HomeMy WebLinkAboutRES 121118-F - Water Agmt Aproval to SignRESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS, AUTHORIZING THE CITY MANAGER TO
EXECUTE STANDARD WATER SERVICE AGREEMENTS AND
AMENDMENTS FOR PROVISION OF WATER IN CERTAIN AREAS.
WHEREAS, the City of Georgetown Certificate of Convenience and Necessity (CCN) currently
extends beyond the limits of the City's extraterritorial jurisdiction (ETJ);
WHEREAS, in order to ensure the provision of water and payment of impact fees in those areas
of the CCN outside of the ETJ, the City routinely enters into Water Service Agreements and
Amendments with property owners; and,
WHEREAS, these Water Service Agreements and Amendments generally do not place financial
burdens on the City; and
WHEREAS, in order to provide for the efficient and timely development of land, the City
Council finds it in the best interest of the City to delegate certain limited authority to execute
Water Services Agreements and Amendments to the City Manager,
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
GEORGETOWN TEXAS:
SECTION ONE. The facts and recitations contained in the preamble of this Resolution are
hereby found and declared to be true and correct, and are incorporated by reference herein and
expressly made a part hereof, as if copied verbatim.
SECTION TWO. The City Council hereby authorizes the City Manager or designee to execute
standard Water Service Agreements and Amendments provided that the following conditions are
met:
A. The Water Service Agreement and/or Amendment shall be for provision of water in the
City's CCN but outside of the City's ETJ; and
B. The Water Service Agreement and/or Amendment shall be substantially in the form
attached as Exhibit A; and
C. The terms of the Water Service Agreement and/or Amendment will not create a financial
obligation on the City or obligation to perform in excess of $50,000.
Resolution No.
Date Approved 1 i
Page 1 of 2
5ECfION THREE. This Resolution shall become effective on the „L day of
2018.
PASSED AND APPROVED on the 1 � day of 2018.
ATTEST:
Shelley Howling IN
Secretary
APPROVED A5 TO FORM:
Cha r ieW4-Ar-Ci ty Attorney
RAcnlutionNo. -0-1-
Date Approved
0-1-DateApproved
CITY OF GEO ETOWN, TEXAS
By: r, aL4
Dale Ross, Mayor
Page 2 of 2
WATER SERVICE AGREEMENT
(DEVELOPMENT COMMON NAME)
THE STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This Water Service Agreement ("Agreement") is entered into as of the Effective Date, by
and among the City of Georgetown, a Texas Home Rule Municipal Corporation ("City"); and
DEVELOPER(S) LEGAL NAME, TYPE OF ORGANZIATION ("Developer"). Each of
which are sometimes referred to as a "Party" or collectively as the "Parties."
RECITALS
A. WHEREAS, City is a political subdivision of the State of Texas and the owner of certain
water facilities that it utilizes to provide retail water services to its customers; and
B. WHEREAS, Developer is the owner of that approximately #ACRES acres of real property
known as DEVELOPMENT COMMON NAME (the "Property"), more fully described in Exhibit
"A" attached hereto, that Developer desires for single family residential purposes;
C. WHEREAS, the Property is located INSIDE/OUTSIDE the City's extraterritorial
jurisdiction and in the former service area of Chisholm Trail Special Utility District's ("CTSUD")
Certificate of Convenience and Necessity No. 11590 ("CTSUD's CCN") now City of Georgetown
CCN No. 12369;
D. WHEREAS, Developer desires to obtain retail water service for future residents and
customers within the Property;
E. WHEREAS, this Agreement is authorized by and consistent with state law and the City's
other ordinances, regulations, and other requirements governing development of subdivisions and
provision of utility services by the City.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereafter
set forth, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
I.
DEFINITIONS
When used in this Agreement, the following terms will have the meanings set forth below:
1.1. "Agreement" means this Water Service Agreement.
1.2. "Effective Date" means the last day of execution of this Agreement by all Parties hereto.
1.3. "Impact Fee" means a fee established and amended from time to time by the Board of
Directors of CTSUD or Georgetown City Council, whichever is applicable, in accordance with
Chapter 395 of the Texas Local Government Code to recover the costs of capital improvements
required to provide service to new development.
1.4. "Interests to be Acquired" means the Internal Facilities, all easements and interests within
the Property to be conveyed under the terms set forth in this Agreement.
1.5. "Internal Facilities" means the infrastructure, including all water transmission and
distribution lines and related facilities, equipment, and appurtenances thereto, to be constructed by
or on behalf of Developer and dedicated to City for purposes of extending water service from the
Water System. The exact physical location, design and specifications of the Internal Facilities
shall be identified in the plans and specifications submitted to City, and shall be subject to City's
review and approval. Internal Facilities may include infrastructure located outside the limits of
the Property.
1.6. "Living Unit Equivalent" or "LUE" means one single-family residential unit, or its
equivalent calculated at the rate of 350 gallons of potable water per day, based on a 30 -day average.
1.7. "Notice and Opportunity to Cure" means that, before any right of termination or other
remedy authorized hereunder may be exercised (i) the Party who intends to exercise such right or
remedy must deliver to the other Party a written notice which specifies the reason(s) for the
intended exercise and the action(s) necessary to avoid it, and (ii) the other Party fails to cure, within
thirty (30) days after receipt of such written notice, the specified problem(s) that would justify the
intended exercise.
1.8. "Property" means that certain real property consisting of approximately #ACRES acres
known as DEVELOPMENT COMMON NAME, and located in Williamson County being more
particularly described on Exhibit "A" attached hereto.
1.9. "Service Commitment" means the #LUEs LUEs of retail water service that City agrees to
make available to the Property in accordance with the terms and conditions of this Agreement.
1.10. "TCEQ" means the Texas Commission on Environmental Quality or any successor agency.
1.11. "Transfer" means the conveyance of the Interests to be Acquired to the City.
1.12. "Water Acquisition Fee" means an annual fee determined by City to be paid by or on behalf
of Developer for the costs of acquiring water for up to #LUEs LUEs, to be calculated in accordance
with Section 4.2 of this Agreement.
1.13. "Water Acquisition Fee Period" means a period of time beginning upon the execution of
this Agreement and ending at the earlier of the following: (i) at such time as there are 50% #LUEs
(50%) LUEs of active connections within the Property, such number of connections being equal
to approximately fifty percent (50%) of the total Service Commitment made available hereunder;
or (ii) upon termination of this Agreement according to its terms, in which event City's
commitment for water service to the Property shall also terminate.
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1, 14. "Water System" means the water system now owned or to be acquired by City to serve
City's water service territory and the area included within the former CTSUD's CCN, and any
expansions, improvements, enlargements, additions and replacements thereto, including the
Interests to be Acquired, subject to the terms of this Agreement.
II.
PROVISION OF WATER SERVICES
2.1. Service Commitment.
(a) Subject to the terms and conditions of this Agreement, including the payment of all
applicable fees and charges as set forth below, City agrees to provide water service to customers
within the Property in a quantity not to exceed the Service Commitment. The quantity of water
service made available to any connection within the Property will be determined according to
meter size in accordance with the City's rules, regulations, and policies.
(b) City's obligation to serve the Property is expressly contingent on Developer's
compliance with its obligations under this Agreement and with City's rules, regulations, and
policies.
(c) City shall have no obligation to provide water service to any portion of the Property
until all of the following condition precedents have been satisfied:
(i) the lands to be furnished water service have received final subdivision plat
approval by all governmental entities with jurisdiction, and recorded for the
phase of development within the Property to be furnished water service; and
(ii) City has received all necessary governmental approvals for the provision of
services to the Property; and
(iii) the Internal Facilities required to provide service the Property have been
completed in accordance with plans and specifications approved by City,
are operational, and have been conveyed to and accepted by City; and
(iv) all easements and other real property interests in Property required to be
conveyed to City under this Agreement have been dedicated to City; and
(v) all required fees and charges have been paid to City
2.2. Service. City shall provide water service to customers in the Property in accordance with
its standard rules and policies and the applicable laws and regulations of the State of Texas.
2.3. Minimum Pressure. City will deliver potable water to customers within the Property at a
minimum pressure of 35 pounds per square inch at each retail customer meter, or as may otherwise
be required by the applicable rules of TCEQ.
2.4. Fire Flows. City agrees to make service available to the Property at a flow rate not less
than # GPM gallons per minute for a minimum flow rate duration of two (2) hours. Neither this
provision, nor any other terms of this Agreement, shall be construed as any guarantee or
representation by City that the water service furnished by City to the Property will be sufficient to
prevent or control any fire, and City expressly disclaims any such responsibility.
2.5. Dead Ends. Developer acknowledges and agree to install at its sole expense automatic
flush valves on all dead ends constructed within the Property.
2.6, Wastewater, Drainage, and Other Services. City will have no obligation with regard to
the construction, ownership, operation, or maintenance of wastewater, drainage, water quality, or
other non -water service facilities, except as may be required by other separate agreements.
2.7. Water System Operations. Subject to the terms of this Agreement, City will be
responsible for operating and maintaining the Water System in good working order; for making
all needed replacements, additions, and improvements as required for the operation of the facilities;
for reading meters, billing, and collecting from all customers; and for performing all other usual
and customary services and administrative functions associated with retail water utility systems.
2.8. Source of Water Supply. City shall have sole discretion in determining the source of
water supply to be used for the provision of retail water service to the Property.
2.9, Service Subject to State and Local Approvals. Notwithstanding other provisions in this
Agreement, City will not provide water service in the manner described in this Agreement unless
Developer obtains at its sole cost and expense all necessary permits, certificates, and approvals for
the Property from Williamson County, TCEQ, and other applicable local, state, or federal
government bodies to which it is subject.
2.10. Water Conservation.
(a) City may curtail service to the Property in times of high system demand or drought,
or as may be required by City's Water Conservation Plan or Drought Contingency Plan, by other
regulatory authorities, by entities from whom City purchases water supplies, in the same manner
as such curtailment is imposed on other similar customers of City.
(b) Prior to the sale or conveyance of any lot within the Property, Developer agrees to
record in the Official Property Records of Williamson County, Texas, deed restrictions prohibiting
the re -subdivision of any residential lot into multiple lots, prohibiting private water wells for
domestic and drinking water purposes, and imposing those restrictions consistent with those water
conservation provisions set forth in the City's Water Conservation and Drought Contingency Plans
in their current form, or as may be amended from time to time, which restrictions shall be made
applicable to each owner of property within each such subdivision. The deed restrictions shall
specifically provide that they are enforceable by the City, its successors and assigns or any entity
that acquires the Water System or CCN, and may not be amended without City's consent.
III.
BUILD -OUT SCHEDULE
3.1. Build -out Schedule.
(a) Developer agrees that on or before the second anniversary of the Effective Date
there will be #10%LUEs LUES of active connections within the Property, such number of
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connections being equal to ten percent (10%) of the total Service Commitment made available
hereunder. In the event that there are not the requisite number of LUEs of active connections,
Developer agrees that on or before the second anniversary of the Effective Date, Developer will
pay or cause to be paid to City, on a monthly basis, an amount equivalent to the base rate to be
charged by City in accordance with City's policies, rates, and regulations then in effect for the
difference between the required number of active connections and the actual number of active
connections within Property.
(b) Developer agrees that after the second anniversary of the Effective Date (730 days
after the Effective Date) there will be an additional #I 0%LLJEs LUEs of active connections within
Property each year, such number of connections being equal to approximately ten percent (10%)
of the total Service Commitment made available hereunder, until the number of active connections
is equal to #80%LUES (80%) LUEs of active connections, such number of connections being equal
to approximately eighty percent (80%) of the total Service Commitment made available hereunder.
In the event that there are not the requisite number of LUEs of active connections as of the
anniversary of the Effective Date, Developer will pay or cause to be paid to City, on a monthly
basis, an amount equivalent to the base rate to be charged by City in accordance with City's
policies, rates, and regulations then in effect for the difference between the required number of
active connections and the actual number of active connections within Property.
(c) The required build -out schedule is further described in Exhibit "B", attached
hereto and incorporated herein by reference. Developer acknowledges and agree that its failure to
have completed the requisite number of active connections as of the respective anniversary of the
Effective Date or failure to timely pay in full the appropriate fee equivalent to the base rate for the
difference between the required number of active connections and the actual number of active
connections is a material breach of this Agreement. Without limitation, City may refuse to provide
any additional service within Property until such time as the breach is cured. In the event of such
a breach, City may also exercise all rights and remedies available at law or in equity, including
termination, in which event, City's obligation to provide service to any new connections within
Property under this Agreement shall terminate.
IV.
RATES, FEES, CHARGES, AND OTHER PAYMENT OBLIGATIONS
4.1. Rates. Except as otherwise provided in this Agreement, all retail water customers within
the Property will pay the applicable standard rates, fees, and charges for retail water service, as
established and amended by the governing body of the water certificate of convenience and
necessity holder from time to time.
4.2. Water Acquisition Fees.
(a) Developer agrees to pay or cause to be paid the Water Acquisition Fee to City
during the Water Acquisition Fee Period. The Water Acquisition Fee is currently equal to $6.00
per LUE per year based on the Service Commitment. The Water Acquisition Fee may be adjusted
from time to time by City.
(b) The first annual Water Acquisition Fee payment shall be made by Developer to
City within thirty days of the Effective Date.
(c) All subsequent payments of the Water Acquisition Fee shall be made in full by
Developer to the City on or before January 1 of each year that this Agreement remains in effect or
until the end of the Water Acquisition Fee Period as defined herein.
(d) Developer acknowledges and agrees that failure by them to timely pay in full the
Water Acquisition Fee is a material breach of this Agreement. Without limitation, City may refuse
to provide any additional service within the Property until such time as the breach is cured. In the
event of such a breach, City may also exercise all rights and remedies available at law or in equity,
including termination, in which event, City's obligation to provide service to any new connections
within the Property under this Agreement shall terminate.
4.3. Impact Fees.
(a) If the property is entirely or partially located within a Municipal Utility District
(MUD), then within thirty (30) days after the City approves a final plat for a portion of the Property
which will receive water service under this Agreement, Developer will pay or cause to be paid the
Impact Fee then in effect multiplied by the number of meters for the lots contained within the final
plat. In return for payment of the foregoing sum, City shall credit applicants for service for such
meters with the corresponding amount of the Impact Fees so paid.
(b) If no part of the property is located within the boundary of a MUD, then at the time
that Developer is prepared to set a meter for an active connection within the Property, Developer
will make a plumbing permit application to the City's Permitting and Inspections Department.
Along with its permit application, Developer agrees that it will pay or cause to be paid the impact
fee then in effect multiplied by the number of meters it requests to be set at that time. In return for
payment of the foregoing sum, the applicable entity shall credit applicants for service for such
meters with the corresponding amount of the impact fees so paid.
(c) Developer acknowledges and agrees that City will have absolutely no obligation to
provide service to any lots within Property unless and until the Impact Fee for that lot has been
paid.
4.4. Irrigation or Second Meter on a Lot. Any applicant for service within the Property that
requests service in excess of one LUE (i.e., service in excess of 350 gallons of potable water per
day), for service other than domestic service, or that would result in City providing more
cumulative service within the Property than the Service Commitment, will be required to pay the
standard fees and charges for water service set forth in the applicable rules and policies, including
impact fees, at the time of application for service.
4.5. Other Connection Fees and Charges. Except as otherwise provided herein, each
applicant for retail service within the Property shall be required to pay to City all applicable
charges, fees, and deposits for water service, as such fees may be amended by the City from time
to time.
4A Consultant Fees. City acknowledges prior receipt of a utility evaluation request fee from
Developer. In the event City's engineering, legal, or other consulting costs exceed the amount of
the fee previously received, then City shall send a written invoice for payment to the Developer.
Within thirty (30) days after the date of the invoice, and as a condition precedent to performance
by City under this Agreement, Developer agrees to pay the full invoiced sum. If payment is not
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timely received by City, City may suspend the provision of additional service to the Property,
terminate this Agreement, or pursue any other remedy available at law or in equity.
V.
INTERNAL FACILITIES
5.1 Internal Facilities. Developer will construct, or cause to be constructed, all Internal
Facilities required to extend retail water services to the Customers within the Property from the
Water System, including all facilities and equipment required to connect the Internal Facilities to
the Water System. The Internal Facilities shall also include permanent flushing assemblies of a
type and at a location approved by City at dead ends. Upon completion of construction of each
phase of the Internal Facilities, Developer will provide City with a certificate of completion from
a licensed professional engineer certifying that the Internal Facilities have been completed in
accordance with the approved plans and specifications. The date upon which the certificate of
completion is provided to City shall be the "Completion Date." Within thirty days after the
Completion Date, Developer shall transfer and convey, or cause to be transferred and conveyed,
the completed Internal Facilities to City in accordance with the terms of Article VII below.
5.2 Design of the Internal Facilities. All physical facilities to be constructed or acquired as
a part of the Internal Facilities will be designed by a qualified registered professional engineer
selected by or on behalf of Developer. The design will be subject to the approval of City and all
governmental agencies with jurisdiction. The Internal Facilities shall be designed so as to provide
continuous and adequate service within the Property and so as to ensure their compatibility with
City's existing water system. The Internal Facilities will include any equipment necessary for
water transmission and distribution, water services through the meter box, pressure reducing
valves, air release valves, flow control/shut-off valves, master meters, backflow prevention
devices, fire hydrants, flushing assemblies, and other equipment as may be specified by City.
Developer further agrees to install, or cause to be installed, meter boxes and a flow indicator for
fire lines, if any. Any variance to the plans or specifications approved by City or specified in this
Agreement must be submitted in writing to City and is subject to City's sole discretion and
approval. If the Internal Facilities are not in compliance with the agreed specifications approved
by City, then City may pursue any remedy provided in this Agreement, or may require that
Developer replace the facilities.
5.3 Construction of Facilities.
(a) The Internal Facilities will be constructed, and all related easements, equipment,
materials, and supplies will be acquired by Developer, and all construction contracts and other
agreements will contain provisions to the effect that any contractor, materialman, or other party
thereto will look solely to Developer for payment of all sums coming due thereunder and that City
will have no obligation whatsoever to any such party.
(b) The Internal Facilities will be constructed in a good and workmanlike manner and
all material used in such construction will be substantially free from defects and fit for their
intended purpose. City may have an on-site inspector to inspect and approve the construction,
which approval will not be unreasonably withheld or delayed. Developer shall not cover or allow
to be covered any portion of the Internal Facilities until City has the reasonable opportunity to
inspect the facilities. City will notify Developer of any construction defects coming to its attention
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as soon as practicable. Developer shall pay City for inspections in accordance with City Fee
Schedule.
(c) Upon completion of construction of each phase of the Internal Facilities, Developer
agrees to furnish City with one reproduction, one blue -line copy, and one set of computer files in
an electronic format specified by City of the as -built or record drawings of each
5.4 Warranty. Except as otherwise specified, Developer agrees to repair or cause to be
repaired all defects in materials, equipment, or workmanship for the Internal Facilities appearing
within two (2) years from the Completion Date to comply with the approved plans and
specifications for the Internal Facilities. Upon receipt of written notice from City of the discovery
of any defects, Developer shall promptly and at no cost to the City remedy the defects and replace
any property damaged therefrom. In case of emergency where delay would cause serious risk of
loss or damage to City or its customers, or if Developer, after notice, fails to proceed promptly
toward such remedy within thirty (30) days or within another period of time which has been agreed
to in writing, City may have defects in the Internal Facilities corrected in compliance with the
terms of this warranty and guarantee, and Developer shall be liable for all actual out-of-pocket
costs and expenses incurred by City in so doing.
5.5 Assignment of Warranty Obligations. In addition to Developer's duty to repair, as set
forth above, Developer expressly assume all warranty obligations required by City under the
approved plans and specifications for specific components, materials, equipment, or workmanship.
Developer may assign, or cause to be assigned, to City, by written instrument in a form approved
by counsel for City, a complying warranty from a manufacturer, supplier, or contractor. Where an
assigned warranty is tendered and accepted by City that does not fully comply with the
requirements of the agreed specifications, Developer shall remain liable to City on all elements of
the required warranty that are not provided by the assigned warranty.
5.6 Maintenance Bond. Developer agrees to provide to City a Maintenance Bond in a form
and from a surety acceptable to City for all Internal Facilities. The Maintenance Bond shall
provide for the repair of any defects in materials, equipment, or workmanship for the Internal
Facilities appearing within two years from the Completion Date, and shall be in an amount equal
to twenty five percent (25%) of the total construction costs for the Internal Facilities, as determined
by City. Developer may furnish a proposed form of Maintenance Bond or proposed surety to City
at any time to secure City's approval to the form thereof and/or approval of the surety.
5.7 Insurance. Developer shall require that all workers involved with the installation and
construction of the Internal Facilities are covered by workers' compensation insurance as required
by the laws of the State of Texas. Developer shall also procure and maintain, at its own cost, or
require that its contractors procure and maintain, comprehensive general liability insurance
insuring against the risk of bodily injury, property damage, and personal injury liability occurring
from, or arising out of, construction of the Internal Facilities, with such insurance in the amount
of a combined single limit of liability of at least $1,000,000 and a general aggregate limit of at
least $1,000,000. Such insurance coverage shall be maintained in force at least until the
completion, inspection, and acceptance of the Internal Facilities by City. City shall be named as
an additional insured on all such insurance coverages.
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VI.
REAL PROPERTY
6.1 Internal Easements.
(a) All Internal Facilities located within Property shall be constructed within public
rights-of-way or within exclusive perpetual easements dedicated or conveyed as the City may
determine to be reasonably necessary for the ownership, operation, and maintenance of, and
including access to, the Internal Facilities. City shall approve the physical location of water lines
within public rights-of-way or easements relative to other utility infrastructure, when such facilities
are authorized by City to be located therein, to prevent conflicts with other utilities, road
improvements, or drainage improvements.
(b) All easements must have a minimum width of twenty (20) feet, unless otherwise
required by City or specified in this Agreement.
(c) All easements shall be dedicated or conveyed to the City at no cost to the City.
(d) All easements shall be at locations approved by City and in the form approved by
counsel for City.
(e) Executed easements shall be furnished to, and recorded by, City prior to the
provision of water service to the Property, but the commencement of water service by City to
Property shall not waive or relinquish Developer's obligation to provide any and all such
easement(s).
VII.
CONVEYANCE AND TRANSFER
7.1. Interests to be Acquired. Subject to the conditions set out in this Agreement, Developer
agrees to convey to City the following, which are collectively referred to as the "Interests to be
Acquired":
(a) the Internal Facilities, or any portions thereof, when they are finally constructed
and accepted by City;
(b) all easements necessary for the operation and maintenance of and access to the
Internal Facilities and any other easements required by City;
(c) all maps, drawings, engineering records, and office records in the possession of
Developer relating to the Internal Facilities (the "Records"); and
(d) all of the contracts, leases, warranties, bonds, permits, franchises, and licenses in
the possession of Developer related to or arising out of the acquisition, construction, and operation
of the Interests to be Acquired (the "Contracts").
7.2. Transfer.
Z
(a) Prior to Transfer, Developer shall deliver to the City the following items:
(i) One (1) complete set of construction plans for the Internal Facilities
certified as "as -built" by the designing engineer in the format requested by
the City; and
(ii) Copies of all documents evidencing transfer or assignment of all contractor,
subcontractor, consultant, and manufacturer and all other contractual rights,
warranties, guarantees, assurances of performance, and maintenance bonds
related to the Internal Facilities; and
(iii) Certifications that there are no liens or other encumbrances on the Internal
Facilities, including copies of lien releases in form and substance acceptable
to the City; and
(iv) All easements to be conveyed to the City, including metes and bounds
descriptions and surveys; and
(v) The Contracts (defined above); and
(vi) The Records (defined above).
(b) Time and Manner of Transfer. The Internal Facilities shall be transferred to the
City within the time period set forth in Section 5.1 of this Agreement. The Internal Facilities shall
be deemed to be transferred to the City when the City issues a written letter of acceptance for same
evidencing the City's consent to accept the Internal Facilities for ownership, operation and
maintenance.
VIII.
CONDITIONS, REPRESENTATIONS AND WARRANTIES
8.1. Indemnification. TO THE FULLEST EXTENT AUTHORIZED BY LAW,
DEVELOPER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS CITY, ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ASSIGNS FROM AND AGAINST
ANY AND ALL CLAIMS, DEMANDS, DEBTS, SUITS, CAUSES OF ACTION, LOSSES,
DAMAGES, JUDGMENTS, FINES, PENALTIES, LIABILITIES, AND COSTS, INCLUDING
REASONABLE ATTORNEY FEES AND DEFENSE COSTS INCURRED BY CITY ARISING
OUT OF OR RELATING TO THE BREACH OF ANY AGREEMENT, WARRANTY, OR
REPRESENTATION OR OTHER OBLIGATION OF DEVELOPER UNDER THIS
AGREEMENT. DEVELOPER FURTHER AGREES TO THE FULLEST EXTENT
PERMITTED BY LAW, TO INDEMNIFY, DEFEND, AND HOLD HARMLESS CITY, ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ASSIGNS FROM AND AGAINST
ANY AND ALL CLAIMS, DEMANDS, DEBTS, SUITS, CAUSES OF ACTION, LOSSES,
DAMAGES, JUDGMENTS, FINES, PENALTIES, LIABILITIES, AND COSTS, INCLUDING
REASONABLE ATTORNEY FEES AND DEFENSE COSTS ARISING OUT OF OR
RELATING IN ANY WAY TO DEVELOPER'S NONCOMPLIANCE WITH APPLICABLE
LAWS, ORDINANCES, AND REGULATIONS AND/OR FAILURE TO OBTAIN REQUIRED
PERMIT(S) AND APPROVAL(S) GOVERNING DEVELOPMENT OF THE PROPERTY OR
PERTAINING TO THIS AGREEMENT, EXCEPTING ONLY THOSE DAMAGES,
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LIABILITIES, OR COSTS ATTRIBUTABLE TO THE SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT OF CITY OR ITS ASSIGNS. This indemnity shall survive the termination of
this Agreement and shall be binding upon and inure to the benefit of the Parties and their respective
successors, representatives, and assigns.
8.2. Representations of Developer. Developer acknowledges, represents, and agrees that:
(a) It is qualified in all respects to conduct business within the State of Texas;
(b) Except under any financing documents that will be released at the prior to Transfer,
it has not created or permitted any third person to create any liens, leases, options, claims,
encumbrances, or any other adverse rights, claims, or interests with respect to any Interests to be
Acquired that will prevent or hinder its ability to transfer good and warrantable title in same to
City;
(c) It will be the true and lawful owner of the Interests to be Acquired, except as
provided under financing documents that will be released prior to Transfer, no other third person
or entity, public or private, will possess a right or interest, legal or equitable, nor any lien,
encumbrance, or other adverse claim, present or contingent, in or to the Interests to be Acquired;
(d) Except as provided under financing documents that will be released prior to
Transfer it has not previously sold, assigned, transferred, leased, pledged, or hypothecated its
ownership interest in or to Interests to be Acquired and, prior to the Transfer contemplated in this
Agreement, will not sell, assign, transfer, lease, pledge, or otherwise hypothecate any interest in
or to the Interests to be Acquired to any third person or entity, except as provided under financing
documents that will be released at the time of Transfer;
(e) It has not entered into any agreement, written or oral, with any third party, wherein
any such third party has agreed to reimburse it for the cost of design or construction of the Interests
to be Acquired or any portion thereof, or wherein any third party has acquired a right to purchase
such facilities;
(f) The contemplated transfer of the Interests to be Acquired constructed by Developer
will not violate any term, condition, or covenant of any agreement to which it is a party;
(g) Execution of this Agreement and the consummation of the transactions
contemplated hereunder will not constitute an event of default under any contract, covenant, or
agreement binding upon it;
(h) The contemplated transfer of the Interests to be Acquired constructed by Developer
to City will not violate the provisions of the United States Constitution, the Texas Constitution, or
any federal, state, or local law, ordinance, or regulation;
(i) It has not previously granted any right or option to any other person, entity, or
political subdivision to acquire or use the Interests to be Acquired to be constructed by Developer,
and agrees to defend and hold City harmless from all claims or causes of action asserted by any
third person, entity, or political subdivision alleging a right or option to acquire or use the Interests
to be Acquired constructed by Developer, or any portion thereof; and
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0) Except as provided herein, it has not previously entered into any agreement or
caused or otherwise authorized any action that would diminish, eliminate, or adversely affect
City's contemplated ownership or use of the Interests to be Acquired.
City is executing this Agreement in reliance on each of the warranties and representations
set forth above and each such representation and warranty will survive the execution and delivery
of this Agreement and the consummation of the transactions contemplated by this Agreement.
8.3. Representations of City. City represents and warrants to Developer that:
(a) City is a Home Rule Municipal Corporation of the State of Texas and has the
requisite power and authority to take all necessary action to execute and deliver this Agreement
and to perform all obligations hereunder;
(b) The execution, delivery, and performance of this Agreement have been duly
authorized by all necessary action on the part of City and the person executing this Agreement on
behalf of City has been fully authorized and empowered to bind City to the terms and provisions
of this Agreement;
(c) This Agreement does not contravene any law or any governmental rule, regulation,
or order applicable to City; and
(d) The execution and delivery of this Agreement and the performance by City of its
obligations hereunder do not contravene the provisions of, or constitute a default under, the terms
of any contract, resolution, or other instrument to which City is a party or by which City is bound.
Developer is executing this Agreement in reliance on each of the warranties and
representations set forth above and each such representation and warranty of City will survive the
execution and delivery of this Agreement and the consummation of each of the transactions
contemplated by this Agreement.
8.4. Survival of Covenants. The covenants contained in this Article will survive the
conveyance, transfer, and assignment of the Interests to be Acquired after Transfer and will
continue to bind City and Developer as provided herein.
IX.
REMEDIES
9.1. City Remedies.
(a) If Developer fails or refuses to timely comply with any of their obligations
hereunder, or if Developer's representations, warranties, or covenants contained herein are not true
or have been breached, City will have the right to enforce this Agreement by any remedy at law or
in equity or under this Agreement to which it may be entitled; to terminate this Agreement; or to
waive the applicable objection or condition and to proceed in accordance with the remaining terms.
(b) If City determines that any of Developer's representations, warranties, or covenants
are not true, then City may avail itself of any remedy at law or in equity or under this Agreement
to which it may be entitled.
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9,2. Developer Remedies.
(a) If City fails or refuses to timely comply with their respective obligations hereunder,
or if, prior to Transfer, City's representations or warranties contained herein are not true in any
material respect or its covenants have been breached, Developer will have the option, after
providing Notice and Opportunity to Cure, to enforce this Agreement by any remedy in equity to
which it may be entitled; or to waive prior to Transfer, as applicable, the applicable default,
objection, or condition and proceed to close the transaction in accordance with the remaining
terms.
(b) If, after Transfer, Developer determines that any of City's representations,
warranties, or covenants which applied to the Transfer are not true in any material respect, then
the Developer may avail itself of any remedy in equity to which it may be entitled.
(c) Notwithstanding any provision herein to the contrary, Developer waives all present
and future claims for special and consequential damages against City arising from or related to this
Agreement. Such waiver shall survive any termination or expiration of this Agreement.
9.3. Default in Payments.
(a) All amounts due and owing by Developer to City shall, if not paid when due, bear
interest at the Texas post judgment interest rate as set out in Texas Civil Practice & Remedies
Code, or any successor statute, from the date when due until paid, provided that such rate shall
never be usurious or exceed the maximum rate as permitted by law. If any amount due and owing
by Developer to City is placed with an attorney for collection, and the City prevails in any litigation
or arbitration involving the collection, Developer shall bay the City's costs and attorneys' fees,
and such payments shall be in addition to all other payments provided for by this Agreement,
including interest.
(b) In the event of any failure to provide a required payment hereunder by Developer,
Developer agrees that City may, in its sole discretion, decline to sign any additional final plats for
subdivisions within the Property until payment in full is made to City.
9.4. Disputed Payment. If Developer at any time disputes the amount to be paid by it to City,
Developer shall nevertheless promptly make or cause to be made the disputed payment or
payments, but Developer shall thereafter have the right to seek a determination whether the amount
charged by City is in accordance with the terms of this Agreement.
9.5. Default. Unless otherwise provided in this Agreement, if either Party (referred to herein
as the "Defaulting Party") fails to comply with its obligations under this Agreement or is otherwise
in breach or default under this Agreement (collectively, a "Default") other than Default for non-
payment of money, then the other Party (referred to herein as the "Non -Defaulting Party") may
not invoke any rights or remedies with respect to the Default until and unless the Non -Defaulting
Party delivers to the Defaulting Party a Notice and Opportunity to Cure and the Defaulting Party
fails to cure as required.
X.
NOTICES
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10.1. Addresses. All notices hereunder from Developer to City will be sufficient if sent by
certified mail, addressed to City to the attention of City Manager, City of Georgetown, P.O. Box
409, Georgetown, TX 78627. All notices hereunder to Developer will be sufficiently given if sent
by certified mail or facsimile transmission with confirmation of delivery to Developer c/o
DEVELOPER ADDRESS. The address for delivery of notice may be changed by any Party by
providing not less than five (5) days prior written notice thereof to the other Parties.
XI.
TERM AND TERMINATION
11.1. Term. This Agreement shall be effective for a period of ten (10) years from the Effective
Date unless otherwise terminated according to its terms. Any outstanding payment obligation of
either Party shall survive termination.
11.2. Effect of Termination. Notwithstanding any termination of this Agreement on terms
provided herein, City's obligation(s) to furnish water services to all retail water customers residing
within the Property to which City is providing Service at the time of termination survives the
termination of this Agreement.
XII.
MISCELLANEOUS
12.1. Execution. This Agreement may be simultaneously executed in any number of
counterparts, each of which will serve as an original and will constitute one and the same
instrument.
12.2. Costs and Expenses. Except as otherwise expressly provided herein, each Party will be
responsible for all costs and expenses and attorney's fees incurred by such Party in connection
with the transaction contemplated by this Agreement.
12.3. Governing Law. This Agreement will be governed by the Constitution and laws of the
State of Texas, except as to matters exclusively controlled by the Constitution and Statutes of the
United States of America.
12.4. Successors and Assigns.
(a) Developer shall not assign its rights or obligations hereunder without the prior
written consent of City.
(b) City has the right to assign its rights or obligations hereunder without the prior
written consent of the Developer.
(c) This Agreement shall be binding upon the permitted successors and assigns of
Developer and City, and shall inure to the benefit of the successors and assigns of Developer and
City.
12.5. Headings. The captions and headings appearing in this Agreement are inserted merely to
facilitate reference and will have no bearing upon its interpretation.
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12.6. Partial Invalidity. If any of the terms, covenants or conditions of this Agreement, or the
application of any term, covenant, or condition, is held invalid as to any person or circumstance
by any court with jurisdiction, the remainder of this Agreement, and the application of its terms,
covenants, or conditions to other persons or circumstances, will not be affected.
12.7. Waiver. Any waiver by any Party of its rights with respect to a default or requirement
under this Agreement will not be deemed a waiver of any subsequent default or other matter.
12.8. Amendments. This Agreement may be amended or modified only by written agreement
duly authorized by the governing body of City and Developer, and executed by the duly authorized
representatives of all Parties.
12.9. Cooperation. Each Party agrees to execute and deliver all such other and further
instruments and undertake such actions as are or may become necessary or convenient to effectuate
the purposes and intent of this Agreement.
12.10. Venue. All obligations of the Parties are performable in Williamson County, Texas and
venue for any action arising hereunder will be in Williamson County.
12.11. Third Party Beneficiaries. Except as otherwise expressly provided herein and except
with respect to any contracts assumed by City, nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the Parties, any rights, benefits, or remedies under
or by reason of this Agreement.
12.12. Representations. Unless otherwise expressly provided, the representations, warranties,
covenants, indemnities, and other agreements will be deemed to be material and continuing, and
will not be merged.
12,13. Exhibits. All exhibits attached to this Agreement are hereby incorporated in this
Agreement as if the same were set forth in full in the body of this Agreement.
12.14. Entire Agreement. This Agreement, including the attached exhibits, contains the entire
agreement between the Parties with respect to the Interests to be Acquired and supersedes all
previous communications, representations, or agreements, either verbal or written, between the
Parties with respect to such matters.
12.15. Approvals. All approvals of any party hereunder shall be in writing.
12.16. CTSUD's CCN. The parties understand and acknowledge that the Property is currently
located within the former water certificate and convenience service area of CTSUD's CCN. The
City owns and operates the water system that will serve the Property. Since the CTSUD water
certificate and convenience and necessity has been transferred to the City, retail customers on the
Property will be considered retail water customers of the City of Georgetown. The Developer
hereby agrees to support and not directly or indirectly oppose any efforts by City to acquire or seek
transfer of a water certificate of convenience and necessity that would include the Property.
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be signed,
sealed and attested in duplicate by their duly authorized officers, as of the Effective Date.
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[SIGNA TURE PAGES FOLLOW]
CITY OF GEORGETOWN
Jim Briggs, General Manager
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on the day of _ ,
20_, by Jim Briggs, General Manager of Utilities for the City of Georgetown, on behalf of the
City.
Notary Public, State of Texas
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DEVELOPER:
By: Cori) orate Lea,aj Name, 0rggcinfzation Tx pe
By:
Name:
Title:
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on the
by
Organization Type.
_clay of , 2( ,
of Developer Corporate Legal Name,
Notary Public, State of Texas
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Exhibit "A"
Description of Property
19
Exhibit "B"
Build -out Schedule
Number of Years after Effective Date
Required Active Connections in LUES
2
10%
3
20%
4
30%...
5
6
7
8
9
10
20