R2017-086 2017-04-24RESOLUTION NO. R2017-86
A Resolution of the City Council of the City of Pearland, Texas, authorizing the
City Manager or his designee to enter into a Development Agreement with First
Capital Partners, LLC, ("Developer") reciting the responsibilities of the City
and Developer associated with the development of a residential community
(Massey Oaks).
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Development Agreement, a copy of which is attached hereto as
Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute and
the City Secretary to attest the attached Development Agreement.
PASSED, APPROVED and ADOPTED this the 22nd day of May, A.D., 2017.
ATTEST:
NG, T
Y S ' ' ETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
TOM REID
MAYOR
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as
of the Effective Date by and between the CITY OF PEARLAND, TEXAS, a home rule
municipality located in the counties of Brazoria, Harris, and Fort Bend, Texas (the "City"), and
FIRST CAPITAL PARTNERS, LLC, a Nevada limited liability company (the "Developer").
The City and the Developer are collectively referred to herein as the "Parties".
RECITALS
A. Capitalized terms used in these recitals are defined in Article 1 below.
B. The Developer is the holder of the right to acquire and develop the Property from
the current owners thereof. The Developer currently intends to develop and improve, in various
phases, all or a portion of the Property as a planned residential community and other uses permitted
in conformance with the PD.
C. The Developer believes that approximately 145 acres of the Property is currently
located within the City's municipal boundaries and the remaining approximately 212 acres of the
Property is located within the extraterritorial jurisdiction of the City. The Developer has, pursuant
to the terms and conditions of this Agreement, voluntarily requested the City to annex that portion
of the Property not currently located within the City's municipal boundaries to the City's municipal
boundaries so that all the Property will be wholly located in the City's municipal boundaries
following such annexation.
D. The Parties believe that the creation and operation of a MUD within the Property is
essential to provide for the planning, financing, construction, operation and maintenance of the
public infrastructure and improvements described in this Agreement without imposing an undue
burden on the City and its residents and taxpayers. Accordingly, the Developer desires to petition
the TCEQ or the Legislature of the State of Texas to create a MUD containing all of the Property.
Subject to the requirements set forth herein, the City intends to provide its consent to the creation
or the inclusion of all or any part of the Property within the MUD. The Developer and the City also
intend to create a PD over the Property.
E. To facilitate the development of the Property, the City and the Developer have
agreed to take certain actions and to finance and construct, or cause to be financed and constructed,
various public improvements.
F. This Agreement has been submitted to the City for consideration and review, and
the City has taken all actions required to be taken prior to the execution of this Agreement to make
the same binding upon the City according to the terms hereof.
G. The City, after due and careful consideration, has concluded that the development
of the Property as provided for herein will further the growth of the City, improve the environment
of the City, increase the assessed valuation of the real estate situated within the City, foster
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increased economic activity within the City, increase employment opportunities within the City,
upgrade public infrastructure within the City, and otherwise be in the best interests of the City by
furthering the health, safety, morals and welfare of its residents and taxpayers.
H. This Agreement is authorized by Texas Law, including but not limited to, TEx. Loc.
GOV'T CODE Sec. 212.071, et. seq., and 212.171, et seq., and Ch. 380.
I. It is the intent of the Parties to set forth herein the mutual agreements, covenants
and commitments between the Parties regarding the Property and the Parties acknowledge that they
are proceeding in reliance upon the purposes, intent, effectiveness and enforceability of this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the receipt and sufficient
of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS; INCORPORATION OF RECITALS
1.1 Definitions. Capitalized terms used herein, including the recitals hereto, shall have
the meanings set forth in this section, unless otherwise defined, or unless the context clearly
requires another definition.
Acceptance is defined as the final administrative approval by the City of the public
infrastructure within a subdivision shown on a recorded approved final plat for which a particular
platted lot is located.
Agreement is defined in the preamble hereof and includes any subsequent written
amendments or modifications made pursuant to Section 7.8 hereof.
City means the City of Pearland, Texas, a home rule municipality located in the counties
of Brazoria, Harris, and Fort Bend, Texas.
City Obligation means, as to the Water Distribution System described in Sec. 4.3 (c), the
agreement of the City to contribute to the Developer the cost for materials to oversize the relevant
water lines in order to provide capacity for other future development in the area. The dollar amount
shown is an estimate of the difference in cost for larger pipe and related materials and is not a
minimum to be contributed, nor a maximum. The actual amount will be determined by bids for
the project. The Developer shall install the water lines and the City's only obligation is to fund
the oversize portion of the cost of pipe and related materials.
City Regulations means the regulations, standards, codes and ordinances of the City
governing the platting or re -platting of land into subdivisions and development of said land in
effect as of the Effective Date.
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Developer means First Capital Partners, LLC and includes any subsequent developer,
whether one or more and whether or not related to the Developer or otherwise a related party of
the Developer or a partnership or other entity in which the Developer is a partner or participant, of
all or any portion of the Property that specifically acquires by whole or partial assignment, by
operation of law or otherwise, the rights and obligations of the Developer under this Agreement in
accordance with Section 7.11 hereof.
Developer Obligation means, as to any component of the Required Regional Infrastructure,
the specific required infrastructure to be installed by the Developer at its cost. A listed dollar
amount is the estimated costs, but the Developer is not required to expend that full amount, and
such amount is not a maximum the Developer is required to expend.
Effective Date means the date on which this Agreement receives approval from and is
executed by both Parties, subject to the annexation of the Property.
MUD means a new in -city municipal utility district to be created under general law or
through one or more acts of the Texas Legislature pursuant to Article XVI, Section 59 of the Texas
Constitution and operated under Chapters 49 and 54 of the Texas Water Code, as amended for the
purpose or purposes of financing, planning, constructing, operating, maintaining or otherwise
providing for the public infrastructure or improvements described in this Agreement or any of
them for or to all or any portion of the Property.
Person means any individual, partnership, association, firm, trust, estate, public or private
corporation, or any other legal entity whatsoever.
Phase means a defined portion of the Project, as identified on Exhibit A-2 attached.
Project means the real estate development planned for the Property, as more fully described
in Paragraph C of the recitals hereto, known as "Massey Oaks", to be developed in multiple
Phases.
Property means the approximately 357 -acre tract legally described at Tract 1 and Tract 2
in Exhibit A attached hereto and made a part hereof and shown on the site plan attached as Exhibit
A-1.
PD means a Planned Development for the Property adopted pursuant to the City of
Pearland Unified Development Code.
Party or Parties means all or any of the City and the Developer, as applicable, and their
respective successors and/or permitted assigns.
Required Easements means public easements or rights of way, as appropriate, for the
Required Regional Infrastructure, dedicated by the relevant land owners to the public or the City
(voluntarily, under threat of eminent domain or by eminent domain action), in locations consistent
with the City Major Thoroughfare Plan to provide for the ultimate expansion of the City road and
utility systems.
Required Regional Infrastructure means the offsite regional public infrastructure
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improvements listed on Exhibit B attached and Required Easements therefore, which are required
by the City to be installed by the Developer at its expense, subject to limited reimbursement by the
City for certain oversizing of underground utilities, and the potential future reimbursement from
potential future private land owners developing area property and tapping into that infrastructure.
TCEQ means the Texas Commission on Environmental Quality and its successors.
Service Area means the area that can be served by the proposed Harkey Road trunk main
sanitary sewer as shown in Exhibit H.
1.2 Recitals incorporated. The representations, covenants and recitations set forth in
the recitals to this Agreement are material to this Agreement and are hereby found and agreed to
be true and correct, and are incorporated into and made a part hereof as though they were fully set
forth in this article.
ARTICLE II
COOPERATION
The Parties agree to take such actions, including the execution and delivery of such
documents, instruments, petitions and certifications (and, in the City's case, the adoption of such
ordinances and resolutions), as may be necessary or appropriate, from time to time, to carry out
the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out
said terms, provisions and intent.
ARTICLE III
EFFECTIVENESS OF AGREEMENT
This Agreement shall become effective on the Effective Date.
ARTICLE IV
DEVELOPMENT AND USE OF THE PROPERTY AND
CONSTRUCTION OF IMPROVEMENTS
4.1 City's obligations.
(a) Subject to the exercise of its discretionary authority and to the extent permitted by
law, the City intends to take the following actions, and agrees to use its best
efforts to do so:
(i)
Consent to the creation of a MUD over the Property under the conditions
described in Exhibit J, which are the City's standard consent conditions for
the creation of municipal utility districts, when requested by the Developer;
(ii) Enter into a Utility Services Agreement with the Developer and a MUD in
substantially the same form as the Utility Services Agreement attached to
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the consent conditions in Exhibit J-1;
(iii) Create a PD over the Property which will provide the appropriate zoning for
single family residential and compatible uses substantially consistent with
the site plan attached as Exhibit A-1.
(iv) Pursuant to and in compliance with the Utility Services Agreement (and to
the extent not provided by the MUD within its boundaries), commit to
provide the water production and wastewater treatment capacity ultimately
required by the Project. Approval of the first preliminary plat for the
Property will formalize such commitment. City approval of the first
preliminary plat binds the City to an ultimate commitment of water and
wastewater capacity to serve the Project which is expected to include
approximately 1,000 equivalent single family connections;
(v) Provide water and wastewater connections as required by the Project and as
shown on the Developer's projected build -out schedules;
(vi) Work with the Developer to obtain all necessary approvals, permits and
consents from Brazoria County, the City of Manvel and/or the City of Alvin
with respect to off-site improvements;
(vii) Acquire Required Easements at Developer's cost, and utilize eminent
domain where necessary, provided, however, nothing contained in this
Agreement shall preclude the MUD from independently exercising its own
eminent domain authority;
(viii) Annex those portions of the Property not currently within the corporate
limits of the City, on the petition of the landowner; and
(ix) Establish and administer the cost recovery program as described in
paragraph 4.3(d) for certain of the Required Regional Infrastructure.
4.2 Developer's obligations.
(a) The Developer intends to take the following actions, and agrees to use its best
efforts to do so:
(i)
Petition the TCEQ or the Legislature of the State of Texas for the creation
of a MUD over the Property;
(ii) Prepare and implement the PD, including the adoption of deed restrictions
and other restrictive covenants consistent with the PD and relevant City
regulation;
(iii) Assemble and purchase the Property for ownership and development;
(iv) Oversee and construct Required Regional Improvements, such as water,
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sanitary sewer and drainage facilities, within the Required Easements
therefore;
(v) Coordinate with the City on obtaining Required Easements, and provide the
required funding;
(vi) Pay or cause to be paid water and sewer impact fees to the City;
(vii) Pay or cause to be paid park dedication fees to the City;
(viii) Advertise and market the Project;
(ix) Pay property taxes on the Property;
(x) Maintain the Property;
(xi) Design and construct the Project and pay associated land planning, legal,
architectural, engineering, surveying, and design expenses;
(xii) Provide the City with each preliminary plat application, as appropriate for
the stage of the Project, projected build -out schedules for the purpose of
providing water and wastewater capacity to the Project;
(xiii) Provide to the City with each preliminary plat application, as appropriate
for the stage of the Project, those documents necessary to coordinate the
development of the Project, including conceptual plans and documents
which detail timelines, construction schedules and marketing information;
(xiv) Petition the City (or cause the landowner to do so) for annexation of those
portions of the Property not currently within the corporate limits of the City;
and
(xv) Communicate and coordinate with Pearland Independent School District
("PISD") and Alvin Independent School District ("AISD") regarding the
boundaries of those districts as they exist within the Project and to allocate
individual lots on the boundary line between those districts.
4.3 Developer and City Obligations relating to the construction of Required Regional
Infrastructure.
(a) Generally. The respective obligations of each Party relating to construction of
Required Regional Infrastructure are defined in this Section 4.3. Eligible costs for each category
include the costs of construction, engineering, surveying, right-of-way or easement acquisition,
and other reasonable and customary costs directly related to design and construction of the
improvements. The City will permit Required Regional Infrastructure and any public
infrastructure within the Project to be installed at any time after preliminary plat approval upon
the Developer signing an agreement providing appropriate fiscal security (escrowed funds or letter
of credit) to secure the completion of the infrastructure in accordance with a Subdivision
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Improvements Agreement (SIA) between the Developer and the City in the form attached as
Exhibit L. All Required Regional Infrastructure shall be constructed in accordance with the City's
Engineering Design Criterial Manual, as amended.
(b) Roadway Obligations. The Developer and/or the MUD shall install the required
roadway improvements (including related stormwater facilities and laterals, items listed in Table
1, and sidewalks) for the Project in conformance with the obligations listed in Table 1 and shown
graphically on Exhibit C. The Developer, by and through the MUD and/or independently, will
be responsible to finance, design, and construct the infrastructure improvements, without any to
rights of reimbursement from the City. The Required Easements shall be obtained by the City per
Section 4.5, at the Developer's cost.
Table 1
Key
Road Facility
Developer
Completion
Deadline
Developer Obligation
City
Obligation
Developer
Obligation
City
Obligation
1
CR 100
(Adjacent to
Property)
Recording the Final
plat of the 1st
single family lot*
South two lanes (1/2
boulevard) concrete curb
and gutter in ultimate
ROW location, including
crossing over GCWA
canal as approved by
GCWA
None
S1,314,257.00
$0.00
2
CR 100
(West of
Property)
Recording the Final
plat of the 1st
single family lot*
North two lanes (Y2
boulevard) concrete curb
and gutter in ultimate
ROW location, with
asphalt transitions to the
South side
None
$1,628,821.00
$0.00
3
CR 100 & FM
1128
Intersection
Recording the Final
plat of the 1st
single family lot*
Asphalt westbound and
northbound right turn
lanes and traffic signal
None
$372,000.00
$0.00
4
CR 100 &
Harkey Road
Intersection
Recording the Final
plat of the 1st
single family lot*,**
Concrete curb and gutter
full intersection in
ultimate ROW location
(250' 4 lanes in all
directions plus 200' turn
lanes)
None
$431,580.00
$0.00
5
North Harkey
Roadlot**
Acceptance of the
5001h single family
Western two lanes of
ultimate four lane divided
concrete curb and gutter
in ultimate ROW location
None
$3,079,251.00
$0.00
6
South Harkey
Road
(CR Collector 0 to
Acceptance of the
5001h single family
lot**
Western two lanes of
ultimate four -lane divided
concrete curb and gutter
to north line of "Rogers
Tract"; full four lanes
divided to collector; in
ultimate ROW location
None
$2,087,847.00
$0.00
7
Key
Road Facility
Developer
Completion
Deadline
Developer Obligation
City
Obligation
Developer
Obligation
City
Obligation
7
South Harkey
Road
(Collector Rd to
Hastings
Cannon)
Acceptance of the
800th single family
lot"*
Four lanes divided
concrete curb and gutter
from collector to south
line of "Massey Tract";
eastern two lanes to
Hastings Cannon; in
ultimate ROW location
None
$822,676.00
$0.00
8
Hastings
Cannon Road
(Adjacent to
Property)
Acceptance of the
a
800 single family
Northem two lanes ('/
boulevard) concrete curb
and gutter in ultimate
ROW location
None
$1,330,473.00
$0.00
9
Hastings
Cannon Road
(East of
Property)
Acceptance of the
800th single family
lot"
Two lane asphalt road
with open ditch in
existing ROW
None
$447,500.00
$0.00
Sub -total
$11,514,405.00
$0.00
* If the Developer signs an agreement providing appropriate fiscal security (escrowed funds or
letter of credit) to secure the completion of the infrastructure in accordance with a Subdivision
Improvements Agreement (SIA) between the Developer and the City in the form attached as
Exhibit L, as to any of the road facilities list in Table 1, Items 1-4, then the deadline for completion
is the earlier of (i) Acceptance of the 150th single family lot, or (ii) 2 years from the date of the
recording of the final plat for the 1St single family lot. Developer may request the City extend the
deadline based on delays in the acquisition of the required right of way, engineering complications
or other force majeure.
**Or earlier if required as secondary access per City's Engineering Design Criteria Manual or Fire
Code.
A typical road cross section is attached as Exhibit D, and all roads installed by Developer shall be
installed substantially in accordance with Exhibit D.
c) Water Distribution Obligations. The Developer shall install the required water
distribution improvements for the Project in conformance with the obligations listed in Table 2
and shown graphically on Exhibit E. The Developer, by and through the MUD and/or
independently, will be responsible to finance, design, and construct the infrastructure
improvements, subject to the limited rights of reimbursement and participation by the City
described herein. The Required Easements shall be obtained by the City per Section 4.5, at the
Developer's cost.
Table 2
Key
Water Facility
Developer
Completion
Deadline
Developer
Obligation
City
Obligation
Developer
Obligation
City
Obligation
10
FM 1128
(CR 100 to CR
101)
Acceptance of the
first single family
lot
12" water main in
ultimate easement
Oversize from
12" to 16"
$572,390.00
$37,850.00
8
11
CR 100
(FM 1128 to
Harkey Rd)
Acceptance of the
first single family
lot
12" water main in
ultimate easement
Oversize from
12" to 16"
$566,447.00
$37,705.00
12
Veterans Drive
(CR 100 to CR
101)
Acceptance of the
500th single family
lot*
12" water main in
ultimate easement
Oversize from
12" to 20"
$768,780.00
$161,100.00
13
CR 100
(Harkey Rd to
Veterans Dr)
Acceptance of the
500th single family
lot*
12" water main in
ultimate easement
Oversize from
12" to 16"
$856,384.00
$56,860.00
14
Harkey Road
(CR 100 to
Collector)
Acceptance of the
500th single family
lot*
12" water main in
ultimate easement
None
$325,100.00
$0.00
15
Harkey Road
(Collector to
Hastings
Cannon)
Acceptance of the
800th single family
12" water main in
ultimate easement
None
$230,500.00
$0.00
Sub -total
$3,319,601.00
$293,515.00
*Or earlier if required by the Project's Master Water Plan issued pursuant to the City's Engineering
Design Criteria Manual.
The City's sole obligation is to fund the additional pipe and appurtenances (i.e., valves and fittings)
costs to upsize the noted water lines, as shown.
(d) Wastewater Collection Obligations. The Developer shall install the required
wastewater collection improvements for the Project ("Wastewater Improvements") in
conformance with the obligations listed in Table 3 and shown graphically on Exhibit F. The
Developer, by and through the MUD and/or independently, will be responsible to finance, design,
and construct the Wastewater Improvements, without any rights of reimbursement or participation
by the City, but subject to the reimbursement through the City from future development described
herein. The Required Easements shall be obtained by the City per Section 4.5, at the Developer's
cost.
Table 3
The estimated cost for the Wastewater Improvements is $4,011,000.00 ("Estimated Cost"), as set
forth in the Cost Estimate attached hereto as Exhibit G. The Wastewater Improvements are sized
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Wastewater
Facility (and
size)
Developer
Completion
Deadline
Developer Obligation
City Obligation
Developer
Obligation
City
Obligation
16
North Harkey
(Ravenwood
to CR 100)
36" sewer
line
Acceptance of the
first single family
lot
Gravity sewer main of
sufficient depth and size
to accommodate the
service in ultimate
service area.
Establish and
administer pro rata
cost recovery
program
$2,641,000.00
$0.00
17
South Harkey
(CR 100 to
Collector)
30" sewer
line
Acceptance of the
500'h single family
lot
Gravity sewer main of
sufficient depth and size
to accommodate the
service in ultimate
service area
Establish and
administerro rata
p
cost recovery
program
$1,370,000.00
$0.00
Sub -total
$4,011,000.00
$0.00
The estimated cost for the Wastewater Improvements is $4,011,000.00 ("Estimated Cost"), as set
forth in the Cost Estimate attached hereto as Exhibit G. The Wastewater Improvements are sized
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to provide service for both (i) the Property, and (ii) the area shown on Exhibit H ("Service Area").
The capacity required for the Project is 950 equivalent single family connections (ESFC) which is
equal to 304,000 gallons per day capacity (determined based on current City guidelines of 320
gallons per day per ESFC). The City required sizing/line capacity/excess line capacity for the
required sewer lines are as follows:
Line Required sizing Capacity Excess Capacity(and %)
North Harkey 36" 7,144 ESFC 6,196 ESFC (87%)
South Harkey 30" 4,857 ESFC 3,907 ESFC (80%)
The City agrees that the excess capacity is for the benefit of third parties. Therefore, a portion of
the cost of the Wastewater Improvement, equal to the actual cost of the Wastewater Improvements
less any MUD reimbursements, divided by the total capacity of the North Harkey line (7,144
ESFC), shall be reimbursed to the Developer, its successors or assigns, through the City by
landowners, pro -rata, as the Service Area is developed or redeveloped, being expressed in the
following formula:
((Actual Cost of Wastewater Improvements) -any MUD reimbursement, if applicable)/7,144 ESFC = Per ESFC
charge to landowner.
This reimbursement shall be required by the City as a condition to future connection to the
Wastewater Improvements, building permit, plat or other development permit pursuant to a Pro -
Rata Utility charge assessed by the City on future development in the Service Area which connects
to the Wastewater Improvements. The actual cost shall be determined following the procedures of
Section 4.3(e)(1-4), as if applicable to the Wastewater Improvements.
At the same time as the Property is annexed and zoned, the City shall adopt and enforce a pro -rata
utility fee ordinance ("Pro -Rata Ordinance") applicable for the Service Area consistent with this
subsection. Reimbursement to the Developer by the City shall occur within forty five (45) days)
following collection of pro -rata contributions from third parties connecting to the Improvements.
However, the City shall not reimburse Developers for more than 100% of the Reimbursable Cost,
nor for a period longer than 25 years from the completion and acceptance by the City of the
Wastewater Improvements, nor for any amount reimbursed to the Developer by the MUD. The
City agrees to use its best efforts to collect the foregoing reimbursements.
(e) Water Line Reimbursement Procedures. The following reimbursements
procedures shall apply for the Water Line reimbursement of Developer by the City under this
Agreement:
1) Prior to designing any infrastructure from this Section 4.3 in which City will participate
in cost, directly or indirectly, the Developer, working in consultation with the MUD, and
the City's Director of Engineering shall agree on the scope of work and the allocation of
costs consistent with this Agreement.
2) The Developer, working in consultation with the MUD, shall obtain competitive line
item bids in accordance with Local Government Code Chapter 252 for the construction of
the improvements in accordance with the approved plans and specifications. The
Developer, working in consultation with the MUD, and the City will review the bids and
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the Developer or the MUD will award a contract to the successful bidder. The City reserves
the right to reject any and all bids for the construction of the improvements within ten (10)
days following submission to the City for review, following the expiration of which the
bids selected by the Developer or the MUD shall be deemed approved by the City.
3) The Developer shall, or shall cause the MUD to, advance the funds necessary to pay the
contractor(s) for the work performed. The Developer shall cause the City to be named as
an additional obligee under any performance bond obtained by the Developer or the MUD
to secure the construction of the improvements.
4) Upon completion of construction and acceptance by the City, the Developer will submit
an accounting of final and actual costs along with evidence of paid invoices. The City will
reimburse the Developer for the City's share of costs within thirty (30) days of submission.
5) The obligations of the City described in this Section 4.3 shall be paid from lawfully
available funds that may be currently available in the budget year in which such
improvements are the obligation of the City described in this Section 4.3 shall be paid from
lawfully available funds that may be currently available in the budget year in which such
improvements are designated to be constructed. The City agrees to use its best efforts to
collect revenues, issue bonds, and appropriate funds as may be required to finance such
improvements.
4.4 MUD Powers. The MUD is or will be located entirely within the corporate limits of
the City and will seek legal authority to construct, acquire, improve, maintain or operate roads. If
granted, such legal authority will require that any road projects undertaken by the MUD meet all
applicable construction standards, zoning and subdivision requirements and regulations of each
municipality in whose corporate limits such district is located.
The City acknowledges that all roads to be constructed in connection with the MUD and/or
to serve the MUD (i) meet the City's criteria for a thoroughfare and/or arterial feeder and/or
collector roads for the purposes of Section 54.234 of the Texas Water Code, as amended, and (ii)
also will constitute macadamized, graveled, or paved roads, or improvements, including storm
drainage, in aid of those roads, for purposes of Section 52, Article III of the Texas Constitution.
The Developer acknowledges that future annexations of property into the MUD are subject
to City consent, which may be given or withheld in accordance with public interests.
4.5 Acquisition of Required Easements.
(a) Generally. The City will acquire the Required Easements, at the Developer's cost,
as provided in this section.
(b) Identification of Required Easements. The City Engineer and the Developer's
Engineer (R.G. Miller) shall cooperatively designate the Required Easements widths and location
following the following chart.
11
Additional
Segment
Extent
Side
ROW Width
on which
Easement Width
11
(1) In addition to easement costs, Developer is responsible for ROW cost due to
roadway construction obligations on these segments, and the cost of any necessary
utility/pipeline relocations, including the coordination thereof
(2) Developer is responsible for easement costs on these segments. Developer is not
responsible for ROW cost, because Developer has no roadway construction obligations on
these segments.
The Developer is not required to acquire public easements for uses not required for the
Project. Once identified, the Developer shall retain a surveyor approved by the City to
survey all Required Easements, and to prepare related surveys, property descriptions and
parcel maps (the "Survey Deliverables"). The City approves R.G. Miller as surveyor. The
scope of services for the Survey Deliverables is attached as Exhibit M. The Survey
Deliverables may be provided in batches, which shall be substantially consistent in format
and content.
(c) Acquisition of Required Easements. After the Survey Deliverables for a particular
type of Required Regional Infrastructure (water, wastewater, or roadway) are provided to the City,
the City shall diligently pursue the acquisition of the Required Easement following its normal
public easement acquisition process (including use of eminent domain). In doing so, the City shall
prioritize those easements required in the initial Phase of the Project. The City shall exercise good
faith efforts to both expedite the acquisition process and the cost efficiency thereof, and will
regularly communicate with the Developer and its engineer on the status and any impediments.
(d) Payment for Acquisition Process. The Developer shall pay all reasonable third party
costs of the Required Easement acquisition, including, but not limited to surveying, engineering,
right-of-way consultant, legal and compensation to owners. No charge will be made for City
employees or to reimburse the City for overhead and administrative salaries or costs. The agreed
estimated costs for the acquisition process is $3,224,740.00 as shown on Exhibit K.
12
Easement
Location
Based
FM 1128
Bailey to Massey
Ranch Road
East
NA
25' north of American
Canal; 20' south of
American Canal
Massey Ranch
FM 1128 to
Property Boundary
(American Canal)
North
30 feet (1)
20' with five-foot overlap
with ROW (15' outside of
ROW)
Harkey North
Bailey to Massey
Ranch Road
West
20 feet (1)
20' with five-foot overlap
with ROW (15' outside of
ROW)
Veterans
Bailey to Massey
Ranch Road
East
20 feet (2)
20' with five-foot overlap
with ROW (15' outside of
ROW)
Massey Ranch
Veterans to Harkey
South
30 feet (2)
20' with five-foot overlap
with ROW (15' outside of
ROW)
Harkey South
Massey Ranch
Road to Property
Boundary
East
50 feet (2)
20' with five-foot overlap
with ROW (15' outside of
ROW)
(1) In addition to easement costs, Developer is responsible for ROW cost due to
roadway construction obligations on these segments, and the cost of any necessary
utility/pipeline relocations, including the coordination thereof
(2) Developer is responsible for easement costs on these segments. Developer is not
responsible for ROW cost, because Developer has no roadway construction obligations on
these segments.
The Developer is not required to acquire public easements for uses not required for the
Project. Once identified, the Developer shall retain a surveyor approved by the City to
survey all Required Easements, and to prepare related surveys, property descriptions and
parcel maps (the "Survey Deliverables"). The City approves R.G. Miller as surveyor. The
scope of services for the Survey Deliverables is attached as Exhibit M. The Survey
Deliverables may be provided in batches, which shall be substantially consistent in format
and content.
(c) Acquisition of Required Easements. After the Survey Deliverables for a particular
type of Required Regional Infrastructure (water, wastewater, or roadway) are provided to the City,
the City shall diligently pursue the acquisition of the Required Easement following its normal
public easement acquisition process (including use of eminent domain). In doing so, the City shall
prioritize those easements required in the initial Phase of the Project. The City shall exercise good
faith efforts to both expedite the acquisition process and the cost efficiency thereof, and will
regularly communicate with the Developer and its engineer on the status and any impediments.
(d) Payment for Acquisition Process. The Developer shall pay all reasonable third party
costs of the Required Easement acquisition, including, but not limited to surveying, engineering,
right-of-way consultant, legal and compensation to owners. No charge will be made for City
employees or to reimburse the City for overhead and administrative salaries or costs. The agreed
estimated costs for the acquisition process is $3,224,740.00 as shown on Exhibit K.
12
(e) Deposit for Costs. The Developer shall make deposit(s) with the City for
acquisition costs, either in escrow or by letter of credit. Any funds shall be set aside in a separate,
federally insured account with a federally regulated financial institution entitled "City of Pearland-
Massey Oaks Easement Cost Escrow", and a copy of each monthly statement provided promptly
to the Developer. Any letter of credit shall be issued by a federally regulated financial institution
with assets of no less than $1,000,000,000.00 with the City as beneficiary, shall have a minimum
12 month term, and shall provide that if the term is not extended (or a replacement letter of credit
provided) within the last 30 days, then the City may draw on the letter of credit. Otherwise, the
letter of credit shall be "clean", not subject to other conditions for the City to draw upon it and in
form acceptable to the City, in its reasonable discretion. If such draw occurs, then the funds shall
be used to establish the escrow required herein. The City may draw on these funds not more
frequently than monthly, by written draw request signed by the City Finance Director addressed
to the Developer describing the actual, reasonable costs of the acquisition process, and delivered
to the Developer at least seven(7) days prior to the proposed date for the advance. The escrow or
letter of credit shall be established in the amount of $1,000,000.00 at the same time the first Survey
Deliverables are provided to the City. Once the remaining escrow or undrawn amount on the letter
of credit is less than $100,000.00, Developer shall be replenish the amount to $1,000,000.00 within
seven (7) days. When all the Required Easements have been acquired, and all acquisition costs
paid, the escrow or letter of credit shall be promptly released to the Developer. The escrow or
letter of credit may not be used for any other purposes by the City and is not security for any other
obligation of the Developer. Upon request, the City shall provide to the Developer copies of
invoices for all costs for which funds are used. The Developer shall provide the City a list of any
discrepancies. The City and the Developer shall meet to discuss any discrepancies and endeavor,
in good faith, to achieve agreement on the proper payment amount. If, after reviewing these
invoices and meeting with the City, the Developer is not satisfied that the funds have been properly
utilized, then, the Developer may audit any escrow account and the acquisition costs and related
records. The Developer's auditor shall meet with the City Finance Director or outside auditor to
outline the scope and process for the audit. Only one audit is permitted in any calendar year. No
audit may cover a period previously audited, unless necessary in the reasonable opinion of the
Developer's auditor.
ARTICLE V
AUTHORITY; COVENANTS; PROPERTY RIGHTS
5.1 Actions. The City covenants to the Developer and agrees that upon application of
the Developer, the City will use its best efforts to the extent permitted by law to take such actions
as may be required and necessary to process any amendments, variations, special use approvals
and permit applications relating to the Unified Development Code and the City's other ordinances,
codes and regulations, as may be necessary or proper in order to insure the development of the
Property and the Project in accordance with this Agreement and the PD and to enable the City to
execute this Agreement and to carry out fully and perform the terms, covenants, agreements, duties
and obligations on its part to be kept and performed as provided by the terms and provisions hereof.
The City acknowledges that the Developer is relying upon the City's performance and will expend
significant sums on the Project.
5.2 Powers.
13
(a) The City hereby represents and warrants to Developer that the City has full
constitutional and lawful right, power and authority, under currently applicable law, to execute
and deliver and perform the terms and obligations of this Agreement, and all of the foregoing have
been or will be duly and validly authorized and approved by all necessary City proceedings,
fmdings and actions. Accordingly, this Agreement constitutes the legal, valid and binding
obligation of the City, is enforceable in accordance with its terms and provisions and does not
require the consent of any other governmental authority.
(b) The Developer hereby represents and warrants to the City that Developer has full
lawful right, power and authority to execute and deliver and perform the terms and obligations of
this Agreement and all of the foregoing have been or will be duly and validly authorized and
approved by all necessary actions of Developer. Concurrently with Developer's execution of this
Agreement, Developer has delivered to the City copies of the resolutions or other corporate actions
authorizing the execution of this Agreement and evidencing the authority of the persons signing
this Agreement on behalf of Developer to do so. Accordingly, this Agreement constitutes the legal,
valid and binding obligation of Developer, and is enforceable in accordance with its terms and
provisions.
5.3 Authorized parties. Whenever under the provisions of this Agreement and other
related documents and instruments or any supplemental agreements, any request, demand,
approval, notice or consent of the City or Developer is required, or the City or Developer is
required to agree or to take some action at the request of the other, such request, demand, approval,
notice or consent, or agreement shall be given for the City, unless otherwise provided herein, by
the City Manager or his designee and for Developer by any officer of Developer so authorized
(and, in any event, the officers executing this Agreement are so authorized); and any party shall
be authorized to act on any such request, demand, approval, notice or consent, or agreement.
5.4 Vested Rights. Upon execution of this Agreement, the Parties agree that each of
their respective rights, as set forth in this Agreement, shall be deemed to have vested.
ARTICLE VI
GENERAL PROVISIONS
6.1 Time of the essence. Time is of the essence in all things pertaining to the
performance of this Agreement. The Parties will make every reasonable effort to expedite the
subject matters hereof and acknowledge that the successful performance of this Agreement
requires their continued cooperation.
6.2 Default.
(a) A Party shall be deemed in default under this Agreement (which shall be deemed a
breach hereunder) if such Party fails to materially perform, observe or comply with any of its
covenants, agreements or obligations hereunder or breaches or violates any of its representations
contained in this Agreement.
(b) Before any failure of any Party to perform its obligations under this Agreement
14
shall be deemed to be a breach of this Agreement, the Party claiming such failure shall notify, in
writing, the Party alleged to have failed to perform of the alleged failure and shall demand
performance. No breach of this Agreement may be found to have occurred if performance has
commenced to the reasonable satisfaction of the complaining party within 30 days of the receipt
of such notice, subject, however, to the terms and provisions of Section 6.2(c). Upon a breach of
this Agreement for which cure has not commenced as provided above, the non -defaulting Party,
in any court of competent jurisdiction, by an action or proceeding at law or in equity, may secure
the specific performance of the covenants and agreements herein contained, may be awarded
damages for failure of performance, or both. Except as otherwise set forth herein, no action taken
by a Party pursuant to the provisions of this Section or pursuant to the provisions of any other
Section of this Agreement shall be deemed to constitute an election of remedies and all remedies
set forth in this Agreement shall be cumulative and non-exclusive of any other remedy either set
forth herein or available to any Party at law or in equity. Each of the Parties shall have the
affirmative obligation to mitigate its damages in the event of a default by the other Party.
(c) Force Majeure. Notwithstanding anything in this Agreement which is or may
appear to be to the contrary, if the performance of any covenant or obligation to be performed
hereunder by any Party is delayed as a result of force majeure circumstances which are beyond the
reasonable control of such Party the time for such performance shall be extended by the amount
of time of such delay. (The term "force majeure," as used herein, shall include without limitation
of the generality thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of the
public enemy, orders of any kind of the government of the United States or the State of Texas or
any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes,
fires, hurricanes, storms, floods, washouts, drought, arrests, restraint of government, civil
disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire
failure of water supply resulting in an inability to provide water necessary for operation of the
water and wastewater systems hereunder, and any other inabilities of any party, whether similar to
those enumerated or otherwise, which are not within the control of the party claiming such
inability, which such party could not have avoided by the exercise of due diligence and care). The
Party claiming delay of performance as a result of any of the foregoing force majeure events shall
deliver written notice of the commencement of any such delay resulting from such force majeure
event not later than seven days after the claiming Party becomes aware of the same, and if the
claiming Party fails to so notify the other Party of the occurrence of a "force majeure" event causing
such delay, the claiming Party shall not be entitled to avail itself of the provisions for the extension
of performance contained in this Section.
(d) The Parties acknowledge and agree, notwithstanding anything contained in this
Agreement to the contrary, that: (i) the provisions of Section 4.1(a)(i) hereof regarding consent
by the City to the creation of a MUD, (ii) the provisions of Section 4.1(a)(iv) hereof regarding the
City supplying the water supply and wastewater treatment capacity ultimately required by the
Project, and (iii) the provisions of Section 4.1(a)(viii) regarding the annexation of the portion of
the Property not currently within the corporate limits of the City, constitute essential and material
terms of this Agreement. The specific enumeration of the provisions listed herein does not mean
or imply that no other provision of this Agreement constitutes an essential term of the agreed
exchange that is the subject matter of this Agreement.
15
6.3 Personal liability of public officials. To the extent permitted by State law, no public
official or employee shall be personally responsible for any liability arising under or growing out
of this Agreement.
6.4 Liability of the Developer, its successors and assignees. Any obligation or liability
of the Developer whatsoever that may arise at any time under this Agreement or any obligation or
liability which may be incurred by the Developer pursuant to any other instrument, transaction or
undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the Developer
only. No obligation or liability shall be personally binding upon, nor shall resort for the
enforcement thereof be had to, the property of any of partners, officers, employees, shareholders
or agents of the Developer, regardless of whether such obligation or liability is in the nature of
contract, tort or otherwise.
6.5 Notices. Any notice sent under this Agreement (except as otherwise expressly
required) shall be written and mailed, or sent by rapid transmission confirmed by mailing written
confirmation at substantially the same time as such rapid transmission, or personally delivered to
an officer of the receiving party at the following addresses:
If to the City:
with a copy to:
If to the Developer:
with a copy to:
City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
City Attorney
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
First Capital Partners LLC
275 Hill Street, third floor
Reno, Nevada 89501
Attention: Ron Cobb
Wilson Cribbs + Goren
2500 Fannin St
Houston, Texas 77002
Attention: Reid Wilson
If to Developer's Lender: Per the address provided to the City from time to time.
Each Party may change its address by written notice in accordance with this Section, Any
communication addressed and mailed in accordance with this Section shall be deemed to be given
when so mailed, any notice so sent by rapid transmission shall be deemed to be given when receipt
of such transmission is acknowledged, and any communication so delivered in person shall be
deemed to be given when receipted for by, or actually received by, an authorized officer of the
16
City or the Developer, as the case may be.
6.6 Amendments and waivers. Any provision of this Agreement may be amended or
waived if such amendment or waiver is in writing and is approved by the City Council and the
Developer. No course of dealing on the part of the City or the Developer nor any failure or delay
by the City or the Developer with respect to exercising any right, power or privilege pursuant to
this Agreement shall operate as a waiver thereof, except as otherwise provided in this Section.
6.7 Invalidity. In the event that any of the provisions contained in this Agreement shall
be held unenforceable in any respect, such unenforceability shall not affect any other provisions
of this Agreement and, to that end, all provisions, covenants, agreements or portions of this
Agreement are declared to be severable.
6.8 Beneficiaries. This Agreement shall bind and inure to the benefit of the Parties
and their successors and permitted assigns.
6.9 Successors and Assigns. No party to this Agreement shall have the right to assign
its rights under this Agreement or any interest herein, without first giving to the other party notice
from the assignor of such assignment and acknowledgement of such assignment from the assignee.
The City acknowledges that the Developer may assign this Agreement to a lender for the Project,
and in relation thereto, the City will execute reasonable acknowledgements of the Agreement and
its assignment, including confirming the Agreement is valid and in full force and effect, without
default by either party, and agreeing to provide notice and opportunity to cure to such lender. This
Agreement may be assigned to any affiliate of the Developer or any successor developer of the
Project. This Agreement is not binding on any purchaser of a platted lot or reserve in the Project.
Upon any assignment, the Developer is released from liability.
6.10 Exhibits, titles of articles, sections and subsections. The exhibits attached to this
Agreement are incorporated herein and shall be considered a part of this Agreement for the
purposes stated herein, except that in the event of any conflict between any of the provisions of
such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail.
All titles or headings are only for the convenience of the Parties and shall not be construed to have
any effect or meaning as to the agreement between the Parties hereto. Any reference herein to a
section or subsection shall be considered a reference to such section or subsection of this
Agreement unless otherwise stated. Any reference herein to an exhibit shall be considered a
reference to the applicable exhibit attached hereto unless otherwise stated.
6.11 Applicable law. This Agreement is a contract made under and shall, be construed
in accordance with and governed by the laws of the United States of America and the State of
Texas, and any actions concerning this Agreement shall be brought in either the Texas State
District Courts of Brazoria County, Texas or the United States District Court for the Southern
District of Texas.
6.12 Entire agreement. This written agreement represents the final agreement between
the Parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the Parties. There are no unwritten oral agreements between the Parties.
6.13 Term of Agreement. The term of this Agreement shall commence on the date first
17
written above and shall continue until the date which is the earlier of (a) the completion of the
Project; (b) December 31, 2057; or (c) the early termination of this Agreement pursuant to Section
6.14.
6.14 Early Termination of Agreement. The Developer reserves the right to terminate this
Agreement by delivery of written notice to the City stating that the Developer has determined not
to purchase the Property, or that the Project has been terminated by the Developer for any reason,
such as failure to receive acceptable entitlements. Such determination shall be made by the
Developer prior to June 1, 2017. Furthermore, this Agreement shall automatically terminate if the
Property is not annexed by the City and the PD for the Property is not approved by City on or
before October 1, 2017 or the Developer's right to develop the Property expires in accordance with
Section 2.2.2.10 of the City's Unified Development Code.
6.15 No waiver of City standards. Except as may be specifically provided in this
Agreement, the City does not waive or grant any exemption to the Property or the Developer with
respect to City regulations or ordinances, including without limitation platting, permitting or
similar provisions.
6.16 Approval by the Parties. Whenever this Agreement requires or permits approval or
consent to be hereafter given by any of the Parties, the Parties agree that such approval or consent
shall not be unreasonably withheld, conditioned or delayed. Approvals and consents shall be
effective without regard to whether given before or after the time required for giving such
approvals or consents.
6.17 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same agreement.
6.18 Interpretation. This Agreement has been jointly negotiated by the Parties and shall
not be construed against a party because that Party may have primarily assumed responsibility for
the drafting of this Agreement.
6.19 Enforceability. The Parties intend this Agreement to be legally enforceable to the
maximum extent permitted at law or in equity. Specifically, the City waives governmental
immunity as to suit for only a claim to enforce specific performance and related legal fees. THE
DEVELOPER WAIVES ANY CLAIM FOR DAMAGES (OTHER THAN LEGAL FEES) AND
THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY IS TO ENFORCE SPECIFIC
ENFORCEMENT AND RELATED LEGAL FEES. This Agreement is intended by the Parties
to be a contract for goods or services contemplated by Texas Local Government Code Section
271.151 et. seq. The Parties recognize that the Developer would not expend significant sums to
develop the Development and install the Improvements without the commitment of the City to
timely reimburse the Developer as provided herein, and that the Developer relied on the legal
enforceability of the City's obligations hereunder. The City is accepting the benefit of the Project
and the improvements. The City represents that it has currently available and budgeted funds to
be allocated and designated for payment for the City's obligations hereunder.
[Signatures begin on following page]
18
IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to
all requisite authorizations as of the date first above written.
A IThST:
City cretary/
(SEAL)
CITY:
CITY OF PEARLAND, TEXAS, a home rule
municipality
By: C>)0/1 ---
Mayor
COUNT •i. IGNED:
Cit an
Date cou t
e /O25-/7
igned:
APPROVED AS TO FORM:
City Attorney
Date: 6 -/2'- 11
• �►',
�U.
DEVELOPER:
FIRST CAPITAL PARTNERS, LLC
By:
Name:
Title:
19
Exhibit A
Exhibit A-1
Exhibit A-2
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit J-1
Exhibit K
Exhibit L
Exhibit M
Legal Description of Property
Site Plan for the Project on the Property
Project Phases
Required Regional Infrastructure
Roadway improvements map
Roadway cross-section
Water Distribution improvements map
Wastewater Collection improvements map
Approved Cost Estimate for Wastewater Improvements
Wastewater Service Area map
Intentionally Deleted
MUD consent conditions
Utility Services Agreement
Approved Cost Estimate for Required Easements
Subdivision Improvements Agreement (SIA)
Scope of Services for Survey Deliverables
EXHIBIT A
Legal Description of the Property
TRACT 1
FIELD NOTES FOR 212.004 ACRES
Being a tract of land containing 212.174 acres (9,242,293 square feet), located within the H.
Stevens Survey, Abstract -593 in Brazoria County, Texas; Said 212.174 acre tract being a portion
of a called 138.83 acre tract recorded in the name of Margurite Massey Smith Charitable Remainder
Trust U.A. in Brazoria County Cleric's File Nutnber (B.C.C.F. No.) 2010013347, all of a called
5.00 acre tract of land recorded in the name of William Stephen Summers and wife, Lois Winifrede
Smith Summers in Volume (V.) 1318, Page 9 (P.) 700 of the Brazoria County Deed Records
(B.C.D.R.), all of a called 5.00 acre tract of land recorded in the name of Lois Winifrede Summers
in V. 1775, P. 250 of the B.C.D.R., a portion of a called 5.00 acre tract of land recorded in the natne
of Lois Winifrede Summers in V. 1775, P. 248 of the B.C.D.R., all of a called 10.55 acre tract of
land recorded in the name of Lois Smith Summers in B.C.C.F. No. 2013052681, a portion of a
called 4.45 acre tract of land recorded in the name of Lois Smith Summers in B.C.C.F. No.
2013052682, and all of a called 45.00 acre tract of land recorded in the name of Lois Smith
Summers in B.C.C.F. No. 2013052682; Said 212.174 acre tract being more particularly described
by metes and bounds as follows (Bearings are based on the Texas Coordinate System of 1983,
South Central Zone per GPS observations):
Beginning at a 1 -inch ion pipe found at the northwest corner of a called 151.44 acre tract recorded
in the name of C.W. Way in Volume 272, Page 103 of the Brazoria County Deed Records, same
being on the east line of a Lot 44 of the Allison -Richey Gulf Coast Home Co. Part of Suburban
Gardens, a subdivision plat of record in Volume 2, Page 89 of the Brazoria County Plat Records
(B.C.P.R.), said Lot 44, recorded in the name of Plains Exploration & Production Company, L.P.
in B.C.C.F. No. 02-033007, for the southwest corner of said 138.83 acre tract and the herein
described tract;
Thence, with the east line of Lots 44 thru 42 all recorded in said B.C.C.F. No. 02-03307, the east
line of Lots 41 and 40 being recorded in the name of Jimmy Brown in B.C.C.F. No. 1998020191,
the east line of Lot 39 recorded in said B.C.C.F. No. 02-033007, the east line of Lot 38 recorded in
the name of Danny O. Waldon in B.C.C.F. No. 96-0254867, the east line of Lot 37 recorded in the
name of International Victory Christian Church in B.C.C.F. No. 2015007219, same being the west
line of said 138.83 acre tract, North 02 degrees 36 minutes 15 seconds West, at a distance of
2905.73 feet pass a found railroad spike at the northeast corner of said Lot 39, and at a distance of
3862.37 feet pass a 5/8 -inch iron rod with a Miller Survey Group (MSG) cap set on the occupied
south Right -Of -Way (R.O.W.) line of McKeever Road (County Road 100 width varies,
monumented at 62.7 feet, north 20 feet per Volume 2, Page 89, B.C.P.R.), and continue in all a
total distance of 3897.23 feet to a "P -K" nail set in asphalt pavement for the northwest corner of
said 138.83 acre tract and the herein described tract;
Thence, with the north line of said 138.83 acre tract, said 10.55 acre tract, said 5.00 acre tract (V.
1775, P. 248) and said 4.45 acre tract, North 87 degrees 21 minutes 45 seconds East, a distance of
22
2384.30 feet to a "P -K" nail set in asphalt pavement at the northeast corner of said 4.45 acre tract,
for the northeast corner of the herein described tract;
Thence, with the east line of said 4.45 acre tract, South 02 degrees 36 minutes 15 seconds East, at
a distance of 32.55 feet pass a 5/8 -inch iron rod with a Miller Survey Group (MSG) cap set on the
occupied south R.O.W. line of said McKeever Road, at a distance of 41.87 feet pass a 5/8 -inch iron
rod found, and continue in all a total distance of 246.27 feet to a 5/8 -inch iron rod with a cap found
on the northeast line of a called 1.1852 acre tract of land recorded in the name of the City of
Pearland, Texas in B.C.C.F. No. 2011044376, from which a 5/8 -inch iron rod with a CL Davis cap
found bears South 51 degrees 41 minutes 48 seconds East, a distance of 12.55 feet;
Thence, with the lines of said 1.1852 acre tract, the following four (4) courses:
1. North 51 degrees 41 minutes 48 seconds West, a distance of 262.16 feet to a 5/8 -inch iron
rod with a cap found at an angle point;
2. South 87 degrees 18 minutes 40 seconds West, a distance of 49.92 feet to a 5/8 -inch iron
rod with a cap found at an angle point;
3. South 38 degrees 18 minutes 12 seconds West, a distance of 107.26 feet to a 5/8 -inch iron
rod with a cap found at an angle point;
4. South 51 degrees 41 minutes 48 seconds East, a distance of 421.14 feet to a 5/8 -inch iron
rod with a cap found on the east line of said 4.45 acre tract, from which a 5/8 -inch iron rod
with a CL Davis cap found bears South 51 degrees 41 minutes 48 seconds East, a distance
of 12.84 feet;
Thence, with the east line of said 4.45 acre tract and the east line of said 138.83 acre tract, South
02 degrees 36 minutes 15 seconds East, a distance of 3465.72 feet to a 5/8 -inch iron rod found at
the northeast corner of said 151.44 acre tract, for the southeast corner of said 138.83 acre tract and
the herein described tract;
Thence, with the line north line of said 151.44 acre tract and the south line of said 138.83 acre tract
and said 45.00 acre tract, South 87 degrees 21 minutes 45 seconds West, a distance of 2384.30 feet
to the Point of Beginning and containing 212.174 acre of land.
Save and except the following 0.1697 acre tract:
Being a tract of land containing 0.1697 acres (7,394 square feet), located in the H. Stevens Survey,
Abstract -593 in Brazoria County, Texas; Said 0.1697 acre tract being all of a called 0.1319 acre
tract of land recorded in the naive of the City of Pearland, Texas in B.C.C.F. No. 2011044376 and
all of a called 0.0378 acre tract of land recorded in the name of the City of Pearland, Texas in
B.C.C.F. No. 2011044379; Said 0.1697 acre tract being more particularly described by metes and
bounds as follows (Bearings are based on the Texas Coordinate System of 1983, South Central
Zone per GPS observations):
Commencing at a 5/8 -inch iron rod found at the northeasterly corner of a called 1.1852 acre tract
recorded in the name of the City of Pearland, Texas in B.C.C.F. No. 2011044376;
23
Thence, through and across a called 4.45 acre tract recorded in the name of Lois Smith Summers
in B.C.C.F. No. 2013052682, North 51 degrees 41 minutes 48 seconds West, a distance of 18.29
feet to a 5/8 -inch iron rod with a MSG cap set at the southeast corner of said 0.1319 acre tract for
the southeast corner of and Point of Beginning of the herein described tract;
Thence, with the south line of said 0.1319 acre tract and 0.0378 acre tract, South 87 degrees 18
minutes 47 seconds West, a distance of 263.76 feet to a 518 -inch iron rod found at the southwest
corner of said 0.0378 acre tract, for the southwest corner of the herein described tract;
Thence, with the west line of said 0.0378 acre tract, North 02 degrees 41 minutes 13 seconds West,
a distance of 30.00 feet to a 5/8 -inch iron rod with a MSG cap set at the northwest corner of said
0.0378 acre tract, for the northwest corner of the herein described tract;
Thence, with the north line of said 0.0378 acre tract and 0.1319 acre tract, North 87 degrees 18
minutes 47 seconds East, a distance of 229.23 feet to a 5/8 -inch iron rod with a MSG cap set at the
northeast corner of said 0.1319 acre tract, for the northeast corner of the herein described tract;
Thence, with the easterly line of said 0.1319 acre tract, South 51 degrees 41 minutes 48 seconds
East, a distance of 45.74 feet to the Point of Beginning and containing 0.1697 acres of land.
24
TRACT 2 (2 parts)
TRACT 8 "A"
FIELD NOTES FOR 72.279ACRES
Being a tract of land containing 72.279 acres (3,148,490 square feet), located within the
C.W. Groos Survey, Abstract -525 in Brazoria County, Texas; Said 72.279 acre tract
being a portion of a called 160 acre tract recorded in the name of Richard Rogers in
Volume 103, Page 371 of the Brazoria County Deed Records (B.C.D.R.); Said 72.279
acre tract being more particularly described by metes and bounds as follows (Bearings
are based on the Texas Coordinate System of 1983, South Central Zone per GPS
observations):
BEGINNING at a 5/8 -inch iron rod found at the southwest corner of a called 40,0000
acre tract of land recorded in the name of Prabhakar Rao Draksharam in Brazoria County
Clerk's File Number (B.C.C.F. No.) 2007030107, same being on the north line of a called
151.44 acre tract recorded in the name of C.W. Way in Volume 272, Page 103 of the
B.C.D.R., for the southeast corner of said 160 acre tract and the herein described tract,
said iron rod being on the Right -Of -Way (R.O.W.) line of County Road 128 (30 foot
easement reserved along. the north line in Volume 124, Page 477 of the B.C.D.R., no
easement reserved along the south line of said 160 acre tract found);
Thence, with the north line of said 151.44 acre tract and the south line of said 160 acre
tract, South 87 degrees 19 minutes 22 seconds West, a distance of 1232.03 feet to a 5/8 -
inch iron rod with a Miller Survey Group (MSG) cap set at an angle point for the
southwest comer of the herein described tract in the east line of a called 13.655 acre tract
recorded in the name of H.L.& P. Co. in Volume 1149, Page 240 of the B.C.D.R.;
Thence, with the east line of said 13.655 acre tract, and the west line of the herein
described tract, North 01 degrees 37 minutes 43 seconds West, a distance of 2636.06 feet
to a 5/8 -inch iron rod with a MSG cap set for the northwest corner of the herein described
tract in the north line of said 160 acre tract and the south line of a called 247.91 acre tract
recorded in the name of RMJ Miller Real Estate Holdings, Ltd. in B.C.C.F. No,
2002020349;
Thence, with the north line of said 160 acre tract, the south line of said 247.91 acre tract,
and the south lines of a called 0.8902 acre tract of land recorded in the name of the City
of Pearland in B.C.C.F. No. 2009045975, the following three (3) courses:
25
1. North 87 degrees 17 minutes 52 seconds East, distance of 780.16 feet to a 5/8 -
inch iron rod with a MSG cap set at the northwest corner of said 0,8902 acre tract,
for the westerly northeast corner of the herein described tract;
2. South 51 degrees 39 minutes 45 seconds East, a distance of 165.85 feet to a 5/8 -
inch iron rod with a CL Davis cap found at the southwest corner of said 0.8902
acre tract, for an angle point in the north line of the herein described tract;
3. ' North 87 degrees 18 minutes 49 seconds East, a distance of 279.87 feet to a 5/8 -
inch iron rod with a CL Davis cap found the southeast corner of said 0.8902 acre
tract, same being on the lower west line of said 247.91 acre tract, and being on the
east line of said 160 acre tract, for the easterly northeast corner of the herein
described tract;
Thence, with the lower west line of said 247.91 acre tract, the west line of said 40.0000
acre tract and the east line of said 160 acre tract, South 02 degrees 38 minutes 46 seconds
East, at a distance of 1207.41 feet pass a concrete monument found at the southwest
corner of said 247.91 acre tract, same being the northwest coiner of said 40.0000 acre
tract, and continue in all a total distance of 2527.16 feet to the POINT OF BEGINNING
and containing 72,279 acres of land.
28
TRACT 8 "B"
FIELD NOTES FOR 72.584 ACRES
Being a tract of land containing 72.584 acres (3,161,737 square feet), located within the
C.W. Groos Survey, Abstract -525 in Brazoria County, Texas; Said 72.584 acre tract
being a portion of a called 160 acre tract recorded in the name of Richard Rogers in
Volume 103, Page 371 of the Brazoria County Deed Records (B.C.D.R.); Said 72.584
acre tract being more particularly described by metes and bounds as follows (Bearings
are based on the Texas Coordinate System of 1983, South Central Zone per GPS
observations):
COMMENCING at a 5/8 -inch iron rod found at the southwest corner of a called
40.0000 acre tract of land recorded in the name of Prabhakar Rao Drakshararn in
Brazoria County Clerk's File Number (B.C.C.F. No.) 2007030107, same being on the
north line of a called 151.44 acre tract recorded in the name of C.W. Way in Volume 272,
Page 103 of the B.C.D.R., for the southeast corner of said 160 acre tract and the herein
described tract, said iron rod being on the Right -Of -Way (R.O.W.) line of County Road
128 (30 foot easement reserved along the north line in Volume 124, Page 477 of the
B.C.D.R., no easement reserved along the south line of said 160 acre tract found);
Thence, with the north line of said 151.44 acre tract and the south line of said 160 acre
tract and a called 13.655 acre tract recorded in the name of H.L.& P. Co. in Volume
1149, Page 240 of the B.C.D.R., South 87 degrees 19 minutes 22 seconds West, a
distance of 1457.07 feet to a 5/8 -inch iron rod with a Miller Survey Group (MSG) cap set
for the southeast corner and POINT OF BEGINNING of the herein described tract at
the southwest corner of said 13.655 acre tract;
Thence, continuing with the north line of said 151.44 acre tract and the south line of said
160 acre tract, South 87 degrees 19 minutes 22 seconds West, a distance of 1177.35 feet
to a 518 -inch iron rod with a MSG cap set at an angle point in said 151.44 acre tract, for
the southwest corner of said 160 acre tract and the herein described tract;
Thence, with the upper east line of said 151.44 acre tract, the east line of a called 138.83
acre tract of land recorded in the name of Margurite Massey Smith Charitable Remainder
Trust, U.A. in B.C.C.F. No. 2010013347, same being the west line of said 160 acre tract,
North 02 degrees 36 minutes 15 seconds West, at a distance of 1389.29 feet pass a 5/8 -
inch iron rod found at the southeast corner of said 138.83 acre tract, same being the upper
northeast corner of said 151.44 acre tract, and continue in all a total distance of 2634.99
feet to a 5/8 -inch iron rod with a MSG cap set for the northwest corner of said 160 acre
tract and the herein described tract;
27
Thence, with the north line of said 160 acre tract and the south line of a called 80 acre
tract recorded in the name of Georgeanne and William Reaves in B.C.C.F. No.
99026030, North 87 degrees 17 minutes 52 seconds East, at a distance of 12.2 feet pass a
railroad rail in concrete found at the called southwest corner of said 80 acre tract, from
which a found 1 -inch iron pipe bears South 76 degrees 10 minutes East, a distance of
30.8 feet, in all a total distance of 1222.23 feet to a 5/8 -inch iron rod with a MSG cap set
at .the northwest corner of said 13.655 acre tract for the northeast corner of the herein
described tract;
Thence, with the west line of said 13.655 acre tract, and the east line of the herein
described tract, South 01 degrees 37 minutes 43 seconds East, a distance of 2635.96 feet
to the POINT OF BEGINNING and containing 72.584 acres of land.
28
'2
as
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ma
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EXHIBIT A-1
Site Plan for the Project on the Property
29
Massey Oaks
IHast Cwrirwc Pwzrrzu
EXHIBIT A-2
Project Phases
Massey Oaks
Should the PD change the Project phasing, then the Project Phases for the purpose of this
Development Agreement shall also change and this exhibit shall be changed to be consistent
with the revised PD.
30
EXHIBIT B
Required Regional Infrastructure
Key
Road Facility
Developer Completion Deadline
Description
1
CR 100
(Adjacent to Property)
Recording the Final plat of the 1st
single family lot'
South two lanes (% boulevard) concrete curb
and gutter in ultimate ROW location,
Including crossing over GCWA canal as
approved by GCWA
2
CR 100
(West of Property)
Recording the Final plat of the 1c1
single family lot"
North two lanes ('/z boulevard) concrete curb
and gutter In ultimate ROW location, with
asphalt transitions to the South side
3
CR 100 & FM 1128
Intersection
Recording the Final plat of the 1SI
single family lot"
Asphalt westbound and northbound right turn
lanes and traffic signal
4
CR 100 & HarkeyRoad
Intersection
Recording the Final plat of the 1 B1
single family lot',"`
Concrete curb and gutter full intersection in
ultimate ROW location (250' 4 lanes in all
directions plus 200' turn lanes)
r
5divided
North Harkey Road
Acceptance of the 500th single family
lot'"
Western two lanes of ultimate four -lane
divi concrete curb and gutter In ultimate
ROW location
6
South Harkey Road
(CR 100 to Collector Rd)
Acceptance of the 5001" single family
lot"
Western two lanes of ultimate four -lane
divided concrete curb and gutter to north line
of "Rogers Tract'; full four lanes divided to
collector, in ultimate ROW location
7
South Harkey Road
(Collector Rd to Hastings
Cannon)
Acceptance of the 800rh single family
lot"'
Four lanes divided concrete curb and gutter
from collector to south line of "Massey Tract";
eastem two lanes to Hastings Cannon; in
ultimate ROW location
8
Hastings Cannon Road
(Adjacent to Property)
Acceptance of the 800th single family
lot"
Northern two lanes (%s boulevard) concrete
curb and gutter in ultimate ROW location
9
Hastings Cannon Road
(East of Property)
Acceptance of the 800th single family
lot"
Two lane asphalt road with open ditch In
existing ROW
*If the Developer signs an agreement providing appropriate fiscal security (escrowed funds or letter of credit) to secure
the completion of the infrastructure in accordance with a Subdivision Improvements Agreement (SIA) between the
Developer and the City in the form attached as Exhibit L, as to any of the road facilities list in Table 1, Items 1-4,
then the deadline for completion is the earlier of (i) Acceptance of the 150'h single family lot, or (11) 2 years from the
date of the recording of the final plat for the 161 single family lot. Developer may request the City extend the deadline
based on delays in the acquisition of the required right of way, engineering complications or other force majeure.
**Or earlier if required as secondary access per City's Engineering Design Criteria Manual or Fire Code.
31
Key
Water Facility
Developer Completion Deadline
Description
10
FM 1128
(CR 100 to CR 101)
Acceptance of the first single family
lot
12" water main in ultimate easement
11
CR 100
(FM 1128 to Harkey Rd)
Acceptance of the first single family
lot
12" water main in ultimate oasoment
12
Veterans Drive
(CR 100 to CR 101)
Acceptance of the 500th single family
lot*
12" water main in ultimate easement
13
CR 100 (Harkey Rd to
Veterans Dr)
Acceptance of the 500th single family
lot*
12" water main in ultimate easement
14
Harkey Road
(CR 100 to Collector)
Acceptance of the 500th single family
lot*
12" water main in ultimate easement
15
Harkey Road (Collector to
Hastings Cannon)
Acceptance of the 800th single family
lot*
12' water main in ultimate easement
*Or earlier if required by the Project's Master Water Plan issued pursuant to the City's Engineering Design
Criteria Manual.
Key
Wastewater Facility
(and slze)
Developer Completion Deadline
Description
16
North Harkey (Ravenwood
to CR 100)
36" sewer line
Acceptance of the first single family
lot
Gravity sewer main of sufficient depth and
size to accommodate the service in ultimate
service area.
17
South Harkey
(CR 100 to Collector)
30" sewer line
Acceptance of the 500th single family
lot
Gravity sewer main of sufficient depth and
size to accommodate the service In ultimate
service area
32
EXHIBIT C
Roadway Improvements Map
Ig
Moo
Ir:
IEXHIBIT C
Pearland
tains cww. Texas
ROADWAY
rrir
VICINITY MAP
1 in = 10 miles
1ch = 2,000 feet
ate: 1/25/2017
1 r._. niillt r
"D . 1 lo
o o
v v
L
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Kv
E.
a
9
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_wI _c o„e
33
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R STI /i0. ,1
I gij
9 _ a 1
Ithih
a
a
0
6
P
a
a
9
bSti
EXHIBIT E
Water Distribution Improvements Map
rn
0
z
)' • �V ev JAI, t ayt,NW.Oiuiei(un.a
35
EXHIBIT F
Wastewater Collection Improvements Map
Waal
8
w3
9
13
ts�
;,446 k410
►�It 1
•�I
noaa
Ill u,
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,I'M ; ,rpt i w "."` - -- --- •t
Q)
j - o r410Y?
r
WASTEWATER
DISTRIBUTION
E.
a
1i
VICINITY MAP
1 in = 10 miles
E.
36
EXHIBIT G
Agreed Cost Estimate for Wastewater Improvements
357 ACRE PEARLAND TRACT
PRELIMINARY ENGINEER'S ESTIMATE
FOR THE CONSTRUCTION OF
PAVING, STORM SEWER, SANITARY SEWER, & WATER LINE
PER CITY OF PEARLAND T.I.A. & UTILITY REPORT
KEY 16 NORTH HARKEY RD SANITARY ITEMS
DESCRIPTION UNIT QUANTITY UNIT PRICE TOTAL DEVELOPER SHARE CITY SHARE
1. 36' Sanitary Sewer SDR -26, All Depths,
Includes Cement Stabilized Sand Bedding
And Backfill; Complete In Place L.F. 6,200 $350.00 $2,170,000.00 52,170,000.00 60
2. 4' Dla. Manhole, All Depths;
Complete In Place EA. 10 $3,800.00 $38,000.00 $38,000.00 SO
3. Auger for 38" Sanitary; Complete In Place L.F. 200 $400.00 680,000.00 680,000.00 50
4. Wet Sand Construction;
Complete In Place L.F. 6.200 655.00 $341,000.00 $341,000.00 SO
5. Trench Safety System For
Sanitary Sewer Construction L.F. 6,000 62.00 612.000.00 $12.000.00 ,
TOTAL - NORTH HARKEY RD SANITARY ITEMS 52,641,000.00 52,641,000.00 $0
KEY 17 SOUTH HARKEY RD SANITARY ITEMS
DESCRIPTION UNIT QUANTITY UNIT PRICE TOTAL DEVELOPER SHARE CITY SHARE
1. 30' Sanitary Sewer SDR -28, Alt Depths,
Includes Cement Stabilized Sand Bedding
And Backfill; Complete In Place L.F. 4,000 5300.00 51,200,000.00 51,200,000.00 50
2. 4' Dia. Manhole. All Depths;
Complete to Place
EA. 6 53,800.00 522,800.00 522,800.00 SO
3. Auger for 30" Sanitary; Complete In Place L.F. 400 5350.00 5140,000.00 5140,000.00 $0
4. Trench Safety System For
Sanitary Sewer Construction
L.F. 3,600 52,00 $7,200.00 57,200.00
TOTAL -SOUTH HARKEY RD SANITARY ITEMS $1,370,000.00 S1,370,000.00 SO
KEY 16 NORTH HARKEY RD SANITARY ITEMS
KEY 17 SOUTH HARKEY RD SANITARY ITEMS
$2,641.000.00 52,641,000.00 0.00
$1,370,000 61,370,000 0.00
SUBTOTAL 54,011,000 64,011,000 50
+15% CONTINGENCIES 5601,650 5601,650 �0
SUBTOTAL 64,812,650 64,612,650 50
+15% ENGINEERING $891,898 $091,898 I0
GRAND TOTAL 55,304,548 $5,304,548 50
37
EXHIBIT I -I
Wastewater Service Area Map
38
EXHIBIT I
[Intentionally Deleted]
s9
EXHIBIT J
MUD Consent Conditions
CONSENT CONDITIONS
• The City of Pearland, Texas (the "City"), through its City Manager, and the
developer on behalf of the District shall enter into and execute a utility services agreement in
substantially the form attached hereto as Exhibit "J-1," to specify the terms and conditions for
providing water and sewage treatment services to the District (the "Utility Agreement"). Upon
the District's creation and confirmation, the District shall assume all the rights, obligations, and
interests of the developers under the Utility Agreement, as set forth therein.
• Following final approval by the City of the first preli►ninary plat in the District, all
meetings of the District conducted in accordance with the Texas Open Meetings Act shall be held
within the City's incorporated limits.
• The District may issue bonds, including refunding bonds, for any purposes
authorized by law, including but not limited to, purchasing, refinancing, designing and
constructing, or otherwise acquiring waterworks systems, sanitary sewer systems, storm sewer
systems, and drainage facilities, roads and recreational facilities or parts of such systems or
facilities, and to make any and all necessary purchases, constructions, improvements, extensions,
additions, and repairs thereto, and to purchase or acquire all necessary land, right-of-way,
easements, sites, equipment, buildings, plants, structures, and facilities therefore, and to operate
and maintain the same, and to sell water, sanitary sewer, and other services within the boundaries
of the District. All bonds issued by the District shall comply with the following terms:
a) Provide that the District reserves the right to redeem said bonds on any
date subsequent to the fifteenth (15th) anniversary of the date of
issuance (or any earlier date at the discretion of the District) without
premium, and none of such bonds, other than refunding bonds, will be
sold for Tess than 95% of par; provided that the net effective interest rate
on bonds so sold, taking into account any discount or premium as well
as the interest rate borne by such bonds, will 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
next preceding the date of the sale of such bonds.
b) The District shall not fund more than 24 months capitalized interest in
a single bond issue.
c) Bond issuances shall provide for payment of no less than 40% of the
principal within the first half of the bond maturity schedule.
d) The District's initial bond debt maturity date shall not exceed 35 years.
Subsequent bond issuances that exceed the maturity date for the initial
bonds shall require City Council consent by adoption of a resolution,
which such consent shall not be unreasonably withheld, conditioned or
delayed.
e) No additional land may be annexed into the District unless the City
40
Council adopts a resolution granting its consent to the annexation.
f) Each year the District shall provide a copy of the order establishing its
ad valorem tax rate to the City Director of Finance within 30 days after
the District's adoption of the rate.
g) Each year the District shall provide a copy of its annual audit to the City
Finance Director within 30 days of the District's acceptance of the audit.
h) The resolution authorizing the issuance of the District's bonds shall
contain a provision that the pledge of any revenues from the operation
of the District's water and sewer and/or drainage system to the payment
of the District's bonds will terminate when and if the City annexes the
District, takes over the assets of the District, and assumes all of the
obligations of the District.
• Before the commencement of any construction within the District, its directors,
officers, or developers and landowners will submit to the City, or to its designated representative,
all plans and specifications for the construction of water, sanitary sewer and drainage facilities
to serve the District and obtain the approval of such plans and specifications therefrom. All water
wells, water meters, flushing valves, valves, pipes, and appurtenances thereto, installed or used
within the District, will conform to the specifications of the City. All water service lines and
sewer service lines, lift stations, and appurtenances thereto, installed or used within the District
will comply with the City's standard plans and specifications as amended from time to time.
Prior to the construction of such facilities within or by the District, the District or its engineer
will give written notice by registered or certified mail to the City, stating the date that such
construction will be commenced. The construction of the District's water, sanitary sewer, and
drainage facilities will be in accordance with the approved plans and specifications and with
applicable standards and specifications of the City; and during the progress of the construction
and installation of such facilities, the City may make periodic on -the -ground inspections.
41
EXHIBIT J-1
UTILITY SERVICES AGREEMENT
This UTILITY SERVICES AGREEMENT (this "Agreement"), is made and entered into
effective as of the e2 Z day of, 2017, by and between the CITY OF PEARLAND,
TEXAS, a municipal corporation and ome-rule city of the State of Texas (the "City"), and
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 69, a body politic and corporate
and a governmental agency of the State of Texas organized under the provisions of Article XVI,
Section 59 of the Texas Constitution (the "District").
RECITALS
The District has been created within the City's corporate limits for the purposes of, among
other matters, providing water distribution, wastewater collection, storm water drainage, road, and
recreational facilities (as more fully defined below, collectively, the "Facilities") to serve
development occurring within and near the District inside the City limits.
Under the authority of Texas Local Government Code Section 552.014, as amended, and
the applicable provisions of Chapters 49 and 54 of the Texas Water Code, as amended, the City
and the District may enter into an agreement under the terms of which (i) the District will acquire
for the benefit of and conveyance to the City certain Facilities needed to provide water distribution,
wastewater collection, and drainage services to the lands being developed within and near the
boundaries of the District, and (ii) in order to enhance the economic feasibility of the District and
more equitably distribute among the taxpayers of the City and the District the burden of ad valorem
taxes to be levied from time to time by the City and the District, the City will make annual tax and
monthly water and sewer revenue rebate payments to the District in consideration of the District's
financing, acquisition, and construction of the Facilities.
The City and the Developer have entered into the Development Agreement pursuant to
which the City consented to creation of the District by the Developer and the financing and
construction of the Facilities.
The City and the District have determined that they are authorized by the Constitution and
laws of the State of Texas to enter into this Agreement and have further determined that the terms,
provisions, and conditions hereof are mutually fair and advantageous to each.
AGREEMENT
Now, therefore, for and in consideration of these premises and of the mutual promises,
obligations, covenants, and benefits herein contained and hereby acknowledged, the City and the
District contract and agree as follows:
42
ARTICLE I
DEFINITIONS
The capitalized terms and phrases used in this Agreement shall have the meanings as
follows:
"Annual Payment" means the annual payment to be made by the City to the District, as
defined in Section 6.01 hereof.
"Annual Payment Elimination Date" means the date on which the Annual Payment is no
longer required to be paid by the City to the District, as more fully described in Section 6.01 hereof.
"Approved Plans" means plans and specifications for the Facilities approved by the City,
as more fully described in Section 2.01 hereof.
"Approving Bodies" means any or all of the following entities, as appropriate in a particular
context: the City; Brazoria County, Texas; the TCEQ; the Attorney General of Texas; the
Comptroller of Public Accounts of Texas; the United States Department of Justice; and all other
federal, state, and local governmental authorities having regulatory jurisdiction and authority over
the financing, construction, and/or operation of the Facilities, or the subject matter of this
Agreement.
"Bonds" means the District's bonds, notes, or other evidences of indebtedness issued from
time to time for the purpose of financing the costs of purchasing, constructing, acquiring, operating,
repairing, improving, or extending the Facilities, District creation and operation expenses, site costs
and right-of-way acquisition expenses, providing for interest to developers and for any necessary
capitalized interest and costs of issuance, capital recovery charges, including payment of the
Connection Charges, and for such other purposes permitted or provided by state law, whether
payable from ad valorem taxes, the proceeds of one or more future bond issues, or otherwise, and
including any bonds, notes, or similar obligations issued to refund such bonds.
"City" means the City of Pearland, Texas, a tnunicipal corporation and home -rule city of
the State of Texas.
"City Facilities" mean all Facilities with the exception of all recreational facilities and those
road facilities located outside the corporate limits of the City that the District intends to convey to
the City for ownership, operations and maintenance pursuant to Article IV of this Agreement.
"Connection Charge" means the amount to be paid to the City for water and wastewater
capacity for each improvement within the District at the time of connection of the improvement to
the Facilities, as more fully described in Section 5.04 hereof.
"Consent Ordinance" means Ordinance No. _ adopted by the City evidencing the City's
consent to the creation of the District in accordance with Texas Local Government Code Section
42.042 and Texas Water Code Section 54.016, each as amended.
"Construction Costs" means costs associated with any particular Facilities construction
43
project under the terms of this Agreement, including, but not limited to, costs of construction,
acquisition, and installation; engineering fees and expenses; costs of advertising; costs of acquiring
necessary licenses, permits, waste control orders, discharge permits or amendments thereto; fiscal,
legal, and administrative costs; materials testing costs; site, easement, and permit costs; and all
other costs and expenses directly relating to the foregoing, together with an amount for
contingencies or estimated Construction Costs of not more than fifteen percent (15%) of the
foregoing, provided that no contingency amount shall be included in "Construction Costs"
regarding a particular construction project once that project is complete.
"Developer" means First Capital Partners, LLC, a Nevada limited liability company, or its
successors or assigns.
"Development Agreement" means that certain Development Agreement by and between the
City and the Developer, dated effective as of)7 , 2017, as the same may be amended,
supplemented or otherwise modified from time to ti e.
"District" means Brazoria County Municipal Utility District No. 69, a body politic and
corporate and a governmental agency of the State of Texas organized under the provisions of
Article XVI, Section 59 of the Texas Constitution.
"District Assets" means, without limitation, (i) all rights, title, and interests of the District
in and to all and any portion of the Facilities, (ii) any Bonds of the District which are authorized
but have not been issued by the District, (iii) all rights and powers of the District under any
agreements or commitments with any persons or entities pertaining to the financing, construction,
or operation of all or any portion of the Facilities and/or the operations of the District, (iv) all cash
and investments, and amounts owed to the District, and (v) all books, records, files, documents,
permits, funds, and other materials or property of the District.
"District Engineer" means R.G. Miller Engineers, Inc. or such other engineering firm as the
District may, in its sole discretion, engage from time to time.
"District Obligations" means, without limitation, (i) all outstanding Bonds of the District,
(ii) all other debts, liabilities, and obligations of the District to or for the benefit of any persons or
entities relating to the financing, construction, or operation of all or any portion of the Facilities or
the operations of the District, and (iii) all functions performed and services rendered by the District
for and to the owners of property within the District and the utility service customers of the City
who receive services provided from the Facilities.
"Engineering Reports" means and refers to any engineering reports prepared by the District
Engineer from time to time relating to the issuance of Bonds by the District, copies of which shall
be on file in the offices of the District.
"Facilities" means and includes the water distribution, wastewater collection, storm water
collection, pollution prevention, detention and drainage systems, road facilities, and recreational
facilities financed, constructed, purchased, or otherwise acquired or to be financed, constructed,
purchased, or otherwise acquired by the District to serve lands within and near its boundaries, and
all improvements, appurtenances, additions, extensions, enlargements, or betterments thereto,
including any pro rata interest or share in such facilities, together with all contract rights, permits,
44
licenses, properties, rights-of-way, easements, sites, and other interests related thereto, all as may
be more fully described in the Engineering Reports.
"Initial Reduction Tax Rate" means the District's debt service tax rate in effect as of the
Reduction Date, as more fully described in Section 6.01 hereof.
"Monthly Revenue Payments" means the monthly payments to be made by the City to the
District, as more fully described in Section 6.04 hereof.
"Oversized Facilities" means water, sewer, and/or drainage facilities sized to serve areas
outside the District or constructed to serve areas outside the District, as more fully described in
Section 2.04.
"Payment Date" means the date each year when the Annual Payments are due, as more fully
described in Section 6.02 hereof.
"Reduction Date" means the date on which certain conditions are met to begin reducing the
amount of the Annual Payment due from the City to the District, as more fully described in Section
6.01 hereof.
"TCEQ" means the Texas Commission on Environmental Quality, or any successor or
successors exercising any of its duties and functions related to water conservation and reclamation
districts.
"Utility Development Agreements" means the District's agreements, if any, as more fully
described in Section 3.04 hereof.
ARTICLE II
DESIGN AND CONSTRUCTION OF THE FACILITIES
2.01. Design. The Facilities shall be designed by the District Engineer in accordance with
sound engineering principles and in compliance with all applicable requirements of the Approving
Bodies. The plans and specifications for the Facilities shall be subject to review and approval by
the City, the District, and the Approving Bodies with jurisdiction (such plans and specifications
approved by the City shall be referred to in this Agreement as the "Approved Plans"). The District
shall not make any changes to the Approved Plans without the written approval of the City which
such written approval shall not be unreasonably withheld, conditioned, or delayed. The City shall
not require that the Facilities be designed to requirements more stringent than the City's
requirements applicable to the design of similar facilities outside the District but within the City's
jurisdiction. The District shall design the Facilities in such phases or stages as the District from
time to time, in its sole discretion, may determine to be necessary and economically feasible.
2.02. Construction. When the District determines, in its sole discretion, that it is necessary
and economically feasible to construct the Facilities, the District shall proceed to award
construction contracts for the Facilities based upon the Approved Plans. The Facilities shall be
installed, construction contracts shall be awarded, and payment and performance bonds obtained
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all in accordance with the general law for municipal utility districts and in full compliance with the
applicable requirements of the Approving Bodies. The District shall construct the Facilities in such
phases or stages as the District, in its sole discretion, may determine to be necessary and
economically feasible. Any construction contract for the Facilities shall include the contractor's
one (1) year warranty of work performed under the contract. Subject to the terms and conditions of
the Development Agreement, the District shall submit all change orders to the City for its records.
The District shall file all required documents with the TCEQ.
2.03. Acceptance of Facilities. Upon completion of the Facilities, the District shall order
the District's Engineer to certify that the Facilities have been completed in substantial compliance
with the Approved Plans; the District shall certify that all bills and sums of money due in connection
with the construction and installation of the Facilities have been fully paid and that the Facilities
are free of any and all liens and claims, all according to the certification of the construction
contractor. The District shall require the District's Engineer to provide three (3) copies of
construction drawings of the Facilities to the District. The District shall accept the construction of
the Facilities in writing from the construction contractor. The District shall then convey the City
Facilities to the City in accordance with the City's procedure for acceptance of such facilities in
areas outside the District and within the City, and in accordance with the provisions of Article IV
below.
2.04. Oversized Facilities. In conjunction with the design and construction of the
Facilities, as described in this Article II, and pursuant to and in furtherance of the terms and
conditions of the Development Agreement, the City has determined that certain Facilities should
be sized to serve areas outside the District, as well as areas within the District (such Facilities sized
or constructed to serve areas outside the District shall be referred to in this Agreement as the
"Oversized Facilities"). The District hereby agrees that, in conjunction with the design and
construction of the Facilities, the District shall cooperate with the City and the Developer to include
the Oversized Facilities in such design and construction as required by the Development
Agreement. The City shall fund its share of the Construction Costs of the Oversized Facilities in
accordance with the Development Agreement and with TCEQ rules and regulations.
ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. The District shall have authority to issue, sell,
and deliver Bonds from time to time, as deemed necessary and appropriate by the Board of
Directors of the District, for the purposes, in such forms and manner, and as permitted or provided
by federal Iaw, the general laws of the State of Texas, and the Consent Ordinance. With respect to
Bonds which require TCEQ approval prior to issuance of same, the District shall not be authorized
to sell such Bonds until it has provided the City with an executed copy of the TCEQ order approving
such Bond issue in which the TCEQ concludes that a District debt service tax rate of $1.50 or less
per $100 of assessed valuation is feasible in accordance with the TCEQ's rules in effect at the time
of such determination. Nothing herein shall be construed as a limitation on the District's authority
to levy an unlimited tax, it being understood and acknowledged that the District's bonds shall be
payable from and secured by a pledge of the proceeds of an ad valorem tax, without legal limitation
as to rate or amount. Further, the foregoing shall not be construed as a limitation on the District's
authority to issue other forms of Bonds as allowed by applicable law and the rules of the TCEQ.
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The District shall provide the City with copies of the Official Statement and the District's order
authorizing the issuance of the Bonds for each issue prior to the delivery of the Bonds to the initial
purchaser.
3.02. Distribution of Bond Proceeds. The proceeds of Bonds issued by the District shall
be deposited, upon receipt, into the District's funds, as appropriate, and shall be used and may be
invested or reinvested, from time to time, as provided in the order or orders of the District
authorizing the issuance, sale, and delivery of such Bonds and the investment policy of the District,
all in accordance with the federal, state, and local laws and regulations governing the proceeds of
the District's sale of its Bonds. Pursuant to the requirements of the applicable Approving Bodies
and as permitted by federal law and the laws of the State of Texas, surplus funds on hand and
available from the proceeds of the Bonds may be utilized by the District for any legally authorized
purpose.
3.03. Bonds as Obligation of District. Unless and until the City shall dissolve the District
and assume the District Assets and District Obligations, the Bonds of the District, as to both
principal and interest, shall be and remain obligations solely of the District and shall never be
deemed or construed to be obligations or indebtedness of the City; provided, however, that nothing
herein shall limit or restrict the District's ability to pledge or assign all or any portion of the Annual
Payments or Monthly Revenue Payments, to be made by the City to the District as provided in this
Agreement, to the payment of the principal of, the redemption premium, if any, or interest on the
Bonds or other District Obligations relating to the financing, acquisition, or use of the Facilities.
3.04. Financing by Third Parties. From time to time, the District may enter into one or
more agreements (the "Utility Development Agreements") with the Developer, landowners or other
developers of property located within or in the vicinity of the District whereby the Developer or
such landowners or other developers will undertake, on behalf of the District, to finance and
construct, in one or more phases, all or any portion of the Facilities. Under the terms of each Utility
Development Agreement, the Developer, landowners or other developers will be obligated to
finance and construct the Facilities in the manner which would be required by law if such work
were being performed by the District. Bach Utility Development Agreement will provide for the
purchase of the Facilities from the landowners or developers using the proceeds of one or more
issues of Bonds, as otherwise permitted by law and the applicable rules, regulations and guidelines
of the applicable Approving Bodies. The construction of any Facilities financed under the terms
of a Utility Development Agreement shall be subject to all the terms and conditions of this
Agreement.
ARTICLE IV
OWNERSHIP, OPERATION, AND MAINTENANCE OF FACILITIES
4.01. Conveyance of City Facilities. As the City Facilities are constructed and accepted
in accordance with Article II and the City Facilities are conveyed to the City, a security interest in
the City Facilities conveyed to the City shall be reserved for the purpose of securing the
performance of the City under this Agreement. At such time as the Bonds issued to acquire and
construct the City Facilities conveyed to the City have been discharged, the District shall execute
a release of such security interest, and the City shall own such City Facilities free and clear of such
security interest. For any City Facilities conveyed to the City under this Article IV, the construction
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contractor's two (2) year warranty of its work shall be assigned to the City, as required under
Section 2.02 above.
4.02. City Acceptance. As the City Facilities are constructed and completed,
representatives of the City shall inspect the same and, ifthe City finds that such City Facilities have
been completed in substantial compliance with the Approved Plans, the City will accept the
conveyance of such City Facilities, and the City Facilities so conveyed shall be operated,
maintained, and repaired by the City at its sole expense as provided in this Agreement. The City's
acceptance of ownership of the City Facilities under this Section 4.02 shall be in accordance with
the City's procedure for acceptance of such facilities in areas outside the District and within the
City. If the City Facilities have not been completed in substantial compliance with the Approved
Plans, the City will immediately advise in what manner the City Facilities do not comply so that
the problems may immediately be corrected; whereupon the City shall again inspect such City
Facilities and accept the same ifthe non -complying items have been corrected. In conjunction with
the City's acceptance of any City Facilities, the City shall be provided with one (1) set of the
construction drawings for such City Facilities.
4.03. Operation of the City Facilities by the City. Upon the acceptance of the City
Facilities by the City and for the remainder of the term of this Agreement thereafter, the City will
operate the City Facilities and provide access to and services from same to all users within the
District without discrimination. The City shall at all times maintain the City Facilities, or cause the
same to be maintained, in good condition and working order and will operate the same, or cause
the same to be operated, in an efficient and economical manner at a reasonable cost and in
accordance with sound business principles, and the City will comply with all the terms and
conditions of this Agreement and with all applicable federal, state, and local laws and regulations.
(a) The City shall provide competent, trained personnel, licensed or certified as
necessary by the appropriate regulatory authority, to operate, inspect, maintain, and repair the City
Facilities. The City shall inventory and maintain a listing of all of the equipment comprising the
City Facilities as required to provide relevant information for the scheduled maintenance and repair
or replacement of the equipment comprising such City Facilities. The City shall implement a
scheduled maintenance program for the City Facilities and shall ensure that such City Facilities are
maintained in the same fashion and with the same frequency as similar facilities owned and
operated by the City to serve areas outside the District.
(b) The City shall maintain all customer information and records necessary to
provide monthly billings to customers served by the City Facilities. The City shall coordinate with
the District's consultants, such as attorneys, engineers, auditors, tax assessors, and financial
advisors as necessary to maintain efficient operation of the City Facilities. The City shall promptly
respond to inquiries or correspondence from governmental or regulatory authorities and the
District's directors, customers, or consultants.
(c) The City shall provide a monthly written report to the District indicating the
total number of service connections within the District. Upon request by the District, the City shall
provide a City representative to attend a District meeting to discuss any operating and maintenance
information regarding the City Facilities.
4.04. Rates and Conditions of Service. The connection of improvements to the City
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Facilities shall be made by the City, in the same manner, by the sarne procedures, and for the same
charges as the City makes other water and wastewater connections. Water and wastewater
customers within the District shall pay rates and charges for such services to the City, on the same
basis and conditions as the City provides such services to similar City customers who do not receive
services from the City Facilities; provided, however, in addition to the rates and charges imposed
by the City on its water and wastewater customers outside the District, the City shall impose on
and collect from each customer of the City Facilities within the District a monthly surcharge of five
dollars ($5.00) per equivalent single family residential connection. The equivalent number of single
family residences attributable to any particular connection shall be computed in accordance with
the service unit factors set forth in Exhibit "A" as such factors may be amended from time to time
by the City in its sole discretion, provided that the City shall always apply the same service unit
factors within the District as it applies to other areas within the City. The City shall bill and collect
charges from the customers of the City Facilities, calculated in accordance with this Section 4.04,
in the same manner and under the same procedures as it bills and collects from other City customers
who are not served by the City Facilities.
4.05. Repair of the City Facilities. After its acceptance of the City Facilities, the City
shall provide all personnel and equipment necessary to perform repairs on, and shall bear sole cost
responsibility for repair of, those City Facilities, including, but not limited to, service line leaks,
leaks at water meters, water main breaks, repairs to valves and fire hydrants, manhole repairs, and
sewer line repair and cleaning, as needed. The City shall not, however, bear cost or responsibility
for initial repair of any equipment or facilities identified by the City as in need of correction prior
to the City's acceptance of the City Facilities under Section 4.02 above. The cost of all materials
and supplies used to operate, maintain, and repair the City Facilities shall be borne solely by the
City.
ARTICLE V
CITY PLANT CAPACITY AND FINANCING
5.01. Water Supply and Distribution Facilities. The City shall provide the District with
its ultimate requirements for water supply and distribution capacities. The number and location of
the points of connection between the City's water distribution system and the City Facilities shall
be mutually agreed upon by the District and the City. The City acknowledges its obligation to
provide water supply and distribution capacities for the actual requirements of the development
within the District's boundaries. Any water supply and distribution capacities so required by the
District shall be reserved and allocated by the City exclusively to serve the property within the
District and the City shall not use such capacities to serve any other property. The City shall at all
times manage the capacities in its water supply and distribution facilities so that capacity to fully
serve development within the District is available at the time any new improvements are to be
connected to the City Facilities. The City's obligation shall specifically include the obligation to
expand, enlarge, and modify its water supply and distribution facilities, at its sole cost and expense,
and to secure all necessary approvals of the Approving Bodies as necessary to have capacity
available to serve new improvements within the District, at its sole cost and expense. To enable the
City to effectively manage its water system capacities in compliance with the City's obligation
under this Section 5.01, the District shall provide to the City, by December 31 of each year during
theterm of this Agreement, a written projection of the new improvements within the District
expected to be connected to the City Facilities within the coming year, and such other related
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information as the City may reasonably require.
5.02. Wastewater Collection and Treatment Facilities. The City shall provide the District
with its ultimate requirements for wastewater collection and treatment capacities. The number and
location of the points of connection between the City's wastewater collection system and the City
Facilities shall be mutually agreed upon by the District and the City. The City acknowledges its
obligation to provide wastewater collection and treatment capacities for the actual requirements of
the development within the District's boundaries. Any wastewater collection and treatment
capacities so required by the District shall be reserved and allocated by the City exclusively to serve
the property within the District and the City shall not use such capacities to serve any other
property. The City shall at all times manage the capacities in its wastewater collection and treatment
facilities so that capacity to fully serve development within the District is available at the time any
new improvements are to be connected to the City Facilities. The City's obligation shall specifically
include the obligation to expand, enlarge, and modify its wastewater collection and treatment
facilities, at its sole cost and expense, and to secure all necessary approvals of the Approving Bodies
as necessary to have capacity available to serve new improvements within the District, at its sole
cost and expense. To enable the City to effectively manage its wastewater system capacities in
compliance with the City's obligation under this Section 5.02, the District shall provide the City by
December 31 of each year during the term of this Agreement, a written projection of the new
improvements within the District expected to be connected to the City Facilities within the coming
year, and such other related information as the City may reasonably require.
5.03. Letter of Capacity Assurance; Assignability. The City agrees that the City shall,
upon reasonable request, issue a letter of assurance to purchasers or prospective purchasers of
property within the District confirming water and wastewater capacity for such property, based
upon the standard City criteria published by the City regarding the calculation of water and
wastewater requirements for various types of improvements.
5.04. Financing City Water and Wastewater Capacities. In consideration of the City's
provision of water supply and distribution capacity and wastewater collection and treatment
capacity, the District agrees to pay or cause to be paid to the City the then effective impact or capital
recovery fee per equivalent single-family residential connection to the Facilities (the "Connection
Charge"). Equivalent single-family residential connections shall be computed in accordance with
the service unit factors as set forth in Exhibit "A", as such factors may be amended from time to
time by the City in its sole discretion, provided that the City shall always apply the same service
unit factors within the District as it applies to other areas within the City. The Connection Charge
shall be paid to the City by or on behalf of the District before the connection of each particular
improvement to the City Facilities at the same time and manner as such fees are paid for
improvements in other areas of the City outside the District. The City shall not allow connection
of any improvement to the City Facilities for which the appropriate Connection Charge has not
been paid. The City may amend the Connection Charge from time to time in accordance with the
requirements of state law; provided, however, the Connection Charge shall be the same as the
connection charge required outside the District and within the City limits. The District
acknowledges and agrees that, besides the Connection Charge, any new connection to the City
Facilities will be subject to the fees, charges, and costs routinely collected by the City in regards to
any new connection to the City's utilities whether inside or outside the District.
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ARTICLE VI
ANNUAL PAYMENTS, MONTHLY REVENUE
PAYMENTS AND DISTRICT TAXES
6.01. Calculation of Annual Payment.
(a) In consideration of the development of the land within the District and the
related increase in the taxable value of such land to the City through the acquisition of and
construction of the Facilities by the District and in order to enhance the economic feasibility of the
District and more equitably distribute among the taxpayers of the City and the District the burden
of ad valorem taxes to be levied from time to time by the City and the District, the City agrees to
collect and pay to the District a portion of the ad valorem taxes collected by the City in future years
on the land and improvements within the District (the "Annual Payment"). The Annual Payment
shall be a payment of a portion of the City's tax revenues actually collected and received by the
City, exclusive of any interest and penalties paid by the taxpayer to the City and exclusive of any
collection costs incurred by the City. Before the District has issued Bonds, all Annual Payments
received by the District from the City shall be deposited by the District into the general operating
fund of the District and may be used for any lawful purpose. Once the District has issued Bonds,
all Annual Payments received by the District from the City shall be deposited by the District into a
debt service fund of the District and shall he applied solely to the payment of the Bonds and other
debts, liabilities, and obligations of the District to or for the benefit of any persons or entities
relating to the financing, construction, and acquisition of all or any portion of the Facilities.
(b) The initial Annual Payment shall be at a rate of $0.10 per $100 of assessed
valuation on all taxable property within the District.
(c) The Annual Payment shall be incrementally reduced in accordance with
subsection (e) below upon the occurrence of the following:
(i) All developers within the District have been fully reimbursed, with interest,
in accordance with the rules of the TCEQ and any Utility Development
Agreements;
(ii) The District has completely financed and constructed all of the Facilities;
and
(iii)The District levies a debt service tax at a rate that is $0.80 per $100 of
assessed valuation or lower.
(d) The date on which all the conditions of subsection (c) above have been met
shall be referred to in this Agreement as the "Reduction Date." The District's debt service tax rate
in effect as of the Reduction Date shall be referred to in this Agreement as the "Initial Reduction
Tax Rate."
(e) After the Reduction Date, the Annual Payment shall be reduced by an
amount equal to any decrease in the District's debt service tax rate. The Annual Payment will be
recalculated annually, and will continue to be reduced to the extent that the District's debt service
tax rate is decreased until the District has reduced its debt service tax rate to a rate that is $0.10 per
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$100 of assessed valuation lower than the Initial Reduction Tax Rate (the date on which this occurs
shall be referred to in this Agreement as the "Annual Payment Elimination Date").
(f) Once the Annual Payment is reduced, it shall not thereafter be increased.
(g) After the Annual Payment Elimination Date, the City is permanently
relieved of any obligation to make further Annual Payments. However, the foregoing shall not be
construed to eliminate the City's obligation to pay the District any Annual Payments considered
due or delinquent as of the Annual Payment Elimination Date. Any increase in the District's debt
service tax rate subsequent to the Annual Payment Elimination Date shall not obligate the City to
again make Annual Payments.
6.02. Payment of Annual Payment. The Annual Payment shall begin on May 1 in the
calendar year following the calendar year for which the District initially receives a tax roll from
the appropriate county Appraisal District and shall be payable each May 1 thereafter (the "Payment
Date"), with each such Annual Payment being applicable to the calendar year preceding the
calendar year of each such May 1 (e.g., if the District receives a tax roll for the calendar year 2018,
the Annual Payment for such year will be due May 1, 2019). Each Annual Payment that is not paid
on or before the Payment Date shall be delinquent and shall incur interest at the rate of one percent
(1 %) of the amount of the Annual Payment per month, for each month or portion thereof during
which the Annual Payment remains unpaid. On September 1 of each calendar year, the City shall
cause to be paid to the District those portions of the Annual Payment which reflect collections made
by the City subsequent to the Payment Date. The obligation of the City to make Annual Payments
to the District shall terminate upon the termination of this Agreement in accordance with Section
9.14 below.
6.03. Supplemental Tax Rolls; Correction Tax Rolls; Adjustment to Annual
Payment. The parties recognize and acknowledge that, from time to time, the 13razoria County
Appraisal District may submit to the District one or more supplemental tax rolls and/or correction
tax rolls and that each such supplemental tax roll and/or correction tax roll may affect the total
value of taxable properties within the District for a particular year and therefore the Annual
Payment due and payable by the City for such year. The District agrees that promptly upon
receiving a supplemental tax roll and/or correction tax roll, the District shall deliver such
supplemental tax roll and/or correction tax roll to the City. Promptly upon receiving a supplemental
tax roll and/or collection tax roll from the District, the City shall recalculate the amount of the
Annual Payment pertaining thereto and shall notify the District of the amount of such recalculated
Annual Payment. Within forty-five (45) days from the date on which the District receives notice of
a recalculated Annual Payment, the City shall pay to the District the amount, if any, by which the
recalculated Annual Payment exceeds the amount of the Annual Payment previously paid by the
City to the District for the year in question, or the District shall pay to the City the amount, if any,
by which the recalculated Annual Payment is less than the amount of the Annual Payment
previously paid; provided, however, that if such amount in either instance is less than $1,000.00,
rather than payment within such 45 days, the next Annual Payment shall be adjusted accordingly.
6.04. Payment of Monthly Revenue Payments. In addition to the Annual Payment, the
City shall make a payment each month to the District ("Monthly Revenue Payment") equal to $5.00
per equivalent single-family connection located within the District; equivalent single-family
connections shall be computed in accordance with the service unit factors as set forth in Exhibit
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"A", attached to this Agreement and incorporated for all purposes, as such factors may be amended
from time to time by the City in its sole discretion, provided that the City shall always apply the
same service unit factors within the District as it applies to other areas within the City. The Monthly
Revenue Payment shall be paid by the City to the District within thirty (30) days of the last day of
the month for which the Monthly Revenue Payment applies (the "Due Date"). Each Monthly
Revenue Payment that is not paid on or before the Due Date shall be delinquent. If the City fails or
refuses to pay a delinquent Monthly Revenue Payment for a period in excess of sixty (60) days
from the receipt of written notice from the District regarding same, then each Monthly Revenue
Payment included in such notice shall incur interest at the rate of one per cent (1%) of the amount
of the Monthly Revenue Payment per month, for each month or portion thereof during which a
Monthly Revenue Payment remains unpaid upon expiration of such sixty (60) day period. The
obligation of the City to make Monthly Revenue Payments shall terminate upon the termination of
this Agreement in accordance with Section 9.14 hereof. The City and the District acknowledge and
agree that the District is dependent upon the Monthly Revenue Payments in order that development
within the District may be competitive with development in surrounding areas.
6.05. Access to Records for Verifying Calculation of Annual and Monthly Revenue
Payments. The City shall maintain proper books, records, and accounts and shall provide the
District with an accounting together with each Annual and/or Monthly Revenue Payment. The
City shall afford the District or its designated representatives reasonable access to its books,
records, and accounts for purposes of verifying the amounts of egch Annual Payment and/or
Monthly Revenue Payment or recalculated Annual Payment and/or Monthly Revenue Payment
which is or becomes due and payable by the City hereunder. The District shall maintain proper
books, records, and accounts of all Bonds issued by the District and the District's debt service
requirements and shall afford the City or its designated representatives reasonable access thereto
for purposes of verifying the amounts of Annual and/or Monthly Revenue Payments.
6.06. District Taxes. The District is authorized to assess, levy,and collect ad valorem
taxes upon all taxable properties within the District to provide for (1) the payment in full of the
District Obligations, including principal, redemption premium, if any, or interest on the Bonds and
to establish and maintain any interest and sinking fund, debt service fund, or reserve fund and (ii)
for administration, operation, and maintenance purposes, all in accordance with applicable law.
The parties agree that nothing herein shall be deemed or construed to prohibit, limit, restrict, or
otherwise inhibit the District's authority to levy ad valorem taxes as the Board of Directors of the
District from time to time, in its sole discretion, may determine to he necessary or the District's use
of its tax revenues for any authorized purpose in accordance with applicable law. The City and the
District recognize and agree that all ad valorem tax receipts and revenues collected by the District,
together with all Annual Payments and Monthly Revenue Payments shall become the property of
the District and may be applied by the District to the payment of all proper debts, obligations, costs,
and expenses of the District and may be pledged or assigned to the payment of all or any designated
portion of the principal or redemption premium, if any, or interest on the Bonds or otherwise in
accordance with applicable law. Each party to this Agreement agrees to notify the other party as
soon as is reasonably possible in the event it is ever made a party to or initiates a lawsuit for unpaid
taxes.
6.07. Pledge of Payments. The parties acknowledge and agree that the District may
pledge the Annual Payments, the Monthly Revenue Payments, and/or any portion of either in
connection with the District's issuance of its Bonds.
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ARTICLE VII
DISSOLUTION OF THE DISTRICT
7.01. Dissolution of District. The City and District recognize and agree that the City may,
pursuant to the procedures and provisions and subject to the limitations set forth in the general laws
of the State of Texas including, but not limited to, Section 43.074, Texas Local Government Code,
abolish and dissolve the District and acquire the District Assets and assume the District Obligations
upon a vote of not less than two-thirds (2/3) of the entire membership of the City Council to adopt
an ordinance to such effect, if the City Council finds: (a) that the District is no longer needed, (b)
that the services and functions performed by the District can be served and performed by the City,
and (c) that it would be in the best interests of the citizens and property within the District and the
City that the District be abolished. In order to ensure that the property owners and inhabitants of
the City and the District are afforded sufficient time and opportunity to realize the benefits and
public utility to be derived from the creation and operation of the District and the financing,
construction and implementation of the plan of improvements for the District, and in order to
contribute to the financial stability and feasibility of the District by ensuring a sufficient longevity
of the District's existence to permit the District to reach a satisfactory level of financial maturity,
the City agrees that the District shall not be abolished until such time as the District is fully
developed and has sold all Bonds necessary to finance the costs of the Facilities and has reimbursed
developers and landowners within the District to the maximum extent permitted by the rules of the
TCEQ and in accordance with the Utility Development Agreements entered into by the District.
7.02. Transition upon Dissolution. In the event all required findings and procedures for
the dissolution of the District have been duly, properly, and finally made and satisfied by the City,
and unless otherwise mutually agreed by the City and the District pursuant to then existing law, the
District agrees that its officers, agents, and representatives shall be directed to cooperate with the
City in any and all respects reasonably necessary to facilitate the dissolution of the District and the
transfer of the District Assets to and the assumption of the District Obligations by the City.
ARTICLE VIII
REMEDIES IN EVENT OF DEFAULT
The parties hereto expressly recognize and acknowledge that a breach of this Agreement by
either party may cause damage to the non -breaching party for which there will not be an adequate
remedy at law. Accordingly, in addition to all the rights and remedies provided by the laws of the
State of Texas, in the event of a breach hereof by either party, the other party shall be entitled but
not limited to the equitable remedy of specific performance or a writ of mandamus to compel any
necessary action by the breaching party.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01, Permits, Fees, Inspections. The District understands and agrees that all City
ordinances and codes, including applicable permits, fees, and inspections, shall be of full force and
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effect within its boundaries the same as to other areas within the City's corporate limits, except to
the extent inconsistent with the terms of this Agreement.
9.02. Force Majeure. In the event either party is rendered unable, wholly or in part, by force
majeure to carry out any of its obligations under this Agreement, except the obligation to pay
amounts owed or required to be paid pursuant to the teams of this Agreement, then the obligations
of such party, to the extent affected by such force majeure and to the extent that due diligence is
being used to resume performance at the earliest practicable time, shall be suspended during the
continuance of any inability so caused to the extent provided but for no longer period. As soon as
reasonably possible after the occurrence of the force majeure relied upon, the party whose
contractual obligations are affected thereby shall give notice and full particulars of such force
majeure to the other party. Such cause, as far as possible, shall he remedied with all reasonable
diligence. The term "force majeure," as used herein, shall include without limitation of the
generality thereof, acts of God, strikes, locicouts, or other industrial disturbances, acts of the public
enemy, orders of any kind of the government of the United States or the State of Texas or any civil
or military authority other than a party to this Agreement, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts, drought, arrests, restraint of
government, civil disturbances, explosions, breakage or accidents to machinery, pipelines or
canals, partial or entire failure of water supply resulting in an inability to provide water necessary
for operation of the water and wastewater systems hereunder, and any other inabilities of any party,
whether similar to those enumerated or otherwise, which are not within the control of the party
claiming such inability, which such party could not have avoided by the exercise of due diligence
and care.
9.03. Approvals and Consents. Approvals or consents required or permitted to be given
under this Agreement shall be evidenced by an ordinance, resolution or order adopted by the
governing body of the appropriate party or by a certificate executed by a person, firm or entity
previously authorized to give such approval or consent on behalf of the party. Approvals and
consents shall be effective without regard to whether given before or after the time required for
giving such approvals or consents.
9.04. Address and Notice. The parties contemplate that they will engage in informal
communications with respect to the subject matter of this Agreement. However, any formal notice
to be given under this Agreement shall be given in writing, addressed to the party to be notified as
set forth below, and may be given either by depositing the notice in the United States mail postage
prepaid, registered or certified mail, with return receipt requested; by messenger delivery; or by
telefacsimile. Notice deposited by mail shall be effective three (3) days after posting. Notice given
in any other manner shall be effective upon receipt by the party to be notified. For purposes of
notice, the addresses of the parties shall be as follows:
If to the City, to:
City of Pearland
Attn: City Manager
3519 Liberty Dr.
Pearland, Texas 77581
Telefacsimile No. 341/485-7992
55
If to the District, to:
Brazoria County Municipal Utility District No. 69
c/o Schwartz, Page & Harding, L.L.P.
1300 Post Oak Boulevard, Suite 1400
Houston, Texas 77056
Attn: Board of Directors
Telefacsimile No. 713-623-6143
The parties shall have the right from time to time to change their respective addressees by giving
at least fifteen (15) days' written notice of such change to the other party.
9.05. Assignability. This Agreement shall not be assignable by either party.
9.06. No Additional Waiver Implied. The failure of either party to insist upon
performance of any provision of this Agreement shall not be construed as a waiver of the future
performance of such provision by the other party.
9.07. Reservation of Rights. All rights, powers, privileges and authority of the parties
hereto not restricted or affected by the express terms and provisions hereof are reserved by the
parties and, from time to time, may be exercised and enforced by the parties.
9.08. Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the
parties hereto and shall not be construed to confer any rights upon any third parties.
9.09. Merger. This Agreement embodies the entire understanding between the parties and
there are no representations, warranties, or agreements between the parties covering the subject
matter of this Agreement other than the Consent Ordinance between the City and the District. If
any provisions of the Consent Ordinance appear to be inconsistent or in conflict with the provisions
of this Agreement, then the provisions contained in this Agreement shall be interpreted in a way
which is consistent with the Consent Ordinance.
9.10. Modification; Exhibit. This Agreement shall be subject to change or modification
only with the mutual written consent of the City and the District. The exhibit attached to this
Agreement is incorporated by this reference for all purposes.
9.12. Further- Documents. The parties agree that at any time after execution of this
Agreement, they will, upon request of another party, execute and deliver such further documents
and do such further acts and things as the other party may reasonably request in order to effectuate
the terms of this Agreement.
9.13. Captions. The captions of each section of this Agreement are inserted solely for
convenience and shall never be given effect in construing the duties, obligations or liabilities of the
parties hereto or any provisions hereof, or in ascertaining the intent of either party, with respect to
the provisions hereof.
9.14. Interpretations. This Agreement and the terms and provisions hereof shall be
liberally construed to effectuate the purposes set forth herein and to sustain the validity of this
56
Agreement.
9.15. Severability. If any provision of this Agreement or the application thereof to any
person or circumstances is ever judicially declared invalid, such provision shall be deemed severed
from this Agreement and the remaining portions of this Agreement shall remain in effect.
9.16. Term and Effect. This Agreement shall remain in effect until the earlier to occur of
(i) the dissolution of the District by the City and the assumption by the City of the District
Obligations and the acquisition by the City of the District Assets or (ii) the expiration of forty (40)
years from the date hereof.
9.17. Authority for Execution. The city hereby certifies, represents, and warrants that the
execution of this Agreement is duly authorized and adopted in conformity with the general laws of
the State of Texas applicable to the City, the City charter, and any applicable City ordinances. The
District hereby certifies, represents, and warrants that the execution of this Agreement is duly
authorized and adopted in conformity with the general laws of the State of Texas applicable to
municipal utility districts and any applicable orders, resolutions, or policies of the District.
9.20. Counterparts. This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original and all of which together shall constitute but one and
the same instrument.
[EXECUTION PAGES FOLLOW]
57
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies,
each of equal dignity, as of the date first given above.
ATTEST:
By:
City Secretary
(SEAL)
COUNTERSIGNED:
By:
City Manager
THE CITY OF PEARL,AND, TEXAS
By:
Mayor
APPROVED AS TO FORM:
By:
City Attorney
ae
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO, 69
President, Board of Directors
ATTEST:
Secretary, Board of Directors
(SEAL)
eo
Exhibit A
to Utility Services Agreement
City of Pearland Service Unit Factors
No.
Development Type
Unit of Measure
S.U,E,
Remarks
1
Bakery
Square Foot
0.000700
2
Barber Shop
Chair
0.470000
3
Beauty Salon
Bowl
0.470000
4
Bowling Alley
Lone
0.635000
Does not include restaurant
5
Car Repair
Square Foot
0.000160
Does notlncludecarwash
6
Canvas!), Tunnel Self Service
lane
6.350000
7
Carwash, Wand Type Self Service
Bay
1.220000
8
Carwash, Tunnel With Attendants
Lane
31.430000
Does not Include reclamation
9
Church, Administration
Occupant
0.047000
Occupancy Loads established by the adopted building codes
10
Church, Auditorium
Seat
0.003200
11
Church, Classroom
Seat
0.004700
12
Club/Tavern/Lounge
Seat
0.031000
13
Convenience Store
Square Foot
0.000220
14
Country Club
Occupant
0,390000
Occupancy Loads established by the adopted building codes
15
Day Core Center
Occupant
0.031700
Occupancy Londs estobishcd by the adopted bultdIn8 codes
16
Dormitory
Bed
0.286000
17
Driving Range
Tee
0.210000
18
Fire Station
Employee
0.286000
19
Funeral Home
Embalming Station
2.140000
20
Gas Station, Self -Service
Island
0800000
Island Is defined as 1 pumping station - Does not Include carwash
21
Gas Station, Full•Servlce
Island
0.860000
Island Is defined as 1 pumping station - Does not Include carwash
22
Grocery Store
Square Foot
0.000260
Does not Include restaurant
23
Health Club
Occupant
0.016000
Occupancy Loads established by the adopted building codes
24
Ilealth Club w/ Whirpooi or Swimming Pool
Occupant
0.032000
Occupancy Loads established by the adopted building codes
25
Hospital
Bed
0.635000
Patient Core Area - Does not Include designated office areas
26
Hotel/Motel
Room
0.251000
Does not Include restaurant
27
Hotel/Motel with Kitchenettes
Room
0,430000
28
Ice Cream Parlor with Seating
Scat
0.047000
29
Indoor Entertainment/Amusement w/o Restaurant
Occupant
0.031000
Occupancy loads established by the adopted building codes
30
Industrial laundry
50 lbs
0.950000
31
Manufacturing
Square Foot
0.000160
Average: Each development must be Individually evaluated
32
Nursing Home
Bed
0.286000
33
Office Building
Square Foot
0.000335
34
Photo Store, 1-FlourProcessing
Store
4.000000
35
Post Office, Excluding Dock
Square Foot
0.000254
36
Raquetball Club
Court
0.510000
37
Recreational Vehicle Park
Space
0.238100
38
Resident, Apartment
Dwelling Unit
0.700000
Basic Service Unit
39
Resident, Condominium
Dwelling Unit
1.000000
40
Resident, Duplex
Dwelling Unit
1.000000
41
Resident, Mobile Home
Dwelling Unit
0.700000
42
Resident, Single Family
Dwelling Unit
1.000000
43
Resident, Town House
Dwelling Unit
1.000000
44
Restaurant, Full -Service, General
Seat
0.110000
45
Restaurant, Fast Food with Seating
Seat
0.047000
4G
Restaurant, Fast Food without Seating
Square Foot
0.002300
47
Restaurant, Buffet with Seating'
Seat
0.110000
*Non -disposable Dinnerware and Flatware
48
Restaurant, Outlet with Seating"
Seat
0.070500
•rDlsposableDinnerware and Flatware
49
Retail Store
Square Foot
0.000223
50
School, Filgh
Seat
0,047600
Does not Include resident dormitory
51
School, Other
Seat
0.031700
Does not Include resident dormitory
52
Skating Rink
Occupant
0.016000
Occupancy Loads established by the adopted building codes
53
Swimming Pool
Occupant
0.016000
Occupancy Loads established by the adopted building codes
54
Stadium
Seat
0.010000
55
Theatre, Drive-in
Space
0.016000
56
Theatre, Indoor
Seat
0.016000
57
Toilet (non-specific)
Toilet
0.254000
58
Transportation Terminal without Restaurant
Passenger
0.016000
59
Warehouse
Square Foot
0.000100
60
Washaterla
Machine
1.580000
61
EXHIBIT IC
Approved Cost Estimate for Required Easements
Segment
Extent
Side
Parcels
Total Area
(Acres)
Assumed
Value/SF
Property
Cost
Acquisition
costs
Total Cost
FM 1128
Bailey - Massey
Ranch
East
17
2.20
$ 5.00
$ 479,160
$ 85,000
$ 564,160
Massey Ranch
FM 1128 - Property
North
8
3.62
$ 3.00
$ 472,600
$ 40,000
$ 512,500
Bailey - Massey
Harkey North
Ranch
West
21
3.91
$ 3.00
$ 510,959
$ 105,000
$ 615,959
Bailey - Massey
Veterans
Ranch
East
23
4.00
$ 5.00
$ 871,200
$ 115,000
$ 986,200
Massey Ranch
Veterans - Harkey
South
7
7.33
$ 1.00
$ 319,295
$ 35,000
S 354,295
Massey Ranch -
Harkey South
Property
East
4
3.94
$ 1.00
$ 171,626
$ 20,000
$ 191,626
Totals
80 25.00 $ 2,824,740 $ 400,000 $ 3,224,740
Assume
Acquisition
Costs =
62
$ 6,000
per parcel
EXHIBIT L
SUBDIVISION IMPROVEMENT AGREEMENT
This Agreement is entered into this day of , by
and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and
(hereinafter "Developer").
WHEREAS, Developer has filed for approval by City a final subdivision plat for
(hereinafter the "Project"); and
WHEREAS, City's Unified Development Code (UDC) mandates completion of all public
improvements required to serve the subdivision prior to approval of the final plat for said
subdivision; and
WHEREAS, approval of the final plat for Project requires the completion of the following public
improvements (hereinafter the "Improvements"), which have been
constructed:
; and
WHEREAS, Sections 3.1.8.3 and 3.1.8.4 provide a procedure whereby Developer may postpone
completion of the required public improvements until after final plat approval upon execution of a
subdivision improvement agreement and posting of adequate security; and
WHEREAS, City and Developer desire an agreement to set forth their respective responsibilities
with regard to the Project.
WlIII€,a..I►E:
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. Developer shall complete construction of the Improvements by , 20 ,
which date shall not be later than twenty-four (24) months after recordation of the final
subdivision plat for the Project.
2. Developer shall require a performance bond from the contractor that Developer retains
to construct the Improvements sufficient to cover the cost of the Improvements, and said
bond shall name City as a co -obligee.
63
3. Developer shall warrant the Improvements for a period of two (2) years following their
acceptance by City, and shall provide City a maintenance bond in an amount equal to one
hundred percent (100%) of the costs of the Improvements to cover any warranty repairs
needed to the Improvements during the warranty period.
4. Pursuant to Section 3.1.8.4 of the UDC, Developer posts security for completion of the
Improvements by the instrument attached hereto as Exhibit A. This security shall be in an
amount equal to one hundred twenty-five percent (125%) of the cost of the Improvements.
City shall be entitled to cash, call, or otherwise redeem said security and take possession
of the funds upon presentation to the surety or financial institution that issued the security
or upon which it is drawn, of a sworn affidavit from the City Engineer or his designee setting
forth the manner in which Developer has failed to comply with (1), (2), or (3) above.
5. City agrees to accept for filing and presentation to City's Planning and Zoning
Commission for final approval Developer's final subdivision plat of the Project.
6. This Agreement may only be amended, modified, or supplemented by written
agreement and signed by both parties.
7. No assignment by a party hereto of any rights under or interests in this agreement will be
binding on another party hereto without the written consent of the party sought to be
bound; and specifically but without limitation moneys that may become due and moneys
that are due may not be assigned without such consent (except to the extent that the effect
of this restriction may be limited by law), and unless specifically stated to the contrary In
any written consent to an assignment no assignment will release or discharge the assignor
from any duty or responsibility under this Agreement.
8. Nothing herein is intended to supersede or waive any City ordinance or regulation
pertaining to such construction.
9. Whenever possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but If any provision of this Agreement is
prohibitive or invalid under applicable law, such provision shall be ineffective to the extent
of such provision or invalidity, without Invalidating the remainder of such provision or the
remaining provisions of this Agreement.
10. This Agreement shall be construed and enforced in accordance with and governed by the
laws of the State of Texas.
11. The Parties agree that any suit arising out of or related to this Agreement shall be filed in
Brazoria County Texas.
64
IN WITNESS WHEREOF, the parties have hereunto set their hands and signatures on the
date first above mentioned.
ATTEST:
Young Lorfing
City Secretary
Name of Developer
By:
Name:
Title:
CITY OF PEARLAND, TX
By: Clay Pearson,
City Manager
65
EXHIBIT M
Survey Requirements
The areas to be surveyed will be in accordance with Section 4.5 (b) of the Development Agreement.
Topographic Surveys
The survey will cover from the centerline of pavement to 25 -feet outside of the right -of -right line. The half
of the right-of-way to be surveyed will be mutually determined by the City of Pearland and Developer and
reported to surveyor prior to the commencement of the topographic surveys.
1. Establish horizontal and vertical control points for each segment to be surveyed. The nature,
location and density of the points will be sufficient to be recovered or re-established and utilized
during the construction phase of the project.
2. Contact the private utility providers and pipeline companies to mark and provide the depth of the
underground utilities within the project areas. City of Pearland will be responsible for marking the
underground routing of the City water lines.
3. Recover sufficient property corner monumentation to be able to establish the horizontal location
of the right-of-way line.
4. Horizontally locate all visible features within the project area, Including, but not, limited to:
pavement, drives culverts, signs, significant trees (or the edge of the limits of trees in high density
areas), power poles, valves, meters, fire hydrants, pipeline markers, ditches, bridges, manholes,
inlets, structures, etc.
5. Establish cross-section elevations at 50 -foot Intervals. A typical cross-section will have elevations
established the centerline of pavement, edge of pavement, top of banks of ditch, flow line of
ditch, right-of-way line and 25 -feet outside of the right-of-way.
6. Prepare a 2-D plan map with the surface TIN created showing the results of the survey using
AutoCAD Civil 3D 2011. Provide the DWG files of the final drawings
Property Description
A property description shall be prepared for each parcel of land to be acquired. Property descriptions
shall Include, but need not be limited to, the following Items of information:
All property description shall be signed and sealed by a Registered Professional Land Surveyor.
The property description shall begin with a general description which shall include minimum:
1. State, County, and Survey within which the proposed parcel of land to be acquired is located.
2. A reference to be unrecorded and recorded subdivisions by name, lot, block, and recording data
to the extent applicable.
3: A reference by name to the grantor and grantee, date and recording data of the most current
Instrument(s) of conveyance describing the parent tract.
It is the preference of the City to use execution dates in deed references as opposed to recording or
filing date. In any case, the property description shall make clear which date is being used. The
property description shall continue with metes and bounds description which shall include as a
minimum:
1. A point of commencing.
2. A point of beginning with the appropriate N and E surface coordinates.
66
3. A series of courses, Identified by number and proceeding in a clockwise direction, describing the
perimeter of the parcel of land to be acquired, and delineated with appropriate bearings,
distances and curve data.
4. Curve data shall include the radius, delta angle, arc length, and long chord bearings and distance.
5. Each course shall be identified either as a proposed right-of-way line, and existing right-of-way
line, or a property line of the parent tract. Each property line of the parent tract shall be described
with an appropriate adjoined call.
6. A description of all monumentation set or found shall include, as a minimum, size and material.
7. A reference to the source of bearings, coordinates and datum used.
Exhibit Maps (Parcel Plat)
A parcel plat shall be prepared for each parcel of land to be acquired. All parcel plat shall be signed and
sealed by a Registered Professional Land Surveyor.
The following general specifications for right-of-way mapping shall apply:
1. Completed right -of way maps shall be submitted to the City on single or double matte mylar, 22
Inches by 34 inches in size with a 21 inch by 32 inch printed border positioned % inch from the
top, bottom, and right edge of the sheet.
2. Parcel plats shall be submitted to the City on 8 '/A inch by 11 inch bond paper with respective
borders of 7'A Inches by 10 inches, position 1/2 inch from the top, bottom, and right edge of the
sheet. Match lines shall be used where more than one sheet is required.
3. Right of way maps shall be drawn to a preferred scale of 1 inch = 50 feet, but appropriate scale
other than 1 inch = 50 feet may be used upon prior approval by the City Engineer.
4. Since right-of-way maps are reduced in size by one-half for archiving purposes, but the smallest
size lettering acceptable on a right of way map shall be 1/10 of one inch. A right-of-way map less
than 1/10 of one inch will not be accepted by the City.
5. Parcel plats shall be drawn to a preferred scale of 1 Inch = 50 feet. An appropriate scale other than
1 inch = 50 feet may be used on some proposed right-of-way protects upon prior approval by the
City. In the case of a very Targe parcel which would be difficult to show with clarity on a single 8 %2
inch by 11 inch sheet, the Surveyor shall use multiple 8 %2 inch by 11 inch sheets with matching
lines.
6. The smallest size lettering acceptable on a parcel plat shall be 0.06 of an inch
7. Property descriptions shall be submitted on 8 %2 inch by 11 Inch bond paper.
8. Include existing permanent improvements within 25 feet of the proposed right-of-way or
easement.
General Requirements
General requirements which apply:
1. Copies of instruments of record submitted to the City shall be indexed by parcel number.
2. Coordinates appearing on right-of-way maps, on parcel plats and in property descriptions shall be
surface coordinates based on the Texas Coordinate System of 1983. The combined adjustment
factors (sea level factor x scale factor) should be grid coordinates multiplied by a combined
adjustment per project locations to obtain surface coordinates.
3. Line and curve tables may be used when necessary.
67
4. The number of centerline alignment stations to be shown on a single plan sheet shall be restricted
to the extent necessary to allow approximately 4 inches between match lines and sheet borders
for future details and notes.
5. A minimum 4 inch by 4 Inches space shall be reserved at the bottom right corner of each map
sheet for future revision notes.
Right of Way Map
The Surveyor shall field locate property corners, existing right-of-way markers, improvements, visible
utilities, verify and update the planimetric file, if provided and as directed by the City.
A right-of-way map shall be prepared for each proposed right-of-way project. A right-of-way map shall
include a title sheet, an index sheet, a survey control index sheet, a horizontal and vertical control data
sheet, and sufficient plan sheet to cover the proposed project or as directed by the City. Plan sheets shall
Include, but not limited to the following items of Information:
By mutual agreement between the Texas Board of Professional Land Surveying and City, right-of-way
maps need not be signed and sealed by a Registered Professional Land Surveyor.
1. Proposed right-of-way lines shall be delineated with appropriate bearings, distances and curve
data. Curve data shall include the radius, delta angle, arc length, and long chord bearing and
distance.
2. Existing right-of-way lines shall be delineated with appropriate bearings, distances, and curve data
to the extent necessary to describe the Individual parcels of land to be acquired. Curve data shall
include the radius, delta angle, arc length and long chord bearing and distance.
3. The proposed project baseline alignment shall be delineated with appropriate bearings, distances
and curve data. Curve data shall Include the stations of the curve Point of Intersection (PI), radius,
delta angle, arc length, tangent length, long chord bearing and distance, and the N and E
coordinates of the curve PI. All alignment PCs, PTs and even 500 foot stations shall be labeled as
to station.
4. Proposed paving lines combined with relevant existing paving lines shall be shown to the extent
necessary to compile a complete picture of proposed traffic movements. Proposed paving on the
final mylars submitted to the City shall be shaded with a dot pattern or highlighted by some other
means acceptable to the City.
5. Access denial lines shall be shown sufficiently to indicate areas where access is to be denied and
where access is to be permitted.
6. Private property lines shall be delineated with appropriate bearings, distances and curve data to
the extent necessary to describe the individual parcels of land to be acquired. Curve Data shall
include the radius, delta angle, arc length, and long chord bearings and distance.
7. League lines and survey lines shall be shown and Identified by name and abstract number.
8. County lines and City limit lines shall be located and identified by name.
9. A north arrow shall be shown on each sheet, and If possible, located in the upper right corner of
the sheet.
10. Monumentation set or found shall be shown and described as to material and size.
11. A station and offset shall be shown for each PC, PT and angle point in the proposed right-of-way
lines. Stations and offsets shall be with respect to the proposed centerline alignment.
12. Intersecting and adjoining public right-of-way shall be shown and Identified by name, right-of-way
width, and recording data.
13. Railroads shall be shown and identified by name, right -of way width, and recording data.
14. Utility corridors shall be identified as to easement or fee.
68
15. Easements and fee strips shall be shown and Identified by width, owner and recording data.
16. Building lines or set back lines shall be shown and identified.
17. Visible improvements located within the proposed right-of-way corridor or within 50 feet of a
proposed right-of-way line shall be shown and identified.
18. Structure shall be identified as commercial or residential, by number of stories and as to type
(brick, wood frame, etc.).
19. Structures which are severed by a proposed right-of-way line shall be dimensioned to the extent
necessary to completely delineate the severed parts.
20. Parking areas, billboards and other on premise signs which are severed by a proposed right -of
way line shall be dimensioned to the extent necessary to delineate that portion of the parking
area, billboard, or sign which Is located within the proposed right-of-way corridor.
21. In cases where structures are located outside the proposed right-of-way corridor and within 10
feet of a proposed right-of-way line, the shortest distance between the structure and the
proposed right-of-way line shall be shown.
22. If the structure is an element of the planimetric furnished to the Surveyor by the City, the Surveyor
map shall estimate the shortest distance from the structure to the proposed right-of-way line.
However, if the distance is less than 3 feet, it shall be field verified.
23. Visible utilities located within the proposed right-of-way corridor or within 50 feet of a proposed
right-of-way line shall be shown and identified.
24. The location of underground fuel storage tank situated within the proposed right-of-way corridor
or within 50 feet of proposed right-of-way line shall be determined and shown. The visible
location of vents and filler caps in conjunction with available design and as -built drawings may be
used to determine a most probable location in the event an actual location is indeterminable.
25. Points of commencing and points of beginning shall be shown and labeled. Points of beginning
shalt be shown with their respective N and E surface coordinates. As an exception, a point of
commencing will not be required In the case of a total taking without a remainder.
26. Each parcel of land to be acquired shall be identified by a parcel number which shall appear in the
ownership tabulation and on the right-of-way map in the proximity of the respective parcel.
27. An ownership tabulation shall be shown which shall include the parcel number exiting area of the
parent tract, lot(s) and block(s) constituting the parent tract when applicable, owner's name, type
of conveyance, film code, county clerk's file number, taking area, and remaining area of the parent
tract located left and right of the centerline alignment. Types of conveyance, film code and file
number refer to conveyance into the City and will be added to the right-of-way map by the City
at a later date. Several blank lines shall be provided In the tabulation block to facilitate future
maps additions.
28. A parent tract inset shall be shown for each parent tract which cannot be shown to scale on the
right-of-way map. The use of broken scale lines shall be avoided. When parent tract insets are
used, the point of commencing with the appropriate bearing and distance to the point of
beginning may be shown on the parent tract Inset.
29. A note shall be included on the title sheet and each map sheet stating the source of bearings,
coordinate and datum used.
30. Appropriate notes shall be included on the title sheet and each map sheet stating the following:
a. Month(s) and year abstracting upon which the map Is based.
b. Month(s) and year field surveys were conducted upon which the map is based.
c. Month and year the map was completed by the Surveyor.
69