion of construction and final acceptance by the City, Phase 3 of Shell Spur Road shall be transferred to the City for operation and maintenance (4) Phase 4 — Developer shall construct, or cause to be constructed, in accordance with the Governing Regulations and this Agreement, two lanes of Shell Spur Road alongside, immediately adjacent to, and paralleling Phase 2 of Shell Spur Road if the City issues Notice to the Developer that the City has funding available to reimburse Developer for the cost of constructing Phase 4 (the "City's Age 4 Funding Notice"). Developer shall have no duty to construct Phase 4 of Shell Spur Road if the City does not issue the City's Phase 4 Funding Notice. Developer may request a determination of the City's intent to issue the City's Phase 4 Funding Notice at any time, but the City shall have the right to issue the City's Phase 4 Funding Notice any time prior to the date that is thirty (30) days after the date that the City receives an application for the last final plat of any portion of Parcels 1, 2, 3, 4,10,11, and/or 12 the Land as those Parcels are shown on the Shell Spur Road Phasing Plan. The City's Phase 4 Funding Notice, if issued, shall include a schedule for the completion of construction by Developer of Phase 4, which shall not be earlier than completion of construction and final acceptance by the City of Phases 1, 2, or 3 of Shell Spur Road described in Subsections 14.03(a) through (c) of this Agreement. {W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 41 of 66 (d) City Contribution to Shell Spur Road. If the City issues the City's Phase 4 Funding Notice, the City shall reimburse the Developer for Eligible Reimbursement Costs up to, but not to exceed, the Maximum Reimbursement Amount. It is understood and agreed by the Parties that the City does not intend to issue the City's Phase 4 Funding Notice unless and until the City Council confirms that, based on a then - current engineer's estimate of construction costs, the City has sufficient funds available and budgeted to reimburse Developer for the estimated construction costs of constructing Phase 4 of Shell Spur Road. (e) Initial Payment and Right to Reimbursement for Eligible Reimbursement Costs. If the City issues the City's Phase 4 Funding Notice, Developer shall initially pay all costs associated with the design and construction of Phase 4 of Shell Spur Road. Developer shall make timely payment for all aspects of properly performed engineering, design, and construction work (including inspection fees) and for all materials and services related to Phase 4 of Shell Spur Road in accordance with the applicable contracts for such work. The City will reimburse Developer for only for those Eligible Reimbursement Costs directly related to construction of Phase 4 of Shell Spur Road but for no other Phases, up to the Maximum Reimbursement Amount and subject to Developer's compliance with the terms and conditions of this Agreement. The City will reimburse the Developer (i) after the City issues a letter of acceptance for any portion of Phase 4 of Shell Spur Road confirming that all final inspections have been performed and the City has accepted Phase 4 of Shell Spur Road for operation and maintenance, and (ii) after Developer provides the City with evidence that the general contractor and all subcontractors have been paid in full, including lien releases. In no event shall the amount of the cost reimbursement available to Developer exceed the Maximum Reimbursement Amount. Any costs related to on the construction of Phase 4 of Shell Spur Road in excess of the Maximum Reimbursement Amount shall be borne solely by the Developer. (f) Reimbursement Requests. Developer may make a request for reimbursement for Eligible Reimbursement Costs ("Reimbtirsenient Request") from the City for work completed on Phase 4 of Shell Spur Road as allowed by this Section. Developer shall not submit a Reimbursement Request more frequently than once every ninety (90) calendar days. In order to process reimbursement requests, Developer shall provide the City with information necessary to process a check request, including, but not limited to, a completed IRS Form W9 (Request for Taxpayer Identification Number and Certification) and the City's Vendor Application Form. Each Reimbursement Request shall be submitted to the City's Systems Engineering Director, and shall be accompanied by documentation which clearly describes the completed work on Phase 4 of Shell Spur Road for which reimbursement is sought, and evidence of payment or lien {W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 42 of 66 waivers for same from all contractors, subcontractors, and suppliers. The Reimbursement Request shall include all information and documents in Developer's possession or under its control as may be reasonably required by the City for proper review and processing of the Reimbursement Request, as well as an updated Engineer's Cost Estimate for the remaining work. The City shall promptly review each Reimbursement Request and respond to Developer within thirty (30) calendar days after receipt thereof. If the City determines that the Reimbursement Request correctly states the amount owing to Developer, the City shall respond by providing Developer with written notice of approval of the Reimbursement Request and shall remit the approved amount to Developer within thirty (30) calendar days after the date of the notice of approval. If the City determines that the Reimbursement Request does not correctly state the amount owing to Developer, the City shall provide a written notice of discrepancy to Developer, which notice shall include all supporting documentation upon which the notice of discrepancy is based. The City and Developer shall work diligently and in good faith to resolve the discrepancy. Either party may refer the matter to the City Manager for resolution of the dispute. Failure of the City to respond to a Reimbursement Request within thirty (30) calendar days shall not be construed as approval by the City of the Reimbursement Request. If the Developer is in default or not in compliance with any provision of this Agreement, the City shall have no obligation to process or pay any Reimbursement Request until the default is resolved. ARTICLE XV REQUIRED EASEMENTS AND SHELL SPUR ROAD DEED 15.01 Applicability. The provisions of this Article XV shall apply to all Required Easements and all Off -Site Required Easements. (a) Location Requirements. Any of the BCI, BCI Spur, Parkland Trail, and Internal Facilities that are not located with prior City approval within the boundaries of City -owned land or right-of-way must be constructed within permanent, exclusive, purpose -specific (e.g., water, wastewater, electric, parkland) easements having permanent access from a public road or from an access easement in favor of the City. 15.02 Delivery of Easement Documentation. Unless a different date is included in this Agreement for a specific easement, at least ninety (90) days prior to the deadline for conveying a Required Easement, Developer shall, at no cost to the City, provide to the City the Easement Documentation. 15.03 Title Commitment/Insurance — Required Easements. Developer shall, at no cost to the City, obtain title commitment(s) and title insurance polic(ies) in { W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 43 of 66 favor of the City for all Required Easements with the title polic(ies) having only those standard, pre-printed exceptions that are reasonably acceptable to the City Attorney. To the extent any person has granted a lien or other encumbrance on all or any portion of the land upon which the above -referenced improvements will be constructed or which will be used for permanent access prior to the date the Required Easement is recorded, Developer shall cause the holder of such lien or encumbrance to execute such instruments as the City Attorney and title company may require to evidence the fact that the lien or other encumbrance has been subordinated by the holder in favor of the City. 15.04 Form of Easement. All Required Easements must be reasonably acceptable in form and substance to the City Attorney. 15.05 Costs. The recording costs and preparation of the Easement Documents shall be at no cost to the City, such costs being the responsibility of Developer. Developer shall pay all pre- and post -closing property taxes, liens, and all closing costs so that the City takes all Required Easements free of all taxes and liens (including any rollback taxes). 15.06 Recording. No Required Easement may be recorded in the Official Public Records of Williamson County, Texas unless and until the City Attorney has approved the easement as to form, as evidenced by the City Attorney's signature on the easement instrument. Developer shall pay all recording costs. 15.07 Shell Spur Road Documentation. As a condition of the City's final acceptance of any portion of Shell Spur Road for ownership and maintenance, and, as to the Off -Site Portion of Shell Spur Road, prior to the deadline set forth in Section 3.03 of this Agreement, Developer shall, at no cost to the City, provide to the City the following documents: draft form of special warranty deed; legal description (metes and bounds or platted ROW) of the proposed Shell Spur Road (both the On -Site portion of Shell Spur Road and the Off -Site Portion of Shell Spur Road) prepared by a licensed surveyor registered to practice in the State of Texas; map or sketch of the proposed Shell Spur Road prepared by a licensed surveyor registered to practice in the State of Texas; draft title commitment conforming to the provisions of Section 15.08 of this Agreement; drafts of all documents required by the title company and the City necessary to convey title to the City at closing free of liens and encumbrances; and all Easement Documentation related to the Shell Spur Road (e.g., without limitation, access easements for the Shell Spur Road) (collectively, the "Shell Spar r Road Documentation"). The City will review the Easement Documentation and Shell Spur Road Documentation and provide comments on same to Developer. Developer shall revise and resubmit the Easement Documentation and/or Shell Spur Road Documentation, as applicable, (W0794214.111 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 44 of 66 making such revisions as necessary to conform to the City's comments on same not later than thirty (30) days from the date of receipt of the City's comments. This process shall continue until the City approves the Easement Documentation and/or Shell Spur Road Documentation, in its sole discretion. Access to the Shell Spur Road from SH 195 must be provided. Closing on the Required Easements and/or Shell Spur Road shall occur not later than thirty (30) days after the City's final approval of all Easement Documentation and/or Shell Spur Road Documentation. 15.08 Title Commitment/Insurance — Shell Spur Road Related Easements. Developer shall, at no cost to the City, obtain title commitment(s) and title insurance polic(ies) in favor of the City for the Shell Spur Road and any Required Easements associated therewith, with the title polic(ies) having only those standard, pre-printed exceptions that are part of the promulgated form of Texas title insurance policy and exceptions acceptable to the City Attorney, in the City Attorney's sole discretion. To the extent any person has granted a lien or other encumbrance on all or any portion of the land upon which the above -referenced improvements will be constructed or which will be used for permanent access prior to the date the Shell Spur Road Deed or a Required Easement related thereto is recorded, Developer shall cause the holder of such lien or encumbrance to execute such instruments as the City Attorney and title company may require to evidence the fact that the lien or other encumbrance has been subordinated by the holder in favor of the City. 15.09 Form of Deed. The Shell Spur Road must be conveyed to the City via special warranty deed that is acceptable in form and substance to the City Attorney. The form and substance of all Required Easements related to the Shell Spur Road must be acceptable in form and substance to the City Attorney. 15.10 Costs. The recording costs and preparation of the Shell Spur Road Documentation and Easement Documentation shall be at no cost to the City, such costs being the responsibility of Developer. Developer shall pay all property taxes, liens, and closing costs so that the City takes the Shell Spur Road and all related Required Easements free of all taxes and liens (including any rollback taxes). 15.11 Recording. No Shell Spur Road deed or related Required Easement may be recorded in the Official Public Records of Williamson County, Texas unless and until the City Attorney has approved the instrument as to form, as evidenced by the City Attorney's signature on the instrument. Developer shall pay all recording costs. (W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 45 of 66 ARTICLE XVI IMPACT FEES 16.01 Impact Fee Assessment and Payment. (a) General. Except as otherwise provided in Section 16.01(b) of this Agreement, all Impact Fees for each wastewater and water service Connection on the Land will be assessed by the City based on the Impact Fees in effect at the time of final approval by the City of the final subdivision plat for the portion of the Land that includes that Connection. Developer shall pay, or cause to be paid, the applicable Impact Fees at the time of application for a building permit. (b) Impact Fees for School Tract/Connections. All Impact Fees for each wastewater and water service Connection associated with any school constructed or to be constructed on the Land will be assessed by the City based on the Impact Fees in effect at the time of final approval by the City of the final subdivision plat for the portion of the Land that includes Connection(s) for a school. Developer shall pay or cause to be paid all impact fees for any school placed or to be placed on the Land prior to and as a condition of any final plat that contains a lot(s) for a school site. 16.02 Capacity Interest. (a) Upon completion of the Off -Site Public Improvements, On -Site Wastewater Improvements, and On -Site Water Improvements, and payment of the applicable Impact Fee, the City agrees to guarantee capacity in the City's wastewater utility system or water service system, as applicable, in an amount equal to the number of water service Connections for which Water Impact Fees have been paid or the amount equal to the number of wastewater service Connections for which Wastewater Impact Fees have been paid, as applicable, up to the Connection Limit, provided, however, that: (1) Service is available only upon payment of impact fees and the City's approval of the final plat or plats of the Land and the recording of same in the final plat records of Williamson County in accordance with the requirements of the UDC; (2) This Agreement in no way obligates the City to approve service extension requests not conforming to the requirements of the City's ordinances nor otherwise binds the governmental powers of the City with respect to the approval or denial of the same; provided, however that so long as the terms of this Agreement are satisfied, the (W0794214.11 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 46 of 66 City agrees to not unreasonably withhold, condition, or delay its approval of any service extension request; (3) This Agreement does not exempt Developer from the requirements of any provisions of the Governing Regulations applicable to development within the Land covered by the service extension requests; (4) This Agreement does not guarantee approval of the final plat or plats of the Land or the approval of any other applications or permits related to the Land; (5) This Agreement will not be construed to create or confer upon Developer 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 a City Improvement, after final acceptance by the City of a City Improvement; and (6) The City can use the capacity in the City Improvements as long as it does not damage or decrease the Developer's capacity interest. (b) Except as provided in Section 16.02(a) above, nothing in this Agreement shall be construed as reserving capacity for the Developer or District in the City Improvements, any existing City wastewater collection and treatment facilities, any existing City water distribution or treatment facilities, or any future City water or wastewater facilities constructed by third parties prior to the payment of the applicable Impact Fees. (c) Any conveyance or transfer of City Improvements to the City by Developer under this Agreement shall not affect Developer's right to seek reimbursement from the District for the cost of the City Improvements and Developer Improvements constructed or financed by Developer, or the District's right to effect such reimbursement. Developer's capacity interest and contract rights may be conveyed to the District as consideration for the receipt of proceeds from bonds issued by the District to reimburse costs and expenses funded by Developer under this Agreement. 16.03 Other Development and Utility Fees. Developer shall pay or cause to be paid the City's usual and customary utility connection fees (e.g., water and wastewater meter connect fees and engineering and inspection fee) for all Connections within the Land. {W0794214.11 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 47 of 66 ARTICLE XVII AUTHORITY. 17.01 This Agreement is entered into under the statutory authority of Section 54.016 of the Texas Water Code and other laws of the State of Texas. ARTICLE XVIII TERM, ASSIGNMENT AND REMEDIES 18.01 Term. This Agreement shall be effective from the Effective Date and shall continue in effect until the District is dissolved, and its obligations are fully assumed by the City or a property owners association, at the City's sole election, or until terminated in writing by mutual agreement of the City and the District. This Agreement shall be recorded in the Official Records of Williamson County and shall run with the Land. 18.02 Assignment and Delegation. No Party may assign any of its rights under this Agreement, either voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, except with the prior written consent of the other Parties. Any purported assignment of rights or delegation of performance in violation of this Section is void. 18.03 Default and Rights and Remedies for Default. (a) Default Notification of Default. Any material breach of this Agreement or the Parkland Improvements Agreement by the City or the Developer or the District shall be deemed a default by the same party under this Agreement. If City, Developer, or District commits a default of this Agreement (including default of the Parkland Improvements Agreement), one of them that is not in default shall give Notice to the defaulting party that describes the default in reasonable detail. (b) Cure of Default. For any default of this Agreement (including default of the Parkland Improvements Agreement) that can be cured by the payment of money or the posting of the Fiscal Security (each a "Monetary De aid "), the defaulting entity shall be allowed thirty (30) days after the date of the Notice to cure the Monetary Default (the "Monetarf Default Clare Period"). For any default of this Agreement (including default of the Parkland Improvements Agreement) that is not a Monetary Default (a "Non -Monetary De ault"), the defaulting entity 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 Defaidt Caare Period"). (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 48 of 66 18.04 City's Remedies During Developer's or District's Cure Periods. No Bonds shall be issued by District to reimburse Developer or for any other purpose relating to the Land (excluding the issuance of refunding bonds), and the City shall have all rights to enjoin the issuance of Bonds for such purposes, during the applicable Cure Period for a Developer or District default of this Agreement (including default of the Parkland Improvements Agreement). In addition, during the applicable Cure Period, the City shall be relieved of all of its obligations to Developer and District under this Agreement, the Parkland Improvements Agreement, and the Governing Regulations, including, without limitation, obligations to process or approve development- and utility -related applications, permits or other authorizations, plats, plans, acceptance of public infrastructure for maintenance and operation, utility connections, utility taps, and any other development or utility -related actions pertaining to the Land. During the Cure Period, the actions authorized by this Section are the City's exclusive remedies. 18.05 Rights and Remedies for Default After Expiration of Cure Period. (a) The City's rights and remedies during the Cure Period described in Section 18.04 of this Agreement shall also extend during any period of default continuing after expiration of the Cure Period. In addition, if the defaulting entity does not cure the default of this Agreement (including default of the Parkland Improvements Agreement) within the applicable Cure Period, and if a non -defaulting entity has not waived the default in writing, then after the expiration of the applicable Cure Period, the non - defaulting entity may, in its sole discretion, and without prejudice to any other right or remedy allowed under this Agreement or the Parkland Improvements Agreement, and/or seek any other relief available at law or in equity, by statute or otherwise, against the defaulting party, all of which are cumulative and are in addition to any other right or remedy given under this Agreement or the Parkland Improvements 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 entity 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 or the Parkland Improvements 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 or the Parkland Improvements Agreement. No single or partial exercise of any right or remedy under this (W0794214.11 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 49 of 66 Agreement or the Parkland Improvements Agreement precludes the simultaneous or subsequent exercise of any other right or remedy. (d) IN ADDITION TO THE CITY'S RIGHT UNDER COMMON LAW TO REDRESS FOR ANY BREACH OR UNCURED DEFAULT, DEVELOPER SHALL 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 ATTORNEY'S 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. 18.06 Governmental Powers and Immunity. By its execution of this Agreement, the City does not waive or surrender any of its governmental powers, immunities or rights. Nothing herein shall waive any claims, defense or immunities that the City has with respect to suits against the City. Nothing in this Agreement is intended to impair or diminish the performance by the City of its governmental functions. ARTICLE XIX MISCELLANEOUS PROVISIONS 19.01 Cooperation. (a) The City and Developer 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, Developer 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. 19.02 Notice. Any notice given under this Agreement 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 delivery service guaranteeing "next (W0794214.111 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 50 of 66 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. Courtesy copies shall be sent by email to each party as available. For purposed of notice, the addresses of the Parties will, until changed as provided below, be as follows: City: City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Manager City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Secretary City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Finance Director City of Georgetown P. O. Box 409 Georgetown, Texas 78627 Attn: City Attorney Owner: Janis K. Johnson 2453 State Highway 195 Georgetown, Texas 78633 Richard W. Johnson 2453 State Highway 195 Georgetown, Texas 78633 John B. Schneider 2451 State Highway 195 Georgetown, Texas 78633 { W0794214.1 I) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 51 of 66 W. Charles Schneider 496 Hale Lake Road Ruidoso Downs, New Mexico 88346 Developer: Berry Creek (Georgetown) ASLI IX, LLC 923 N. Pennsylvania Avenue Winter Park, Florida 32789 Attn: Marvin Shapiro Dwyer Realty Companies 9900 Hwy. 290 East Manor, Texas 78653 Attn: Pete Dwyer District: Armbrust & Brown, PLLC 100 Congress Ave, Suite 1300 Austin, TX 78701-2744 Attn: Sharon Smith, Senior Counsel 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. The Owner and the District may, by giving at least five (5) days' written notice to the City, designate additional parties to receive copies of notices under this Agreement. 19.03 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 authorized representatives of the Parties. (W0794214.11 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 52 of 66 (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 waiver 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. (d) Provided any amendment does not change any rights or obligations of Owner under this Agreement, Owner's signature shall not be required for any amendment of this Agreement. Any purported amendment executed without Owner's joinder that would alter Owner's rights and duties hereunder shall be void. 19.04 Applicable Law and Venue, The interpretation, performance, enforcement and validity of this Agreement are governed by the laws of the State of Texas. Venue will be in a court of appropriate jurisdiction in Williamson County, Texas. 19.05 Entire Agreement. This Agreement and the attached exhibits, and the Parkland Improvements 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. The agreements can be amended only by written agreement signed by the Parties. 19.06 Exhibits, Headings, Construction, and Counterparts. All schedules and 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 ambiguities are to be resolved against the drafting party will not be employed in interpreting this Agreement or any exhibits hereto. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, and all of which will together constitute the same instrument. This Agreement will become effective only when one or more counterparts, individually or taken together, bear the signatures of all of the Parties. 19.07 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. (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 53 of 66 19.08 Notice to End Buyer. At the time each prospective End Buyer 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 notice required by Section 49.452 of the Texas Water Code, the form of which is attached hereto as Exhibit G. For the purposes of this Agreement, the Parties agree that the term "End -Buyer" shall mean any owner, developer, 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 plat records of Williamson County. This obligation of sellers of real property to give notice shall be a covenant and shall run with the land. 19.09 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. The Owner certifies, represents, and warrants that the execution of this Agreement is duly authorized and adopted in conformity with the articles of incorporation and bylaws or partnership agreement of each entity executing on behalf of Owner. The Developer certifies, represents, and warrants that the execution of this Agreement is authorized and adopted in conformity with the articles of incorporation and bylaws or partnership agreement of each entity executing on behalf of the Developer. 19.10 Joinder by Owner. Owner joins this Agreement solely for purposes of evidencing its consent to the terms hereof and the recordation of this Agreement in the Official Public Records of Williamson County, Texas. All Parties acknowledge and agree that Owner has no rights or obligations under this Agreement. Upon acquisition by Developer of the entirety of the Land, Owner shall no longer be a party to this Agreement. 19.11 Exhibits. The following exhibits are attached to this Agreement, and made a part hereof for all purposes: [The Exhibit List appears on the next page. The remainder of this page is intentionally left blank.] 1W0794214.111 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 54 of 66 EXHIBIT LIST: Exhibit A The Land — Metes and Bounds Exhibit A-1 The Land — Surveyor's Sketch Exhibit B Preliminary Engineering Report prepared by Kimley Horn (dated January 26, 2017) for Avanti Acquisition Company, LLC Exhibit C Concept Plan Exhibit D Shell Spur Road Phasing Plan Exhibit E SH 195/Shell S ur Road Intersection Exhibit F Major Wastewater Improvements Exhibit G Consent Resolution Exhibit H (intentionally omitted) Exhibit I District Notice to Purchaser Exhibit J Parkland Trail Design Standards Exhibit K Parkland Improvements Agreement 19.12 Recordation. If this Agreement becomes effective according to its terms, then this Agreement shall be recorded in the Official Public Records of Williamson County, Texas, at Developer's expense. Developer shall obtain and record subordination agreements for any lender liens on the Land or other interests in the Land, and on the City's interests under this Agreement that are prior to the time of recordation of this Agreement. IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement on the dates indicated below. [The remainder of this page is intentionally left blank. Signature pages, acknowledgements, and exhibits follow.] (W0794214.11 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 55 of 66 CITY: ATTEST: Shelley Nowling, City Secretary APPROVED AS TO FORM: 4: Charlie McNabb, City Attorney STATE OF TEXAS § COUNTY OF WILLIAMSON § CITY OF GEORGETOWN, TEXAS Dale Ross, Mayor This instrument was acknowledged before me on the _ day of 20_, by Dale Ross, Mayor of the City of Georgetown, Texas, a home - rule city, on behalf of the City. (seal) Notary Public Signature (W0794214.111 Consent Agreement - Berry Creek Highlands Municipal Utility District Page 56 of 66 OWNER: Janis K. Johnson, individually THE STATE OF TEXAS § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the by Janis K. Johnson, individually. (SEAL) In THE STATE OF TEXAS § COUNTY OF WILLIAMSON § day of _ , 2018, Notary Public, State of Texas Janis K. Johnson, Trustee of the JKJ Heritage Trust This instrument was acknowledged before me on the by Janis K. Johnson, Trustee of the JKJ Heritage Trust. (SEAL) day of 2018, Notary Public, State of Texas (W0794214.11) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 57 of 66 Richard W. Johnson, individually THE STATE OF TEXAS § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the by Richard W. Johnson, individually. (SEAL) day of 2018, Notary Public, State of Texas (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 58 of 66 John B. Schneider, individually THE STATE OF TEXAS § § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the by John B. Schneider, individually. day of _ 2018, (SEAL) Notary Public, State of Texas By: John B. Schneider, Trustee of the JBS Heritage Trust THE STATE OF TEXAS § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the day of 2018, by John B. Schneider, Trustee of the JBS Heritage Trust. (SEAL.) Notary Public, State of Texas (W0794214.1 1 } Consent Agreement - Berry Creek Highlands Municipal Utility District Page 59 of 66 W. Charles Schneider, individually and as Trustee of the WCS Heritage Trust THE STATE OF NEW MEXICO § COUNTY OF § This instrument was acknowledged before me on the by W. Charles Schneider, individually. (SEAL) THE STATE OF NEW MEXICO § § COUNTY OF § day of _ , 2018, Notary Public, State of Texas W. Charles Schneider, Trustee of the WCS Heritage Trust This instrument was acknowledged before me on the day of 2018, by W. Charles Schneider, Trustee of the WCS Heritage Trust. (SEAL) Notary Public, State of Texas (W0794214.1 ] ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 60 of 66 DEVELOPER: THE STATE OF COUNTY OF BERRY CREEK (GEORGETOWN) ASLI IX, LLC, a Delaware limited liability company By: By: By: By: 0 By: § Avanti Strategic Land Investors IX L.L.L.P., a Delaware limited liability limited partnership, its sole Member APG ASLI IX GP, LLC, a Delaware limited liability company, its sole General Partner Avanti Properties Group III, L.L.L.P., a Delaware limited liability limited partnership, its Managing Member APG III GP, LLC, a Florida limited liability company, its sole General Partner Avanti Management Corporation, a Florida corporation, its sole Manager Marvin M. Shapiro, President This instrument was acknowledged before me on this day of , 2018, by Marvin Shapiro, President of Avanti Management Corporation, a Florida corporation, the sole manager of APG III, LLC, a Florida limited liability company, sole general partner of Avanti Properties Group III, L.L.L.P., a Delaware limited liability limited partnership, managing member of APG ASLI IX GP, LLC, a Delaware limited liability company, sole general partner of Avanti Strategic Land Investors IX, L.L.L.P., a Delaware limited liability limited partnership, sole member of Berry Creek (Georgetown) ASLI IX, LLC, a Delaware limited liability company, on behalf of said corporation, limited liability companies, and limited liability limited partnerships. (seal) DISTRICT: Notary Public Signature BERRY CREEK HIGHLANDS MUNICIPAL (W0794214.11 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 61 of 66 UTILITY DISTRICT Printed Name: Title: Date: ATTEST: Printed Name: Title: STATE OF TEXAS § COUNTY OF WILLIAMSON § This instrument was acknowledged before me the day of —20__, by of Berry Creek Highlands Municipal Utility District, a district operating under Chapters 49 and 54 of the Texas Water Code. Notary Public Signature (W0794214.11 ) Consent Agreement - Berry Creek Highlands Municipal Utility District Page 62 of 66 Exhibit A LEGAL DESCRIPTION BERRY CREEK HIGHLANDS MUD 314.54 ACRES OF LAND 314.54 acres of land located in the Burrell Eaves Survey, Abstract No. 216, Williamson County, Texas, being all of that certain 104.17 acre tract as described in partition deed to Janis K. Johnson, Und. Int., JKJ Heritage Trust Und. Int., as recorded in Document No. 2012080146, Official Public Records of Williamson County, Texas, being all of that certain 208.33 acre tract as described in partition deed to W. Charles Schneider Und. Int., WCS Heritage Trust Und. Int., John B. Schneider Und. Int., and JBS Heritage Trust Und. Int., as recorded in Document No. 2012080146, Official Public Records of Williamson County, Texas, and being all of that certain 2.04 acre tract as described in a deed to Richard W. Johnson and Janis Johnson, as recorded in Volume 889, Page 756, Official Public Records of Williamson County, Texas, said 314.54 acres being more particularly described as follows: BEGINNING, at a point marking the intersection of the southwesterly right of way line of S.H. 195 (Variable R.O.W.) with the northwesterly line of Bonnet Lane, same being the southeasterly corner of that certain 14.32 acres tract as described Lot 4, in partition deed to LDJ Partnership and MMSG LP, as recorded in Document No. 2010071926, Official Public Record of Williamson County, Texas; THENCE, South 57deg 41' 18" East, crossing said Bonnet Lane and along the southwesterly right of way line of said S.H. 195, a distance of 34.56 feet, to a point marking the northeasterly corner of that certain 0.9928 acre tract as described in deed to Bernard Schleder, as recorded in Document No. 2007093914, Official Public Records of Williamson County, Texas and located in the southeasterly line of Bonnet Lane; THENCE, leaving the southwesterly right of way line of S.H. 195 and along common boundary line between said 0.9928 acre tract and the southeasterly line of Bonnet Lane, the following courses; South 61deg 09' 21" West, a distance of 62.53 feet, to a point; South 61deg 12' 34" West, a distance of 223.26 feet, to a point marking the common corner of said 0.9928 acre tract and that certain 1.00 acre tract as described in deed to Bernard Schleder, as recorded in Document No. 2006041812, Official Public Records of Williamson County, Texas; THENCE, South 61deg 14' 03" West, along the common boundary line between said 1.00 acre tract and the southeasterly line of Bonnet Lane, a distance of 223.19 feet, to a point marking the northwesterly corner of said 1.00 acre tract. THENCE, leaving the southeasterly line of Bonnet Lane and along the said 1.00 acre tract, the following courses; South 58deg 19' 53" East, a distance of 223.02 feet, to a point; North 61deg 11' 09" East, a distance of 223.76 feet, to a point marking the common corner of said 0.9928 acre tract and said 1.00 acre tract; THENCE, along the said 0.9928 acre tract, the following courses; North 61deg 10'43" East, a distance of 223.40 feet, to a point; North 60deg 42' 23" East, a distance of 62.38 feet, to a point located in the southwesterly right of way line of S.H. 195; THENCE, along the southwesterly right of way line of S.H. 195, the following courses; South 58deg 16'56" East, a distance of 668.36 feet, to a point; South 58deg 14'48" East, a distance of 363.32 feet, to a point; South 58deg 25' 14" East, a distance of 240.65 feet, to a point; South 53deg 04'46" East, a distance of 200.28 feet, to a point; South 53deg 06' 11" East, a distance of 356.66 feet, to a point; South 44deg 24' 19" East, a distance of 1029.77 feet, to a point; South 52deg 48' 17" East, a distance of 218.32 feet, to a point marking the common corner of that certain 5.90 acre tract as described in deed to Shell-HWY 195, LLC, as recorded in Document No. 2010016401, Official Public Records of Williamson County, Texas and that certain 5.116 acre tract as described in deed to A -A -A Storage Shell Road, LLC, as recorded in Document No. 2015066807, Official Public Records of Williamson County, Texas; THENCE, leaving the southwesterly right of way line of said S.H. 195 and along the said 5.116 acre tract, the following courses; South 70deg 09'41" West, a distance of 72.81 feet, to a point; South 70deg 12' 45" West, at a distance of 391.20 feet passing a point marking the common corner of said 5.116 acres tract and that certain 15.114 acre tract described in deed to JM Assets, LP, as recorded in Document No. 2015022465, Official Public Records of Williamson County, Texas, and continuing along the northerly line of said 15.114 acre tract, a total distance of 808.91 feet, to a point marking the common corner of said 15.114 acre tract and that certain 10.0016 acre tract as described in deed to Feliberto Garza, III et ux, as recorded in Document No. 2000014422, Official Public Records of Williamson County, Texas; THENCE, along the said 10.0016 acre tract, the following courses; South 70deg 20'01" West, a distance of 163.69 feet, to a point; South 69deg 57' 34" West, a distance of 314.46 feet, to a point marking the common corner of said 10.0016 acre tract and that certain 10.00 acre tract as described to Ekram Sharif Mezayek et ux, as recorded in Document No, 2004040065, Official Public Records of Williamson County, Texas; THENCE, South 70deg 11' 42" West, along the northerly line of said 10.00 acre tract, a distance of 457.17 feet, to a point marking the common corner of said 10.00 acre tract and that certain 19.317 acre tract as described in deed to Philip H. Annnis et ux, as recorded in Document No. 2005100364, Official Public Records of Williamson County, Texas; THENCE, along the said 19.317 acre tract, the following courses; South 70deg 08'46" West, a distance of 790.19 feet, to a point; South 70deg 06'59" West, a distance of 43.73 feet, to a point marking the common corner of said 19.317 acre tract and that certain 10.00 acre tract as described in deed to Bryan Threlkeld et ux, as recorded in Document No. 2014039677, Official Public Records of Williamson County, Texas; THENCE, South 70deg 02' 36" West, along the northerly line of said 10.00 acre tract, a distance of 542.23 feet, to a point located in the northerly line of that certain 10.00 acre tract as described in deed to Paul W. Landreth, as recorded in Document No. 2013082663, Official Public Records of Williamson County, Texas; THENCE, South 70deg 05' 04" West, along the northerly line of said 10.00 acre tract, a distance of 261.97 feet, to a point marking the common corner of said 10.00 acre tract and that certain 14.998 acre tract as described in deed to Chas. Witt et al, as recorded in Document No. 2012022314, Official Public Records of Williamson County, Texas; THENCE, South 70deg 06'43" West, along the northerly line of said 14.998 acre tract, a distance of 571.11 feet, to a point marking the common corner of said 14.998 acre tract and that certain 15.00 acre tract as described in deed to Jeffery G. Kick et ux, as recorded in Document No. 2003023697, Official Public Records of Williamson County, Texas; THENCE, along the said 15.00 acre tract, the following courses; South 71deg 20' 52" West, a distance of 24.36 feet, to a point; South 70deg 15' 25" West, a distance of 715.50 feet, to a point marking the common corner of said 15.00 acre tract and that certain 32.601 acre tract as described in deed to Bruce Bond et ux, as recorded in Document No. 9756355, Official Public Records of Williamson County, Texas; THENCE, along the said 32.601 acre tract, the following courses; South 70deg 14'05" West, a distance of 424.17 feet, to a point; South 70deg 11' 58" West, a distance of 37.33 feet, to a point; South 70deg 17'22" West, a distance of 230.56 feet, to a point; South 69deg 14' 27" West, a distance of 340.23 feet, to a point marking the common corner of said 32.601 acre tract and that certain 90.084 acre tract as described in deed to the City of Georgetown, as recorded in Document No. 2013024601, Official Public Records of Williamson County, Texas; THENCE, along the said 90.084 acre tract, the following courses; South 69deg 14' 26" West, a distance of 179.25 feet, to a point; South 69deg 28' 40" West, a distance of 583.45 feet, to a point marking the common corner of said 90.084 acre tract and that certain 1.701 acre tract as described in deed to Rodney D. Houser et ux, as recorded in Document No. 2000052768, Official Public Records of Williamson County Texas; THENCE, North 39deg 17' 42" West, along the easterly line of said 1.701 acre tract, a distance of 638.84 feet, to a point marking the common corner of said 1.701 acre tract and that certain 11.978 acre tract as described in deed to Sevenoff, LLC, as recorded in Document No. 2013116951, Official Public Records of Williamson County, Texas; THENCE, along the said 11.978 acre tract, the following courses; North 36deg 08' 52" East, a distance of 61.57 feet, to a point; North 31deg 43' 30" East, a distance of 41.71 feet, to a point; North 34deg 39' 16" East, a distance of 107.86 feet, to a point; North 38deg 06'41" East, a distance of 266.01 feet, to a point; North 35deg 58' 56" East, a distance of 68.56 feet, to a point; North 02deg 45'27" West, crossing the Bonnet Lane, a distance of 1,297.14 feet, to a point located in the southerly boundary line of that certain 417.81 acre tract as described in deed to FWD Property Investors, LP, as recorded in Document No. 2010037193, Official Public Records of Williamson County, Texas; THENCE, North 61deg 12'00" East, along the common boundary line between said 417.81 acre tract and northerly right of way line of Bonnet Lane, a distance of 4,186.00 feet, to the POINT OF BEGINNING and containing 314.54 acres (13,701,458 square feet) of land, more or less. No boundary survey was performed and this description was created from record information. Basis of Bearings is the Partition Deed, as recorded in Document No. 2012080146, Official Public Records of Williamson County, Texas. This document was prepared under 22 TAC 663.21, does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real property except those rights and interests implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared. w 16P James W. Russell E 0 j Registered Professional Land Surveyor No Kimley-Horn and Associates, Inc. 601 NW Loop 410, Suite 350 San Antonio, Texas 78216 Ph. 210-541-9166 jim.russell@kimley-Itorn.ca n TBPLS Firm No. 10193973 4230 Cf� JAMESVV. RUSSEL •, ex r� 4230 • r • r.,,7J Urz WwOWZ cq ��❑Om❑�❑OpQLL Oj U Z U ❑ >-F-ZWWF-❑WWF-2p 2 "� �♦ Z > w� U F ❑ Q S O W a LL UQ I� W Op Q Z R Z N Q Q U ) Z U H Z U w�— �❑ Q ❑ Z m � °Po E2EQZD8ZO-w ,. yI odj 31 !` 5� > cc) -,W: /7� -HQLL�rO H F- ❑ FmUO❑W �. �wrz5wazmpc�Ua Q ? �sc»❑w�c�b3'❑?�wpw� OJ OU 6 w m 0 Q 0 0 0 i9 S zp��azZ ozdWE / \ 02 �0❑FQ-a�SpOmQQZ w Z Z X Z Of Ate• �� /• r'•W •\ Q nl F- r p LLU Z U 7 U W v�iZVZoOO�❑OOUQ� 8B v M Q N Q F- 03 / � ai5f /• e= IN_. LU�a t v •�� M 1 Urz WwOWZ cq ��❑Om❑�❑OpQLL Oj U Z U ❑ >-F-ZWWF-❑WWF-2p 2 "� �♦ Z > w� U F ❑ Q S O W a LL UQ I� W Op Q Z R Z N Q Q U ) Z U H Z U w�— �❑ Q ❑ Z m � °Po E2EQZD8ZO-w Z W wOU—p-jU W 8UF- ❑� 0 w W j W K � U Z LL} �mmO¢LLVgO'w odj 31 !` 5� > cc) -,W: /7� -HQLL�rO H F- ❑ FmUO❑W �. �wrz5wazmpc�Ua Q ? �sc»❑w�c�b3'❑?�wpw� OJ OU 6 w m 0 Q 0 0 0 i9 S zp��azZ ozdWE / \ 02 �0❑FQ-a�SpOmQQZ w Z Z X Z Of Ate• �� /• r'•W •\ Q nl F- r p LLU Z U 7 U W v�iZVZoOO�❑OOUQ� 8B v M Q N Q F- 03 p@a� W i9 Ate• �� 8B / � ai5f /• e= IN_. p@a� W ■ r,xnioit is PRELIMINARY ENGINEERING REPORT FOR BERRY CREEK HIGHLANDS CONSENT TO CREATE MUNICIPALITY UTILITY DISTRICT NO. 36 314 -ACRE JOHNSON/SCHNEIDER TRACTS Georgetown, Texas January 26, 2017 Prepared For: Avanti Acquisition Company, LLC 923 N. Pennsylvania Ave Winter Park, Florida 32789 Prepared By; Kimley>>)Horn 10814 Jollyville Road Avallon IV, Suite 300 Austin, Texas 78759 TEXAS REGISTRATION #928 Job No. 0677782801 49 TABLE OF CONTENTS I. INTRODUCTION II. PROJECT DESCRIPTION III. PROPOSED IMPROVEMENTS IV. FIRE PROTECTION AND LAW ENFORCEMENT V. BUILD OUT AND POPULATION PROJECTIONS VI. COST SUMMARY VII. FINANCIAL INFORMATION VIII. APPENDICIES LIST OF TABLES Table No. 1: Projected Land Use Table No. 2: Build out Schedule and Population Predictions Table No. 3: Estimated Total Water, Wastewater, & Drainage Cost & Bond Issue Requirement Table No. 4: Estimated Total Recreational Improvements Cost & Bond Issue Requirement Table No. 5: Estimated Total Road Improvements Cost & Bond Issue Requirement Table No. 6: Projected Development and Assessed Value (AV) Table No. 7: Overlapping Tax Rates LIST OF Appendices Appendix A: Wastewater Interceptor Route Appendix B: Parkland Dedication Site Map Appendix C: Major Collector Road Map Appendix D: Existing Site of District on ETJ Map Appendix E: Vicinity Map Appendix F: District Boundary Map Appendix G: MUD Boundary & Legal Description Appendix H: Land Use Map and Roadway Network Layout Appendix I: Preliminary Water Plan Appendix J: Preliminary Wastewater Plan Appendix K: Preliminary Drainage Plan Appendix L: Opinion of Probable Construction Costs 50 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 51 I. INTRODUCTION This report presents the preliminary engineering study to determine the engineering and economic feasibility for creation of a Williamson County Municipal Utility District (MUD) 36 on the 314 -acre Johnson/Schneider tracts. The scope of this report provides evidence that the projects which will be undertaken by the proposed District are practicable, feasible, necessary, and beneficial to all the land to be included in the District. The projects, which include a water distribution system, wastewater collection system, storm drainage system, recreational facilities, and road improvements, are required to ensure orderly development of the land and for the protection of public health and safety. This information provides justification for the creation of the District. II. PROJECT DESCRIPTION Location and Access The development is currently planned to be comprised +/-314.54 acres of the Johnson/Schneider Tracts in Williamson County, Texas. The tract is located west of Highway 195 and north of Shell Road in the Extra Territorial Jurisdiction of Georgetown, Texas. See the Vicinity Map in Appendix E. Existing Area Conditions and Topography The tract topography consists of elevations from 820' near the north central end of the property to 740' at the southwest corner of the property. Slopes range from less than 1 % to 4%. The steepest slopes are located along the banks of Berry Creek. The site drains in two directions, with one basin draining to a natural low point on the southeast corner of the property, and one draining to a low point on the southwest corner, where it outflows into Berry Creek. Preliminary Drainage Study As previously stated, the 314 -acre tract has two main drainage basins that drain to the southeast and southwest corners, terminating into Berry Creek. The drainage basins provide excellent conveyance of storm water flows directly into the creek. 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 proposed ponds. Precautions will be taken to ensure that the development flows will not create erosion problems in the natural waterways with onsite water quality/detention ponds being incorporated into the overall project. The waterways and water quality ponds will be incorporated into recreational parkways to provide additional benefits to the project. 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 52 Preliminary Traffic Study A TIA has not been previously prepared for the 314 -acre tract. During the project planning meetings with the City, whether a TIA will need to be prepared will be discussed. If required by the City, it will be prepared and provided with the MUD Application. Land Use Plan Appendix H shows the Land Use Map. The proposed development consists of a combination of single family residential, village cluster residential, multi -family residential, commercial, amenity center, a school, open space areas, and major roadways. The projected land use for the proposed development will include approximately 1,620 LUEs as shown in Table No. 1 below. Table No. 1 Projected Land Use Land Use Acres Lots LUE's Single -Family Residential (RS) 199.40 968 968 Village Cluster Residential (RS) 16.70 167 167 Multi -Family Residential (MF -1 and MF -2) 16.84 1 168 Commercial (CN and C-1) 15.65 4 123 Amenity Center 3.83 1 25 School 10.69 1 130 Open Space (OS) 41.30 - 2 Major Roadways 10.14 - - TOTAL 314.55 1583 III. PROPOSED IMPROVEMENTS Water Supply and Distribution System There is an existing 18" waterline located in the Highway 195 right-of-way. Water service is expected to be provided to the 314 -acre tract by the City of Georgetown via connection with this line. Water service will be provided to all lots, as shown in the Preliminary Water Plan in Appendix I. 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 53 Wastewater Collection and Treatment Svstem Wastewater would need to be extended to the site to service the development. A temporary service plan has been developed to temporarily service the site while the City constructs a permanent solution. The permanent solution is planned to be a gravity flow main called the Berry Creek Interceptor, which would allow wastewater flow from the site to be conveyed to the Pecan Branch WWTP, allowing wastewater treatment and disposal to be provided by the City of Georgetown. Even with the temporary wastewater service plan in place, the City will require the developer to build the Offsite Wastewater Interceptor as shown on the exhibit in Appendix A. Wastewater collection will be provided to all the lots as shown in the Preliminary Wastewater Plan in Appendix J. Storm Sewer and Drainage System Storm water runoff within the District will be collected in curb and gutter streets into flumes or inlets which will use the underground network to convey the runoff. Storm water from the proposed system typically will flow through a water quality pond before discharging into Berry Creek. Storm water collection will be provided to all the lots as shown in the Preliminary Drainage Plan in Appendix K. Recreational _Improvements Proposed recreational improvements include the development of both large, public parks and smaller, pocket parks. Appendix B includes the Parkland Dedication Site Map. Road Improvements The 314 -acre tract borders Highway 195 on the northeast side of the project, and Bonnet Lane on the north side of the project. This will provide southbound access to Highway 195 and both westbound and eastbound access to Bonnet Lane. Bonnet Lane is planned to become the proposed Shell Spur Loop as shown on the City of Georgetown's Proposed 2035 Thoroughfare Plan. Construction of Shell Spur will require the developer to dedicate half of the proposed 73' right-of-way (ROW) along the north property boundary of the property. The proposed alignment of Shell Spur is shown on the Land Use Map and Roadway Network Layout in Appendix H. Construction of deceleration lanes and improvements to the existing Highway 195 and Bonnet Lane intersection would need to be provided by the development. We have assumed three right deceleration lanes and intersection signal and striping improvements in the Opinion of Cost. Construction of new roadways with utilities and grading will be required for each phase of the development. Phasing sequence may require that multiple phases be constructed 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 54 at once to accommodate utility servicing, drainage, and roadway circulation requirements. IV. FIRE PROTECTION AND LAW ENFORCEMENT FIRE PROTECTION The City will provide fire protection and other emergency services. LAW ENFORCEMENT The City will also be responsible for law enforcement within the District. V. BUILD OUT AND POPULATION PROJECTIONS There are currently no residents in the proposed District at present. Projections of future population are shown in Table No. 2. At build out it is projected that there will be 968 single family residences. Based on 3.0 persons per residence, the estimated population at build out will be 3,405. The build out schedule is shown in Table No. 2 below. Build out is expected to take approximately 10 years. Table No. 2 Build out Schedule and Population Projections Year Single Family Residential Units Added Village Cluster Residential Units Added Cumulative Residences Added Population 2018 0 0 0 - 2019 132 0 132 396 2020 132 42 306 522 2021 132 42 480 522 2022 132 42 654 522 2023 132 41 827 519 2024 132 0 959 396 2025 132 0 968 396 2026 44 0 968 132 2027 0 0 968 - 2028 0 0 968 - 2029 0 0 968 - Total r 968 167 1135 3405 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 55 VI. COST SUMMARY The estimated costs of the proposed District facilities at 100% reimbursement is summarized in Table No. 3, 4 and 5 below. Table No. 3 E=stimated Total Water. Wastewater. & Drain aae Cost & gond Issue Reauirement B. District Items 1. Water Impact Fees (1) District Share District Share CONSTRUCTION COSTS 8,135,037 Total $ 100% A. Developer Contribution Items 4,744,251 3. Offsite Wastewater Improvements $ 4,356,720 1. Water Distribution System $ 3,540,788 $ 3,540,788 2. Wastewater Collection System $ 2,438,280 $ 2,438,280 3. Drainage $ 5,178,835 $ 5,178,835 4. Detention/Water Quality Ponds $ 1,000,000 $ 1,000,000 5. Erosion Control $ 268,435 $ 268,435 6. Contingencies (15%) of Items 1-5 $ 1,863,951 $ 1,863,951 Total Developer Contribution Items $ 14,290,289 $ 14,290,289 B. District Items 1. Water Impact Fees (1) $ 8,135,037 $ 8,135,037 2, Wastewater Impact Fees (2) $ 4,744,251 $ 4,744,251 3. Offsite Wastewater Improvements $ 4,356,720 $ 4,356,720 4. Land - Pond Sites and Offsite Easements $ 400,000 $ 400,000 5. Contingencies (15% of Items 1-4) $ 2,645,401 $ 2,645,401 Total District Items $ 20,281,409 $ 20,281,409 J. TCEQ Fee (0.25% BIR) $ 116,600 TOTAL CONSTRUCTION COSTS $ 34,571,698 $ 34,571,698 NON -CONSTRUCTION COSTS A. Legal Fees (3%) $ 1,399,200 B. Fiscal Agent Fees (2.5%) $ 1,166,000 C. Capitalized Interest (2 yrs. @ 4.25%) $ 3,964,400 D. Developer Interest (2 yrs. @ 4.25 on Const. Cost) $ 2,938,594 E. Bond Discount (3%) $ 1,399,200 F. Issuance Costs $ 355,448 G. Creation Costs $ 90,996 H. Operation Costs $ 186,224 I. Attorney General Fee (0.1% BIR) $ 46,640 J. TCEQ Fee (0.25% BIR) $ 116,600 K. Bond Application Report Costs $ 405,000 TOTAL NON -CONSTRUCTION COSTS $ 12,068,302 TOTAL BOND ISSUE REQUIREMENT $ 46,640,000 Notes: (1) Based on $5,139perLUEforthe residential LUES only. (2) Based on $2,997 per LUE forthe residential LUES only. 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 56 Table No. 4 Estimated _Total Recreational Improvements Cost & Bond Issue Requirement District Share CONSTRUCTION COSTS Total 100% A. Developer Contribution Items None B. District Items 1. Westside Park Trails 2. Subdivision Trails 3. Park Improvements 4. Contingencies (15% of Items 1-3) Total District Items TOTAL CONSTRUCTION COSTS NON -CONSTRUCTION COSTS A. Legal Fees (3%) B. Fiscal Agent Fees (2.5%) C. Capitalized Interest (2 yrs. @ 4.25%) D. Developer Interest (2yrs. @ 4.25 on Const. Cost) E. Underwriter's Discount (3.0%) F. Bond Application Report Costs G. Issuance Costs H. TCEQ Fee (0.25% BIR) I. Attorney General Fee (0.1% BIR) TOTAL NON -CONSTRUCTION COSTS TOTAL BOND ISSUE REQUIREMENT 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 57 $ 17,000 $ 17,000 $ 68,000 $ 68,000 $ 1,415,000 $ 1,415,000 $ 225,000 $ 225,000 $ 1,725,000 $ 1,725,000 $ 1,725,000 $ 1,725,000 $ 70,800 $ 59,000 $ 200,600 $ 146,625 $ 70,800 $ 45,000 $ 33,915 $ 5,900 $ 2,360 $ 635,000 $ 2,360,000 Table No. 5 Estimated Total Road Improvements Cost & Bond Issue Reauirement TOTAL CONSTRUCTION COSTS NON -CONSTRUCTION COSTS A. Legal Fees (3%) B. Fiscal Agent Fees (2.5%) C. Capitalized Interest (2 yrs. @ 4.25%) D. Developer Interest (2 yrs. 0 4.25 on Const. Cost) E. Underwriter's Discount (3.0%) F. Issuance Costs G. Attorney General Fee (0.1% BIR) H. TCEQ Fee (0.25% BIR) I. Bond Application Report Costs TOTAL NON -CONSTRUCTION COSTS TOTAL BOND ISSUE REQUIREMENT Explanation of Tables $ 6,493,950 $ 6,493,950 $ 261,600 $ District Share CONSTRUCTION COSTS 741,200 Total 100% 1, Collector Roads $ 5,473,000 $ 5,473,000 2. Contingencies (15% of Item 1) $ 820,950 $ 820,950 3, Land Costs $ 200,000 $ 200,000 Total District Items $ 6,493,950 $ 6,493,950 TOTAL CONSTRUCTION COSTS NON -CONSTRUCTION COSTS A. Legal Fees (3%) B. Fiscal Agent Fees (2.5%) C. Capitalized Interest (2 yrs. @ 4.25%) D. Developer Interest (2 yrs. 0 4.25 on Const. Cost) E. Underwriter's Discount (3.0%) F. Issuance Costs G. Attorney General Fee (0.1% BIR) H. TCEQ Fee (0.25% BIR) I. Bond Application Report Costs TOTAL NON -CONSTRUCTION COSTS TOTAL BOND ISSUE REQUIREMENT Explanation of Tables $ 6,493,950 $ 6,493,950 $ 261,600 $ 218,000 $ 741,200 $ 551,986 $ 261,600 $ 71,144 $ 8,720 $ 21,800 $ 90,000 $ 2,226,050 $ 8,720,000 The Opinion of Probably Construction Costs was used to estimate the projected construction costs within Tables No. 3, 4 & 5 above. Developer interest is based on the developer advancing construction funds approximately 24 months before each bond sale throughout the life of the project. The costs summarized in the tables represents the total amount of construction costs necessary to complete the land development on and off site, plus costs associated with the sale of bonds. The total bond issue requirement for water, wastewater, and drainage, recreational, and roads is $57,720,000. However, because of limitations on the District's projected assessed valuation and tax rate, the District is expected to only be able to issue approximately $30,150,000. See separate Finance Plan from the District's financial advisor, Public Finance Group, L.L.C. 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 58 Proiect Tax Rate The total bond issue requirement for on-site water, wastewater, and storm water management ($46,640,000), recreational ($2,360,000) and roads ($8,720,000) as show in Tables No. 3, 4 & 5. Revenue to retire the bonds will be generated by valorem taxes. The projected assessed value of all property within the District at full development is $348,754,000 as shown in Table No. 6. Public Finance Group, LLC has developed a financial plan which includes the issuance of seven series of bonds to finance these costs assuming a 100% reimbursement scenario. The term for the proposed bonds will not exceed 25 years. Table No. 6 Pro'ected Development and Assessed Value AV Type of House Number of Units/Sq. Ft. Average AV Total AV Single Family 968 $ 268,000 $ 259,424,000 Cluster Homes 167 $ 190,000 $ 31,730,000 Multifamily 336 $ 100,000 $ 33,600,000 Commercial 240,000 $ 100 $ 24,000,000 Total $ 348,754,000 Assuming projected home values and build -out schedule, and the ability of the District to issue the full bond issue requirement of $57,720,000 spread over the several series of bonds, a debt service tax rate of up to $0.5204 per $100 of assessed value is sufficient to retire the bonds. The tax rate calculations assume the bonds will be sold at an interest rate of 4.25% with a tax collection rate that varies between 99% and 100%. The proposed District will levy an operation and maintenance tax for its ultimate operation expenses. Since the City will provide water and wastewater service for the District, the operation and maintenance tax is estimated to be $0.0296, resulting in a total District tax rate of $0.55 per $100 of assessed value. 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 59 VII. Additional Financial Information The overall tax rate for property in the District is a combination of Williamson County, Georgetown ISD, the City of Georgetown, and the proposed District tax rates. Table No. 7 below summarizes the 2016 tax rates on land in the proposed District. Table No. 7 2016 Overlapping Tax Rates Taxing Entity projected Overlapping Tax Rate Williamson County MUD District No. 36 $0.5500 Williamson Coumy $0.4365 City of Georgetown $0.4240 Williamson County FM/RD* $0.0400 Georgetown ISD $1.36750 Total $2.81800 *This tax will be removed once the land is annexed into the City VIII. LIST OF ATTACHMENTS Appendix A: Wastewater Interceptor Route Appendix B: Parkland Dedication Site Map Appendix C: Major Collector Road Map Appendix D: Existing Site of District on ETJ Map Appendix E: Vicinity Map Appendix F: District Boundary Map Appendix G: MUD Boundary & Legal Description Appendix H: Land Use Map and Roadway Network Layout Appendix I: Preliminary Water Plan Appendix J: Preliminary Wastewater Plan Appendix K: Preliminary Drainage Plan 314 -Acre Johnson/Schneider Tracts MUD Engineering Report 60 8a` w U z O U U) 0 z g O 2 Y LU LU U LU m S a 5 zf� .s Z O C) U) LU z 0 Q O ry Cl - U) LLJJ C!) C•z -17 U) s 'f 0 Q ot7 J � a Lit Zw< UW�ca aU) N c� w w rn Q _j F- V �uZ�,a U LLI C� d Q [1] Crn4 �w LO m Q 7- w w a U) A1N0 Q H 0 (n J � U 0 U- Lu w¢ o� O 0 aQ i O c Q 2 l Q J W Q i o z O� J Q 00 M Z CL O CL .ZL � Q o CL ,Zl ,Z6 lw o � o c9 l w w (} u' o _j w N w3 zQ TaQ � owU U 1 m � � o i 1 � J r Z - ends l- 3Hs 0 M . -- VJ _ Z � �.• l a L; ir 0.Q -� _ U Lf r wT-1 w arO- m 0 zx Z'Z U Y I' -LU { cc tu IL) cr LU cc �9 .' Graz m �- w'�P �? w 1 t o O ,�� irmrw x� - a O oWo a ��P•��C co co U w Ll F- Zr Co F OZ F- 0 Or F- CC J �' owl +��rr�iL.l�jl wl ii io �i •"l + Z w °d O U F- cc w O y LL71 x 2 a - F_ F_ z w I j ... O 1 wmr 1 cc caw Uw Or Z S O W -r0 0 _._... a w> r mm m LL � J L`S BIG F- U) RE x 112E � w c 0 J _O O (6 O F J o X O p 2 (O W d X 6) d O Q COD� (6 O c6 C Z N O I= _ J OM k EXHIBIT I NOTICE TO PURCHASER THE STATE OF TEXAS § COUNTY OF WILLIAMSON § The real property, described below, that you are about to purchase is located within Berry Creek Highlands Municipal Utility District (the "District"). The District has taxing authority separate from any other taxing authority, and may, subject to voter approval, issue an unlimited amount of bonds and levy an unlimited rate of tax in payment of such bonds. As of this date, the rate of taxes levied by the District on real property located in the District is $ on each $100.00 of assessed valuation. The total amount of bonds, excluding refunding bonds and any bonds or any portion of bonds issued that are payable solely from revenues received or expected to be received under a contract with a governmental entity, approved by the voters of the District and which have been or may, at this date, be issued is $_ and the aggregate initial principal amount of all bonds issued for one or more of the specified facilities of the District and payable in whole or in part from property taxes is $ The District has the authority to adopt and impose a standby fee on property in the District that has water, sanitary sewer, or drainage facilities and services available but not connected and which does not have a house, building, or other improvement located thereon and does not substantially utilize the utility capacity available to the property. The District may exercise the authority without holding an election on the matter. As of this date, the most recent amount of the standby fee is $_. An unpaid standby fee is a personal obligation of the person that owned the property at the time of imposition and is secured by a lien on the property. Any person may request a certificate from the District stating the amount, if any, of unpaid standby fees on a tract of property in the District. The District is located in whole or in part in the corporate limits of the City of Georgetown. The taxpayers of the District are subject to the taxes imposed by the municipality and by the District until the District is dissolved. The City of Georgetown has agreed not to dissolve or abolish the District until the expiration of the authorized period of the issuance of Bonds by the District, as set forth in Section 6.12 of the Consent Agreement entered into by the City of Georgetown, recorded as Document No. , Official Public Records, Williamson County, Texas, as amended from time to time. The purpose of this District is to provide water, sewer, drainage, flood control facilities and services, park and recreational facilities, and roadway systems within the District through the issuance of bonds payable in whole or in part from property taxes. The cost of these utility facilities is not included in the purchase price of your property, and these utility facilities are owned or to be owned by the District. The legal description of the property which you are Exhibit I — Notice to Purchaser Consent Agreement - Berry Creek Highlands Municipal Utility District Page 1 of 3 acquiring is as follows: Date SELLER PURCHASER IS ADVISED THAT THE INFORMATION SHOWN ON THIS FORM IS SUBJECT TO CHANGE BY THE DISTRICT AT ANY TIME. THE DISTRICT ROUTINELY ESTABLISHES TAX RATES DURING THE MONTHS OF SEPTEMBER THROUGH DECEMBER OF EACH YEAR, EFFECTIVE FOR THE YEAR IN WHICH THE TAX RATES ARE APPROVED BY THE DISTRICT. PURCHASER IS ADVISED TO CONTACT THE DISTRICT TO DETERMINE THE STATUS OF ANY CURRENT OR PROPOSED CHANGES TO THE INFORMATION SHOWN ON THIS FORM. The undersigned purchaser hereby acknowledges receipt of the foregoing notice at or prior to execution of a binding contract for the purchase of the real property described in such notice or at closing of purchase of the real property. Date PURCHASER STATE OF TEXAS § COUNTY OF This instrument was acknowledged before me on the day of _ , 20 by (seal) Exhibit I — Notice to Purchaser Consent Agreement - Berry Creek Highlands Municipal Utility District Page 2 of 3 Notary Public, State of Texas STATE OF TEXAS § COUNTY OF This instrument was acknowledged before me on the day of r 20` by (seal) AFTER RECORDING RETURN TO: Exhibit I — Notice to Purchaser Consent Agreement - Berry Creek Highlands Municipal Utility District Page 3 of 3 Notary Public, State of Texas EXHIBIT J : Parkland Trail Design Standards General Description: The ten foot (10') wide, concrete, public, hike -and -bike trail to be constructed by Developer on the Parkland in the Berry Creek Highlands public park. Trail width will be ten foot (10') wide. In limited areas, to navigate extreme topographical conditions: or preserve significant features such as rock formations, important vegetation, trees or other environmental features, trail width may be reduced to eight feet (8') for a maximum distance of fifty (50) feet. 2. Trail surface will be reinforced concrete, as detailed below: EXPAN5" "T AT 24' O.C. MAX V"x6" ;10 WWM ._- ENP WWM 2" PROM JONTS & EDGES r NOTES; �5;�OCM FINISH/ t8" LONG VT 5TEEL DOWEL. W O.C. f' GREASE AND CAP FILL LENGTH OF EXPOSED DOWEL -TOOLED CONTROL 2" 1 JOINT vY DEEP { F- SAND LEVELING W ACTED SWORADE t SEE TRAIL NOTES & ACCESSIBLE TRAIL NOTES ON CONSTRUCTION PLANS. 2. EXPANSION JOINT TO BE 1J2" ASPHALT N "EGNATED FIBERBOARD WITH "ZIr STRIP". INSTALL BACKER ROD AND 2 -PART SEALANT - GRAY. 5. EXPAWNON JOINTS ARE TO BE MAX 24' ON CENTER LESS NOTED OTHERWISE ON PLAN. 4. CONTROL JOINTS ARE TO BE 5PACED TO MATCH WIDTH OF WALI,WAY, UNLE85 SHOWN OTHERW15E ON PLAN. E► ALL EDGES ARE TO BE TOOLED WITH 112° RADVS. MAAMW 112" CHANGE IN ELEVATION AT WALKlLAWN EDGE 3. The minimum vegetation cleared zone will be the trail width plus two (2) feet to either side of the trail and ten (10) feet vertical, unless the clear zone is limited due to extreme topographical conditions, important vegetation, trees or environmental features. 4. Whenever possible, sustained running grades will not exceed 5%, and cross slope 2%. A maximum of 8% may occur for distances no further than thirty (30) feet. In limited areas, due to extreme topographical conditions or environmental features, U.S. Forest Service Outdoor Recreation Accessibility Guidelines (FSORAG) will be followed. If trail is not feasible under FSORAG guidelines, Developer will consult with City concerning alternate design options. 5. Retaining walls will only be used when absolutely necessary, to stabilize slopes and only if natural rock cut will not suffice. Retaining walls under forty-eight inches (48") tall shall be constructed of native materials, as detailed below: E.P.'E5TQ-E NOt7U�: I CHCF BLOCK LMESTONE FOR WALL5 SHALL BE S' HEIGHT X S" DEPTH X VARYNG LE:IYTII, CaOR5 INCLUPE CREAMt RUSTS. AND tNV6 AT RANC(M 2. PROVIDE 5NMflE Or 5TOF,E rOR APPKGVAL pY OWNERS RET'RESENTATVE POOR TO DELIVERY TO 51TE. a PROVIDE Own CCHSTRIXTION WAIL SAM"LE SAMPLE MAY BE PART OF ACTUAL WALL. BUT W L NEED TO BE REMOVED F REJECTED. CHOP LM5TOW BLOCK WALL rx wuiit "— UPML HEIGHT VARIES, 5EE PLAN9 coFnlTipr+ - COHDiTNT!WALE TO ERECT MA24AGE ON UPHIL I I EXISTING r-� * GRADE CONGDrL TRAL [ MMDn DFANAGE WEEPS: LEAVE VERTICM JOINT OF BOTTOM COLRSE OPEN T APPROX EVERY 3' FOR DRA M&E. -- — MORTAR JOINT. (314" WX) HOLD MORTAR BACK ON VE W,& y AND FMIIOHTAL JONT9 V3 DEPTH t OF STOW GRAVEL OACK U N FLTER FABRIC �4 ~� DRARAOE WEErfY, LEAVE VERTICAL AFPRrOX, EVERY 3' FOR DRAINAGE UNFORCED CONC. r-OOTrrG: CC>WNU" 2 ^ 04 RMAK 2" SAND LEVEL I,* BED COMPACTED 50Me_,VA1)F 6. Stream and drainage crossings will be located in relatively narrow, shallow sections of drainage ways to minimize negative environmental impacts. Low water crossings will be used whenever possible, culverts or bridges will be used when agreed upon by Owner and City. Crossing types and examples are depicted below: R w *. R A. Low Water Crossing: a. Use an appropriate length slab or structure to protect the "wetted perimeter" of the natural flow channel. b. Protect the structure with cutoff walls, riprap, gabions, concrete slabs, or other scour protection. The downstream edge may require energy dissipaters or riprap protection because of the accelerated flows across the structure. c. Place foundations into scour resistant material or below the depth of scour. Prevent foundation or channel scour with the use of locally placed heavy riprap, gabion baskets, concrete reinforcement or native vegetation. +entiai�ris ,+n rM��wmr �`i�II •f � nvR+ II `'y lA.RVMlll.1l1 _ _• 51 amhwfe •w r r`_'t +, _-1 - 1 __ • "-Awwan ,o..,..,.,. w, wm�M B. Culvert Crossing: a. Use an appropriate length slab or structure to protect the "wetted perimeter" of the natural flow channel. b. Culvert sizes appropriate for water shed and flow capacities. All culverts shall be aluminized metal pipe unless noted otherwise. Inlet and outfall pipes shall be cut to conform to slope. c. Protect the entire structure with cutoff walls, riprap, gabions, concrete slabs, or other scour protection. The downstream edge may require energy dissipaters or riprap protection because of possible accelerated flows across the structure. d. Place foundations into scour resistant material or below the depth of scour. Prevent foundation or channel scour with the use of locally placed heavy riprap, gabion baskets, concrete reinforcement or native vegetation. a ;n C. Bridge Crossing: a. The construction of bridges should be a last resort after other trail alignment or waterway crossing options have been considered. Where a bridge may be required, all options shall be explored, including but not limited to: open bottom culvert, prefabricated or custom designs and may be constructed of a variety of materials. b. Possible locations will be determined based on environmental, accessibility and economic factors. c. Bridge landings and ramp grades will follow FSORAG. If trail is not feasible under FSORAG guidelines, Developer will consult with City concerning alternate design options. Exhibit K PARKLAND IMPROVEMENTS AGREEMENT between THE CITY OF GEORGETOWN and BERRY CREEK (GEORGETOWN) ASLI IX, LLC This Parkland Improvements Agreement (the "Agreement") is entered on the Effective Date by and between the CITY OF GEORGETOWN, TEXAS, a Texas home -rule municipal corporation situated in Williamson County (the "City") and BERRY CREEK (GEORGETOWN) ASLI IX, LLC, a Delaware limited liability company (the "Developer"), each a "Party" and collectively the "Parties." WHEREAS, City, Developer, and Berry Creek Highland Municipal Utility District are parties to a Consent Agreement pertaining to terms and conditions of the City's consent to creation of the municipal utility district (the "Consent Agreement"); and WHEREAS, this Agreement is attached to the Consent Agreement as Exhibit _; and WHEREAS, this Agreement provides the specifications and processes for the construction and approval of the Parkland Improvements (defined herein) thereon; and NOW, THEREFORE, the parties, in consideration of the mutual covenants expressed herein, agree as follows: I. DEFINITIONS AND TERM A. Capitalized words used herein that are defined in the Consent Agreement shall have the same meanings when used in this Agreement, and the definitions of those terms are hereby incorporated herein by reference for all purposes as if set forth in full. B. The term of the Agreement begins on the Effective Date (defined below) and, unless terminated in accordance with other provisions of this Agreement, continues until the Parties' obligations hereunder are completed. II. DESIGNATION OF REPRESENTATIVES A. The City designates the Director of the Parks and Recreation Department (the "PARD") as its authorized representative to act on the City's behalf with respect to this Agreement. B. Developer designates behalf with respect to this Agreement. as its authorized representative to act on the Developer's III. RESPONSIBILITIES OF DEVELOPER A. Developer shall, at no cost to the City, construct or cause to be constructed in the Parkland all of those parkland improvements generally identified on the attached Exhibit A (collectively, the "Parkland Improvements," and each a "Parkland Improvement"). Developer shall Commence Construction, or (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 1 cause Commencement of Construction to occur, of the Parkland Improvements on or before the deadlines for same set forth in Section of the Consent Agreement. The Parkland Improvements may be constructed either simultaneously with each other or successively, provided that Developer shall Complete Construction, or Cause Completion of Construction, of the Parkland Improvements on or before the deadlines for same set forth in Section _of the Consent Agreement. B. At least ninety (90) calendar days prior to the Commencement of Construction deadline set forth in Section of the Consent Agreement, Developer shall submit to the City through the City's Planning Department a detailed description of each of the Parkland Improvements for review by the PARD (the "Parkland Improvements Description"). The Parkland Improvements Description shall include, for each Parkland Improvement, the following information: a detailed description, purpose, size, location, construction/installation schedule, plans, specifications, construction documents, construction access, and the estimated cost of constructing each Parkland Improvement as determined by a professional engineer. The Parkland Improvements Description shall also include a site plan that provides grading, landscaping, and irrigation information, at a minimum. The Developer shall cooperate with reasonable requests of the PARD for additional information. The Developer shall use only the City -approved Parkland Improvements Description, site plan, construction plans, and specifications for the Parkland Improvements (collectively, the "Plans") for construction of the Parkland Improvements. C. All work must be performed in compliance with the codes and standards of the City, including but not limited to the City's Code of Ordinances, Unified Development Code, Construction Specifications and Standards, Drainage Criteria Manual, Building Codes, Fire Codes, Inspection Guidelines, and Development Manual to the extent that same are applicable to the construction of the Parkland Improvements (collectively, the "Standards") and with the Plans. All work performed under this Agreement by Developer and its contractors (the "Contractors") must also be free from design and construction defects at the time of completion. In addition, Developer shall follow all City ordinances and other rules and regulations regarding permits and approvals related to activities and construction of the Parkland Improvements, as well as those of any other governmental entity having jurisdiction. D. Construction shall not commence on a Parkland Improvement until PARD has issued a written "Notice to Proceed" for Parkland Improvement(s) for which the City, in its regulatory capacity, has approved Plans. A Notice to Proceed shall be issued within three calendar days after PARD has approved the Plans. If requested by the PARD, the Developer shall attend a pre -construction meeting. E. Subject to force majeure events and delays caused by governmental authorities, Developer shall diligently prosecute completion of the Parkland Improvements and coordinate all construction activity with designated PARD staff following issuance of the Notice to Proceed. F. Upon completion of each Parkland Improvement, Developer shall request inspection by e-mail and/or phone, plus deliver to the PARD written notice that construction of such Parkland Improvement has been completed and is ready for a final inspection; the Developer may combine requests for inspections of Parkland Improvements. The Developer shall promptly respond to the City's inspection(s) results, including correcting any deficiencies identified by the PARD and/or City engineer. The Developer shall seek to correct any deficiencies within ten (10) calendar days and inform the PARD in writing that the correction will require longer period to correct, if it requires reordering parts to a specific Parkland Improvement. This process will repeat until the City finds the Parkland Improvements are in conformance with the approved Plans. G. Following the inspection process outlined above and prior to the City's acceptance of the Parkland Improvements and the Plans, the Developer must submit in writing to the City that the Maintenance Security required by Article VII of this Agreement is in place and submit a set of construction plans for the Plans (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 2 certified as "as -built" by the engineer responsible for preparing the Plans (collectively, the "Completion Notice"). The Completion Notice shall be submitted to the City not more than thirty (30) days following the City's communication to the Developer that the Parkland Improvements are in conformance with the approved Plans. The Developer shall promptly revise or add to the Completion Notice based upon the review of the PARD and/or City engineer. H. Not later than the date that is thirty (30) days after the last to occur of the following events: (i) the City's acceptance of the last of the Parkland Improvements required to be constructed in the Parkland under this Agreement and the Consent Agreement, (ii) the City's acceptance of the Trailhead Parking Lot (as that term is defined in the Consent Agreement), or (iii) the City's acceptance of the Completion Notice (defined below) by the PARD, the Developer shall dedicate (if by plat) or transfer (if by separate instrument) the Parkland (and the associated Trailhead Parking Lot) to the City, subject to Developer's maintenance obligations as provided in Section Vii of this Agreement and to the City's approval of the title commitment and form of deed (if transferred to the City via separate instrument), after which the City will assume ownership of the completed Parkland (and the associated Trailhead Parking Lot), subject to Developer's maintenance obligations as provided in Section VII of this Agreement and to the City's approval of the title commitment and form of deed (if transferred to the City via separate instrument). I. Developer and its Contractors and other agents shall perform the obligations under this Agreement as independent contractors. IV. RESPONSIBILITIES OF THE CITY A. City and PARD staff shall use good faith efforts to assist Developer in securing all permits and performing inspections necessary to construct the Parkland Improvements. Developer and its Contractors shall coordinate with City staff to provide any information in the possession or control of Developer or its Contractors that is necessary or will facilitate applications for permits and approvals. B. Following submittal of the Plans by the Developer to the City through the Planning Department, the City shall acknowledge receipt of the Plans and provide the Developer with the results of its Completeness Check within ten (10) calendar days. Within thirty (30) calendar days of receipt of the Plans, City shall respond to Developer by either approving the Plans or conditionally approving the Plans subject to additional requirements or alterations mutually acceptable to Developer and PARD. Failure of the PARD to respond to the submittal of the Plans within the 30 -day period shall not be deemed to be acceptance of same by the PARD or the City. The City's review of the Plans shall repeat until it approves the Plans. The PARD may request a pre -construction meeting to which the Developer shall attend. C. The City shall have the right to inspect each Parkland Improvement during and at the completion of construction; provided, however, that the City shall provide twenty-four hours advance notice to Developer before coming on site during active construction to allow Developer to take appropriate. site safety precautions. It will be the City's intent to provide next business day inspections following the Developer's request for inspections as defined in Section III of this Agreement; however, no advance notice will be required prior to an inspection that is in response to the Developer's request for an inspection or to address an emergency. D. The City will notify the Developer if an inspection reveals that any portion of a Parkland Improvement is not constructed in substantial accordance with the Plans or the Standards. However, the City is not responsible for the construction of the Parkland Improvements, the quality of the material, or the construction methods utilized. In addition, the City is not responsible for making continuous on-site inspections of the construction work and the City has no privity with or responsibility for Developer's (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 3 Contractors or any subcontractors during construction; provided, however, that privity may subsequently exist after construction with the assignments of warranties to the City. E. Within fourteen (14) calendar days of receipt of the Completion Notice, the City shall respond to the Developer by either submitting a list of items still requiring completion or modification, requesting additional information, or by accepting the Completion Notice. Final approval of the Plans, including all Parkland Improvements, shall be evidenced by a letter of approval from PARD, but shall not be valid unless and until the Maintenance Security required by Article VII of this Agreement is in place. Failure to respond to a Completion Notice within the 14 -day period shall be not deemed approval by the PARD or the City. V. MUTUAL RESPONSIBILITIES The Parties agree to cooperate in efforts which may benefit or otherwise impact any Parkland Improvement(s) falling within the terms of this Agreement. VI. CONSTRUCTION COSTS AND SECURITY A. Developer shall be solely responsible for all costs of design and construction of the Parkland Improvements. Any increases in the actual costs of the design and construction of the Parkland Improvements, including cost increases, change orders and overruns shall be borne by Developer. Costs include, but are not limited to, landscaping costs, labor costs, site restoration and re -vegetation costs, materials costs, engineering costs, utility connection fees, permits, and inspection fees, if imposed by the City, incurred in the design and construction of the Parkland Improvements. B. To secure the Developer's obligations to design and construct the Parkland Improvements, Developer shall provide a financial guarantee of performance in the amount of One Hundred Twenty Five Percent (125%) of the total estimated cost of constructing the Parkland Improvements (the "Construction Security"), as determined by a professional engineer and approved by the City's designated engineer. The Construction Security may be a Letter of Credit, Trust Agreement or Performance Bond in a form approved for use in the City's Development Manual. If at any time the City's designated engineer determines, in his or her opinion and at his or her discretion, the cost of constructing the Parkland Improvements may exceed the Construction Security, within thirty (30) days after notice and demand, the Developer shall provide additional Construction Security in an amount equal to the additional estimated cost. VII. WARRANTIES AND MAINTENANCE A. Developer hereby warrants that each Parkland Improvement will be free from defects for a period of one (1) year from the date the City accepts the construction of said Parkland Improvements (the "Maintenance Period"). The Developer shall correct and repair, or cause to be corrected and repaired, any defects in materials or workmanship of an improvement in the Parkland Improvements that occurs before and during the Maintenance Period due to any cause; provided, however, that Developer shall not be responsible for any damage, defect or repair caused by the negligence or willful misconduct of the City. Developer shall, at the time of dedication or transfer to the City of the Parkland, assign to the City, without further recourse against Developer, all warranties that Developer may have received with respect to the each Parkland Improvement. All transfers of Parkland Improvements to the City under this Agreement shall include transfers of associated warranties, bonds, and guarantees. B. For all Parkland Improvements, as a condition of the City's acceptance of dedication of the Parkland, and to secure the Developer's warranty obligations during the Maintenance Period, the Developer (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 4 shall provide a maintenance bond, letter of credit, cash escrow, or other form of security acceptable to the City in the amount of Twenty Five Percent (25%) of the total cost of constructing all of Parkland Improvements (the "Maintenance Security"). The Maintenance Security, if a bond, must be in a form approved for use in the City's Development Manual. The Parkland Improvements must meet the Standards and Plans at the end of the Maintenance Period in order for the City to release the Maintenance Security. VIII. LIABILITY AND INDEMNIFICATION A. DEVELOPER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY, ITS OFFICERS, APPOINTED OR ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (THE "INDEMNIFIED PARTIES"), AGAINST ALL COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES, EXPENSES, AND COURT COSTS), LIABILITIES, DAMAGES, CLAIMS, SUITS, ACTIONS, AND CAUSES OF ACTIONS (CLAIMS), TO THE EXTENT ARISING, DIRECTLY OR INDIRECTLY, OUT OF (A) A BREACH OF THIS AGREEMENT OR VIOLATION OF LAW BY DEVELOPER, ITS PARTNERS, MANAGERS, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUCCESSORS OR ASSIGNS, (THE "DEVELOPER PARTIES"); (B) A FALSE REPRESENTATION OR WARRANTY MADE BY THE DEVELOPER PARTIESIN THIS AGREEMENT OR IN A PARKLAND IMPROVEMENT DESCRIPTION; (C) THE NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF A STANDARD OF STRICT LIABILITY BY THE DEVELOPER PARTIES IN CONNECTION WITH THIS AGREEMENT. CLAIMS TO BE INDEMNIFIED UNDER THIS ARTICLE INCLUDE BUT ARE NOT LIMITED TO CLAIMS FOR BODILY INJURY OR DEATH, OCCUPATIONAL ILLNESS OR DISEASE, LOSS OF SERVICES WAGES OR INCOME, DAMAGE DESTRUCTION OR LOSS OF USE OF PROPERTY, AND WORKERS' COMPENSATION CLAIMS. DEVELOPER'S OBLIGATIONS UNDER THIS ARTICLE ARE NOT EXCUSED IN THE EVENT A CLAIM IS CAUSED IN PART BY THE ALLEGED NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE INDEMNIFIED PARTIES OR BREACH OF ANY OF SUCH PARTIES' OBLIGATIONS UNDER THIS AGREEMENT. B. City shall give Developer written notice of a Claim asserted against an Indemnified Party. Developer shall assume on behalf of the Indemnified Parties and conduct with due diligence and in good faith the defense of all Claims against the Indemnified Parties. The Indemnified Parties shall have the right (but not the obligation) to participate in the defense of any claim or litigation with attorneys of their own selection without relieving Developer of any obligations in this Agreement. In no event may Developer admit liability on the part of an Indemnified Party without the written consent of the City Council. C. Developer shall give notice of any Claim made against any of the Developer Parties, a Contractor, or a vendor, related to the Parkland Improvements, Developer shall provide written notice of such claim to the City Attorney within five (5) calendar days of the date that Developer or any of its employees, agents, or representatives first have actual (not constructive) notice of the Claim. Notification from Developer shall include the names and addresses of the person, firm, corporation, or other entity making the Claim and, if known, the basis and alleged amount of the Claim. D. Maintenance of the insurance required under this Agreement shall not limit Developer's obligations under this Article. E. Developer shall require all its Contractors to indemnify City as provided in this Article. IX. INSURANCE; BONDS (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 5 A. Developer shall require its Contractors to procure and maintain in full force and effect for the duration of this Agreement insurance coverages in accordance with the insurance requirements as set forth in Exhibit B to this Agreement, which is attached hereto and incorporated herein for all purposes as if set forth in full. B. Developer shall also require performance and payments bonds from its Contractors in the full amounts of its. contract sum(s) for the Parkland Improvement(s). X. DEFAULT A. Events of Default. Events of Default under this Agreement are: 1) Developer's failure to design the Parkland Improvements as required to comply with the Standards and Plans; 2) Developer's failure to construct the Parkland Improvements as required to comply with the Standards and Plans or within the timeframe required by this Agreement; 3) Developer's failure to provide the City with a complete set of construction plans for each Parkland Improvement, certified "as built" by the engineer responsible for preparing the approved Plans and such failure continues for a period of 10 business days following issuance of such certified "as built" plans; 4) Developer's failure to comply with the warranty that the Parkland Improvements will comply with the Standards and Plans during the Maintenance Period, or failure to post and maintain the Maintenance Security as required by this Agreement; 5) Developer's fai lure to provide additional Construction Security within thirty (30) days after written notice and demand; 6) The acquisition of the Land by any creditor of Developer through foreclosure or an assignment or conveyance in lieu of foreclosure; and/or 7) Developer's failure to comply with any other material provision of this Agreement. An Event of Default may be cured under Section XI.A. B. Notice of Default and Intent to Draw. The City shall provide written notice of default and intent to draw on the Construction Security or Maintenance Security, as applicable, to Developer with a copy of the notice to any Surety, lender, or Trustee. The notice will identify the event of default and City may, in its sole discretion, provide an opportunity for Developer to cure the default Upon default, or if Developer fails to cure the default as expressly allowed by City, the City shall be entitled to draw the amount necessary to perform the Developer's obligations under this Agreement up to the total amount of Construction Security and/or Maintenance Security, as applicable. The City may, at its option and discretion, accept substitute security instead of, or in addition to, drawing on the Construction Security and/or Maintenance Security. C. Use of Construction Security and/or Maintenance Security. l) The City may use the Construction Security and/or Maintenance Security for the purpose of completing the Parkland Improvements in accordance with the Standards and Plans or to correct, (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 6 repair or reconstruct the Parkland Improvements to achieve compliance with the Standards and Plans. 2) The City may, at its option and in its discretion, complete some or all of the unfinished Parkland Improvements at the time of default, regardless of the extent to which development has taken place or whether development ever commenced, without incurring any obligation to complete any of the unfinished Parkland Improvements. 3) The City's draw on the Construction Security and/or Maintenance Security and use of Construction Security and/or Maintenance Security to complete, correct, repair, or reconstruct the Parkland Improvements is not an acceptance of the dedication of the Parkland Improvements. The acceptance of the Parkland Improvements is specifically and expressly conditioned on the delivery to the City of Parkland Improvements constructed to comply with the Standards and Plans or the express order of acceptance by the City Council. 4) Construction Security proceeds and/or Maintenance Security proceeds obtained by the City pursuant to one or more draws shall be maintained by the City in an account or accounts until such funds, together with accrued interest thereon, if any, ("Escrowed Funds") are disbursed by the City. 5) The City shall disburse the Escrowed Funds as Public Improvements are completed, corrected, repaired or reconstructed by the City, or in accordance with the terms of a written construction contract between the City and a third party for the construction of the Public Improvements. 6) The City will release the Construction Security, and the Escrowed Funds, if any, within thirty (30) days following acceptance of all of the Parkland Improvements by the City if Maintenance Security for all of the Parkland Improvements has been provided by Developer. If a Maintenance Security has not been provided within thirty (30) days following acceptance of the Parkland Improvements, the Construction Security, and the Escrowed Funds, if any, shall be reduced to an amount that is 25% of the total cost of the construction of the Parkland Improvements. 7) For all Parkland Improvements, upon the expiration of the Maintenance Period, if there are no existing defects in or failures of said Parkland Improvements the Developer is required to correct, repair or reconstruct, the City's designated engineer will recommend release of the Maintenance Security and/or the remaining Construction Security and/or the remaining Escrowed Funds. The City will release the Maintenance Security and/or the remaining Construction Security and/or remaining Escrowed Funds within thirty (30) days after the City's designated engineer's recommendation. 8) The Developer has no claim or rights under this Agreement to Construction Security proceeds, Maintenance Security proceeds, or Escrowed Funds, to the extent used by the City. XI. TERMINATION A. If Developer fails to properly or timely fulfill its obligations under this Agreement, the City shall notify Developer party in writing of the Event of Default. Developer shall have thirty (30) calendar days from receipt of this notice in which to cure any such Event of Default. If the Event of Default cannot be reasonably cured within said thirty (30) day period, and Developer has diligently pursued such remedy as { W0794215.81 Berry Creek Highland Parkland Improvement Agreement Page 7 shall be reasonably necessary to cure the Event of Default , then the parties may (but are not required to) agree in writing to an extension of the period in which the Event of Default must be cured. B. If, however, Developer has not cured the Event of Default as specified in the written notice or any extension within the time provided, or if Developer dissolves, becomes inactive, voluntarily files for bankruptcy or take other actions to protect it from its creditors, then the City shall have the right to terminate this Agreement and/or to pursue any other remedy available to it under the law. Any termination shall be made by sending a written Notice of Termination to the Developer. This Notice of Termination shall be effective for all purposes when addressed to Developer at the address for notice provided in Article XIII(E) of this Agreement and deposited in the U.S. Mail, postage prepaid and mailed Certified Mail, Return Receipt Requested. C. On receipt of the Notice of Termination, Developer shall immediately stop performance of work under this Agreement (unless the Notice directs otherwise) and deliver all plans, specifications, warranties, guarantees, bonds, documents, reports, and other information accumulated in performing this Agreement (whether finished or in process) to City within ten (10) business days, or as otherwise stated in the Notice of Termination; provided, however the delivery of any such reports, etc. shall be on an "as is" basis and Developer shall have no obligation to cause such reports, etc. to be transferred to the City or PARD if a fee is to be incurred as a result of such transfer. Developer shall send written notice to the City if a report is not transferred because a fee will be incurred. Upon depositing the Notice of Termination with the U.S. Mail as specified above, the City is authorized to immediately assume possession and control of the Parkland Improvements (whether or not completed), and the plans and specifications, bonds, warranties, guaranties, and other rights relating to the Parkland Improvements. On termination, all parts and equipment and the Parkland Improvements (whether fully or partially constructed) shall become the property of the City and the City may take full possession thereof. D. At any time without prior notice for health and safety reasons, and at any other time with thirty (30) calendar days prior notice, the City may suspend the work or any portion of the work by written notice to Developer stating the date on which Developer shall resume the work. Developer shall resume the work on the date stated in the City's notice. Developer shall receive an extension of time to perform equal to the time work is suspended. E. Notwithstanding anything to the contrary in this Agreement, the obligations of Developer under Article VII of this Agreement pertaining to the required Maintenance Security shall survive termination and Developer shall continue to be obligated to obtain and maintain same in accordance with the terms of Section VII of this Agreement. XII. CONDITION OF PREMISES; DISCLAIMER OF WARRANTIES Neither the City nor any agent, employee, or representative of the City is authorized to make or has made any warranties or representations of any kind or character, expressed or implied, with respect to the physical condition of the Parkland or any Parkland Improvement or its fitness or suitability for any particular use. XIII. MISCELLANEOUS PROVISIONS A. The recitals in this Agreement are true and correct and are incorporated herein by reference. B. This Agreement constitutes the entire agreement between the parties with respect to the Parkland Improvements. Any previous agreement, assertion, statement, understanding, or other commitment before the date of this contract, whether written or oral, shall have no force or effect. No agreement, assertion, (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 8 statement, understanding, or other commitment during the term of this Agreement, or after the term of this Agreement, shall have any legal force or effect unless properly executed in writing by the parties. NO OFFICIAL, EMPLOYEE, OR AGENT OF THE CITY HAS ANY AUTHORITY, EITHER EXPRESS OR IMPLIED, TO AMEND, MODIFY, OR OTHERWISE CHANGE THIS AGREEMENT, EXCEPT PURSUANT TO SUCH EXPRESS AUTHORITY AS MAY BE GRANTED BY THE CITY COUNCIL.. C. This Agreement is made, and shall be construed and interpreted under the laws of the State of Texas, and venue for any lawsuit concerning this Agreement shall be brought in the City of Georgetown, Williamson County, Texas. D. Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for or against any party. E. All official communications and notices required to be made under this Agreement shall be deemed made if sent postage prepaid to the parties at the addresses listed below: City: CITY OF GEORGETOWN 113 E 8th St Georgetown, Texas 78626 Attn: City Manager AFTER 1/1/2019: 808 Martin Luther King Street Georgetown, Texas 78726 Attn: City Manager or P.O. Box 409 Georgetown, Texas 78627 Attn: City Manager with required copy to: City Attorney City of Georgetown P.O. Box 409 Georgetown, Texas 78627 Parks and Recreation Director (PARD) City of Georgetown 1101 N College St, Georgetown TX 78627 Developer: Berry Creek (Georgetown) ASLI IX, LLC 923 N. Pennsylvania Avenue Winter Park, Florida 32789 Attn: Marvin Shapiro Dwyer Realty Companies 9900 Hwy. 290 East Manor, Texas 78653 Attn: Pete Dwyer (W0794215.8} Berry Creek Highland Parkland Improvement Agreement Page 9 District: Armbrust & Brown, PLLC 100 Congress Ave, Suite 1300 Austin, TX 78701-2744 Attn: Sharon Smith, Senior Counsel F. The City and Developer, respectively, bind themselves, assigns and legal representatives to this Agreement. XIV. SEVERABILITY If the final judgment of a court of competent jurisdiction invalidates any part of this Agreement, then the remaining parts of this Agreement shall remain in full force and effect. XV. WAIVER If at any time the City, its successors or assigns, fails to enforce this Agreement, whether or not any violations of it are known, such failure shall not constitute a continuing waiver or estoppel of the right to enforce it. XVI. NO RECOURSE No recourse shall be had against any elected official, director, officer, attorney, agent, or employee of the City, whether in office on the Effective Date of this Agreement or after such date, for any claim based upon this Agreement. XVII. NO JOINT VENTURE, PARTNERSHIP, AGENCY This Agreement will not be construed in any form or manner to establish a partnership, joint venture or agency, express or implied, nor any employer-employee or borrowed servant relationship by and among the parties. XVIII. NO ASSIGNMENT No Party may assign any of its rights under this Agreement, either voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, except with the prior written consent of the other Parties. Any purported assignment of rights or delegation of performance in violation of this Section is void. XIV. AUTHORITY TO EXECUTE Each Party warrants and represents to the other that the person signing this Agreement on its behalf is authorized to do so, that it has taken all action necessary to approve this Agreement, and that this Agreement is a lawful and binding obligation of the Party, except as may be limited by applicable bankruptcy, insolvency, or similar laws affecting creditor's rights, or with respect to City's governmental immunity under the Constitution and laws of the State of Texas. XX. AMENDMENTS IN WRITING This Agreement may be modified only by a writing properly executed by each of the Parties. Neither any representation or promise made after the execution of this Agreement, nor any modification or {W0794215.8} Berry Creek Highland Parkland Improvement Agreement Page 10 amendment of this Agreement, shall be binding on the Parties unless made in writing and properly executed by each of the Parties. EXECUTED AND MADE TO BE EFFECTIVE on the latest date accompanying the signatures of the authorized representatives of the Parties to this Agreement (the "Effective Date"). [EXECUTION PAGES TO FOLLOW] (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 11 CITY: CITY OF GEORGETOWN, a home -rule municipal corporation By: Dale Ross, Mayor ATTEST: Shelley Nowling, City Secretary APPROVED AS TO FORM: Charlie McNabb City Attorney ACKNOWLEDGEMENT State of Texas County of Williamson This Parkland Improvements Agreement was acknowledged before me on 201_ by Dale Ross, Mayor of the City of Georgetown, Texas, a home -rule municipality. LIN Notary Public, State of Texas (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 12 DEVELOPER: BERRY CREEK (GEORGETOWN) ASLI IX, LLC, a Delaware limited liability company By: Avanti Strategic Land Investors IX, L.L.L.P., a Delaware limited liability limited partnership, its sole Member By: APG ASLI IX GP, LLC, a Delaware limited liability company, its sole General Partner By: Avanti Properties Group III, L.L.L.P., a Delaware limited liability limited partnership, its Managing Member By: APG III GP, LLC, a Florida limited liability company, its sole General Partner By: Avanti Management Corporation, a Florida corporation, its sole Manager Bv: Marvin M. Shapiro, President THE STATE OF COUNTY OF This instrument was acknowledged before me on this day of , 2018, by Marvin Shapiro, President of Avanti Management Corporation, a Florida corporation, the sole manager of APG III, LLC, a Florida limited liability company, sole general partner of Avanti Properties Group III, L.L.L.P., a Delaware limited liability limited partnership, managing member of APG ASLI IX GP, LLC, a Delaware limited liability company, sole general partner of Avanti Strategic Land investors IX, L.L.L.P., a Delaware limited liability limited partnership, sole member of Berry Creek (Georgetown) ASLI IX, LLC, a Delaware limited liability company, on behalf of said corporation, limited liability companies, and limited liability limited partnerships. (seal) Notary Public Signature (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 13 EXHIBIT A PARKLAND IMPROVEMENTS — [Items below added.] (W0794215.81 Berry Creek Highland Parkland Improvement Agreement Page 14 Parkland Improvements —Parkland 1 Shade pavilion 2 Pla sca e for children 2-5 years of age 3 Playsca e for children 5-12 years of age 4 Active areas for unorganized play or practice 5 Picnic area with benches, picnic tables, and cooking grills 6 Trash cans 7Landsca ing 8 Irrigation System (W0794215.81 Berry Creek Highland Parkland Improvement Agreement Page 14 EXHIBIT B INSURANCE REQUIREMENTS CONTRACTOR shall purchase and maintain insurance in the types and amounts indicated below for the duration of the Agreement (unless a longer duration is specified), which shall include items owned by the City of Georgetown, Texas ("OWNER") in the care, custody and control of CONTRACTOR prior to and during the term of the Contract and all warranty periods. Failure to purchase and maintain the required insurance shall be grounds for Termination of the Agreement or Suspension of the Work by OWNER. Except for the Worker's Compensation policy, the other insurance policies required by the Agreement to be obtained by CONTRACTOR must state that OWNER, its officials, directors, employees, representatives, and volunteers are added as additional insureds with regard to operations and activities by or on behalf of the named insureds performed under contract with OWNER. The additional insured status must cover completed operations as well, and the policy covering completed work must remain in effect until the expiration of the statue of repose. CONTRACTOR must complete and forward the required Certificates of Insurance to OWNER before the Agreement is executed as verification of coverage required below. CONTRACTOR shall not commence Work until the required insurance is obtained and until such insurance has been reviewed by OWNER. Approval of insurance by OWNER shall not relieve or decrease the liability of CONTRACTOR hereunder and shall not be construed to be a limitation of liability on the part of CONTRACTOR. CONTRACTOR must also complete and forward the required Certificates of Insurance to OWNER whenever a previously identified policy period has expired as verification of continuing coverage. Contractor's insurance coverage is to be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of B+VII or better, except for hazardous material insurance which shall be written by companies with A.M. Best ratings of A- or better. 4. All endorsements naming the OWNER as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall indicate: City of Georgetown, 113 E. 8t' Street, Georgetown, Texas 78626, ATTN: Contract Manager. 5. The "other" insurance clause shall not apply to the OWNER where the OWNER is an additional insured shown on any policy. It is agreed that the CONTRACTOR's insurance shall be considered primary with respect to any insurance or self insurance carried by OWNER. The CONTRACTOR'S insurance shall apply separately to each insured against whom a claim is made and/or lawsuits brought, except with respect to the limits of insurer's liability. 6. If insurance policies are not written for amounts specified below, CONTRACTOR shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. 7. OWNER shall be entitled, upon request and without expense, to receive certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 15 8. OWNER reserves the right to review the insurance requirements set forth during the effective period of this Agreement and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by OWNER based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as CONTRACTOR. 9. CONTRACTOR shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Agreement or as required in the Agreement. 10. CONTRACTOR shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. 11. The policies must contain the following language: "This policy shall not be cancelled, materially changed, or not renewed until after thirty (30) days prior written notice has been given to OWNER." In addition, CONTRACTOR shall provide OWNER thirty (30) days written notice of erosion of the aggregate limits below occurrence limits for all applicable coverages indicted within the Agreement. 12. If OWNER -owned property is being transported or stored off -Site by CONTRACTOR, then the appropriate property policy will be endorsed for transit and storage in an amount sufficient to protect OWNER's property. 13. The insurance coverages required under this contract are required minimums and are not intended to limit the responsibility or liability of CONTRACTOR. 14. Without limiting any of the other obligations or liabilities of the CONTRACTOR, the CONTRACTOR shall require each Subcontractor performing work under the Agreement, at the Subcontractor's own expense, to maintain during the term of the Agreement, the same stipulated minimum insurance including the required provisions and additional policy conditions as shown above. As an alternative, the CONTRACTOR may include its Subcontractors as additional insureds on its own coverage as prescribed under these requirements. The CONTRACTOR's certificate of insurance shall note in such event that the Subcontractors are included as additional insureds and that CONTRACTOR agrees to provide Workers' Compensation for the Subcontractors and their employees. The CONTRACTOR shall obtain and monitor the certificates of insurance from each Subcontractor in order to assure compliance with the insurance requirements. The CONTRACTOR must retain the certificates of insurance for the duration of the Agreement plus five (5) years and shall have the responsibility of enforcing these insurance requirements among its subcontractors. The OWNER shall be entitled, upon request and without expense, to receive copies of these certificates. B. Business Automobile Liability Insurance. Provide coverage for all owned, non -owned and hired vehicles in an amount not less than $1,000,000 combined single limit per accident for bodily injury and property damage. The policy shall contain the following endorsements in favor of OWNER: • Waiver of Subrogation endorsement TE 2046A; ■ 30 day Notice of Cancellation endorsement TE 0202A; and • Additional Insured endorsement TE 9901 B. Provide coverage in the following types and amounts: (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 16 • A minimum combined bodily injury and property damage limit of $1,000,000 per occurrence. No aggregate shall be permitted for this type of coverage. Such insurance shall include coverage for loading and unloading hazards. C. Workers' Compensation and Employers' Liability Insurance. Coverage shall be consistent with statutory benefits outlined in the Texas Workers' Compensation Act (Section 401). CONTRACTOR shall assure compliance with this Statute by submitting two (2) copies of a standard certificate of coverage (e.g. ACCORD form) to Owner's Representative for every person providing services on the Project as acceptable proof of coverage. The required Certificate of Insurance must be presented as evidence of coverage for CONTRACTOR. Workers' Compensation Insurance coverage written by the Texas Workers Compensation Fund is acceptable to OWNER. CONTRACTOR's policy shall apply to the State of Texas and include these endorsements in favor of OWNER: • Waiver of Subrogation, form WC 420304; and ■ 30 day Notice of Cancellation, form WC 420601. The minimum policy limits for Employers' Liability Insurance coverage shall be the minimum amounts required to meet the statutory requirements of Texas Labor Code, Section 401.011(44), or the following, whichever is greater: • $1,000,000 bodily injury per accident, and • $1,000,000 bodily injury by disease policy limit; and • $1,000,000 bodily injury by disease each employee; and ■ $1,000,000 Employer's Liability. CONTRACTOR has the option to self -insure in accordance with applicable law and OWNER approval. D. Commercial General Liability Insurance. The Policy shall contain the following provisions (to the extent available): • Blanket contractual liability coverage for liability and indemnifications assumed under the Agreement and all contracts relative to this Project. • Completed Operations/Products Liability until the end the statute of repose period. • Explosion, Collapse and Underground (X, C & U) coverage. • Independent Contractor's coverage. • Aggregate limits of insurance per project, endorsement CG 2503. • OWNER listed as an additional insured, endorsement CG 2010. • 30 day notice of cancellation in favor of OWNER, endorsement CG 0205. (W0794215.8) Berry Creek Highland Parkland Improvement Agreement Page 17 • Waiver of Transfer of Recovery Against Others in favor of OWNER, endorsement CG 2404 fully insuring CONTRACTOR'S or Subcontractor's liability for bodily injury and property damages with a combined bodily injury (including death) and property damage minimum limit of: $1,000,000 per occurrence $2,000,000 general aggregate $2,000,000 products and completed operations aggregate Coverage shall be on an "occurrence" basis. E. Intentionally omitted. F. Umbrella Liability Insurance. The CONTRACTOR shall obtain, pay for, and maintain umbrella liability insurance during the contract term, insuring the CONTRACTOR (or subcontractor) for an amount not less than $1,000,000 that provides coverage at least as broad and applies in excess of and follows the form of the primary liability coverages required hereunder. The policy shall provide "drop down" coverage where underlying primary insurance coverages limits are insufficient or exhausted. PERFORMANCE AND PAYMENT BONDS A. General. 1. Bonds, when required by the Agreement or by Chapter 2253 of the Texas Government Code, shall be executed on forms furnished by or acceptable to OWNER. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. 2. If the surety on any bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated in the State of Texas or it ceases to meet the requirements of the preceding paragraph, CONTRACTOR shall within ten (10) days thereafter substitute another bond and surety, both of which must be acceptable to OWNER. When Performance Bonds and/or Payment Bonds are required, each shall be issued in an amount of one hundred percent (100%) of the estimated construction cost of the Parkland Improvements as security for the faithful performance and/or payment of all CONTRACTOR's obligations under the Agreement. Performance Bonds and Payment Bonds shall be issued by a solvent surety company authorized to do business in the State of Texas, and shall meet any other requirements established by law or by OWNER pursuant to applicable law. Any surety duly authorized to do business in Texas may write Performance and Payment Bonds on a project without reinsurance to the limit of 10 percent of its capital and surplus. Such a surety must reinsure any obligations over 10 percent. {W0794215.8} Berry Creek Highland Parkland Improvement Agreement Page 18 B. Performance Bond. 1. If the estimated cost of constructing the Parkland Improvements exceeds $100,000, CONTRACTOR shall furnish OWNER with a Performance Bond in the form set out by OWNER. The Performance Bond shall be effective for the term of the Agreement and through all warranty period(s). 2. If the estimated cost of constructing the Parkland Improvements exceeds $25,000 but is less than or equal to $100,000, CONTRACTOR shall furnish OWNER with a Performance Bond in the form set out by OWNER, unless the original estimated time for completion of construction is 60 Calendar Days or less, in which case CONTRACTOR can agree to the following terms and conditions for payment in lieu of providing a Performance Bond: no money will be paid to CONTRACTOR until completion and acceptance of the Work by OWNER; CONTRACTOR shall be entitled to receive 95% of the estimated cost of construction of the Parkland Improvements following Final Completion, and the remaining 5% of the Contract Amount following the one year warranty period. If the estimated cost of constructing the Parkland Improvements is less than or equal to $25,000, CONTRACTOR will not be required to furnish a Performance Bond. 4. If a Performance Bond is required to be furnished, it shall extend for the one year warranty period, or longer if the warranty periods are longer. C. Payment Bond. 1. If the estimated cost of constructing the Parkland Improvements exceeds $25,000, CONTRACTOR shall furnish OWNER with a Payment Bond in the form set out by OWNER. 2, If the estimated cost of constructing the Parkland Improvements is less than or equal to $25,000, CONTRACTOR will not be required to furnish a Payment Bond; provided that no money will be paid to CONTRACTOR until completion and acceptance of the Work by OWNER. D. Power of Attorney. Each bond shall be accompanied by a valid Power of -Attorney (issued by the surety company and attached, signed and sealed with the corporate embossed seal, to the bond) authorizing the attorney in fact who signs the bond to commit the company to the terms of the bond, and stating any limit in the amount for which the attorney can issue a single bond. E. Bond Indemnification. The process of requiring and accepting bonds and making claims thereunder shall be conducted in compliance with Tex. Gov't Code, Chapter 2253. IF FOR ANY REASON A STATUTORY PAYMENT OR PERFORMANCE BOND IS NOT HONORED BY THE SURETY, THE CONTRACTOR SHALL FULLY INDEMNIFY AND HOLD THE OWNER HARMLESS OF AND FROM ANY COSTS, LOSSES, OBLIGATIONS OR LIABILITIES IT INCURS AS A RESULT. F. Furnishing Bond Information. OWNER shall furnish certified copies of the payment bond and the related Agreement to any qualified person seeking copies who complies with Tex. Gov't Code, §2253.026. G. Claims on Payment Bonds. Claims on payment bonds must be sent directly to the CONTRACTOR and his surety in accordance with Tex. Gov't Code § 2253.041. All Payment Bond claimants are cautioned that no lien exists on the funds unpaid to the CONTRACTOR on such Contract, and that reliance on notices sent to the OWNER may result in loss of their rights against the {W0794215.81 Berry Creek Highland Parkland Improvement Agreement Page 19 CONTRACTOR and/or his surety. The OWNER is not responsible in any manner to a claimant for collection of unpaid bills, and accepts no such responsibility because of any representation by any agent or employee. H. Payment Claims when Payment Bond not Required. The rights of Subcontractors regarding payment are governed by Tex. Prop. Code, §§53.231 — 53.239 when the estimated cost of constructing the Parkland Improvements is less than $25,000.00. These provisions set out the requirements for filing a valid lien on funds unpaid to the CONTRACTOR as of the time of fling the claim, actions necessary to release the lien and satisfaction of such claim. I. Minimum Standards for Sureties. Sureties shall be listed on the US Department of the Treasury's Listing Approved Sureties stating companies holding Certificates of Authority as acceptable sureties on Federal Bonds and acceptable reinsuring companies (Department Circular 570). {W0794215.8} Berry Creek Highland Parkland Improvement Agreement Page 20