Ord. 1055 03-11-02ORDINANCE NO. 1055
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PEARLAND, TEXAS, GRANTING THE CONSENT OF THE CITY OF
PEARLAND, TEXAS, TO THE CREATION OF BRAZORIA COUNTY
MUNICIPAL UTILITY DISTRICT NO. 28 WITHIN THE CITY'S
CORPORATE BOUNDARIES; CONTAINING A SAVINGS CLAUSE, A
SEVERABILITY CLAUSE AND A REPEALER CLAUSE; PROVIDING
FOR PUBLICATION, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the City of Pearland, Texas, received a Petition for Consent to the Creation
of a MUNICIPAL UTILITY DISTRICT (to be known as Brazoria County Municipal Utility
District No. 28) for 170.8326 acres located in the City's corporate boundaries, a copy of which
petition is attached hereto and incorporated herein as Exhibit "A"; and
WHEREAS, Section 54.016 of the Texas Water Code provides that land within a city's
corporate boundaries may not be included within a district without the city's written consent;
now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City Council of the City of Pearland, Texas, gives its written consent
to the creation of Brazoria County Municipal Utility District No. 28 on 170.8326 acres of land,
as described in the attached petition and the consent conditions attached thereto.
Section 2. That the City Council authorizes and directs the City Manager to execute
the Utility Agreement (as defined in the consent conditions attached to the petition attached
hereto) on behalf of and as the duly authorized act of the City of Pearland, Texas.
Section 3. Savings. All rights and remedies which have accrued in favor of the City
under this Chapter and amendments thereto shall be and are preserved for the benefit of the City.
Section 4. Severability. If any section, subsection, sentence, clause, phrase or
portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise
unenforceable by any court of competent jurisdiction, such portion shall be deemed a separate,
distinct, and independent provision and such holding shall not affect the validity of the remaining
portions thereof.
Section 5. Repealer. All ordinances and parts of ordinances in conflict herewith are
hereby repealed, but only to the extent of such conflict.
Section 6. Codification. It is the intent of the City Council of the City of Pearland,
Texas, that the provisions of this Ordinance shall be codified in the City's official Code of
Ordinances as provided hereinabove.
Section 7. Publication/Effective Date. The City Secretary shall cause this
Ordinance, or its caption and penalty, to be published in the official newspaper of the City of
Pearland, upon passage of such Ordinance. The Ordinance shall then become effective ten (10)
days from and after its publication, or the publication of its caption and penalty, in the official
City newspaper.
PASSED and APPROVED ON FIRST READING this the 25 day of
February , A. D., 2002.
TOM REID
MAYOR
ATTEST:
PASSED and APPROVED ON SECOND AND FINAL READING this the 11 day of
March , A. D., 2002.
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
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EXHIBIT
UTILITY AGREEMENT
This UTILITY AGREEMENT (the "Agreement), is made and entered into as of the day
of February, 2002, by and between the CITY OF PEARLAND, TEXAS, a municipal corporation and
home -rule city of the State of Texas (the "City"), and SOWELL PROPERTY PARTNERS-
PARKSIDE, L.P., a Texas limited partnership and RH OF TEXAS LIMITED PARTNERSHIP, a
Maryland limited partnership (the "Developer"), on behalf of proposed BRAZORIA COUNTY
MUNICIPAL UTILITY DISTRICT NO. 28, to be created as 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 is in the process of being created within the City's corporate limits for the
purposes of, among other matters, providing water distribution, wastewater collection, and drainage
facilities to serve development occurring within and near the District inside the City limits.
Under the authority of Texas Local Govemment Code Section 402.014, 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 the water distribution, wastewater collection,
and drainage facilities needed to serve 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 such facilities.
The City and the Developer, on behalf of 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
For and in consideration of these premises and of the mutual promises, obligations,
covenants, and benefits herein contained, the City, the Developer and the District contract and
agree as follows:
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.
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"Approved Plans" means plans and specifications approved in accordance with
Section 2.01.
"Approving Bodies" means any or all of the following entities, as appropriate in a particular
context: the City; Brazoria County, Texas, Harris County, Texas or Fort Bend County, Texas (as
appropriate); the TNRCC; 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 govemmental
authorities having regulatory jurisdiction and authority over the financing of the Facilities, the
construction 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 purchasing, constructing, acquiring, operating, repairing, improving,
or extending the Facilities, payment of 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 municipal corporation and home -rule city of the
State of Texas.
"City Manager" means the City Manager of the City or the City Manager's designee.
"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 defined in Section 5.04.
"Consent Ordinance" means the ordinance or resolution to be adopted by the City
evidencing the City's consent to the inclusion of land within the District in accordance with Texas
Local Govemment Code Section 42.042 and Texas Water Code Section 54.016, each as
amended.
"Construction Costs" means costs associated with any particular construction 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; material -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 Sowell Property Partners-Parkside, L.P., a Texas limited partnership
and RH of Texas Limited Partnership, a Maryland limited partnership.
"District" means Brazoria County Municipal Utility District No. 28, a body politic and
corporate and a govemmental agency of the State of Texas organized under the provisions of
Article XVI, Section 59 of the Texas Constitution. The term "District" shall be construed to include
both Developer and the District, as it is the intention of the parties to this Agreement that all rights,
benefits, and obligations pursuant to this Agreement shall ultimately be assigned by the Developer
to the District upon its creation.
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"District Assets" means (i) all rights, title, and interests of the District in and to 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 LJA Engineering & Surveying, Inc. or such other engineering firm
as the District may engage from time to time.
"District Obligations" means (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 customers of the services provided from the Facilities.
"Financing and Reimbursement Agreement" means the District's agreement, if any, as
defined in Section 3.04.
"Facilities" means and includes the water distribution, wastewater collection, and drainage
systems constructed or acquired or to be constructed or 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, licenses, properties, rights -of -way, easements, sites, and
other interests related thereto.
"Monthly Revenue Payments" means the monthly payments to be made by the City to the
District, as defined 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 defined in Section 2.04.
"Payment Date" means the date each year when the Annual Payments are due, as defined
in Section 6.02.
"TNRCC" means the Texas Natural Resource Conservation Commission, or any successor
or successors exercising any of its duties and functions related to water conservation and
reclamation districts.
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 (the "Approved Plans"). The District
shall not make any changes to the Approved Plans without the approval of the City. The City shall
not require that the Facilities be designed to requirements more stringent than the City's
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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 and/or
Developer from time to time, in their sole discretion, may determine to be necessary and
economically feasible.
2.02. Construction. When the District or the Developer determines, in their sole discretion,
that it is necessary and economically feasible to construct the Facilities, the District or the
Developer shall proceed to award a construction contract for the Facilities based upon the
Approved Plans. The Facilities shall be installed, construction contracts shall be awarded, and
payment and performance bonds obtained all in accordance with the general law for municipal
utility districts and in full compliance with the applicable requirements of the Approving Bodies. In
addition to any other construction contract provisions, any construction contract for the Facilities
shall include the contractor's two (2) year warranty of work performed under the contract. The
District or Developer (whoever is the owner of the contract) shall submit all change orders to the
City for its records. The District or Developer (whoever is the owner of the contract) shall file all
required documents with the TNRCC.
2.03. Acceptance of Facilities. Upon completion of the Facilities, the District or Developer
(whoever is the owner of the contract) shall order the District's Engineer to certify that the Facilities
have been completed in substantial compliance with the Approved Plans; the District or Developer
(whoever is the owner of the contract) 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 or Developer (whoever is the owner of the contract) shall require the
District's Engineer to provide three (3) copies of construction drawings of the Facilities to the
District. The District or the Developer (whoever is the owner of the contract) shall accept the
construction of the Facilities in writing from the construction contractor. The District or Developer
(whoever is the owner of the contract) shall then convey the 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 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, the City may determine from time to time that certain Facilities should
be sized to serve areas outside the District, as well as areas within the District, or the City and the
District may determine that the District should construct certain water, sewer, and/or drainage
facilities outside the District to serve areas outside the District (in either case, facilities sized or
constructed to serve areas outside the District shall be referred to in this Agreement as the
"Oversized Facilities"). Subject to the terms and conditions of this Section 2.04, the District hereby
agrees that, in conjunction with the design and construction of the Facilities as set out in this
Agreement, the District shall cooperate with the City to include the Oversized Facilities as required
by the City. The City, in turn, hereby agrees that as between the District and the City, the City shall
fund its share of the Construction Costs of the Oversized Facilities. In order to carry out the design
and construction of Oversized Facilities, the City and the District agree to enter into a Development
Agreement for the oversizing of such facilities. If the Oversized Facilities are designed and
constructed by the District as part of the design and construction of Facilities (collectively, the
Oversized Facilities and the Facilities, the "Project"), the Construction Costs of the Oversized
Facilities shall be determined in accordance with TNRCC rules and regulations so that Project
Construction Costs will be shared by the City and the District on the basis of benefits received,
which are generally the design capacities in the Project for the City and the District respectively.
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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 law, the general laws of the State of Texas, and the Consent Ordinance. The District
shall not be authorized to sell Bonds until it has provided the City with an executed copy of the
TNRCC order approving each bond issue in which the TNRCC concludes that a District debt
service tax rate of $1.50 or less per $100 of assessed valuation is feasible in accordance with the
TNRCC's rules in effect at the time of such determination. The District's obligation to provide a
copy of the TNRCC order including such conclusion shall not be construed as a limitation on the
District's authority to levy an unlimited tax rate, 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. The District shall provide the City with copies of
the Official Statement and the District's resolution 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 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 in accordance with
the federal, state, and local laws and regulations goveming the proceeds of the District's sale of
its Bonds.
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 contractual obligations of the District 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 "Financing and Reimbursement Agreement") with the Developer or other
landowners of property located within the District whereby the Developer or such landowners will
construct the Facilities on behalf of the District or advance funds to or on behalf of the District for
the acquisition and construction of the Facilities. The construction of any Facilities financed under
the terms of a Financing and Reimbursement Agreement shall be subject to all the terms and
conditions of this Agreement. Each Financing and Reimbursement Agreement will provide for the
District's reimbursement of the person or entity advancing funds for the Facilities (i) from the
proceeds of the District's sale of its Bonds, subject to all the terms and conditions of such Financing
and Reimbursement Agreement, including, among other conditions, the approval of the TNRCC
of the sale of the Bonds and the use of sale proceeds for such purpose; (ii) from District funds
lawfully available for such purpose.
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ARTICLE IV
OWNERSHIP. OPERATION. AND MAINTENANCE OF FACILITIES
4.01. Conveyance of Facilities. As the Facilities are constructed and accepted in
accordance with Article II and the Facilities are conveyed to the City, a security interest 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 Facilities have been discharged, the District
shall execute a release of such security interest, and the City shall own the Facilities free and clear
of such security interest. When the Facilities are conveyed to the City under this Article IV, the
construction contractors 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 Facilities are constructed and completed, representatives
of the City shall inspect the same and, if the City finds that the Facilities have been completed in
substantial compliance with the approved plans and specifications, the City will accept the
conveyance of the Facilities, and the Facilities so conveyed shall be operated. maintained, and
repaired by the City at its sole expense as provided in this Agreement. The City shall accept
ownership of the Facilities under this Section 4.02 in accordance with the City's procedure for
acceptance of such facilities in areas outside the District and within the City. If the Facilities have
not been completed in substantial compliance with the approved plans and specifications, the City
will immediately advise in what manner the Facilities do not comply so that the problems may
immediately be corrected; whereupon the City shall again inspect the Facilities and accept the
same if the non -complying items have been corrected. In conjunction with the City's acceptance
of the Facilities, the City shall be provided with one (1) set of the construction drawings for such
Facilities.
4.03. Operation of the Facilities by the City. Upon the acceptance of the Facilities by the
City, the City will operate the Facilities and provide services from the Facilities to users within the
District without discrimination. The City shall at all times maintain the 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
Facilities. The City shall inventory and maintain a listing of all of the equipment comprising the
Facilities as required to provide relevant information for the scheduled maintenance and repair or
replacement of the equipment comprising the Facilities. The City shall implement a scheduled
maintenance program for the Facilities and shall ensure that the 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 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 Facilities. The City shall respond to inquiries or
correspondence from govemmental or regulatory authorities and the District's directors, customers,
or consultants.
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(c) The City shall provide a monthly written report to the District indicating the total
number of service connections within the District. If requested by the District, the City may provide
a City representative to attend a District meeting to discuss any operating and maintenance
information regarding the Facilities.
4.04. Rates and Conditions of Service. The connection of improvements to the Facilities
shall be made by the City, in the same manner, by the same 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 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 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 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 customers of the City that are not
served by the Facilities.
4.05. Repair of the Facilities. After its acceptance of the Facilities, the City shall provide
all personnel and equipment necessary to perform repairs on, and shall bear sole cost
responsibility for repair of, the 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 Facilities under Section 4.02 above. The cost of all materials and supplies
used to operate, maintain, and repair the 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 Facilities shall be
mutually agreed upon by the District and the City Manager. 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 serve
development within the District is available at the time such improvements are to be connected to
the Facilities. The City's obligation shall specifically include the obligation to expand, enlarge, and
modify its water supply and distribution facilities and to secure all necessary approvals of the
Approving Bodies as necessary to have capacity available to serve new improvements within the
District. 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
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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 Facilities within the coming year, and such other
related 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
Facilities shall be mutually agreed upon by the District and the Director. 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 serve development within the District is available at the time
such improvements are to be connected to the Facilities. The City's obligation shall specifically
include the obligation to expand, enlarge, and modify its wastewater collection and treatment
facilities and to secure all necessary approvals of the Approving Bodies as necessary to have
capacity available to serve new improvements within the District. 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 no less than annually a written projection of the new
improvements within the District expected to be connected to the 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 Manager
shall, upon reasonable request from the District, issue a letter of assurance to the owner of platted
property within the District confirming water and wastewater utility availability for such platted
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 to the City two thousand six hundred seventy eight dollars
($2,678) 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 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 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 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. 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 be 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 $0.15 per $100 of assessed
valuation.
(c) The Annual Payment shall be incrementally reduced upon the occurrence of the
District decreasing its combined debt service and operation and maintenance tax rate (the "District
Tax Rate").
(d) Once the condition of subsection (c) has been met, the Annual Payment shall be
reduced by an amount equal to the decrease in the District Tax Rate. For example, if the Board
of Directors of the District decreases the District Tax Rate by $0.01, then the Annual Payment will
be reduced by $0.01. The Annual Payment will be recalculated annually, and will continue to be
reduced to the extent that the District Tax Rate is decreased. For example, if the Board of
Directors of the District decreases the District Tax Rate by $0.10, then the Annual Payment would
be $0.05 per $100 of assessed valuation. Once the Annual Payment is reduced, it shall not
thereafter be increased, and any increase in the District debt service tax rate does not affect the
calculation of the Annual Payment.
(e) If the District Tax Rate decreases by $0.15, then the City is thereafter relieved of any
obligation to make Annual Payments pursuant to this Agreement. Any subsequent increase in the
District debt service tax rate does 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 1998,
the Annual Payment for such year will be due May 1, 1999). 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
::0DMA\MHODMA\Houston;745332;1
page 9
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 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
"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; shall provide the District
with an accounting together with each Annual and/or Monthly Revenue Payment, and shall afford
the District or its designated representatives reasonable access to its books, records, and accounts
for purposes of verifying the amounts of each Annual Payment and/or Monthly Revenue Payment
or recalculated Annual Payment and/or Monthly Revenue Payment which is or becomes due and
::ODMA\MHODMA ton;745332;1
page 10
payable by the City hereunder. The District shall maintain proper books, records, and accounts
of all Bonds and the District's debt service requirements and shall afford the City or its designated
representatives reasonable access thereto for purpose of verifying the amounts of Annual and/or
Monthly Revenue Payments relative to the District's debt service requirements and general
operating requirements.
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 (i) 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 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 be necessary. 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 Rebate 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.
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 assume the District Assets and 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 in accordance with the Financing and Reimbursement Agreements
previously entered into by the District.
:ODMA\MHODMA\Hoostoa;745332;1
page 11
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 to the equitable remedy of specific performance.
: ODMA MRODMA\Houston;745332;1
page 12
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
effect within its boundaries the same as to other areas within the City's corporate limits.
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 terms 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 be remedied with all reasonable
diligence. 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.
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
goveming 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. Any 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
Telefacsimiie No. 281-485-7992
:0DMAWHODMA\Houston;745332;1
page 13
If to the District, to:
Brazoria County Municipal Utility District No. 28
c/o Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: Jim A. Boone
Telefacsimile No. 713-615-5523
If to the Developer, to:
Sowell Property Partners-Parkside, L.P.
Attn: Jamie Cornelius
1601 Elm Street
Third Floor, Thanksgiving Tower
Dallas, Texas 75201
RH of Texas Limited Partnership
Attn: Ernie Loeb
4700 West Sam Houston Parkway North
Suite 150
Houston, Texas 77041
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 be assignable by the Developer; provided,
however, that it is assigned to another developer within the District. Furthermore, upon the creation
and confirmation of the District, the District's written assumption of the Agreement, in the form
attached to this Agreement, and incorporated for all purposes, as Exhibit "B," duly delivered to the
City, in accordance with the provisions of Section 9.05, shall effectively convey all the rights and
obligations of the "Developer" under this Agreement to the District and the Developer shall no
longer have any rights or obligations under this Agreement. Other than such unique assignment
from the Developer to the District or to another developer within the District, 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
::ODMA MHODMA\Houston;745332;1
page 14
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.
9.11. 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.
9.12. 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
Agreement.
9.13. 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.
9.14. Term and Effect. This Agreement shall remain in effect until the earlier to occur of
(i) the dissolution of the District by the City or (ii) the expiration of forty (40) years from the date
hereof. Further, this Agreement shall automatically terminate in the event that the TNRCC does
not adopt an order creating the District on or before December 31, 2003.
[EXECUTION PAGES FOLLOW]
::ODMA\MHODMA\Houstog745332;1
page 15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of equal dignity, as of the date first given above.
THE CITY OF PEARLAND, TEXAS
By:
ATTEST:
City Manager
APPROVED AS TO FORM:
City Attorney
::ODMA\MHODMA\Houston;745332; t
page 16
JAMES E. SOWELL COMPANY,
a Texas corporation
By:
Utility Agreement (Sowell) WORD DOCUMENT.DOC - 17 -
S. Cornelius Vice President
RH OF TEXAS LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Ryland Homes of Texas, Inc.,
a Texas corporation
its general partner
By:
Name:
Title:
U
:ODMA\MHODMA\Houston;745332;1
page 18
Exhibit¢A
CITY OF PEARIAND
SERVICE UNIT FACTORS
TYPE ry OF t7E1+E-... Nrt
t
1 Bake
2 Barber Shop
3' Beauty Shop
a Bonding Alley
5 Cat fair
8 Cdrw sn. Tunnel Self Service
71 Carwash, Wand Type Self S€ MCe
a,Cerwasn, Tunnel with Attendants
10
11
12
13
14
15
16
17
18
19
20
21
Church, Administrason
Church, Auditorium
Church, Classroom
clugyTavem/Lounge
Convenient Sore
Country club
Day Cara Center
DorMkory
OvMng Range
Firs S7 dicn
Funeral HomG
Ova station, Self-service
Gas gallon, full -service
22 Grocery Stara
23 Health Club
24 Health Club w/ Whirpooi a Swm, Pool
25 Hospital
26 HoteUMotel
27 HotsVMotel with Kitchenettes
28 ice Cream Fanor with Seating
29 Indaad:rttertatnmertvAmussment
30 industrial Laundry
31 Manufacturing
32 Nursing Home
33 Woe Buildng
34 Photo Store, 1-Hour Processing
35 Post doe, De tudng Dock
38 Racquetball Club
37 Rearestl0n Vehicle Paris
38 lBBeiden*, AptRrnent
38 Pont,Cvndominium
40 Resident, Duplex
41 Resident, Mobile Home
42 Restdernt, Single Family
43 Aeeident, Tam Hasse
44 Rastmirant Fug 8ee4ce. General
45 Restaurant, Fast Food wWt Seating
48 Asateurant Fast Food *knout Seating
47 Retag Store
4B School, F4arc
49 School, char
50 Skating Rink
51 Swtmmtng Pool
32 Statham
53 Theater. Drive -In
54 Theater, indoor
55 Totet (t400-*pectic)
50 Tranaportadon terminal without Restaurant
67 Warehouse
66 Wastrel/is
COM Fpot .030700
Clair 0.470000
Cher 0.470000
Lice 0.535300r t
Square Foot 0.000100 2
Lane 6.350003
Bay 1.220000
Lane 31.430000 7
Parson 0.047000
Seat 0.003200
Solt 0.004700
Seat 0.031000
Square Foot 0.030220
Member 0.000
Occupant 0.031700
Bed 0.285000
Toe 0.210000
Employee i 0286000,
Body 2,140030
Island 0.800030' 2
island 0.890000 2
Square Foot 0.000250 1
Member 0.016000
Member 0.022003
Had 0.635000
Room 0.251000
Room 0.430000
Seat 0,047000
Occupar>< 0.031030
50lbs 0.950000
Square Fool 0.000160 4
Bad 0.266000
square Foot 0.003335
Store 4.000000
St713re Foot 0,000254
Canrt 0.510000
Spade 0e100
Dwelling Unk 0.70000a 5
Dwelling Wit 0.700000
Dwelling Unit 1,000000
Dwelling Unit 0.700000
°welling Unit 1.000000
Nailing Unk 1.000000
Seat 0.110300
Seal 0.047000
Sgs Foot 0.
sc}auws FO0t 0.000223
Seat 0.047600 6
Seat 0.031700 6
Occupant 0.010000
S*Immer 0.016000
Seat 0.010000
Space C.0113000
East 0,015004
Tdiet 0.254000
Papiengoi 0.016000
&pus Rot 0.000100
1.680030
Remarks:
1. Dow net krdude restaurant
Z. Dom not inckide CBIWILSII. l ui d b dO9nd are one pumping a4tio11•
9. Patient ears are., does not include deslPf oT areas
4. Avatap0 seise, each development must l tdvidusly
. Basic .1k ice Unk.
Q. oval not Include resident dermkory.
7. Dooa not Include recNnt$5 . •
. •w w:aw+Minm wne M Iha .lVtin frees tan be r.ennat% d
3
1
EXHIBIT "B"
ASSUMPTION OF AGREEMENT
Brazoria County Municipal Utility District No. 28, a conservation and reclamation district
created under the authority of Article XVI, Section 59 of the Texas Constitution by the Texas
Natural Resource Conservation Commission to provide water supply, sanitary sewer, and drainage
facilities to serve the area within its boundaries (the "District"), has assumed, and by these presents
does assume, the terms of the Utility Agreement (the "Agreement"), dated , 2002,
a copy of which is attached and incorporated into this document for all purposes.
Specifically, the District has accepted and does accept all the rights, title, interest,
obligations, liabilities, and responsibilities of the "District" as defined in the Agreement and the
Developer, as defined in the Agreement, shall have no further rights, title, interest, obligations,
liabilities, or responsibilities under the Agreement.
All notices to the District pursuant to the Contract shall be addressed to:
Brazoria County Municipal Utility District No. 28
c/o Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: Jim A. Boone
EXECUTED AND DELIVERED ON
ATTEST:
By:
Secretary, Board of Directors
(SEAL)
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 28
By:
President, Board of Directors
::ODMA\MFIODMA\Houston;745332;1
page 19
PETITION FOR CONSENT TO THE CREATION
OF A MUNICIPAL UTILITY DISTRICT
TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS:
The undersigned (herein the "Petitioners"), acting pursuant to the provisions of Chapters
49 and 54, Texas Water Code, respectfully petition the City Council of the City of Pearland,
Texas (the "City Council"), for its written consent to the creation of a municipal utility district
and in support thereof would show the following:
I.
The name of the proposed District shall be BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 28 (the "District").
II.
The District shall be created and organized under the terms and provisions of Article
XVI, Section 59 of the Constitution of Texas and Chapters 49 and 54, Texas Water Code.
The District shall contain an area of 170.8326 acres of land, more or less, situated in
Brazoria County, Texas. All of the land to be included in the District is within the corporate
boundaries of the City of Pearland, Texas (the "City"). All of the land proposed to be included
may properly be included in the District. The land proposed to be included within the District
consists of three tracts, as described by metes and bounds in Exhibits "A," `B," and "C," which
are attached hereto and incorporated herein for all purposes (the "Land").
IV.
Bobby W. Shotwell ("Shotwell"), holds fee simple title to the 19.5073-acre tract which
comprises a portion of the Land, which tract is described more particularly in Exhibit "A,"
attached hereto and incorporated herein (the "Shotwell Land"). Mary Frances Edwards
("Edwards"), holds fee simple title to the 79.9321-acre tract which comprises a portion of the
Land, which tract is described more particularly in Exhibit `B," attached hereto and incorporated
herein (the "Edwards Land"). John Alexander Family Limited Partnership, a Texas limited
partnership ("Alexander") holds fee simple title to the 71.3932-acre tract which comprises a
portion of the Land, which tract is described more particularly in Exhibit "C," attached hereto
and incorporated herein (the "Alexander Land"). Petitioners hereby represent that the Shotwell
Land, the Edwards Land, and the Alexander Land, as indicated by the tax rolls of Brazoria
County, Texas, constitute a majority in value of the Land which is proposed to be included in the
District.
756435_1.DOC
V.
Shotwell represents that there are no lienholders on the Shotwell Land and that there are
no residents on the Shotwell Land.
VI.
Edwards represents that there are no lienholders on the Edwards Land and that there are
no residents on the Edwards Land.
VII.
Alexander represents that there are no lienholders on the Alexander Land and that there
are no residents on the Alexander Land.
VIII.
RH of Texas Limited Partnership, a Maryland limited partnership, and James E. Sowell
Company, a Texas corporation, have entered into earnest money contracts to purchase all of the
Property and desire to be considered as Petitioners for the consent to creation of the District.
IX.
The general nature of the work to be done by the District at the present time is the
purchase, design, construction, acquisition, maintenance and operation of a waterworks and
sanitary sewer system for domestic and commercial purposes, and the construction, acquisition,
improvement, extension, maintenance and operation of works, improvements, facilities, plants,
equipment and appliances helpful or necessary to provide more adequate drainage for the
District, and to control, abate and amend local storm waters or other harmful excesses of waters,
and such other purchase, construction, acquisition, improvement, maintenance and operation of
such additional facilities, systems, plants and enterprises as shall be consonant with all of the
purposes for which the District is created.
X.
There is, for the following reasons, a necessity for the above -described work. The area
proposed to be within the District is urban in nature, is within the growing environs of the City of
Pearland, Texas, and is in close proximity to populous and developed sections of Brazoria
County, Texas. There is not now available within the area, which will be developed for single
family residential and commercial uses, an adequate waterworks system, sanitary sewer system,
or drainage and storm sewer system. The health and welfare of the present and future inhabitants
of the area and of the territories adjacent thereto require the purchase, design, construction,
acquisition, ownership, operation, repair, improvement and extension of an adequate waterworks
system, sanitary sewer system, and drainage and storm sewer system. A public necessity,
therefore, exists for the creation of the District, to provide for the purchase, design, construction,
acquisition, ownership, operation, repair, improvement and extension of such waterworks
system, sanitary sewer system, and drainage and storm sewer system, to promote the purity and
sanitary condition of the State's waters and the public health and welfare of the community.
756435_1.DOC
-2-
XI
The Petitioners, by submission of this Petition, request the City's consent to the creation
of the District containing the Land under the conditions relating to the creation of districts in
general, set forth in Exhibit "D," which is attached hereto and incorporated herein for all
purposes.
XII.
A preliminary investigation has been made to determine the cost of the proposed
District's projects, and it is now estimated by the Petitioners, from such information as they have
at this time, that such cost will be approximately $9,000,000.
WHEREFORE, the Petitioners pray that this petition be heard and that the City Council
duly pass and approve an ordinance or resolution granting the consent to the creation of the
District and authorizing the inclusion of the land described herein within the District.
[EXECUTION PAGE FOLLOWS]
756435_1.DOC
- 3 -
RESPECTFULLY SUBMITTED this __1 day of IOLA GtC( f y , 2002.
THE STATE OF TEXAS
COUNTY OF
4 2-b /' a- §
JOHN ALEXANDER FAMILY LIMITED
PARTNERSHIP,
a Texas limited partnership
By:
John Alexander
its General Partner
This instrument was acknowledged before me on the ,z2ii day of 61(,tcl, (`(/ ,
2002, by John Alexander, general partner of John Alexander Family Limited Partnership, a
Texas limited partnership, on behalf of said partnership.
�i�iii
=iSs
* *E MY COMMISSION EXPIRES
SUSAN C. MAGERS
December 6, 2004
(NO AKY CAL)
QAff/j
Notary Public, St e of 'j
756435_1.DOC
-4-
BOBBY W. SHOTWELL
O
THE STATE OF I �C ,VA, §
COUNTY OF 74 §
This instrument was acknowledged before me on the / ‘ day o
2002, by Bobby W. Shotwell.
(NOTARY SEAL)
Qllrl✓l.0l✓✓Yl.�lllll✓ll."ll1
11 2cPµr PGA�o AL C. FELTS ti
0 NOTARY PUBLIC, STATE OF TEXAS
0 m w MY COMMISSION EXPIRES
9rFOFt�+P JUNE 2, 2004
oWllll✓1!!P!✓..!!l✓✓11111�
Notary • ublic, State of
756435_1.DOC
-5-
THE STATE OF
COUNTY OF
MARY FRANCES EDWARDS
This instrument was acknowledged before me on the //- 6i .._ day of( %7 ;
2002, by Mary Frances Edwards.
i
14,
44,97,0
RUTH A. BERG
MY COMMISSION EXPIRES
April 3, 2005
(NOTARY SEAL)
Notary Public, State of
756435 1.DOC
-6-
ATTEST:
By:
A_7:
Name: s A Leri4,1J0 1
Title: vit.t (wN
THE STATE OF TEXAS
COUNTY OF HARRIS
RH OF TEXAS LIMITED PARTNERSHIP,
a Maryland limited partnership
(Earnest Money Contract Holder — 71.3932
acres)
By: Ryland Homes of Texas, Inc.,
a Texas corporation
its general partner
This 'nstrument was cknowledged before me the - d y of , , . �L!(
``�� Z /I C ( /JAW , , f t... of Ryland Homes of
2002, by i; �.-� �'C. (..�) rt� � ��� i, i G(- l i � C� , ��
Texas, Inc., a Texas corporation and ge�ral pa
rtner of RH of Texas Limited Partnership, a
Maryland limited partnership, on behalf of said limited partnership and corporation.
(,ARET ANNe oc KELLEY'
worNrr wa�c surrevs
DECEMBER 27. 2004
t..l
Not Publi , State of Texas
(NOTARY SEAL)
BC28 Petition for Consent to Creation of District - 7
JAMES E. SOWELL COMPANY,
a Texas corporation
(Earnest Money Contract Holder — 19.5073
and 79.9321 acres)
B
ATTES
By:
Name:
Title: j/;ft P
THE STATE OF TEXAS
COUNTY OF DALLAS
/4-- L,&
S. Cornelius, Vice President
This instrument was acknowledged before me on the jk,1LL day of January, 2002, by
JAMES S. CORNELIUS, Vice President of JAMES E. SOWELL COMPANY, a Texas
corporation, on behalf of said corporation.
Notary Public, State of Texas
(NOTARY SEAL)
BC28 Petition for Consent to Creation of District.DOC - 8 -
li T A
January 21, 2002
Job No. 1711-0001-021
DESCRIPTION OF
19.5073 ACRES
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 28
TRACT 3
Being 19.5073 acres of land located in the H.T. & B.R.R. Co. Survey, Section 2, (the B.F. Drake Survey) Abstract
507, Brazoria County, Texas, more particularly being all of Lots 21-A and 22-A of the L.W. Murdock Subdivision, a
subdivision of record in Volume 29, Page 174 of the Deed Records of Brazoria County, Texas (B.C.D.R.), same being that
certain tract called 19.5073 acres conveyed to Bobby W. Shotwell by an instrument of record in Volume (88) 609, Page
735, B.C.O.R. and being more particularly described by metes and bounds as follows (all bearings referenced to the easterly
line (South) of that certain tract called 79.94 acres described by an instrument of record under File No. 98-005243
B.C.O.R.);
BEGINNING at the common west corner of aforementioned Abstract 507 and the H. Stevens Survey, A-594,
Brazoria County, Texas, same being the southwest corner of said Lot 22-A and 19.5073 acres, and in the easterly line of the
H.T. & B.RR Co. Survey, Section 12, (the B.F. Drake Survey) Abstract 508, Brazoria County, Texas;
Thence, with the common line of said A-507 and A-508, same being the west line of said Lot 22-A and said L.W.
Murdock Subdivision, North (base bearing), at 548.27 feet pass the southeast comer of aforementioned 79.94 acres and
continue with said common survey line , and with the common line of said Lot 22-A, Lot 21-A and 79.94 acres, in all a
distance of 1319.63 feet to the northwest corner of said Lot 21-A;
Thence, with the north line of said Lot 21-A, North 89° 13' 59" East, 480.47 feet to a point for comer in the
westerly line of the G.C. & S.F. Railroad, 100 feet wide;
Thence, with the common line of said G.C. & S.F. Railroad, Lot 21-A and Lot 22-A, South 13° 57' 42" East,
1355.29 feet to the southeast comer of said Lot 22-A, lying in the common line of aforementioned A-507 and A-594;
Thence, with the common line of said A-507 and A-594, same being the south line of said Lot 22-A, South 89° 13'
59" West, 807.49 feet to the POINT OF BEGINNING and containing 19.5073 acres of land.
Note: This document was prepared under 22 TAC § 663.21, does not reflect the results of an on -the -ground
survey and is not to be used to convey or establish interests in real property except those rights and interests implied or
established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared.
LJA Engineering & Surveying Inc.
Page 1 of 1
T'!
January 21, 2002
Job No. 1711-0001-021
DESCRIPTION OF
79.9321 ACRES
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 28
TRACT 2
Being 79.9321 acres of land located in the H.T. & B.RR. Co. Survey, Section 12, (the B.F. Drake Survey)
Abstract 508, Brazoria County, Texas, more particularly being all of that certain tract called 79.94 acres conveyed to
Mary Frances Edwards by an instrument of record in File No. 98-005243 of the Official Records of Brazoria
County, Texas (B.C.O.R.) and being more particularly described by metes and bounds as follows (all bearings
referenced to the westerly line (North) of said 79.94 acres);
BEGINNING at the northwest corner of said 79.94 acres, same being in the centerline of Pearland Sites
Road, 80 feet wide;
Thence, with the north line of said 79.94 acres, East, 2638.88
the L.W. Murdock Subdivision, a subdivision of record in Volume 29,
County (B.C.D.R), same being the common line of aforementioned
Section 2, (the B.F. Drake Survey), Abstract 507;
feet to a point for comer in the west line of
Page 174 of the Deed Records of Brazoria
A-508 and the H.T.& B.RR Co. Survey,
Thence, with the common line of said L.W. Murdock Subdivision, 79.94 acres and said common survey
line, South, 1319.44 feet to a point for corner;
Thence, with the south line of said 79.94 acres, West, 2638.88 feet to a point for comer in the
aforementioned centerline of Pearland Sites Road;
Thence, with said centerline of Pearland Sites Road, North (base bearing), 1319.44 feet to the POINT OF
BEGINNING and containing 79.9321 acres of land.
Note: This document was prepared under 22 TAC § 663.21, does not reflect the results of an on -the -
ground survey and is not to be used to convey or establish interests in real property except those rights and interests
implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was
prepared.
�°"..'�, LJA Engineering & Surveying Inc.
*/
JERRYA. DAVIS
•
•
1793 r
' SUA.
Page 1 of 1
BIBIT C
January 21, 2002
Job No. 1711-0001-021
DESCRIPTION OF
71.3932 ACRES
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 28
TRACT 1
Being 71.3932 acres of land located in the D.H.M. Hunter Survey, Abstract 76 and the H.T. & B.R.R Co.
Survey, Section 1, Abstract 233, Brazoria County, Texas, more particularly being a portion of that certain tract
called 155.4029 acres conveyed to John Alexander by an instrument of record in Volume (91) 880, Page 476 of the
Official Records of Brazoria County, Texas (B.C.O.R.), said 71.3932 acres being more particularly described by
metes and bounds as follows (all bearings referenced to the southeasterly line of said 155.4029 acre tract, South 44°
16' 28" West);
BEGINNING at the most southerly corner of that certain called 10.000 acre City of Pearland Wastewater
Treatment Plant of record in Volume Y, Page 118 of the Brazoria County Court Minutes, same being in the
northwesterly line of that certain 15-foot wide strip conveyed to the City of Pearland by an instrument of record
under File No. 93-021477, B.C.O.R;
Thence, with the northwesterly line of said 15-foot wide strip, South 44° 16' 28" West (base bearing),
2270.11 feet to a point for comer;
Thence, with a southerly line of said 155.4029 acres, South 88° 35' 57" West, 1750.03 feet to its southwest
corner;
Thence, with the westerly line of said 155.4029 acres, North 00° 17' 46" East, 567.95 feet to a point for
comer, same being the southwest comer of that certain boundary line agreement of record in Volume 1744, Page 18
of the Deed Records of Brazoria County, Texas (B.C.D.R);
Thence, with the south line of said boundary line agreement, North 85° 36' 32" East, 1142.19 feet to the
east corner of said boundary line agreement
Thence, North 44° 16' 28" East, 1878.72 feet to a point for comer, same being the northwest corner of that
certain tract called 2.479 acres conveyed to the City of Pearland (Proposed Pearland Parkway) by instrument of
record under File No. (01) 016, Page 632, B.C.O.R.;
Thence, with the westerly, southerly and easterly line of said 2.479 acre City of Pearland tract the following
seven (7) courses:
Page 1 of 3
71.3932 Acres January 21, 2002
Job No. 1711-0001-021
1) South 30° 06' 20" East, 26.57 feet to a point for comer, the beginning of a curve;
2) 529.75 feet along the arc of a tangent curve to the left having a radius of 1934.98 feet, a central
angle of 15° 41' 10" and a chord which bears South 37° 56' 55" East, 528.09 feet to a point for
corner at the end of said curve;
3) South 45° 47' 30" East, 273.75 feet to a point for comer;
4) North 44° 18' 21" East, 130.00 feet to a point for comer;
5) North 45° 47' 30" West, 273.97 feet to a point for corner, the beginning of a curve;
6) 494.16 feet along the arc of a tangent curve to the right having a radius of 1804.98 feet, a central
angle of 15° 41' 10" and a chord which bears North 37° 56' 55" West, 492.62 feet to a point for
corner at the end of said curve;
7) North 30° 06' 20" West, 62.92 feet to a point for comer, same being the northeast comer of said
2.479 acre City of Pearland tract;
Thence, North 44° 16' 28" East, 1950.30 feet to a point for corner in the centerline of Clear Creek;
Thence, with said centerline of Clear Creek the following ten (10) courses:
1) South 04° 27' 55" East, 89.59 feet to a point for corner,
2) South 12° 22' 41" West, 206.05 feet to a point for comer;
3) South 50° 46' 02" West, 139.27 feet to a point for comer;
4) South 42° 59' 16" West, 137.31 feet to a point for corner,
5) South 17° 39' 40" West, 261.69 feet to a point for comer;
6) South 05° 09' 05" West, 210.06 feet to a point for corner;
7) South 04° 43' 38" East, 115.41 feet to a point for comer,
Page 2 of 3
71.3932 Acres
8) South 14° 11' 12" East, 89.15 feet to a point for corner;
9) South 41° 20' 51" East, 199.51 feet to a point for comer,
10) South 31° 02' 06" East, 90.43 feet to a point for corner in the northwesterly line of the
aforementioned 15-foot strip conveyed to the City of Pearland;
January 21, 2002
Job No. 1711-0001-021
Thence, with said northwesterly line, South 44° 16' 28" West, 93.04 feet to the east comer of the
aforementioned City of Pearland Wastewater Treatment Plant Site;
Thence, with the northeasterly line of said City of Pearland Wastewater Treatment Plant Site, same being
90 feet westerly of and parallel to the aforementioned centerline of Clear Creek, the following five (5) courses:
1) North 31° 02' 06" West, 105.90 feet to a point for comer;
2) North 41° 20' 51" West, 213.13 feet to a point for corner;
3) North 14° 11' 12" West, 118.34 feet to a point for comer;
4) North 04° 43' 38" West, 130.63 feet to a point for comer;
5) North 05° 09' 05" East, 217.84 feet to a point for comer, same being the north comer of said City
of Pearland Wastewater Treatment Plant Site;
Thence, with the northwesterly line of said City of Pearland Wastewater Treatment Plant Site, South 44°
15' 17" West, 908.67 feet to its west corner,
Thence, with the southwesterly line of said City of Pearland Wastewater Treatment Plant Site, South 45°
47' 53" East, 651.54 feet to the POINT OF BEGINNING and containing 71.3932 acres of land.
Note: This document was prepared under 22 TAC § 663.21, does not reflect the results of an on -the -
ground survey and is not to be used to convey or establish interests in real property except those ri. hts and interests
implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was
prepared
kr,� SST ET�.44
4to JERRYA. DAVIS
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1793 •
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Page 3 of 3
LJA Engineering & Surveying Inc.
EXHIBIT "D"
(a) The City of Pearland, Texas (the "City"), by execution of its City Manager, and
the developer on behalf of the District shall enter into and execute a utility agreement, in
substantially the form attached hereto as Exhibit "D-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.
(b) 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, 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 therefor, and to operate and maintain same, and to sell water,
sanitary sewer, and other services within or without the boundaries of the District. Such bonds
must 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
less 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. The resolution authorizing the issuance of the District's bonds will 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.
(c) 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.
756435_1.DOC
(d) Prior to the sale of any lot or parcel of land, the owner or the developer of the land
included within the limits of the District will obtain the approval of the Planning and Zoning
Commission of the City of a plat which will be duly recorded in the Official Records of Brazoria
County, Texas, and otherwise comply with the rules and regulations of the Engineering
Department and the Department of Public Works of the City of Pearland.
756435_1.DOC