R2005-0041 02-14-05 RESOLUTION NO. R2005-41
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, CONSENTING TO THE ASSIGNMENT OF THE RIGHTS AND
OBLIGATIONS OF A DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF PEARLAND, GRAND VALLEY HOMES, INC. AND
SOUTHWOOD ESTATES, INC. TO GULF COAST UTILITY COMPANY.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Consent to Assignment by and between the City of
Pearland, Grand Valley Homes, Inc., Southwood Estates, Inc. and Gulf Coast Utility
company 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 a Consent to Assignment Agreement with Grand Valley
Homes, Inc., Southwood Estates, Inc. and Gulf Coast Utility Company.
PASSED, APPROVED and ADOPTED this the 14th day of February ,
A.D., 2005.
ATTEST:
~C, Y1'Y SEORETARY "
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
TOM REID
MAYOR
ATTORNEY! 4~ 4?35 TO ~95S6826000 P.03
Exhibit "A"
Resolution No. 2005-41
CONS,.ENT-TQ ASSIGNMENT OF DEV!?~I,OPMENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF BRAZORIA §
THAT, the undersigned,
KNOW ALL MEN BY THESE PRESENTS:
THE CITY OF PEARl,AND, TEXAS, a Texas municipal
corporation located in Brazoria County, Texas [the "City"], GRAND VALLEY HOMES, INC., a
Texas corporation with its principal office located in Hidalgo County, Texas [the "Developer"] and
SOUTHWOOD ESTATES, INC., a Texas corporation with its principal place of business located
in Brazoria County, Texas ["SEI"] did enter into that certain Development Agreement, dated
September 24, 2003, a true and correct copy of which is attached hereto as Exhibit "A"; and
WHEREAS, the undersigned, SEI and GULF COAST UTILITY COMPANY, INC., a Texas
corporation with its principal office located in'Brazoria County, Texas [ "C-ulf Coast"] did enter into
that certain Asset Purchase Agreement, whereby SEI would sell all of its assets to Gulf Coast; and
WHEREAS, an asset of SEI is its rights, duties and obligations under the above described
Development Agreement; and
WHEREAS, an express term of the Development Agreement provides that the City has the
right to approve any assignment of rights thereunder; and
WHEREAS, by this instrument, Developer, SEI and Gulf Coast evidence their request that
the City so approve SEI's assignment to Gulf Coast of its rights, duties and obligations under the
Develbpment Agreement; and
Page -1-
FEB 87 2885 16:84 FR K R PHILLIPS ATTORNEYI 418 4735 TO 19566886888
WHEREAS, the City, by its execution hereof, does so approve SEI's assignment to Gulf
.Coast of its rights, duties and obligations under the Development Agreement upon the terms and
conditions as,set forth herein.
NOW, THEREFORE, the City, the Developer, SEI and Gulf Coast, for and in consideration
of the sum of ONE AND NO/100 DOLLARS ($1.00) to each other in hand paid, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed,
'do hereby AGREE as follows:
1. This instrument is expressly SUBJECT TO AND CONDITIONED UPON the
Executive Director of thc Texas Commission on Environmental Quality ["TCEQ"]
approving the pending Application of Sale, Transfer or Merger by and between
and Gulf Coast;
2. Gulf Coast shall assume all the fights, powers and duties imposed upon SEI by the
Developer Agreement and SEI will have no further rights, powers and duties under
the Development Agreement;
3. The rights, powers and duties imposed upon Developer by the Development
Agreement shall remain unchanged; and
4. The rights, powers 'and duties imposed upon City by the Development Agreement
shall remain unchanged.
SUBJECT TO thc foregoing conditions, City hereby consents to the assignment of the
Development Agreement from SEI to Gulf Coast.
IN WITNESS WItEREOF, this instrument has been executed to take effect on the day the
aforesaid Application of the Sale, Transfer or Merger by and between SEI amd Gulf Coast is
approved by the Executive Director of the TCEQ.
P.04
',%"2
[Signature page follows]
Page -2-
FEB
07 2005 1G:04 FR K R PHILLIPS
ATTORNEY1 418 4?35 TO 1S5GG826000
P.05
SOUTHWOOD ESTATES, INC.
GULF COAST UTILITY COMPANY, INC.
BY: David S, l~liller ~
,ITS: President
BY: Paul W. Rhodes
ITS: President
ATTEST: ATTEST:
,. ..............
GRANDE VALLEY HOMES, LLC
BY: M~k Dizdar //
ATTEST:
BY: Chandler Beckenhaur
ITS: Secretary
THE CITY O1' PEARLAND, TEXAS
BY: Bjll.Eisen
.: ~_...' ~ "...'
.~_
"-..~o,~~~// U
EE~ ~ ?~ 1~104 FR K R pM!LLIPS_~TEORNEY1 41R 47~5 TO 1~5~8R~000
DEVELOPMENT AGREEMENT
the CITY OF PEARL. AND, TEXAS, (hereinafter -~l~i, ~ra-~ ¥iIy Homes.
(hereinafter"Developer") and $outhwood Estates. Inc, (hereinafter"SEl').
WHEREAS, ,D, ev.e, ioper plans to develop approximately 170 acres ('Property') described
In Exhibit 'A~, attached hereto and incorporated for purposes, aa a Single-family
residence communiiy; aM
WHERF,.A$, the Property is generally 10cated ~°rth-0f $~tTe-I'~ 6, west of CR-48 and
south of eR $6, and Ilea within the axtrater~otlal jurisdiction ("ETJ') of the Cit~, end
WHEREAS, Southwood Estates, Ino,, is an investor owned utility (,with an existing-
CertJf'~,ate of Convenience and Neoessity ('CCN') that includes pert of the Peedand
ET J, Mit of the city limits of iowa Colony, and part of Brazorta County) that desires.to
enter'into a dual CCN with the City for SEI to provkle water and sewer sewice to the
WHEREAS, the Property is also located wi~ln Ihs bou~erlan of the City'I Certlflcale of
Convenience and Necessity, thereby requiring the City's
order for Developer to receive water or sewer service from
WHEREAS, in ~nskleratlon for the City's consent tO SEI'a applloation for dual water
and sewer certir~tlon over the Pmpe~., D?veloper. a. nd SEi...egr?. to_.~ __w~_t
certain developmental standards to maintain consistency with me ~ty's cunen
development guidelines.
WITN ESSEI' H:
NOW THEREFORE, In consideration oF Ihs foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which Is hereby acknowledged, It
Is hereby agreed as follows:
1. City consents to SEra application for dual water and sewer cerdr~tlon over the
Property.
2. Developer agrees to comply with ali City Infra~ucture design and construction
standards, and agrees to configure the water and sewer utility system such that
the portion of the water and sewer system located on the Property and within the
ETJ of Pearland can be readily isolated from the rest of SEra CCN. Such portion
of the water and ~ewer system to be isolated shall include contain all water and
sewer distribution lines within said Property, Including any above, ground water
storage tanks and associated pumps, sewer lift stations and pumps and other.
associated hardware or real estate, but shall not include wastewater treatment'
· ;)lanta or water wells, ~mps or lilt stations, above ground water storage tanks or
FFR 2005 lB:OS FR K R PHILLIPS ATTORNEY1 412 473S TO l~SBBB2B000 P.07
4
d
any other associated hardware or real emte owned by SEI not on said Property.
Spa~lflc=lly excluded Imm the terms of this, Development Agreement are any
wast~ter treatment plants, water wells, lilt stations, pressure tanks, above
~'~und water storage tanks, pumps, and any other utility-ra~ated items located on
the 11,5 tract owned by SEI, more fully described in Exhibit 'B' attached hereto
and made a part hereof, and referred to for atl pe~nent purposes.
NoL, withstanding the provisions of Chapter 27 of the Code of Ordinances, Exhibit
B, Section 3d, t.h,,e. City agrees to allow a d,ralnage and detention syslem for the
Properly that utlhzes a mechanical pumping system, All other provisions of
Exhibit B and the Drainage Cdte~ Manual are applicable. City resewes the
riaht to approve the drainage plan for Ihs Property, which approval shall_not be
u~reasonably withheld or delayed, The parties acknowledge that neither ~e City
or Brazoria Dranage District No.4 shall be responsive for maintenanoe and
operation of the detention system. Including mechanical pumping systenm:
Da?. loper shall record deed restrictlces prbr to.a. ppmval of a final plat for any
portion of the Property and Implement saki provm~on$ through the r. mation of a
homeowners association or similar assessment to ensure perpetual operation
and maintenance of the detention and mechanical pumping systems.
Devaluer agrees to record, prior to approval of a final plat for any part]on of the
propeKy, in the B. razorla County Deed Records, deed restrictions for.the
Property, tm require aa structures to be co~.~.ed wi.~ 100% .1~ faca.a, es.
Residential structures having Iaaa than a 1,5-foot side yaro aggregate separaaon.
~all be limited to a maximum of.a.n t8 Inch exten~len from the wall. Under
c,'cumstances shall them be a side yard aggregate separat]on of less ~an ~
The minimum lot size on Tract 1 of the Pmperb/shall be 50 feet x 100 feel
Developer agrees to Ii .m. it the remaining portions of the Pmpe~ (Tram 2,3 .and
4) to a resklentiai density not to exceed 3.6 units per acre, exclusive of detention
and open space.
Devebper shall prepare atra. ffic impad analysis In conformance with City
standards and shall be responsible for implementing the irnpmvements identified
therein. Improvements klent~ed as having an immediate Impact and necessity
shall be construcled by Developer In accordance with a mulually agreed upon
schedule. Improvements constituting a Iong4ene need shall be funded by
Devaluer on a pm-rata basis by converting the Improvement to a cost estimate
and d~viding the e~tlmate by the to~ number of expected units. Such 'per unir
fee shall be fully paid by Developer prior to the final approval of each platted
Sm3Uon,
Developer agrees to pmvlde one acre of park/open apace for each t00
residential lots platted. Pafldopen space Io~ated within the storm water detention
fac~li6es shall be credited at a' rate of 50% toward the requirements of this
section, provided the detentbn factli~ is appropriately designed as a 'dual use'
. (park/drainage) facility,
i6:05 FR K R PHILLIPS ATTORNEY1 412 4?35 TO lS56G82S000
P.08
Developer shall submit a dbannexatJon request for any property that.la platted
within me current 100 foot City limit strip to insure that no platted lots Tire located
within said strip, Such request for dissnnexmtirm shall be submitted to the City
prior to approval of a final plat for that portion of the property'.
o,._ -Ctty-~d S~I agrem_thaLthe~Pe~arid_Yolunt"~r Fire Oepartmenl. aewee
Prell. rty and that, pursua?_t to this agreement, such s?.fvk:es shall c~nltnue, In
consideration. ,.of such serviceS. $8 agrees to add the City's Fire/EMS fee (fee) to
its soothly bdhng statement aM cheil Oc4~vely collect such fee, SEt shaft, subject
to epprovat by the Texas ComlTdellon on EflvironmenLai Quality
require payment of the Fh'e/EM$ fee as a condition for service. If approved by
the TCEQ, thecondi~nshail be made part of the serviGe agreement between
SEI and ~ customers. A residenlJal unit shall mean any building or part of a
building designed for permanent occupancy by one fame. To ~ulfill the tm'ms of
this section, SEI agrees to collect, on behalf of the City, the current monthly
charge of S4.38 for each residential unit on the Property that Is connected to and
receiving servT~e ~TOm SEI, as determined eaoh calendar quarter ~ollowing the
effective date of this agreemenL SEJ shall pay to the City, on a monthly basis, no
more than thirty (30) daYS alter sera monthly biffing wcle, a sum equal to the
number of fees actually r, olleoted for the previous month.
· 9. CRy agrees to defer the purchase of the $Er$ distri~Uoo system and waste
water collection facilities located within the Property, as set out and defined in
numbered paragraph 2, of this Agreement, for a period of twenty (20) years from
the date of this Agreement. At such time as City desires to purchase the portion
of sere system and assets within the Property, CRY and S£1 shall each obtain
appraisals for the value of the affected portion of me utd~dly system end assets. If
such appraisals are within 10% of each other, City and SEI agree that the
pu~hasa pdce will be the average of the two appraisals. Under no
circumstances shall the City have any obligation to purchase the uUlity system
and assets,
10, This Agreement shall commence and bind the Parties on the effective date of this
Agreement and shall continue until the City aoqubes the components of sera
distribution system that le located within the Property.
I'i. All covenants and agreements contained herein shall bind ell suc~-m~eom and
assigns end shall Inure to tho future benefit of other parties..
No assignment by a party hereto of any' r'lghta unde~ or interests in
agreement will be binding on another party hereto without the written consent of
the party sought to be bound: and specifically but without limltat]on moneys that
may become due and moneys that are due may not be assigned whhout 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 ccms~t to an
assignment no assignment will release or discharge the assignor from any duly
or responsibility under this agreement.
FEB 87 2005 16:05 FR K R PHILLIPS ATTORNEY1 412 4735 TO 1956682S000
P.09
13.
Whenever possible, each provision of this agreement shsll be Interpreted in ,uch
manner as to be effective and valid under appllr, able lew. but ii'any provision of
~ ~fl~ ~ient of sur, h provision Or Invalidity;. without invaildetlngtha
remainder of such provision or the remaining provisions of this agreement.
14. A breach of any matedal provision of this Agreement_aM..noti~ .and.e?.
oppmtuniiy to cure shall constitute a d~fault. The .non.~?. ~lng Party
notify the breach!rig Party of an ai~ged brach, which noti;e ;hall s.p. eclfy the
alleged breach nth reasonable parttcularl~. If the breaching Party fa!l~ to cure
_me b~ach within a reasonable time, not .sooner ~..at 30 days_a~r receipt of ~o.h
notice ch -nger period Of time aa me r orr- re ch
suoh notice), the non.breaching Party may declare a default hereunder and
exercise any lawfully available remedies.
15. Th~ agreement shall be construed and enforced in aco~_ ~ance wtth and
governed by the laws o~ the State of Texas.
t5. Thb egraemenl end ail obl~g~one created hereunder shall be performable in
Brazoria'County, Texas.
17. This agreement is solely for the benefit of the City, Developer, and ~Ei end no
o~her party i$ intended to be a beneliotary hereof.
18. To accomplish execution of thLs agreement, it may be executed In multiple
counterpa~.
19, TO THE EXTENT ALLOWED BY THE LAW, EACH OF THE PARTIES HEREBY
RELEASES, ACQUITS, AND FOREVER DISCHARGES EACH OTHER PARTY,
ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS
FROM ANY AND ALL CLAIUS, DEIdAND6, RIGHTS OR CAUSE8 OF ACTION
OF WHATSOEVER CHARACTER OR NATURE, INCLUDING ATTORNEYS'
FEES, ARISING FROM OR BY REASON OF ANY AND ALL BODILY OR
PERSONAL INJURIES, INCLUDING DEATH AND MENTAL ANGUISH,
DAMAGE TO PROPERTY AND THE CONSEQUENCES THEREOF WHICH
MAY BE SUSTAINED BY ANY PARTY, ITS HEIRS. EXECUTORS,
ADMINISTRATORS, SUCCESSORS, OR ASSIGNS AS A RESULT OF THIS
AGREEMENT BY ANY OTHER PARTY, UNLESS CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS,
EMPLOYEES, SUCCESSORS, OR ASSIGNS. .
[EXECUTION PAGES FOLLOW]
4
FEB 07 2005 16:05 FR K R PHILLIPS ATTORNEY1 412 4735 TO I95668~6000
P.10
in witness whereof, t~e poflies have i~ereunto set ~eir hoflds and stgflatureo on the
date flrat above menti(~ned.
CITY OF PEARLAND,
A Texas municipal corporation
~R 87 70~5 !~:~5 FR K R PHTI IlPS ~TTQRNFY1 412 4735 TO 19~R2RRRR
P.11
Gr~d Valley Homes, In;.
A'II'EST:
....... EEB._._O? P_IiI~..5_iE: 05~_ER_[<__ R R.L-[II_LiRS_ATTn;~NPY 1 4 ! P ~_?~s Tn ~ 951~8~BOI~i~t
P.1P
$oolhwood Estate~, Inc.
** TOTRL PRGE. 12 **
Received Fix Feb 07 2005 4:38PM Fax Station : HP LASERJET FAX ' . 1
FEB''07 405 16:37 FR K R PHILLIPS ATTORNEYI 412 4735 TO 2E116521679 P.01
KENNETH R. PHILLIPS
•
Attorney and Counselor
3322 E. Walnut Avenue, Suite 109
Pearland,Texas 77581
Telephone Fax
2814129003 AttyKRP@aol.com 2814124735
February 7,2005
Gulf Coast Utility Co., Inc. •
Attn: Mr. Paul Rhodes
Alvin,Texas
Via Fax to: 281.485.3296
Southwood Estates, Inc.
Attn: Mr. David S. Miller
Pearland,Texas •
Via Fax to: 281.485.1649
Grand Valley Homes, Inc.
Attn: Mr..Mark Dizdar
McAllen,Texas
Via Fax to: 956.682.6000 , . .
RE: Asset Purchase Agreement, dated July 15, 2004 [the "Agreement") by and between
Southwood Estates, Inc. ["SEI") as "Seller" and Gulf Coast Utility Company,Inc. ["Gulf
Coast") as"Buyer".
Gentlemen:
It has come to my attention that an asset of SEI is its rights,duties and obligation under that
certain Development Agreement, dated September 24,2003,by and between The City of Pearland,
Texas,Grand Valley Homes,LLC and Southwood Estates,Inc.. It has further come to my attention
that an assignment of such asset is not effective without the consent of The City of Pearland,Texas.
Accordingly, attached please find an instrument styled "Consent to Assignment of
Development Agreement"which I request each of you execute and return to me as soon as possible.
Kindly note that this instrument requires the attestation of the Secretary of the respective entities.
Once I am in possession of fully executed counterparts, I will present the same to Darrin
Coker, City Attorney of Pearland,Texas,for his presentment to City Council and execution by the
City Manager.
•eceive. a , es 0- 2005 4:38PM Fax Station : HP LASERJET FAX . 2
FEH '07. 2605 16:37 FR K R PHILLIPS ATTORNEY1 412 4735 TO 2816521679 P.02
Gulf Coast Utility Co., Inc.
• Attn: Mr. Paul Rhodes
•
Southwood Estates, Inc.
Attn: Mr. David S. Miller
Grand Valley Homes, Inc.
Attn:Mr. Mark Dizdar
February 7,2005
Page 2
If there are any requested revisions to this instrument,kindly advise as soon as possible.
Sincerely,
Kenneth R. Phill'
KRP/
cc: File No. 04-066
Darrin M. Cocker, Esq.
City Attorney of Pearland, Texas
Pearland, Texas
Via Fax to: 281.652.1679