R2021-018 2021-01-25RESOLUTION NO. R2021-18
A Resolution of the City Council of the City of Pearland, Texas, authorizing
the City Manager or his designee to enter into a First Amended
Development Agreement with Massey Oaks Development, LP,
("Developer") reciting the amended responsibilities of the City and
Developer associated with the development of a residential community
(Massey Oaks).
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain First Amended Development Agreement, a copy of which is
attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized
and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest the attached First Amended Development Agreement.
PASSED, APPROVED and ADOPTED this the 25th day of January, A.D., 2021.
ATTEST:
CRYSTAL ROAN, TR� MC
CITY SECRETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
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or:
FIRST AMENDED DEVELOPMENT AGREEMENT
THIS FIRST AMENDED DEVELOPMENT AGREEMENT (this "Agreement") is
made and entered into as of the Effective Date by and between the CITY OF PEARLAND,
TEXAS, a home rule municipality located in the counties of Brazoria, Harris, and Fort Bend,
Texas (the "City"), and Massey Oaks Development, LP (the "Developer"). The City and the
Developer are collectively referred to herein as the "Parties".
RECITALS
A. The City previously passed resolution R2017-86 approving this Agreement
between the City and First Capital Partners, LLC; and subsequently authorized the Assignment
of the rights and obligations of First Capital Partners under this Agreement to Developer; and the
Parties have determined that certain amendments to this Agreement are required to reflect
modifications to the development and construction requirements associated with certain public
infrastructure improvements contemplated in the Agreement; and the Parties hereby propose this
First Amended Development Agreement to reflect the mutually agreeable amendments to the
terms of the Agreement.
B. Capitalized terms used in these recitals are defined in Article 1 below.
C. The Developer is the holder of the right to acquire and develop the Property from
the current owners thereof. The Developer currently intends to develop and improve, in various
phases, all or a portion of the Property as a planned residential community and other uses
permitted in conformance with the PD.
D. The Developer believes that approximately 145 acres of the Property is currently
located within the City's municipal boundaries and the remaining approximately 212 acres of the
Property is located within the extraterritorial jurisdiction of the City. The Developer has,
pursuant to the terms and conditions of this Agreement, voluntarily requested the City to annex
that portion of the Property not currently located within the City's municipal boundaries to the
City's municipal boundaries so that all the Property will be wholly located in the City's
municipal boundaries following such annexation.
E. The Parties believe that the creation and operation of a MUD within the Property
is essential to provide for the planning, financing, construction, operation and maintenance of the
public infrastructure and improvements described in this Agreement without imposing an undue
burden on the City and its residents and taxpayers. Accordingly, the Developer desires to
petition the TCEQ or the Legislature of the State of Texas to create a MUD containing all of the
Property. Subject to the requirements set forth herein, the City intends to provide its consent to
the creation or the inclusion of all or any part of the Property within the MUD. The Developer
and the City also intend to create a PD over the Property.
F. To facilitate the development of the Property, the City and the Developer have
agreed to take certain actions and to finance and construct, or cause to be financed and
constructed, various public improvements.
G. This Agreement has been submitted to the City for consideration and review, and
the City has taken all actions required to be taken prior to the execution of this Agreement to
make the same binding upon the City according to the terms hereof.
H. The City, after due and careful consideration, has concluded that the development
of the Property as provided for herein will further the growth of the City, improve the
environment of the City, increase the assessed valuation of the real estate situated within the
City, foster increased economic activity within the City, increase employment opportunities
within the City, upgrade public infrastructure within the City, and otherwise be in the best
interests of the City by furthering the health, safety, morals and welfare of its residents and
taxpayers.
I. This Agreement is authorized by Texas Law, including but not limited to, TEx.
LOC. GOVT CODE Sec. 212.071, et. seq., and 212.171, et seq., and Ch. 380.
J. It is the intent of the Parties to set forth herein the mutual agreements, covenants
and commitments between the Parties regarding the Property and the Parties acknowledge that
they are proceeding in reliance upon the purposes, intent, effectiveness and enforceability of this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the receipt and
sufficient of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS• INCORPORATION OF RECITALS
1.1 Definitions. Capitalized terms used herein, including the recitals hereto, shall
have the meanings set forth in this section, unless otherwise defined, or unless the context clearly
requires another definition.
Acceptance is defined as the final administrative approval by the City of the public
infrastructure within a subdivision shown on a recorded approved final plat for which a particular
platted lot is located.
Agreement is defined in the preamble hereof and includes any subsequent written
amendments or modifications made pursuant to Section 7.8 hereof.
City means the City of Pearland, Texas, a home rule municipality located in the counties
of Brazoria, Harris, and Fort Bend, Texas.
CitJ� Obligation means, as to the Water Distribution System described in Sec. 4.3 (c), the
agreement of the City to contribute to the Developer the cost for materials to oversize the
relevant water lines in order to provide capacity for other future development in the area. The
dollar amount shown is an estimate of the difference in cost for larger pipe and related materials
�a
and is not a minimum to be contributed, nor a maximum. The actual amount will be determined
by bids for the project. The Developer shall install the water lines and the City's only obligation
is to fund the oversize portion of the cost of pipe and related materials.
City Regulations means the regulations, standards, codes and ordinances of the City
governing the platting or re -platting of land into subdivisions and development of said land in
effect as of the Effective Date.
Developer means First Capital Partners, LLC and includes any subsequent developer,
whether one or more and whether or not related to the Developer or otherwise a related party of
the Developer or a partnership or other entity in which the Developer is a partner or participant,
of all or any portion of the Property that specifically acquires by whole or partial assignment, by
operation of law or otherwise, the rights and obligations of the Developer under this Agreement
in accordance with Section 7.11 hereof.
Developer• Obligation means, as to any component of the Required Regional
Infrastructure, the specific required infrastructure to be installed by the Developer at its cost. A
listed dollar amount is the estimated costs, but the Developer is not required to expend that full
amount, and such amount is not a maximum the Developer is required to expend.
Effective Date means the date on which this Agreement receives approval from and is
executed by both Parties, subject to the annexation of the Property.
MZID means a new in -city municipal utility district to be created under general law or
through one or more acts of the Texas Legislature pursuant to Article XVI, Section 59 of the
Texas Constitution and operated under Chapters 49 and 54 of the Texas Water Code, as amended
for the purpose or purposes of financing, planning, constructing, operating, maintaining or
otherwise providing for the public infrastructure or improvements described in this Agreement or
any of them for or to all or any portion of the Property.
Person means any individual, partnership, association, firm, trust, estate, public or private
corporation, or any other legal entity whatsoever.
Phase means a defined portion of the Project, as identified on Exhibit A-2 attached.
PI°oject means the real estate development planned for the Property, as more fully
described in Paragraph C of the recitals hereto, known as "Massey Oaks", to be developed in
multiple Phases.
Property means the approximately 357-acre tract legally described at Tract 1 and Tract 2
in Exhibit A attached hereto and made a part hereof and shown on the site plan attached as
Exhibit A4.
PD means a Planned Development for the Property adopted pursuant to the City of
Pearland Unified Development Code.
Party or Parties means all or any of the City and the Developer, as applicable, and their
respective successors and/or permitted assigns.
3
Required Easements means public easements or rights of way, as appropriate, for the
Required Regional Infrastructure, dedicated by the relevant land owners to the public or the City
(voluntarily, under threat of eminent domain or by eminent domain action), in locations
consistent with the City Major Thoroughfare Plan to provide for the ultimate expansion of the
City road and utility systems.
Reguit°ed Regionagional public infrastructure
improvements listed on Exhibit B attached and Required Easements therefore, which are
required by the City to be installed by the Developer at its expense, subject to limited
reimbursement by the City for certain oversizing of underground utilities, and the potential future
reimbursement from potential future private land owners developing area property and tapping
into that infrastructure.
TCEQ means the Texas Commission on Environmental Quality and its successors.
Sep°vice Area means the area that can be served by the proposed Harkey Road trunk main
sanitary sewer as shown in Exhibit H.
1.2 Recitals incorporated. The representations, covenants and recitations set forth in
the recitals to this Agreement are material to this Agreement and are hereby found and agreed to
be true and correct, and are incorporated into and made a part hereof as though they were fully
set forth in this article.
ARTICLE II
COOPERATION
The Parties agree to take such actions, including the execution and delivery of such
documents, instruments, petitions and certifications (and, in the City's case, the adoption of such
ordinances and resolutions), as may be necessary or appropriate, from time to time, to carry out
the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out
said terms, provisions and intent.
ARTICLE III
EFFECTIVENESS OF AGREEMENT
This Agreement shall become effective on the Effective Date.
ARTICLE IV
DEVELOPMENT AND USE OF THE PROPERTY AND
CONSTRUCTION OF IMPROVEMENTS
4
4.1 City's obligations.
(a) Subject to the exercise of its discretionary authority and to the extent permitted by
law, the City intends to take the following actions, and agrees to use its best
efforts to do so:
(i) Consent to the creation of a MUD over the Property under the conditions
described in Exhibit J, which are the City's standard consent conditions
for the creation of municipal utility districts, when requested by the
Developer;
(ii) Enter into a Utility Services Agreement with the Developer and a MUD in
substantially the same form as the Utility Services Agreement attached to
the consent conditions in Exhibit XI I
(iii) Create a PD over the Property which will provide the appropriate zoning
for single family residential and compatible uses substantially consistent
with the site plan attached as Exhibit A4.
(iv) Pursuant to and in compliance with the Utility Services Agreement (and to
the extent not provided by the MUD within its boundaries), commit to
provide the water production and wastewater treatment capacity ultimately
required by the Project. Approval of the first preliminary plat for the
Property will formalize such commitment. City approval of the first
preliminary plat binds the City to an ultimate commitment of water and
wastewater capacity to serve the Project which is expected to include
approximately 1,000 equivalent single-family connections;
(v) Provide water and wastewater connections as required by the Project and
as shown on the Developer's projected build -out schedules;
(vi) Work with the Developer to obtain all necessary approvals, permits and
consents from Brazoria County, the City of Manvel and/or the City of
Alvin with respect to off -site improvements;
(vii) Acquire Required Easements at Developer's cost, and utilize eminent
domain where necessary, provided, however, nothing contained in this
Agreement shall preclude the MUD from independently exercising its own
eminent domain authority;
(viii) Annex those portions of the Property not currently within the corporate
limits of the City, on the petition of the landowner; and
(ix) Establish and administer the cost recovery program as described in
paragraph 4.3(d) for certain of the Required Regional Infrastructure.
5
402 Developer's obligations.
(a) The Developer intends to take the following actions, and agrees to use its best
efforts to do so:
(i) Petition the TCEQ or the Legislature of the State of Texas for the creation
of a MUD over the Property;
(ii) Prepare and implement the PD, including the adoption of deed restrictions
and other restrictive covenants consistent with the PD and relevant City
regulation;
(iii) Assemble and purchase the Property for ownership and development;
(iv) Oversee and construct Required Regional Improvements, such as water,
sanitary sewer and drainage facilities, within the Required Easements
therefore;
(v) Coordinate with the City on obtaining Required Easements, and provide
the required funding;
(vi) Pay or cause to be paid water and sewer impact fees to the City;
(vii) Pay or cause to be paid park dedication fees to the City at the time of
building permit for each residential lot;
(viii) Advertise and market the Project;
(ix) Pay property taxes on the Property;
(x) Maintain the Property;
(xi) Design and construct the Project and pay associated land planning, legal,
architectural, engineering, surveying, and design expenses;
(xii) Provide the City with each preliminary plat application, as appropriate for
the stage of the Project, projected build -out schedules for the purpose of
providing water and wastewater capacity to the Project;
(xiii) Provide to the City with each preliminary plat application, as appropriate
for the stage of the Project, those documents necessary to coordinate the
development of the Project, including conceptual plans and documents
which detail timelines, construction schedules and marketing information;
(xiv) Petition the City (or cause the landowner to do so) for annexation of those
portions of the Property not currently within the corporate limits of the
City; and
(xv) Communicate and coordinate with Pearland Independent School District
("PISD") and Alvin Independent School District ("AISD") regarding the
boundaries of those districts as they exist within the Project and to allocate
individual lots on the boundary line between those districts.
4.3 Developer and City Obligations relating to the construction of Required Re ig onal
Infrastructure.
(a) Generally. The respective obligations of each Party relating to construction of
Required Regional Infrastructure are defined in this Section 4.3. Eligible costs for each category
include the costs of construction, engineering, surveying, right-of-way or easement acquisition,
and other reasonable and customary costs directly related to design and construction of the
improvements. The City will permit Required Regional Infrastructure and any public
infrastructure within the Project to be installed at any time after preliminary plat approval upon
the Developer signing an agreement providing appropriate fiscal security (escrowed funds or
letter of credit) to secure the completion of the infrastructure in accordance with a Subdivision
Improvements Agreement (SIA) between the Developer and the City in the form attached as
Exhibit L. All Required Regional Infrastructure shall be constructed in accordance with the
City's Engineering Design Criterial Manual, as amended.
(b) Roadway Obli atg ions. The Developer and/or the MUD shall install the required
roadway improvements (including related stormwater facilities and laterals, items listed in Table
1, and sidewalks) for the Project in conformance with the obligations listed in Table I and
shown graphically on Exhibit C. The Developer, by and through the MUD and/or
independently, will be responsible to finance, design, and construct the infrastructure
improvements, without any to rights of reimbursement from the City. The Required Easements
shall be obtained by the City per Section 4.5, at the Developer's cost.
Table 1
Developer
City
Developer
City
Key
Road Facility
Completion
Developer Obligation
Obligation
Obligation
Obligation
Deadline
South two lanes ('h
boulevard) concrete curb
CR 100
Recording the Final
and gutter in ultimate
1
(Adjacent to
plat of the 1st
ROW location, including
None
$113141257.00
$0.00
Property)
single family lot*
crossing over GCWA
canal as approved by
GCWA
North two lanes ('/2
CR 100
Recording the Final
boulevard) concrete curb
2
(West of
plat of the 1 st
and gutter in ultimate
None
$1,6281821.00
$0.00
Property)
single family lot*
ROW location, with
asphalt transitions to the
South side
CR 100 & FM
Recording the Final
Asphalt westbound and
3
1128
plat of the 1 st
northbound right turn
None
$372,000600
$0.00
Intersection
single family lot*
lanes and traffic signal
Concrete curb and gutter
CR 100 &
Recording the Final
full intersection in
4
Harkey Road
plat of the 1st
ultimate ROW location
None
$431,580,00
$0.00
Intersection
single family lot*,**
(250' 4 lanes in all
directions plus 200' turn
lanes)
Acceptance of the
Western two lanes of
5
North Harkey
500th single family
ultimate four -lane divided
None
$3,079,251.00
$0.00
Road
lot**
concrete curb and gutter
in ultimate ROW location
Western two lanes of
ultimate four -lane divided
South Harkey
Acceptance of the
concrete curb and gutter
6
Road
500th single family
to north line of "Rogers
None
$2,087,847.00
$0.00
00 to)
lot**
Tract " ; full four lanes
Collector
divided to collector; in
ultimate ROW location
Four lanes divided
South Harkey
concrete curb and gutter
Road
Acceptance of the
from collector to south
7
(Collector Rd to
800th single family
line of "Massey Tract";
None
$822,676,00
$0.00
Hastings
lot**
eastern two lanes to
Cannon)
Hastings Cannon; in
ultimate ROW location
Hastings
Acceptance of the
Northern two lanes (1/2
8
Cannon Road
single y
800th family
boulevard) concrete curb
None
$1,330,473.00
$0.00
(Adjacent to
and gutter in ultimate
Property)
ROW location
Hastings
Acceptance of the
Two lane asphalt road
9
Cannon Road
800th single family
with open ditch in
None
$4473500.00
$0.00
(East of
lot**
existing ROW
Property)
Sub -total
$11,514,405.00
$0.00
* If the Developer signs an agreement providing appropriate fiscal security (escrowed funds or
letter of credit) to secure the completion of the infiastructure in accordance with a Subdivision
�3
Improvements Agreement (SIA) between the Developer and the City in the form attached as
Exhibit L, as to any of the road facilities list in Table 1, Items 14, then the deadline for
completion is the earlier of (i) Acceptance of the 150"' single family lot, or (ii) 2 years from the
date of the recording of the final plat for the 1" single family lot. Developer may request the
City extend the deadline based on delays in the acquisition of the required right of way,
engineering complications or other force majeure.
*XOI earlier if required as secondary access per City's Engineering Design Criteria Manual or
Fire Code.
A typical road cross section is attached as Exhibit D, and all roads installed by Developer shall
be installed substantially in accordance with Exhibit D.
c) Water Distribution Obli ate. The Developer shall install the required water
distribution improvements for the Project in conformance with the obligations listed in Table 2
and shown graphically on Exhibit E. The Developer, by and through the MUD and/or
independently, will be responsible to finance, design, and construct the infrastructure
improvements, subject to the limited rights of reimbursement and participation by the City
described herein. The Required Easements shall be obtained by the City per Section 4.5, at the
Developer's cost.
0
Table 2
Developer
Developer
City
Developer
City
Key
Water Facility
Completion
Obligation
Obligation
Obligation
Obligation
Deadline
10
FM 1128
(CR 100 to CR
Acceptance of the
first single family
12" water main in
Oversize fi•om
$5725390.00
$375850.00
101)
lot
ultimate easement
12" to 16"
CR 100
Acceptance of the
12" water main in
Oversize from
11
(FM 1128 to
first single family
$5665447.00
$375705600
Harkey Rd)
lot
ultimate easement
12" to 16"
Veterans Drive
Acceptance of the
12" water main in
Oversize from
12
(CR 100 to CR
500"' single family
$7%780.00
$161,100.00
101)
lot*
ultimate easement
12" to 20"
CR 100
Acceptance of the
12" water main in
Oversize from
13
(Harkey Rd to
50011' single family
$8565384400
$56,860.00
Veterans Dr)
lot*
ultimate easement
12" to 16"
Harkey Road
Acceptance of the
12" water main in
14
(CR 100 to
50011' single family
None
$3255100.00
$0.00
Collector)
lot*
ultimate easement
Harkey Road
Acceptance of the
„
15
(Collector to
80011' single family
12 water main in
None
$2305500.00
$0.00
Hastings
lot*
ultimate easement
Cannon
Sub4otal
$353195601000
$2935515.00
*Or earlier if required by the Project's Master Water Plan issued pursuant to the City's
Engineering Design Criteria Manual.
The City's sole obligation is to fund the additional pipe and appurtenances (i.e., valves and
fittings) costs to upsize the noted water lines, as shown.
(d) Wastewater Collection Obli atg ions. The Developer shall install the required
wastewater collection improvements for the Project ("Wastewater Improvements") in
conformance with the obligations listed in Table 3 and shown graphically on Exhibit F. The
Developer, by and through the MUD and/or independently, will be responsible to finance,
design, and construct the Wastewater Improvements, without any rights of reimbursement or
participation by the City, but subject to the reimbursement through the City from future
development described herein. The Required Easements shall be obtained by the City per
Section 4.5, at the Developer's cost.
lDl
Table 3
Wastewater
Developer
Developer
City
Facility (and
Completion
Developer Obligation
City Obligation
Obligation
Obligation
size)
Deadline
North Harkey
Gravity sewer main of
Establish and
(Ravenwood
Acceptance of the
sufficient depth and size
administer pro rata
16
to CR 100)
first single family
to accommodate the
$3,383,819.00
$0.00
30" sewer
lot
service in ultimate
cost recovery
line
gravity service area.
program
Sanitary lift station and
South Harkey
force main of sufficient
Establish and
( Lift Station
Acceptance of the
depth and size to
depth
administer pro rata
17
500'�' single family
$0.00
and Force
lot
accommodate the service
cost recovery
Main
in ultimate lift station
program
service area
Sub -total
$4,6791184.00
$0.00
The estimated cost for the Wastewater Improvements is $4,679,184.00 ("Estimated Cost"), as set
forth in the Cost Estimate attached hereto as Exhibit G. The Wastewater Improvements are sized
to provide service for both (i) the Property, and (ii) the area shown on Exhibit H ("Service
Area"). The capacity required for the Project is 950 equivalent single-family connections
(ESFC) which is equal to 304,000 gallons per day capacity (determined based on current City
guidelines of 320 gallons per day per ESFC). The City required sizing/line capacity/excess line
capacity for the required sewer lines are as follows:
Line
Required
Gravity
Lift Station
Total
Excess
Sizing
Service Area
Service Area
Capacity
Capacity
Capacity
Capacity
(ESFC)
(ESFC) and
(ESFC)
(ESFC)
%
North Harkey
30"
2,970
15245
4,215
35265 (77%
South Harkey
Lift Station
0
1,245
15245
452 (36%)
& Force
Main
The City agrees that the excess capacity is for the benefit of third parties. Therefore, a portion of
the cost of the Wastewater Improvement, shall be reimbursed to the Developer. The
reimbursement for the Gravity Service Area shown on Exhibit H equal to the actual cost of the
North Harkey Wastewater Improvements attributable to the Gravity Service Area ESFCs less
any MUD reimbursements, divided by the total capacity of the North Harkey line (4,215 ESFC),
shall be reimbursed to the Developer, its successors or assigns, through the City by landowners,
pro-rata, as the Service Area is developed or redeveloped, being expressed in the following
formula:
((Actual Cost of North Harkey Wastewater Improvements* (4,215-1,245)/4,215)-any MUD reimbursement, if
applicable)/4,215 ESFC =Per ESFC charge to landowner.
11
The reimbursement for the Lift Station Service Area shown on Exhibit H equal to the actual cost
A the North Harkey Wastewater Improvements attributable to the Lift Station Service Area
ESFCs plus the actual cost of the South Harkey Wastewater Improvements less any MUD
reimbursements, divided by the total capacity of the South Harkey Lift Station and Force Main
(1,245 ESFC), shall be reimbursed to the Developer, its successors or assigns, through the City
by landowners, pro-rata, as the Service Area is developed or redeveloped, being expressed in the
following formula:
((Actual Cost of North Harkey Wastewater Improvements*(1,245)/4,215) +Actual Cost of South Harkey
Wastewater Improvements -any MUD reimbursement, if applicable)/1,245 ESFC = Per ESFC charge to landowner.
This reimbursement shall be required by the City as a condition to future connection to the
Wastewater Improvements, building permit, plat or other development permit pursuant to a Pro-
Rata Utility charge assessed by the City on future development in the Service Area which
connects to the Wastewater Improvements. The actual cost shall be determined following the
procedures of Section 4.3(e)(14), as if applicable to the Wastewater Improvements.
At the same time as the Property is annexed and zoned, the City shall adopt and enforce apro-
rata utility fee ordinance ("Pro-Rata Ordinance") applicable for the Service Area consistent with
this subsection. Reimbursement to the Developer by the City shall occur within forty-five (45)
days) following collection of pro-rata contributions from third parties connecting to the
Improvements. However, the City shall not reimburse Developers for more than 100% of the
Reimbursable Cost, nor for a period longer than 25 years from the completion and acceptance by
the City of the Wastewater Improvements, nor for any amount reimbursed to the Developer by
the MUD. The City agrees to use its best efforts to collect the foregoing reimbursements.
(e) Water Line Reimbursement Procedures. The following reimbursements
procedures shall apply for the Water Line reimbursement of Developer by the City under this
Agreement:
1) Prior to designing any infrastructure from this Section 4.3 in which City will
participate in cost, directly or indirectly, the Developer, working in consultation with the
MUD, and the City's Director of Engineering shall agree on the scope of work and the
allocation of costs consistent with this Agreement.
2) The Developer, working in consultation with the MUD, shall obtain competitive line
item bids in accordance with Local Government Code Chapter 252 for the construction of
the improvements in accordance with the approved plans and specifications. The
Developer, working in consultation with the MUD, and the City will review the bids and
the Developer, or the MUD will award a contract to the successful bidder. The City
reserves the right to reject any and all bids for the construction of the improvements
within ten (10) days following submission to the City for review, following the expiration
of which the bids selected by the Developer or the MUD shall be deemed approved by
the City.
3) The Developer shall, or shall cause the MUD to, advance the funds necessary to pay
the contractors) for the work performed. The Developer shall cause the City to be
named as an additional obligee under any performance bond obtained by the Developer
12
or the MUD to secure the construction of the improvements.
4) Upon completion of construction and acceptance by the City, the Developer will
submit an accounting of final and actual costs along with evidence of paid invoices. The
City will reimburse the Developer for the City's share of costs within thirty (30) days of
submission.
5) The obligations of the City described in this Section 4.3 shall be paid from lawfully
available funds that may be currently available in the budget year in which such
improvements are the obligation of the City described in this Section 4.3 shall be paid
from lawfully available funds that may be currently available in the budget year in which
such improvements are designated to be constructed. The City agrees to use its best
efforts to collect revenues, .issue bonds, and appropriate funds as may be required to
finance such improvements.
4.4 MUD Powers. The MUD is or will be located entirely within the corporate limits of
the City and will seek legal authority to construct, acquire, improve, maintain or operate roads.
If granted, such legal authority will require that any road projects undertaken by the MUD meet
all applicable construction standards, zoning and subdivision requirements and regulations of
each municipality in whose corporate limits such district is located.
The City acknowledges that all roads to be constructed in connection with the MUD
and/or to serve the MUD (i) meet the City's criteria for a thoroughfare and/or arterial feeder
and/or collector roads for the purposes of Section 54.234 of the Texas Water Code, as amended,
and (ii) also will constitute macadamized, graveled, or paved roads, or improvements, including
storm drainage, in aid of those roads, for purposes of Section 52, Article III of the Texas
Constitution.
The Developer acknowledges that future annexations of property into the MUD are
subject to City consent, which may be given or withheld in accordance with public interests.
4.5 Acquisition of Required Easements.
(a) Generally. The City will acquire the Required Easements, at the Developer's
cost, as provided in this section.
(b) Identification of Required Easements. The City Engineer and the Developer's
Engineer (R.G. Miller) shall cooperatively designate the Required Easements widths and
location following the following chart.
Additional
ROW Width
Segment
Extent
Side
on which
Easement Width
Easement
Location
Based
FM 1128
Bailey to Massey
East
NA
20'
Ranch Road
13
20' with five-foot overlap
with ROW (15' water line
Massey Ranch
FM 1128 to Harkey
North
30 feet (1)
and drainage easement
outside of ROW) and
additional 10' drainage
easement where required
20' with five-foot overlap
Harkey North
Bailey to Massey
West
20 feet (1)
with ROW (15' outside of
Ranch Road
ROW)
20' with five-foot overlap
Veterans
Bailey Massey
East
20 feet (2)
with ROW (15' outside of
Ranchh Road
ROW
20' with five-foot overlap
Massey Ranch
Veterans to Harkey
South
30 feet (2)
with ROW (15' outside of
ROW)
Massey Ranch
20' with five-foot overlap
Harkey South
Road to Property
East
50 feet (2)
with ROW (15' outside of
Boundary
ROW)
(1) In addition to easement costs, Developer is responsible for ROW cost due to
roadway construction obligations on these segments, and the cost of any necessary
utility/pipeline relocations, including the coordination thereof
(2) Developer is responsible for easement costs on these segments. Developer is not
responsible for ROW cost, because Developer has no roadway construction obligations
on these segments.
The Developer is not required to acquire public easements for uses not required for the
Project. Once identified, the Developer shall retain a surveyor approved by the City to
survey all Required Easements, and to prepare related surveys, property descriptions and
parcel maps (the "Survey Deliverables"). The City approves R.G. Miller as surveyor.
The scope of services for the Survey Deliverables is attached as Exhibit M. The Survey
Deliverables may be provided in batches, which shall be substantially consistent in
format and content.
(c) Acquisition of Required Easements. After the Survey Deliverables for a
particular type of Required Regional Infrastructure (water, wastewater, or roadway) are provided
to the City, the City shall diligently pursue the acquisition of the Required Easement following
its normal public easement acquisition process (including use of eminent domain). In doing so,
the City shall prioritize those easements required in the initial Phase of the Project. The City
shall exercise good faith efforts to both expedite the acquisition process and the cost efficiency
thereof and will regularly communicate with the Developer and its engineer on the status and any
impediments.
(d) Payment for Acquisition Process. The Developer shall pay all reasonable third-
pai-ty costs of the Required Easement acquisition, including, but not limited to surveying,
engineering, right -of --way consultant, legal and compensation to owners. No charge will be
made for City employees or to reimburse the City for overhead and administrative salaries or
costs. The agreed estimated costs for the acquisition process is $3,224,740.00 as shown on
Exhibit K.
14
(e) Deposit for Costs. The Developer shall make deposit(s) with the City for
acquisition costs, either in escrow or by letter of credit. Any funds shall be set aside in a
separate, federally insured account with a federally regulated financial institution entitled "City
of Pearland- Massey Oaks Easement Cost Escrow", and a copy of each monthly statement
provided promptly to the Developer. Any letter of credit shall be issued by a federally regulated
Financial institution with assets of no less than $1,000,000,000.00 with the City as beneficiary,
shall have a minimum 12 month term, and shall provide that if the term is not extended (or a
replacement letter of credit provided) within the last 30 days, then the City may draw on the
letter of credit. Otherwise, the letter of credit shall be "clean", not subject to other conditions for
the City to draw upon it and in form acceptable to the City, in its reasonable discretion. If such
draw occurs, then the funds shall be used to establish the escrow required herein. The City may
draw on these funds not more frequently than monthly, by written draw request signed by the
City Finance Director addressed to the Developer describing the actual, reasonable costs of the
acquisition process, and delivered to the Developer at least seven (7) days prior to the proposed
date for the advance. The escrow or letter of credit shall initially be established in the amount of
$1,000,000.00 at the same time the first Survey Deliverables are provided to the City. At any
time the remaining escrow or undrawn amount on the letter of credit drops below $100,000.00,
Developer shall fund the escrow or extend the letter of credit by an additional amount, to
establish a minimum escrow or letter of credit balance of $250,000.00, within seven (7) days
after receiving notice from the City. The order of priority for acquiring Required Easements is
established in Tables 1, 2, and 3 of this Section 4.3. Specifically, the Required Easements for
project key numbers 2, 3, 4, 10, 11, and 16 are initial priority acquisitions, the Required
Easements for project key numbers 5, 6, 12, 13, 14, and 17, are secondary priority acquisitions,
and the Required Easements for project key numbers 7, 8, 9, and 15, are final priority
acquisitions (collectively "Acquisition Priority Level"). When all Required Easements for a
specific Acquisition Priority Level have been acquired, and all acquisition costs paid, the balance
remaining in escrow or the letter of credit shall be promptly released to the Developer unless
acquisitions for a different Acquisition Priority Level has already been initiated. After the
escrow or letter of credit has been released to the Developer, the escrow or letter of credit shall
be replenished to $1,000,000.00 prior to the City initiating additional acquisition requirements
for a different Acquisition Priority Level. In the event Developer fails to provide the additional
escrow or letter of credit within the required time, City may cease all acquisition requirements
under this section. The escrow or letter of credit may not be used for any other purposes by the
City and is not security for any other obligation of the Developer. Upon request, the City shall
provide to the Developer copies of invoices for all costs for which funds are used. The
Developer shall provide the City a list of any discrepancies. The City and the Developer shall
meet to discuss any discrepancies and endeavor, in good faith, to achieve agreement on the
proper payment amount. If, after reviewing these invoices and meeting with the City, the
Developer is not satisfied that the funds have been properly utilized, then, the Developer may
audit any escrow account and the acquisition costs and related records. The Developer's auditor
shall meet with the City Finance Director or outside auditor to outline the scope and process for
the audit. Only one audit is permitted in any calendar year. No audit may cover a period
previously audited, unless necessary in the reasonable opinion of the Developer's auditor.
15
ARTICLE V
AUTHORITY• COVENANTS• PROPERTY RIGHTS
5.1 Actions. The City covenants to the Developer and agrees that upon application of
the Developer, the City will use its best efforts to the extent permitted by law to take such actions
as may be required and necessary to process any amendments, variations, special use approvals
and permit applications relating to the Unified Development Code and the City's other
ordinances, codes and regulations, as may be necessary or proper in order to insure the
development of the Property and the Project in accordance with this Agreement and the PD and
to enable the City to execute this Agreement and to carry out fully and perform the terms,
covenants, agreements, duties and obligations on its part to be kept and performed as provided
by the terms and provisions hereof. The City acknowledges that the Developer is relying upon
the City's performance and will expend significant sums on the Project.
5.2 Powers.
(a) The City hereby represents and warrants to Developer that the City has full
constitutional and lawful right, power and authority, under currently applicable law, to execute
and deliver and perform the terms and obligations of this Agreement, and all of the foregoing
have been or will be duly and validly authorized and approved by all necessary City proceedings,
findings and actions. Accordingly, this Agreement constitutes the legal, valid and binding
obligation of the City, is enforceable in accordance with its terms and provisions and does not
require the consent of any other governmental authority.
(b) The Developer hereby represents and warrants to the City that Developer has full
lawful right, power and authority to execute and deliver and perform the terms and obligations of
this Agreement and all of the foregoing have been or will be duly and validly authorized and
approved by all necessary actions of Developer. Concurrently with Developer's execution of this
Agreement, Developer has delivered to the City copies of the resolutions or other corporate
actions authorizing the execution of this Agreement and evidencing the authority of the persons
signing this Agreement on behalf of Developer to do so. Accordingly, this Agreement constitutes
the legal, valid and binding obligation of Developer, and is enforceable in accordance with its
terms and provisions.
5.3 Authorized parties. Whenever under the provisions of this Agreement and other
related documents and instruments or any supplemental agreements, any request, demand,
approval, notice or consent of the City or Developer is required, or the City or Developer is
required to agree or to take some action at the request of the other, such request, demand,
approval, notice or consent, or agreement shall be given for the City, unless otherwise provided
herein, by the City Manager or his designee and for Developer by any officer of Developer so
authorized (and, in any event, the officers executing this Agreement are so authorized); and any
party shall be authorized to act on any such request, demand, approval, notice or consent, or
agreement.
5.4 Vested Rights. Upon execution of this Agreement, the Parties agree that each of
their respective rights, as set forth in this Agreement, shall be deemed to have vested.
16
ARTICLE
GENERAL PROVISIONS
6.I Time of the essence. Time is of the essence in all things pertaining to the
performance of this Agreement. The Parties will make every reasonable effort to expedite the
subject matters hereof and acknowledge that the successful performance of this Agreement
requires their continued cooperation.
6.2 Default.
(a) A Party shall be deemed in default under this Agreement (which shall be deemed
a breach hereunder) if such Party fails to materially perform, observe or comply with any of its
covenants, agreements or obligations hereunder or breaches or violates any of its representations
contained in this Agreement.
(b) Before any failure of any Party to perform its obligations under this Agreement
shall be deemed to be a breach of this Agreement, the Party claiming such failure shall notify, in
writing, the Party alleged to have failed to perform of the alleged failure and shall demand
performance. No breach of this Agreement may be found to have occurred if performance has
commenced to the reasonable satisfaction of the complaining party within 30 days of the receipt
A such notice, subject, however, to the terms and provisions of Section 6.2(c). Upon a breach of
this Agreement for which cure has not commenced as provided above, the non -defaulting Party,
in any court of competent jurisdiction, by an action or proceeding at law or in equity, may secure
the specific performance of the covenants and agreements herein contained, may be awarded
damages for failure of performance, or both. Except as -otherwise set forth herein, no action
taken by a Party pursuant to the provisions of this Section or pursuant to the provisions of any
other Section of this Agreement shall be deemed to constitute an election of remedies and all
remedies set forth in this Agreement shall be cumulative and non-exclusive of any other remedy
either set forth herein or available to any Party at law or in equity. Each of the Parties shall have
the affirmative obligation to mitigate its damages in the event of a default by the other Party.
(c) Force Majeure. Notwithstanding anything in this Agreement which is or may
appear to be to the contrary, if the 1-1 of any covenant or obligation to be performed
hereunder by any Party is delayed as a result of force majeure circumstances which are beyond
the reasonable control of such Party the time for such performance shall be extended by the
amount of time of such delay. (The term "force majeure," as used herein, shall include without
limitation of the generality thereof, acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind of the government of the United States
or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts, drought, arrests, restraint of
government, civil disturbances, explosions, breakage or accidents to machinery, pipelines or
canals, partial or entire failure of water supply resulting in an inability to provide water necessary
for operation of the water and wastewater systems hereunder, and any other inabilities of any
party, whether similar to those enumerated or otherwise, which are not within the control of the
party claiming such inability, which such party could not have avoided by the exercise of due
diligence and care). The Party claiming delay of performance as a result of any of the foregoing
17
force majeure events shall deliver written notice of the commencement of any such delay
resulting from such force majeure event not later than seven days after the claiming Party
becomes aware of the same, and if the claiming Party fails to so notify the other Party of the
occurrence of a "force majeure" event causing such delay, the claiming Party shall not be entitled
to avail itself of the provisions for the extension of performance contained in this Section.
(d) The Parties acknowledge and agree, notwithstanding anything contained in this
Agreement to the contrary, that: (i) the provisions of Section 4.1(a)(1) hereof regarding consent
by the City to the creation of a MUD, (ii) the provisions of Section 4.1(a)(iv) hereof regarding
the City supplying the water supply and wastewater treatment capacity ultimately required by the
Project, and (iii) the provisions of Section 4.1(a)(viii) regarding the annexation of the portion of
the Property not currently within the corporate limits of the City, constitute essential and material
terms of this Agreement. The specific enumeration of the provisions listed herein does not mean
or imply that no other provision of this Agreement constitutes an essential term of the agreed
exchange that is the subject matter of this Agreement.
6.3 Personal liability of public officials. To the extent permitted by State law, no
public official or employee shall be personally responsible for any liability arising under or
growing out of this Agreement.
6.4 Liability of the Developer, its successors and assi ng ees• Any obligation or
liability of the Developer whatsoever that may arise at any time under this Agreement or any
obligation or liability which may be incurred by the Developer pursuant to any other instrument,
transaction or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the
Developer only. No obligation or liability shall be personally binding upon, nor shall resort for
the enforcement thereof be had to, the property of any of partners, officers, employees,
shareholders or agents of the Developer, regardless of whether such obligation or liability is in
the nature of contract, tort or otherwise.
6.5 Notices. Any notice sent under this Agreement (except as otherwise expressly
required) shall be written and mailed, or sent by rapid transmission confirmed by mailing written
confirmation at substantially the same time as such rapid transmission, or personally delivered to
an officer of the receiving party at the following addresses:
If to the City: City Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
with a copy to:
City Attorney
City of Pearland
3 519 Liberty Drive
Pearland, Texas 77581
If to the Developer:
with a copy to:
Massey AS Development, LP
241 Ridge St, Ste 330
Reno, Nevada 89501
Attention: Ron Cobb
Wilson Cribbs +Goren
2500 Fannin St
Houston, Texas 77002
Attention: Reid Wilson
If to Developer's Lender: Per the address provided to the City from time to time.
Each Party may change its address by written notice in accordance with this Section, Any
communication addressed and mailed in accordance with this Section shall be deemed to be
given when so mailed, any notice so sent by rapid transmission shall be deemed to be given
when receipt of such transmission is acknowledged, and any communication so delivered in
person shall be deemed to be given when receipted for by, or actually received by, an authorized
officer of the City or the Developer, as the case may be.
6.6 Amendments and waivers. Any provision of this Agreement may be amended or
waived if such amendment or waiver is in writing and is approved by the City Council and the
Developer. No course of dealing on the part of the City or the Developer nor any failure or delay
by the City or the Developer with respect to exercising any right, power or privilege pursuant to
this Agreement shall operate as a waiver thereof, except as otherwise provided in this Section.
6.7 Invalidity. In the event that any of the provisions contained in this Agreement
shall be held unenforceable in any respect, such unenforceability shall not affect any other
provisions of this Agreement and, to that end, all provisions, covenants, agreements or portions
of this Agreement are declared to be severable.
6.8 Beneficiaries. This Agreement shall bind and inure to the benefit of the Parties
and their successors and permitted assigns.
6.9 Successors and Assigns. No party to this Agreement shall have the right to assign
its rights under this Agreement or any interest herein, without first giving to the other party
notice from the assignor of such assignment and acknowledgement of such assignment from the
assignee. The City acknowledges that the Developer may assign this Agreement to a lender for
the Project, and in relation thereto, the City will execute reasonable acknowledgements of the
Agreement and its assignment, including confirming the Agreement is valid and in full force and
effect, without default by either party, and agreeing to provide notice and opportunity to cure to
such lender. This Agreement may be assigned to any affiliate of the Developer or any successor
developer of the Project. This Agreement is not binding on any purchaser of a platted lot or
reserve in the Project. Upon any assignment, the Developer is released from liability.
6.10 Exhibits titles of articles sections and subsections. The exhibits attached to this
Agreement are incorporated herein and shall be considered a part of this Agreement for the
19
purposes stated herein, except that in the event of any conflict between any of the provisions of
such exhibits and the provisions of this Agreement, the provisions of this Agreement shall
prevail. All titles or headings are only for the convenience of the Parties and shall not be
construed to have any effect or meaning as to the agreement between the Parties hereto. Any
reference herein to a section or subsection shall be considered a reference to such section or
subsection of this Agreement unless otherwise stated. Any reference herein to an exhibit shall be
considered a reference to the applicable exhibit attached hereto unless otherwise stated.
6.11 Applicable law. This Agreement is a contract made under and shall, be construed
in accordance with and governed by the laws of the United States of America and the State of
Texas, and any actions concerning this Agreement shall be brought in either the Texas State
District Courts of Brazoria County, Texas or the United States District Court for the Southern
District of Texas.
6.12 Entire agreement. This written agreement represents the final agreement between
the Parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the Parties. There are no unwritten oral agreements between the Parties.
6.13 Term of Agreement. The term of this Agreement shall commence on the date first
written above and shall continue until the date which is the earlier of (a) the completion of the
Project; (b) December 31, 2057; or (c) the early termination of this Agreement pursuant to
Section 6.14.
6.14 Early Termination of Agreement. The Developer reserves the right to terminate
this Agreement by delivery of written notice to the City stating that the Developer has
determined not to purchase the Property, or that the Project has been terminated by the
Developer for any reason, such as failure to receive acceptable entitlements. Such determination
shall be made by the Developer prior to June 1, 2017. Furthermore, this Agreement shall
automatically terminate if the Property is not annexed by the City and the PD for the Property is
not approved by City on or before October 1, 2017 or the Developer's right to develop the
Property expires in accordance with Section 2.2.2.10 of the City's Unified Development Code.
6.15 No waiver of City standards. Except as may be specifically provided in this
Agreement, the City does not waive or grant any exemption to the Property or the Developer
with respect to City regulations or ordinances, including without limitation platting, permitting or
similar provisions.
6.16 Approval by the Parties. Whenever this Agreement requires or permits approval
or consent to be hereafter given by any of the Parties, the Parties agree that such approval or
consent shall not be unreasonably withheld, conditioned or delayed. Approvals and consents
shall be effective without regard to whether given before or after the time required for giving
such approvals or consents.
6.17 Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same agreement.
6.18 Interpretation. This Agreement has been jointly negotiated by the Parties and shall
not be construed against a party because that Party may have primarily assumed responsibility
r�i
for the drafting of this Agreement.
6.19 Enforceability. The Parties intend this Agreement to be legally enforceable to the
maximum extent permitted at law or in equity. Specifically, the City waives governmental
immunity as to suit for only a claim to enforce specific performance and related legal fees. THE
DEVELOPER WAIVES ANY CLAIM FOR DAMAGES (OTHER THAN LEGAL FEES)
AND THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY IS TO ENFORCE SPECIFIC
ENFORCEMENT AND RELATED LEGAL FEES. This Agreement is intended by the
Parties to be a contract for goods or services contemplated by Texas Local Government
Code Section 271.151 et. seq. The Parties recognize that the Developer would not expend
significant sums to develop the Development and install the Improvements without the
commitment of the City to timely reimburse the Developer as provided herein, and that the
Developer relied on the legal enforceability of the City's obligations hereunder. The City is
accepting the benefit of the Project and the improvements. The City represents that it has
currently available and budgeted funds to be allocated and designated for payment for the City's
obligations hereunder.
[Signatures begin on following page]
IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to
all requisite authorizations as of the date first above written.
ATTEST:
City Secretary
City Attorney
CITY:
CITY OF PEARLAND, TEXAS, a home rule
municipality
By:
City
DEVELOPER:
MASSEY OAKS DEVELOPMENT, LP
Name: 1�'�12 6HISN1�
Title: tNMJ Ga'L
Exhibit A Legal Description of Property
Exhibit A-1 Site Plan for the Project on the Property
Exhibit A-2 Project Phases
Exhibit B Required Regional Infrastructure
Exhibit C Roadway improvements map
Exhibit D Roadway cross-section
Exhibit E Water Distribution improvements map
Exhibit F Wastewater Collection improvements map
Exhibit G Approved Cost Estimate for Wastewater Improvements
Exhibit H Wastewater Service Area map
Exhibit I Intentionally Deleted
Exhibit J MUD consent conditions
Exhibit J-I Utility Services Agreement
Exhibit K Approved Cost Estimate for Required Easements
Exhibit L Subdivision Improvements Agreement (SIA)
Exhibit M Scope of Services for Survey Deliverables
23
EXHIBIT A
Legal Description of the Property
TRACT 1
FIELD NOTES FOR 212.004 ACRES
Being a tract of land containing 212.174 acres (9,242,293 square feet), located within the H.
Stevens Survey, Abstract-593 in Brazoria County, Texas; Said 212.174 acre tract being a portion
of a called 138.83 acre tract recorded in the name of Margurite Massey Smith Charitable
Remainder Trust U.A. in Brazoria County Clerk's File Number (B.C.C.F. No.) 2010013347, all
A a called 5.00 acre tract of land recorded in the name of William Stephen Summers and wife,
Lois Winifrede Smith Summers in Volume (V.) 1318, Page 9 (P.) 700 of the Brazoria County
Deed Records (B.C.D.R.), all of a called 5.00 acre tract of land recorded in the name of Lois
Winifrede Summers in V. 1775, P. 250 of the B.C.D.R., a portion of a called 5.00 acre tract of
land recorded in the name of Lois Winifrede Summers in V. 1775, P. 248 of the B.C.D.R., all of a
called 10.55 acre tract of land recorded in the name of Lois Smith Summers in B.C.C.F. No.
2013052681, a portion of a called 4.45 acre tract of land recorded in the name of Lois Smith
Summers in B.C.C.F. No. 2013052682, and all of a called 45.00 acre tract of land recorded in the
name of Lois Smith Summers in B.C.C.F. No. 2013052682; Said 212.174 acre tract being more
particularly described by metes and bounds as follows (Bearings are based on the Texas
Coordinate System of 1983, South Central Zone per GPS observations):
Beginning at a 1-inch ion pipe found at the northwest corner of a called 151.44 acre tract
recorded in the name of C.W. Way in Volume 272, Page 103 of the Brazoria County Deed
Records, same being on the east line of a Lot 44 of the Allison -Richey Gulf Coast Home Co. Part
of Suburban Gardens, a subdivision plat of record in Volume 2, Page 89 of the Brazoria County
Plat Records (B.C.P.R.), said Lot 44, recorded in the name of Plains Exploration & Production
Company, L.P. in B.C.C.F. No. 02-033007, for the southwest corner of said 138.83 acre tract and
the herein described tract;
Thence, with the east line of Lots 44 thru 42 all recorded in said B.C.C.F. No. 02-03307, the east
line of Lots 41 and 40 being recorded in the name of Jimmy Brown in B.C.C.F. No. 1998020191,
the east line of Lot 39 recorded in said B.C.C.F. No. 02-033007, the east line of Lot 38 recorded
in the name of Danny O. Waldon in B.C.C.F. No. 96-0254867, the east line of Lot 37 recorded in
the name of International Victory Christian Church in B.C.C.F. No. 2015007219, same being the
west line of said 138.83 acre tract, North 02 degrees 36 minutes 15 seconds West, at a distance of
2905.73 feet pass a found railroad spike at the northeast corner of said Lot 39, and at a distance of
3862.37 feet pass a 5/8-inch iron rod with a Miller Survey Group (MSG) cap set on the occupied
south Right -Of -Way (R.O.W.) line of McKeever Road (County Road 100 width varies,
monumented at 62.7 feet, north 20 feet per Volume 2, Page 89, B.C.P.R.), and continue in all a
total distance of 3897.23 feet to a "P-K" nail set in asphalt pavement for the northwest corner of
said 138.83 acre tract and the herein described tract;
Thence, with the north line of said 138.83 acre tract, said 10.55 acre tract, said 5.00 acre tract (V.
1775, P. 248) and said 4.45 acre tract, North 87 degrees 21 minutes 45 seconds East, a distance of
24
2364.30 feet to a "P4. nail set in asphalt pavement at the northeast corner of said 4.45 acre tract,
for the northeast corner of the herein described tract;
Thence, with the east line of said 4.45 acre tract, South 02 degrees 36 minutes 15 seconds East, at
a distance of 32.55 feet pass a 5/84nch iron rod with a Miller Survey Group (MSG) cap set on the
occupied south R.O.W. line of said McKeever Road, at a distance of 41.87 feet pass a 5/84nch
iron rod found, and continue in all a total distance of 246.27 feet to a 5/8-inch iron rod with a cap
found on the northeast line of a called 1.1852 acre tract of land recorded in the name of the City
of Pearland, Texas in B.C.C.F. No. 2011044376, from which a 5/8-inch iron rod with a CL Davis
cap found bears South 51 degrees 41 minutes 48 seconds East, a distance of 12.55 feet;
Thence, with the lines of said 1.1852 acre tract, the following four (4) courses:
1. North 51 degrees 41 minutes 48 seconds West, a distance of 262.16 feet to a 5/8-inch iron
rod with a cap found at an angle point;
2. South 87 degrees 18 minutes 40 seconds West, a distance of 49.92 feet to a 5/8-inch iron
rod with a cap found at an angle point;
3. South 38 degrees 18 minutes 12 seconds West, a distance of 107.26 feet to a 5/8-inch iron
rod with a cap found at an angle point;
4. South 51 degrees 41 minutes 48 seconds East, a distance of 421.14 feet to a 5/8-inch iron
rod with a cap found on the east line of said 4.45 acre tract, from which a 5/8-inch iron
rod with a CL Davis cap found bears South 51 degrees 41 minutes 48 seconds East, a
distance of 12.84 feet;
Thence, with the east line of said 4.45 acre tract and the east line of said 138.83 acre tract, South
02 degrees 36 minutes 15 seconds East, a distance of 3465.12 feet to a 5/8-inch iron rod found at
the northeast corner of said 151.44 acre tract, for the southeast corner of said 138.83 acre tract
and the herein described tract;
Thence, with the line north line of said 151.44 acre tract and the south line of said 138.83 acre
tract and said 45.00 acre tract, South 87 degrees 21 minutes 45 seconds West, a distance of
2384.30 feet to the Point of Beginning and containing 212.174 acre of land.
Save and except the following 0.1697 acre tract:
Being a tract of land containing 0.1697 acres (7,394 square feet), located in the H. Stevens
Survey, Abstract-593 in Brazoria County, Texas; Said 0.1697 acre tract being all of a called
).1319 acre tract of land recorded in the name of the City of Pearland, Texas in B.C.C.F. No.
2011044376 and all of a called 0.0378 acre tract of land recorded in the name of the City of
Pearland, Texas in B.C.C.F. No. 2011044379; Said 0.1697 acre tract being more particularly
described by metes and bounds as follows (Bearings are based on the Texas Coordinate System
of 1983, South Central Zone per GPS observations):
Commencing at a 5/8-inch iron rod found at the northeasterly corner of a called 1.1852 acre tract
recorded in the name of the City of Pearland, Texas in B.C.C.F. No. 2011044376;
Thence, through and across a called 4.45 acre tract recorded in the name of Lois Smith Summers
in B.C.C.F. No. 2013052682, North 51 degrees 41 minutes 48 seconds West, a distance of 18.29
feet to a 5/8-inch iron rod with a MSG cap set at the southeast corner of said 0. 13 19 acre tract for
the southeast corner of and Point of Beginning of the herein described tract;
Thence, with the south line of said 0.1319 acre tract and 0.0378 acre tract, South 87 degrees 18
minutes 47 seconds West, a distance of 263.76 feet to a 5/8-inch iron rod found at the southwest
corner of said 0.0378 acre tract, for the southwest corner of the herein described tract;
Thence, with the west line of said 0.0378 acre tract, North 02 degrees 41 minutes 13 seconds
West, a distance of 30.00 feet to a 5/8-inch iron rod with a MSG cap set at the northwest corner
of said 0.0378 acre tract, for the northwest corner of the herein described tract;
Thence, with the north line of said 0.0378 acre tract and 0.1319 acre tract, North 87 degrees 18
minutes 47 seconds East, a distance of 229.23 feet to a 5/8-inch iron rod with a MSG cap set at
the northeast corner of said 0.1319 acre tract, for the northeast corner of the herein described
tract;
Thence, with the easterly line of said 0.1319 acre tract, South 51 degrees 41 minutes 48 seconds
East, a distance of 45.74 feet to the Point of Beginning and containing 0.1697 acres of land.
26
TRACT 2
TRACT 8 "A"
FIELD NOTES FOR 72.279ACRES
Being a tract of land containing 72.279 acres (3,148,490 square feet), located within the
C.W. Groos Survey, Abstract-525 in Brazoria County, Texas; Said 72.279 acre tract
being a portion of a called 160 acre tract recorded in the name of Richard Rogers in
Volume 103, Page 371 of the Brazoria County Deed Records (B.C.D.R.); Said 72.279
acre tract being more particularly described by metes and bounds as follows (Bearings
are based on the Texas Coordinate System of 1983, South Central Zone per GPS
observations):
BEGINNING at a 5/8-inch iron rod found at the southwest corner of a .called 40.0000
acre tract of land recorded in the name of Prabhakar Rao Draksharam in Brazoria County
Clerk's File Number (B.C.C.F. No.) 2007030107, same being on the north line of a called
151.44 acre tract recorded in the name of C.W. Way in Volume 272, Page 103 of the
B.C.D.R., for the southeast corner of said 160 acre tract and the herein described tract,
said iron rod being on the Right -Of Way (R.O.W.) line of County Road 1*28 (30 foot
easement reserved along the north line in Volume 124, Page 477 of the B.C.D.R., no
easement reserved along the south line of said 160 acre tract found);
Thence, with the norih line of said 151.44 acre tract and the south line of said 160 acre
tract, South 87 degrees 19 minutes 22 seconds West, a distance of 1232.03 feet to a 5/8-
inch iron rod with a Miller Survey Group (MSG) cap set at an angle point for the
southwest corner of the herein described tract in the east line of a called 13.655 acre tract
recorded in the name of H.L.& P. Co. in Volume 1149, Page 240 of the B.C.D.R.;
Thence, with the east line of said 13.655 acre tract, and the west line of the herein
described tract, North 01 degrees 37 minutes 43 seconds West, a distance of 2636.06 feet
to a 5/8-inch iron rod with a MSG cap.set for the northwest corner of the herein described
tract in the north line of said 160 acre tract and the south line of a called 247.91 acre tract
recorded in the name of I MJ Miller Real Estate Holdings, Ltd. in B.C.C.F. No.
2002020349;
Thence, with the north line of said 160 acre tract, the south line of said 247.91 acre tract,
and the south lines of a called 0.8902 acre tract of land recorded in the name of the City
of Pearland in B.C.C.F. No. 2009045975, the following three (3) courses:
z�
1. North 87 degrees 17 minutes 52 seconds East, distance of 780.16 feet to a 5/&
inch iron rod with a MSG cap set at the northwest corner of said 0.8902 acre tract,
for the westerly northeast corner of the herein described tract;
2. South 51 degrees 39 minutes 45 seconds East, a distance of 165.85 feet to a 5/8-
inch iron rod with a CL Davis cap found at the southwest corner of said 0.8902
acre tract, for an angle point in the north line of the herein described tract;
3. North 87 degrees 18 minutes 49 seconds East, a distance of 279.87 feet to a
inch iron rod with a CL Davis cap found the southeast corner of said 0.8902 acre
tract, same being on the lower west line of said 247.91 acre tract, and being on the
east line of said 160 acre tract, for the easterly northeast corner of the herein
described tract;
Thence, with the lower west line of said 247.91 acre tract, the west line of said 40.0000
acre tract and the east line of said 160 acre tract, South 02 degrees 38 minutes 46 seconds
East, at a distance of 1207.41 feet pass a concrete monument found at the southwest
corner of said 247.91 acre tract, same being the northwest corner of said 40.0000 acre
tract, and continue in all a total distance of 2527.16 feet to the POINT OF BEGINNING
and containing 72.279 acres of land.
m
TRACT 8
FIELD NOTES FOR 72.584 ACRES
Being a tract of an containing 72.584 acres (3,161, 737 square feet), located within the
C.W. Groos Survey, Abstract-525 in Brazoria County, Texas; Said 72.584 acre tract
being a portion of a called 160 acre tract recorded in the name of Richard Rogers in
Volume 103, Page 371 of the Brazoria County Deed Records (B.C.D.R.); Said 72.584
acre tract being more particularly described by metes and bounds as follows (Bearings
are based on the Texas Coordinate System of 1983, South Central Zone per GPS
observations):
COMMENCING at a 5/8-inch iron rod found at the southwest corner of a called
40.0000 acre tract of land recorded in the name of Prabhakar Rao Draksharam in
Brazoria County Clerk's File Number (B.C.C.F. No.) 2007030107, same being on the
north line of a called 151.44 acre tract recorded in the name of C.W. Way in Volume 272,
Page 103 of the B.C.D.R., for the southeast corner of said 160 acre tract and the herein
described tract, said iron rod being on the Right -Of --Way (R.O.W.) line of County Road
128 (30 foot easement reserved along the north line in Volume 124, Page 477 of the
B.C.D.R., no easement reserved along the south line of said 160 acre tract found);
Thence, with the north line of said 151.44 acre tract and the south line of said 160 acre
tract and a called 13.655 acre tract recorded in the name of H.L.& P. Co. in Volume
1149, Page 240 of the B.C.D.R., South 87 degrees 19 minutes 22 seconds West, a
distance of 1457.07 feet to a 5/8-inch iron �kod with a Miller Survey Group (MSG) cap set
for the southeast corner and POINT OF BEGINNING of the herein described tract at
the southwest corner of said 13.655 acre tract;
Thence, continuing with the north line of said 151.44 acre tract and the south 1zne of said
160 acre tract, South 87 degrees 19 minutes 22 seconds West, a distance of 1177.35 feet
to a 5/8-inch iron rod with a MSG cap set at an angle point in said 151.44 acre tract, for
the southwest corner of said 160 acre tract and the herein described tract;
Thence, with the uppex east line of said 151.44 acre tract, the east line of a called 138.83
acre tract of land recorded in the name of Margurite Massey Smith Charitable Remainder
Trust, U.A. in B.C.C.F. No. 2010013347, same being the west line of said 160 acre tract,
North 02 degrees 36 minutes 15 seconds West, at a distance of 1389.29 feet pass a 5/8-
inch iron rod found at the southeast corner of said 138.83 acre tract, same being the upper
northeast corner of said 151.44 acre tract, and continue in all a total distance of 2634.99
feet to a 5/8-inch iron rod with a MSG cap set for the northwest corner of said 160 acre
tract and the herein described tract;
Thence, with the north line of said 160 acre tract and the south line of a called 80 acre
tract recorded in the name of Georgeanne and William Reaves in B.C.C.F. No.
99026030, North 87 degrees 17 minutes 52 seconds East, at a distance of 12.2 feet pass a
railroad rail in concrete found at the called southwest corner of said 80 acre tract, from
which a found 1-inch iron pipe bears South 76 degrees 10 minutes East, a distance of
30.8 feet, in all a total distance of 1222.23 feet to a 5/84nch iron rod with a MSG cap set
at the northwest corner of said 13.655 acre tract for the northeast corner of the herein
described tract;
Thence, with the west line of said 13.655 acre tract, and the east line of the herein
described tract, South 01 degrees 37 minutes 43 seconds East, a distance of 2635.96 feet
to the POINT OF BEGINNING and containing 72.584 acres of land.
30
EXHIBIT A-1
Site Plan for the Project on the Property
31
l
0
•e.
J
with the revised PD.
33
EXHIBIT B
Required Regional Infrastructure
Key
Road Facility
Developer Completion Deadline
Description
South two lanes ('h boulevard) concrete curb
CR 100
Recording the Final plat of the 15'
and gutter in ultimate ROW location,
1
(Adjacent to Property)
single family lot*
including crossing over GCWA canal as
approved by GCWA
CR 100
Recording the Final plat of the 1 S'
North two lanes ('h boulevard) concrete curb
2
and gutter in ultimate ROW location, with
(West of Property)
single family lot*
asphalt transitions to the South side
CR 100 & FM 1128
Recording the Final plat of the 15'
Asphalt westbound and northbound right turn
3
Intersection
single family lot*
lanes and traffic signal
CR 100 & Harkey Road
Recording the Final plat of the 15'
Concrete curb and gutter full intersection in
4
ultimate ROW location (250' 4 lanes in all
Intersection
single family lot*,**
directions plus 200' turn lanes)
Acceptance of the 500th single family
Western two lanes of ultimate four -lane
5
North Harkey Road
lot**
divided concrete curb and gutter in ultimate
ROW location
Western two lanes of ultimate four -lane
South Harkey Road
Acceptance of the 500'h single family
divided concrete curb and gutter to north line
6
(CR 100 to Collector Rd)
lot**
of "Rogers Tract"; full four lanes divided to
collector; in ultimate ROW location
Four lanes divided concrete curb and gutter
South Harkey Road
Acceptance of the 800th single family
from collector to south line of "Massey Tract
7
(Collector Rd to Hastings
lot**
eastern two lanes to Hastings Cannon; in
Cannon)
ultimate ROW location
Hastings Cannon Road
Acceptance of the 8001h single family
Northern two lanes ('/z boulevard) concrete
8
(Adjacent to Property)
lot**
curb and gutter in ultimate ROW location
Hastings Cannon Road
Acceptance of the 800'h single family
Two lane asphalt road with open ditch in
9
(East of Property)
lot**
existing ROW
*If the Developer signs an agreement providing appropriate fiscal security (escrowed funds or letter of credit) to
secure the completion of the infrastructure in accordance with a Subdivision Improvements Agreement (SIA)
between the Developer and the City in the form attached as Exhibit L, as to any of the road facilities list in Table 1,
Items 14 then the deadline for completion is the earlier of (i) Acceptance of the 150th single family lot, or (ii) 2
years from the date of the recording of the final plat for the 1s' single family lot. Developer may request the City
extend the deadline based on delays in the acquisition of the required right of way, engineering complications or
other force majeure.
**Or earlier if required as secondary access per City's Engineering Design Criteria Manual or Fire Code.
34
Key
Water Facility
Developer Completion Deadline
Description
FM 1128
Acceptance of the first single family
10
CR 100 to CR 101
lot
12
water
main
in
ultimate
easement
CR 100
Acceptance of the first single family
11
FM 1128 to Harkey Rd
lot
12
water
main
in
ultimate
easement
Veterans Drive
Acceptance of the 500th single family
12
(CR 100 to CR 101)
lot*
12"
water
main
in
ultimate
easement
CR 100 (Harkey Rd to
Acceptance of the 500th single family
13
Veterans Dr)
lot*
12
water
main
in
ultimate
easement
Harkey Road
Acceptance of the 500th single family
14
CR 100 to Collector
lot*
12
water
main
in
ultimate
easement
Harkey Road (Collector to
Acceptance of the 800th single family
15
Hastings Cannon)
lot*
12
water
main
in
ultimate
easement
Key
Wastewater Facility
and size
Developer Completion Deadline
Description
North Harkey (Ravenwood
Gravity sewer main of sufficient depth and
to CR 100)
Acceptance of the first single family
size to accommodate the service in ultimate
16
30 sewer line
lot
gravity service area.
Sanitary lift station and force main of
South Harkey
Acceptance of the 500th single family
sufficient depth and size to accommodate the
17
Lift Station and Force Main
lot
service in ultimate lift station service area
35
EXHIBIT C
Roadway Improvements Map
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EXHIBIT D
Roadway Cross-section
37
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m
EXHIBIT E
Water Distribution Improvements Map
1
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39
EXHIBIT r
Wastewater Collection Improvements Map
1
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rao Fr?o
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40
EXHIBIT G
Agreed Cost Estimate for Wastewater Improvements
Oec�rrber 10, 202J
EXF9IROT �
Agreed Cost Estimate for Wastewater Improvements
357 ACRE PEARL.AND TRACI
PRELIMINARY ENGINEER'S ESTIMATE FOR THE CONSTRUCTION OF
PX01iNGr STORM SEWER, SANITARY SEWER, & WATER LINE
PER CdTY OF PEA411L AND T.LA. & UTILITY REPORT
KEY 1S
fL�ORTii
ti��RKE'r'
RD
SAtAIT�iRY
ITEt�:S
DEVELOPER
fib'_
DESCRIPT1014
11Fi'il' CUAfrrITy
UNTTPRIC
TOTA
SHAR
SHARE
1•
MlIzalon 8 site Prep 11Ecr
s.�.
1
54-34olXDO
S41UilX%W
5431, W1L10
43,a*3
2.
.ir
I.F.
613%0
5326 W
TZZ53A22,5�0
S2,OW621W
93'"a
°..
ADger Fer W1 & 39' Sa11t3ry Sewer 1_lre
LF,
933
S426.46
$385 son.w
53E5=,9v0:T0
53,D3
4,
E' Dz Ctrrosotr RestEtant %fair e
EA.
22
Va 0} D.9'
S=Dra,0:
5222,XnOZO
V3 "
°.
Farra3B d Repbce Existing AsrllV PavEnrr
Y.
11G
54o,Do
44,4010
g ,40G.[O
$04213
E
Vj'e1Sa10ConsInxAcm
LF,
S,O90
55510
S2751D311
5279"fWD20
wX41
7.
TFen;irk SAgi FWt Sa11".,, &uw?r
LF.
5,397
52 X
S 10?=34 +Q
510144 1W
S7.rt
TOTAL -WORTH HARKEY RD SANITARY ITEMS 1;3,3E:i,813.d)0 491383.B19.00
TOTAL
DEW'ELOPER
CITY
I}ESGRIPT1Ot4
UtI1T Car�Al1TITH
tLNNITPRI?e^,E
SI�`ubiE
1•
vwI1=3r., S site Prep lle+1 5
L Cam.
1
5113,00O.00
$113,1a3v`.rt,<=
5113,010.i14
S0143
1
L111=tcn: CorgiE3e In Fixe
LG.
1
$70c,Oxmi
S707,D30.IIG
S7O tW0 -rX
3,V3
3,
F Force 1a13ln
LF,
2,=D
550 ru0
SIKDXZ.W
S16CwWk.X
O'co
4,
ALger FGr E' S3r art Sewer F r e t i3ln
LF.
215
5325.00
569167, S.Ov
569,6?S.OI
SO.
O
5.
MAn
LF,
1SL'=
Si50.Eo
522,5MAX
$22,53C.Q
6.
Air Refe3ze 1.da1rOLZ
EA,
6
5.12,Ck3G.e?0
S72,T.*3Z.W
572,D §.ira
&3
a+3
7.
Brea% Milo Exislllg Malr &. valrEct V
Sa'trary Sew,, Face MAJ-21
EA.
1
vrI IE i3.D3
:1,S0100
51,501D3
SOX43
5,
17 All "header hies Ralid
C..Y.
4,270
535.to
f,149,4-5u.7i
51 x ',4EO.G4
`�1:G3
__,.
Re; aa; Existrg C=mIa Reel"d f ian1 de
Ek
1
,.1,E03.07
y1,500.D7
SUOE.1)3
&2:i:O
10,
Tre. %L matey syetern Far Force wail
LF.
21770
52.th:
S5154-:,W
SS ff4aD3
V3,D3
-SOUTH HARKEY RD SANITARY ITEMS $1,255,S3S.00 $1,235,3fi5.0{I !0.00
KEY 16 tsORTH H�RKEY RD SAFItT�iY TfEtkS
P
#3,583,6t9.00
55,383,813.00
$0.00
SfEY 17 SOklTti HARKEY RD 5�;1dlTARY ITEMS
�1,255,305,€10
51,295,965.rS0
�S'1.0$i
SUBTOTAL
$4,973,184.00
$4rS75,18 ,00
$a*00
4%CONTINGENyCIES
$233.553.20
033159,20
0600
SUBTOTAL
$4,913,148.20
$4,31Sg143.20
040
�15%ENGINEERING
S73S.571AS
3736.371AS
0*00
GRA1IDTOTAL.
$StG 1,114.08
35,59+0,114.fi8
$7.00
P 4151 011PE
F:irgm,42938izcc
x.MmmY0aks_frwlfzriS4me EdtZe
age 1 ce't
EXHIBIT H
Wastewater Service Area Map
��2
EXHIBIT I
[Intentionally Deleted]
43
EXHIBIT J
MUD Consent Conditions
CONSENT CONDITIONS
• The City of Pearland, Texas (the y"), through its City Manager, and the
developer on behalf of the District shall enter into and execute a utility services agreement in
substantially the form attached hereto as Exhibit "J-1," to specify the terms and conditions for
providing water and sewage treatment services to the District (the "Utility Agreement").
Upon the District's creation and confirmation, the District shall assume all the rights,
obligations, and interests of the developers under the Utility Agreement, as set forth therein.
• Following final approval by the City of the first preliminary plat in the District,
all meetings of the District conducted in accordance with the Texas Open Meetings Act shall be
held within the City's incorporated limits.
• The District may issue bonds, including refunding bonds, for any purposes
authorized by law, including but not limited to, purchasing, refinancing, designing and
constructing, or otherwise acquiring waterworks systems, sanitary sewer systems, storm sewer
systems, and drainage facilities, roads and recreational facilities or parts of such systems or
facilities, and to make any and all necessary purchases, constructions, improvements,
extensions, additions, and repairs thereto, and to purchase or acquire all necessary land, right-
of-way, easements, sites, equipment, buildings, plants, structures, and facilities therefore, and to
operate and maintain the same, and to sell water, sanitary sewer, and other services within the
boundaries of the District. All bonds issued by the District shall comply with the following
terms:
a) Provide that the District reserves the right to redeem said bonds on any
date subsequent to the fifteenth (15th) anniversary %J 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.
b) The District shall not fund more than 24 months capitalized interest in
a single bond issue.
c) Bond issuances shall provide for payment of no less than 40% of the
principal within the first half of the bond maturity schedule.
d) The District's initial bond debt maturity date shall not exceed 35 years.
Subsequent bond issuances that exceed the maturity date for the initial
bonds shall require City Council consent by adoption of a resolution,
which such consent shall not be unreasonably withheld, conditioned or
44
delayed.
e) No additional land may be annexed into the District unless the City
Council adopts a resolution granting its consent to the annexation.
f) Each year the District shall provide a copy of the order establishing its
ad valorem tax rate to the City Director of Finance within 30 days after
the District's adoption of the rate.
g) Each year the District shall provide a copy of its annual audit to the
City Finance Director within 30 days of the District's acceptance of
the audit.
h) The resolution authorizing the issuance of the District's bonds
shall contain a provision that the pledge of any revenues from the
operation of the District's water and sewer and/or drainage system to
the payment of the District's bonds will terminate when and if the City
annexes the District, takes over the assets of the District, and assumes
all of the obligations of the District.
• Before the commencement of any construction within the District, its directors,
officers, or developers and landowners will submit to the City, or to its designated
representative, all plans and specifications for the construction of water, sanitary sewer and
drainage facilities to serve the District and obtain the approval of such plans and specifications
therefrom. All water wells, water meters, flushing valves, valves, pipes, and appurtenances
thereto, installed or used within the District, will conform to the specifications of the City. All
water service lines and sewer service lines, lift stations, and appurtenances thereto, installed or
used within the District will comply with the City's standard plans and specifications as
amended from time to time. Prior to the construction of such facilities within or by the
District, the District or its engineer will give written notice by registered or certified mail to the
City, stating the date that such construction will be commenced. The construction of the
District's water, sanitary sewer, and drainage facilities will be in accordance with the approved
plans and specifications and with applicable standards and specifications of the City; and
during the progress of the construction and installation of such facilities, the City may make
periodic on -the -ground inspections.
45
EXHIBIT J-1
UTILITY SERVICES AGREEMENT
This UTILITY SERVICES AGREEMENT (this "Agreement"), is made and entered into
effective as of the day of , 2017, by and between the CITY OF PEARLAND,
TEXAS, a municipal corporation and home -rule city of the State of Texas (the "City"), and
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 69, a body politic and corporate
and a governmental agency of the State of Texas organized under the provisions of Article XVI,
Section 59 of the Texas Constitution (the "District").
RECITALS
The District has been created within the City's corporate limits for the purposes of, among
Aber matters, providing water distribution, wastewater collection, storm water drainage, road,
and recreational facilities (as more fully defined below, collectively, the "Facilities") to serve
development occurring within and near the District inside the City limits.
Under the authority of Texas Local Government Code Section 552.014, as amended, and
the applicable provisions of Chapters 49 and 54 of the Texas Water Code, as amended, the City
and the District may enter into an agreement under the terms of which (i) the District will acquire
for the benefit of and conveyance to the City certain Facilities needed to provide water
distribution, wastewater collection, and drainage services to the lands being developed within and
near the boundaries of the District, and (ii) in order to enhance the economic feasibility of the
District and more equitably distribute among the taxpayers of the City and the District the burden
of ad valorem taxes to be levied from time to time by the City and the District, the City will make
annual tax and monthly water and sewer revenue rebate payments to the District in consideration
of the District's financing, acquisition, and construction of the Facilities.
The City and the Developer have entered into the Development Agreement pursuant to
which the City consented to creation of the District by the Developer and the financing and
construction of the Facilities.
The City and the District have determined that they are authorized by the Constitution and
laws of the State of Texas to enter into this Agreement and have further determined that the
terms, provisions, and conditions hereof are mutually fair and advantageous to each.
AGREEMENT
Now, therefore, for and in consideration of these premises and of the mutual promises,
obligations, covenants, and benefits herein contained and hereby acknowledged, the City and the
District contract and agree as follows:
ARTICLE I
DEFINITIONS
The capitalized terms and phrases used in this Agreement shall have the meanings as
follows:
"Annual Payment" means the annual payment to be made by the City to the District, as
defined in Section 6.01 hereof.
"Annual Payment Elimination Date" means the date on which the Am1ua1 Payment is no
longer required to be paid by the City to the District, as more fully described in Section 6.01
hereof.
"Approved Plans" means plans and specifications for the Facilities approved by the City,
as more fully described in Section 2.01 hereof.
"Approving Bodies" means any or all of the following entities, as appropriate in a
particular context: the City; Brazoria County, Texas; the TCEQ; the Attorney General of Texas;
the Comptroller of Public Accounts of Texas; the United States Department of Justice; and all
other federal, state, and local governmental authorities having regulatory jurisdiction and
authority over the financing, construction, and/or operation of the Facilities, or the subject matter
of this Agreement.
"Bonds" means the District's bonds, notes, or other evidences of indebtedness issued from
time to time for the purpose of financing the costs of purchasing, constructing, acquiring,
operating, repairing, improving, or extending the Facilities, District creation and operation
expenses, site costs and right -of --way acquisition expenses, providing for interest to developers
and for any necessary capitalized interest and costs of issuance, capital recovery charges,
including payment of the Connection Charges, and for such other purposes permitted or provided
by state law, whether payable from ad valorem taxes, the proceeds of one or more future bond
issues, or otherwise, and including any bonds, notes, or similar obligations issued to refund such
bonds.
"City" means the City of Pearland, Texas, a municipal corporation and home -rule city of
the State of Texas.
"City Facilities" mean all Facilities with the exception of all recreational facilities and
those road facilities located outside the corporate limits of the City that the District intends to
convey to the City for ownership, operations and maintenance pursuant to Article IV of this
Agreement.
"Connection Charge" means the amount to be paid to the City for water and wastewater
capacity for each improvement within the District at the time of connection of the improvement
to the Facilities, as more fully described in Section 5.04 hereof.
"Consent Ordinance" means Ordinance No. _adopted by the City evidencing the City's
consent to the creation of the District in accordance with Texas Local Government Code Section
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42.042 and Texas Water Code Section 54.010, each as amended.
"Construction Costs" means costs associated with any particular Facilities 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; materials testing costs; site, easement, and permit
costs; and all other costs and expenses directly relating to the foregoing, together with an amount
for contingencies or estimated Construction Costs of not more than fifteen percent (15%) of the
foregoing, provided that no contingency amount shall be included in "Construction Costs"
regarding a particular construction project once that project is complete.
"Developer" means First Capital Partners, LLC, a Nevada limited liability company, or its
successors or assigns.
"Development Agreement" means that certain Development Agreement by and between
the City and the Developer, dated effective as of , 2017, as the same may be
amended, supplemented or otherwise modified from time to time.
"District" means Brazoria County Municipal Utility District No. 69, a body politic and
corporate and a governmental agency of the State of Texas organized under the provisions of
Article XVI, Section 59 of the Texas Constitution.
"District Assets" means, without limitation, (i) all rights, title, and interests of the District
in and to all and any portion of the Facilities, (ii) any Bonds of the District which are authorized
but have not been issued by the District, (iii) all rights and powers of the District under any
agreements or commitments with any persons or entities pertaining to the financing, construction,
or operation of all or any portion of the Facilities and/or the operations of the District, (iv) all
cash and investments, and amounts owed to the District, and (v) all books, records, files,
documents, permits, funds, and other materials or property of the District.
"District Engineer" means R.G. Miller Engineers, Inc. or such other engineering firm as
the District may, in its sole discretion, engage from time to time.
"District Obligations" means, without limitation, (i) all outstanding Bonds of the District,
(ii) all other debts, liabilities, and obligations of the District to or for the benefit of any persons or
entities relating to the financing, construction, or operation of all or any portion of the Facilities
or the operations of the District, and (iii) all functions performed and services rendered by the
District for and to the owners of property within the District and the utility service customers of
the City who receive services provided from the Facilities.
"Engineering Reports" means and refers to any engineering reports prepared by the
District Engineer fi•om time to time relating to the issuance of Bonds by the District, copies of
which shall be on file in the offices of the District.
"Facilities" means and includes the water distribution, wastewater collection, storm water
collection, pollution prevention, detention and drainage systems, road facilities, and recreational
facilities financed, constructed, purchased, or otherwise acquired or to be financed, constructed,
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purchased, or otherwise acquired by the District to serve lands within and near its boundaries, and
all improvements, appurtenances, additions, extensions, enlargements, or betterments thereto,
including any pro rata interest or share in such facilities, together with all contract rights, permits,
licenses, properties, rights -of --way, easements, sites, and other interests related thereto, all as may
be more fully described in the Engineering Reports.
"hlitial Reduction Tax Rate" means the District's debt service tax rate in effect as of the
Reduction Date, as more fully described in Section 6.01 hereof.
"Monthly Revenue Payments" means the monthly payments to be made by the City to the
District, as more fully described in Section 6.04 hereof.
"Oversized Facilities" means water, sewer, and/or drainage facilities sized to serve areas
outside the District or constructed to serve areas outside the District, as more fully described in
Section 2.04.
"Payment Date" means the date each year when the Annual Payments are due, as more
fully described in Section 6.02 hereof.
"Reduction Date" means the date on which certain conditions are met to begin reducing
the amount of the Annual Payment due from the City to the District, as more fully described in
Section 6.01 hereof.
"TCEQ" means the Texas Commission on Environmental Quality, or any successor or
successors exercising any of its duties and functions related to water conservation and
reclamation districts.
"Utility Development Agreements" means the District's agreements, if any, as more fully
described in Section 3.04 hereof.
ARTICLE II
DESIGN AND CONSTRUCTION OF THE FACILITIES
2.01. Design. The Facilities shall be designed by the District Engineer in accordance
with sound engineering principles and in compliance with all applicable requirements of the
Approving Bodies. The plans and specifications for the Facilities shall be subject to review and
approval by the City, the District, and the Approving Bodies with jurisdiction (such plans and
specifications approved by the City shall be referred to in this Agreement as the "Approved
Plans"). The District shall not make any changes to the Approved Plans without the written
approval of the City which such written approval shall not be unreasonably withheld,
conditioned, or delayed. The City shall not require that the Facilities be designed to requirements
more stringent than the City's requirements applicable to the design of similar facilities outside
the District but within the City's jurisdiction. The District shall design the Facilities in such
phases or stages as the District from time to time, in its sole discretion, may determine to be
necessary and economically feasible.
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2.02. Construction. When the District determines, in its sole discretion, that it is
necessary and economically feasible to construct the Facilities, the District shall proceed to award
construction contracts for the Facilities based upon the Approved Plans. The Facilities shall be
installed, construction contracts shall be awarded, and payment and performance bonds obtained
all in accordance with the general law for municipal utility districts and in full compliance with
the applicable requirements of the Approving Bodies. The District shall construct the Facilities in
such phases or stages as the District, in its sole discretion, may determine to be necessary and
economically feasible. Any construction contract for the Facilities shall include the contractor's
one (1) year warranty of work performed under the contract. Subject to the terms and conditions
of the Development Agreement, the District shall submit all change orders to the City for its
records. The District shall file all required documents with the TCEQ.
2.03. Acceptance of Facilities. Upon completion of the Facilities, the District shall
order the District's Engineer to certify that the Facilities have been completed in substantial
compliance with the Approved Plans; the District shall certify that all bills and sums of money
due in connection with the construction and installation of the Facilities have been fully paid and
that the Facilities are free of any and all liens and claims, all according to the certification of the
construction contractor. The District shall require the District's Engineer to provide three (3)
copies of construction drawings of the Facilities to the District. The District shall accept the
construction of the Facilities in writing from the construction contractor. The District shall then
convey the City Facilities to the City in accordance with the City's procedure for acceptance of
such facilities in areas outside the District and within the City, and in accordance with the
provisions of Article IV below.
2.04. Oversized Facilities. In conjunction with the design and construction of the
Facilities, as described in this Article II, and pursuant to and in furtherance of the terms and
conditions of the Development Agreement, the City has determined that certain Facilities should
be sized to serve areas outside the District, as well as areas within the District (such Facilities
sized or constructed to serve areas outside the District shall be referred to in this Agreement as
the "Oversized Facilities"). The District hereby agrees that, in conjunction with the design and
construction of the Facilities, the District shall cooperate with the City and the Developer to
include the Oversized Facilities in such design and construction as required by the Development
Agreement. The City shall fund its share of the Construction Costs of the Oversized Facilities in
accordance with the Development Agreement and with TCEQ rules and regulations.
ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. The District shall have authority to issue,
sell, and deliver Bonds from time to time, as deemed. necessary and appropriate by the Board of
Directors of the District, for the purposes, in such forms and manner, and as permitted or
provided by federal law, the general laws of the State of Texas, and the Consent Ordinance. With
respect to Bonds which require TCEQ approval prior to issuance of same, the District shall not be
authorized to sell such Bonds until it has provided the City with an executed copy of the TCEQ
order approving such Bond issue in which the TCEQ concludes that a District debt service tax
rate of $1.50 or less per $100 of assessed valuation is feasible in accordance with the TCEQ's
rules in effect at the time of such determination. Nothing herein shall be construed as a limitation
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on the District's authority to levy an unlimited tax, it being understood and aclulowledged that the
District's bonds shall be payable from and secured by a pledge of the proceeds of an ad valorem
tax, without legal limitation as to rate or amount. Further, the foregoing shall not be construed as
a limitation on the District's authority to issue other forms of Bonds as allowed by applicable law
and the rules of the TCEQ. The District shall provide the City with copies of the Official
Statement and the District's order authorizing the issuance of the Bonds for each issue prior to the
delivery of the Bonds to the initial purchaser.
3.02. Distribution of Bond Proceeds. The proceeds of Bonds issued by the District shall
be deposited, upon receipt, into the District's funds, as appropriate, and shall be used and may be
invested or reinvested, from time to time, as provided in the order or orders of the District
authorizing the issuance, sale, and delivery of such Bonds and the investment policy of the
District, all in accordance with the federal, state, and local laws and regulations governing the
proceeds of the District's sale of its Bonds. Pursuant to the requirements of the applicable
Approving Bodies and as permitted by federal law and the laws of the State of Texas, surplus
funds on hand and available from the proceeds of the Bonds may be utilized by the District for
any legally authorized purpose.
3.03. Bonds as Obligation of District. Unless and until the City shall dissolve the
District and assume the District Assets and District Obligations, the Bonds of the District, as to
both principal and interest, shall be and remain obligations solely of the District and shall never
be deemed or construed to be obligations or indebtedness of the City; provided, however, that
nothing herein shall limit or restrict the District's ability to pledge or assign all or any portion of
the Annual Payments or Monthly Revenue Payments, to be made by the City to the District as
provided in this Agreement, to the payment of the principal of, the redemption premium, if any,
or interest on the Bonds or other District Obligations relating to the financing, acquisition, or use
of the Facilities.
3.04. Financing by Third Parties. From time to time, the District may enter into one or
more agreements (the "Utility Development Agreements") with the Developer, landowners or
other developers of property located within or in the vicinity of the District whereby the
Developer or such landowners or other developers will undertake, on behalf of the District, to
finance and construct, in one or more phases, all or any portion of the Facilities. Under the terms
of each Utility Development Agreement, the Developer, landowners or other developers will be
obligated to finance and construct the Facilities in the manner which would be required by law if
such work were being performed by the District. Each Utility Development Agreement will
provide for the purchase of the Facilities from the landowners or developers using the proceeds of
one or more issues of Bonds, as otherwise permitted by law and the applicable rules, regulations
and guidelines of the applicable Approving Bodies. The construction of any Facilities financed
under the terms of a Utility Development Agreement shall be subject to all the terms and
conditions of this Agreement.
ARTICLE IV
OWNERSHIP, OPERATION, AND MAINTENANCE OF FACILITIES
4.01. Conveyance of City Facilities. As the City Facilities are constructed and accepted
in accordance with Article II and the City Facilities are conveyed to the City, a security interest in
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the City Facilities conveyed to the City shall be reserved for the purpose of securing the
performance of the City under this Agreement. At such time as the Bonds issued to acquire and
construct the City Facilities conveyed to the City have been discharged, the District shall execute
a release of such security interest, and the City shall own such City Facilities free and clear of
such security interest. For any City Facilities conveyed to the City under this Article IV, the
construction contractor's two (2) year warranty of its work shall be assigned to the City, as
required under Section 2.02 above.
4.02. City Acceptance. As the City Facilities are constructed and completed,
representatives of the City shall inspect the same and, if the City finds that such City Facilities
have been completed in substantial compliance with the Approved Plans, the City will accept the
conveyance of such City Facilities, and the City Facilities so conveyed shall be operated,
maintained, and repaired by the City at its sole expense as provided in this Agreement. The City's
acceptance of ownership of the City Facilities under this Section 4.02 shall be in accordance with
the City's procedure for acceptance of such facilities in areas outside the District and within the
City. If the City Facilities have not been completed in substantial compliance with the Approved
Plans, the City will immediately advise in what manner the City Facilities do not comply so that
the problems may immediately be corrected; whereupon the City shall again inspect such City
Facilities and accept the same if the non -complying items have been corrected. In conjunction
with the City's acceptance of any City Facilities, the City shall be provided with one (1) set of the
construction drawings for such City Facilities,
4.03. Operation of the City Facilities by the City. Upon the acceptance of the City
Facilities by the City and for the remainder of the term of this Agreement thereafter, the City will
operate the City Facilities and provide access to and services from same to all users within the
District without discrimination. The City shall at all times maintain the City Facilities, or cause
the same to be maintained, in good condition and working order and will operate the same, or
cause the same to be operated, in an efficient and economical manner at a reasonable cost and in
accordance with sound business principles, and the City will comply with all the terms and
conditions of this Agreement and with all applicable federal, state, and local laws and regulations.
(a) The City shall provide competent, trained personnel, licensed or certified
as necessary by the appropriate regulatory authority, to operate, inspect, maintain, and repair the
City Facilities. The City shall inventory and maintain a listing of all of the equipment comprising
the City Facilities as required to provide relevant information for the scheduled maintenance and
repair or replacement of the equipment comprising such City Facilities. The City shall implement
a scheduled maintenance program for the City Facilities and shall ensure that such City Facilities
are maintained in the same fashion and with the same frequency as similar facilities owned and
operated by the City to serve areas outside the District.
(b) The City shall maintain all customer information and records necessary to
provide monthly billings to customers served by the City Facilities. The City shall coordinate
with the District's consultants, such as attorneys, engineers, auditors, tax assessors, and financial
advisors as necessary to maintain efficient operation of the City Facilities. The City shall
promptly respond to inquiries or correspondence from governmental or regulatory authorities and
the District's directors, customers, or consultants.
(c) The City shall provide a monthly written report to the District indicating
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the total number of service connections within the District. Upon request by the District, the City
shall provide a City representative to attend a District meeting to discuss any operating and
maintenance information regarding the City Facilities,
4.04. Rates and Conditions of Service. The connection of improvements to the City
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 City Facilities; provided, however, in addition to the rates and
charges imposed by the City on its water and wastewater customers outside the District, the City
shall impose on and collect from each customer of the City Facilities within the District a
monthly surcharge of five dollars ($5.00) per equivalent single family residential connection. The
equivalent number of single family residences attributable to any particular connection shall be
computed in accordance with the service unit factors set forth in Exhibit "A" as such factors may
be amended from time to time by the City in its sole discretion, provided that the City shall
always apply the same service unit factors within the District as it applies to other areas within
the City. The City shall bill and collect charges from the customers of the City Facilities,
calculated in accordance with this Section 4.04, in the same manner and under the same
procedures as it bills and collects from other City customers who are not served by the City
Facilities.
4.05. Repair of the City Facilities. After its acceptance of the City Facilities, the City
shall provide all personnel and equipment necessary to perform repairs on, and shall bear sole
cost responsibility for repair of, those City Facilities, including, but not limited to, service line
leaks, leaks at water meters, water main breaks, repairs to valves and fire hydrants, manhole
repairs, and sewer line repair and cleaning, as needed. The City shall not, however, bear cost or
responsibility for initial repair of any equipment or facilities identified by the City as in need of
correction prior to the City's acceptance of the City Facilities under Section 4.02 above. The cost
of all materials and supplies used to operate, maintain, and repair the City Facilities shall be
borne solely by the City.
ARTICLE V
CITY PLANT CAPACITY AND FINANCING
5.01. Water Su�p1y and Distribution Facilities. The City shall provide the District with
its ultimate requirements for water supply and distribution capacities. The number and location of
the points of connection between the City's water distribution system and the City Facilities shall
be mutually agreed upon by the District and the City. The City acknowledges its obligation to
provide water supply and distribution capacities for the actual requirements of the development
within the District's boundaries. Any water supply and distribution capacities so required by the
District shall be reserved and allocated by the City exclusively to serve the property within the
District and the City shall not use such capacities to serve any other property. The City shall at all
times manage the capacities in its water supply and distribution facilities so that capacity to fully
serve development within the District is available at the time any new improvements are to be
connected to the City Facilities. The City's obligation shall specifically include the obligation to
expand, enlarge, and modify its water supply and distribution facilities, at its sole cost and
53
expense, and to secure all necessary approvals of the Approving Bodies as necessary to have
capacity available to serve new improvements within the District, at its sole cost and expense. To
enable the City to effectively manage its water system capacities in compliance with the City's
obligation under this Section 5.01, the District shall provide to the City, by December 31 of each
year during the term of this Agreement, a written projection of the new improvements within the
District expected to be connected to the City Facilities within the coming year, and such other
related information as the City may reasonably require.
5.02. Wastewater Collection and Treatment Facilities. The City shall provide the
District with its ultimate requirements for wastewater collection and treatment capacities. The
number and location of the points of connection between the City's wastewater collection system
and the City Facilities shall be mutually agreed upon by the District and the City. The City
acknowledges its obligation to provide wastewater collection and treatment capacities for the
actual requirements of the development within the District's boundaries. Any wastewater
collection and treatment capacities so required by the District shall be reserved and allocated by
the City exclusively to serve the property within the District and the City shall not use such
capacities to serve any other property. The City shall at all times manage the capacities in its
wastewater collection and treatment facilities so that capacity to fully serve development within
the District is available at the time any new improvements are to be connected to the City
Facilities. The City's obligation shall specifically include the obligation to expand, enlarge, and
modify its wastewater collection and treatment facilities, at its sole cost and expense, and to
secure all necessary approvals of the Approving Bodies as necessary to have capacity available to
serve new improvements within the District, at its sole cost and expense. To enable the City to
effectively manage its wastewater system capacities in compliance with the City's obligation
under this Section 5.02, the District shall provide the City by December 31 of each year during
the term of this Agreement, a written projection of the new improvements within the District
expected to be connected to the City Facilities within the coming year, and such other related
information as the City may reasonably require.
5.03. Letter of Capacity Assurance; Assi ng ability. The City agrees that the City shall,
upon reasonable request, issue a letter of assurance to purchasers or prospective purchasers of
property within the District confirming water and wastewater capacity for such property, based
upon the standard City criteria published by the City regarding the calculation of water and
wastewater requirements for various types of improvements.
5.04. Financing City Water and Wastewater Capacities. In consideration of the City's
provision of water supply and distribution capacity and wastewater collection and treatment
capacity, the District agrees to pay or cause to be paid to the City the then effective impact or
capital recovery fee per equivalent single-family residential connection to the Facilities (the
"Connection Charge"). Equivalent single-family residential connections shall be computed in
accordance with the service unit factors as set forth in Exhibit "A", as such factors may be
amended from time to time by the City in its sole discretion, provided that the City shall always
apply the same service unit factors within the District as it applies to other areas within the City.
The Connection Charge shall be paid to the City by or on behalf of the District before the
connection of each particular improvement to the City Facilities at the same time and manner as
such fees are paid for improvements in other areas of the City outside the District. The City shall
not allow connection of any improvement to the City Facilities for which the appropriate
Connection Charge has not been paid. The City may amend the Connection Charge from time to
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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 comlection
to the City Facilities will be subject to the fees, charges, and costs routinely collected by the City
in regards to any new connection to the City's utilities whether inside or outside the District.
ARTICLE VI
ANNUAL PAYMENTS, MONTHLY REVENUE
PAYMENTS AND DISTRICT TAXES
6.01. Calculation of Annual Payment.
(a) In consideration of the development of the land within the District and the
related increase in the taxable value of such land to the City through the acquisition of and
construction of the Facilities by the District and in order to enhance the economic feasibility of
the District and more equitably distribute among the taxpayers of the City and the District the
burden of ad valorem taxes to be levied from time to time by the City and the District, the City
agrees to collect and pay to the District a portion of the ad valorem taxes collected by the City in
future years on the land and improvements within the District (the "Annual Payment"). The
Annual Payment shall be a payment of a portion of the City's tax revenues actually collected and
received by the City, exclusive of any interest and penalties paid by the taxpayer to the City and
exclusive of any collection costs incurred by the City. Before the District has issued Bonds, all
Annual Payments received by the District from the City shall be deposited by the District into the
general operating fund of the District and may be used for any lawful purpose. Once the District
has issued Bonds, all Annual Payments received by the District from the City shall be deposited
by the District into a debt service fund of the District and shall 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 $0.10 per $100 of assessed
valuation on all taxable property within the District.
(c) The Annual Payment shall be incrementally reduced in accordance with
subsection (e) below upon the occurrence of the following:
(i) All developers within the District have been fully reimbursed, with
interest, in accordance with the rules of the TCEQ and any Utility
Development Agreements;
(ii) The District has completely financed and constructed all of the Facilities;
and
(iii)The District levies a debt service tax at a rate that is $0.80 per $100 of
assessed valuation or lower.
(d) The date on which all the conditions of subsection (c) above have been met
shall be referred to in this Agreement as the "Reduction Date." The District's debt service tax rate
in effect as of the Reduction Date shall be referred to in this Agreement as the "Initial Reduction
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Tax Rate."
(e) After the Reduction Date, the Annual Payment shall be reduced by an
amount equal to any decrease in the District's debt service tax rate. The Annual Payment will be
recalculated annually, and will continue to be reduced to the extent that the District's debt service
tax rate is decreased until the District has reduced its debt service tax rate to a rate that is $0.10
per $100 of assessed valuation lower than the Initial Reduction Tax Rate (the date on which this
occurs shall be referred to in this Agreement as the "Annual Payment Elimination Date"),
(f) Once the Annual Payment is reduced, it shall not thereafter be increased.
(g) After the Annual Payment Elimination Date, the City is permanently
relieved of any obligation to make further Annual Payments. However, the foregoing shall not be
construed to eliminate the City's obligation to pay the District any Annual Payments considered
due or delinquent as of the Annual Payment Elimination Date. Any increase in the District's debt
service tax rate subsequent to the Annual Payment Elimination Date shall not obligate the City to
again make Annual Payments.
6.02. Payment of Annual Payment. The Annual Payment shall begin on May 1 in the
calendar year following the calendar year for which the District initially receives a tax roll from
the appropriate county Appraisal District and shall be payable each May 1 thereafter (the
"Payment Date"), with each such Annual Payment being applicable to the calendar year
preceding the calendar year of each such May 1 (e.g., if the District receives a tax roll for the
calendar year 2018, the Annual Payment for such year will be due May 1, 2019). Each Annual
Payment that is not paid on or before the Payment Date shall be delinquent and shall incur
interest at the rate of one percent (1%) of the amount of the Annual Payment per month, for each
month or portion thereof during which the Annual Payment remains unpaid. On September 1 of
each calendar year, the City shall cause to be paid to the District those portions of the Annual
Payment which reflect collections made by the City subsequent to the Payment Date. The
obligation of the City to make Annual Payments to the District shall terminate upon the
termination of this Agreement in accordance with Section 9.14 below.
6.03. Supplemental Tax Rolls; Correction Tax Rolls; Adjustment to Annual
Payment. The parties recognize and acknowledge that, from time to time, the Brazoria 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 Pa,, rests. 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 Verifyin� Calculation of Annual and Monthly Revenue
Pants. The City shall maintain proper books, records, and accounts and shall provide the
District with an accounting together with each Annual and/or Monthly Revenue Payment. The
City shall afford the District or its designated representatives reasonable access to its books,
records, and accounts for purposes of verifying the amounts of each Amlual Payment and/or
Monthly Revenue Payment or recalculated Annual Payment and/or Monthly Revenue Payment
which is or becomes due and payable by the City hereunder. The District shall maintain proper
books, records, and accounts of all Bonds issued by the District and the District's debt service
requirements and shall afford the City or its designated representatives reasonable access thereto
for purposes of verifying the amounts of Annual and/or Monthly Revenue Payments.
6.06. District Taxes. The District is authorized to assess, levy, and collect ad valorem
taxes upon all taxable properties within the District to provide for (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 administration, operation, and maintenance purposes, all in accordance with applicable
law. The parties agree that nothing herein shall be deemed or construed to prohibit, limit, restrict,
or otherwise inhibit the District's authority to levy ad valorem taxes as the Board of Directors of
the District from time to time, in its sole discretion, may determine to be necessary or the
District's use of its tax revenues for any authorized purpose in accordance with applicable law.
The City and the District recognize and agree that all ad valorem tax receipts and revenues
collected by the District, together with all Annual Payments and Monthly Revenue Payments
shall become the property of the District and may be applied by the District to the payment of all
proper debts, obligations, costs, and expenses of the District and may be pledged or assigned to
57
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.
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 acquire the District Assets and assume the District
Obligations upon a vote of not less than two-thirds (2/3) of the entire membership of the City
Council to adopt an ordinance to such effect, if the City Council finds: (a) that the District is no
longer needed, (b) that the services and functions performed by the District can be served and
performed by the City, and (c) that it would be in the best interests of the citizens and property
within the District and the City that the District be abolished. In order to ensure that the property
owners and inhabitants of the City and the District are afforded sufficient time and opportunity to
realize the benefits and public utility to be derived from the creation and operation of the District
and the financing, construction and implementation of the plan of improvements for the District,
and in order to contribute to the financial stability and feasibility of the District by ensuring a
sufficient longevity of the District's existence to permit the District to reach a satisfactory level of
financial maturity, the City agrees that the District shall not be abolished until such time as the
District is fully developed and has sold all Bonds necessary to finance the costs of the Facilities
and has reimbursed developers and landowners within the District to the maximum extent
permitted by the rules of the TCEQ and in accordance with the Utility Development Agreements
entered into by the District.
7.02. Transition upon Dissolution. In the event all required findings and procedures for
the dissolution of the District have been duly, properly, and finally made and satisfied by the
City, and unless otherwise mutually agreed by the City and the District pursuant to then existing
law, the District agrees that its officers, agents, and representatives shall be directed to cooperate
with the City in any and all respects reasonably necessary to facilitate the dissolution of the
District and the transfer of the District Assets to and the assumption of the District Obligations by
the City.
ARTICLE VIII
REMEDIES IN EVENT OF DEFAULT
The parties hereto expressly recognize and acknowledge that a breach of this Agreement
by either party may cause damage to the non -breaching party for which there will not be an
adequate remedy at law. Accordingly, in addition to all the rights and remedies provided by the
laws of the State of Texas, in the event of a breach hereof by either party, the other party shall be
entitled but not limited to the equitable remedy of specific performance or a writ of mandamus to
compel any necessary action by the breaching party.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01. Permits, Fees, Inspections. The District understands and agrees that all City
ordinances and codes, including applicable permits, fees, and inspections, shall be of full force
and effect within its boundaries the same as to other areas within the City's corporate limits,
except to the extent inconsistent with the terms of this Agreement.
9.02. Force Majeure. In the event either party is rendered unable, wholly or in part, by
Force majeure to carry out any of its obligations under this Agreement, except the obligation to
pay amounts owed or required to be paid pursuant to the 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 other than a party to this Agreement, insurrections, riots,
epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, drought,
arrests, restraint of government, civil disturbances, explosions, breakage or accidents to
machinery, pipelines or canals, partial or entire failure of water supply resulting in an inability to
provide water necessary for operation of the water and wastewater systems hereunder, and any
other inabilities of any party, whether similar to those enumerated or otherwise, which are not
within the control of the party claiming such inability, which such party could not have avoided
by the exercise of due diligence and care.
9.03. Approvals and Consents. Approvals or consents required or permitted to be given
under this Agreement shall be evidenced by an ordinance, resolution or order adopted by the
governing body of the appropriate party or by a certificate executed by a person, firm or entity
previously authorized to give such approval or consent on behalf of the party. Approvals and
consents shall be effective without regard to whether given before or after the time required for
giving such approvals or consents.
9.04. Address and Notice. The parties contemplate that they will engage in informal
communications with respect to the subject matter of this Agreement. However, any formal
notice to be given under this Agreement shall be given in writing, addressed to the party to be
notified as set forth below, and may be given either by depositing the notice in the United States
mail postage prepaid, registered or certified mail, with return receipt requested; by messenger
delivery; or by telefacsimile. Notice deposited by mail shall be effective three (3) days after
posting. Notice given in any other manner shall be effective upon receipt by the party to be
59
notified. For purposes of notice, the addresses of the parties shall be as follows:
If to the City, to:
City of Pearland
Attn: City Manager
3519 Liberty Dr.
Pearland, Texas 77581
Telefacsimile No. 341/485-7992
If to the District, to:
Brazoria County Municipal Utility District No. 69
c/o Schwartz, Page & Harding, L.L.P.
1300 Post Oak Boulevard, Suite 1400
Houston, Texas 77056
Attn: Board of Directors
Telefacsimile No. 713-623-6143
The parties shall have the right from time to time to change their respective addressees by giving
at least fifteen (15) days' written notice of such change to the other party.
9.05. Assi ng_ability. 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. Mer er. This Agreement embodies the entire understanding between the parties
and there are no representations, warranties, or agreements between the parties covering the
subject matter of this Agreement other than the Consent Ordinance between the City and the
District. If any provisions of the Consent Ordinance appear to be inconsistent or in conflict with
the provisions of this Agreement, then the provisions contained in this Agreement shall be
interpreted in a way which is consistent with the Consent Ordinance,
9.10. Modification; Exhibit. This Agreement shall be subject to change or modification
only with the mutual written consent of the City and the District. The exhibit attached to this
Agreement is incorporated by this reference for all purposes.
9.12. Further Documents. The parties agree that at any time after execution of this
Agreement, they will, upon request of another party, execute and deliver such further documents
60
and do such further acts and things as the other party may reasonably request in order to
effectuate the terms of this Agreement.
Captions. The captions of each section of this Agreement are inserted solely for
convenience and shall never be given effect in construing the duties, obligations or liabilities of
the parties hereto or any provisions hereof, or in ascertaining the intent of either party, with
respect to the provisions hereof.
9.14. Interpretations. This Agreement and the terms and provisions hereof shall be
liberally construed to effectuate the purposes set forth herein and to sustain the validity of this
Agreement.
9.15. Severability. If any provision of this Agreement or the application thereof to any
person or circumstances is ever judicially declared invalid, such provision shall be deemed
severed from this Agreement and the remaining portions of this Agreement shall remain in effect.
9.16. Term and Effect. This Agreement shall remain in effect until the earlier to occur
of (i) the dissolution of the District by the City and the assumption by the City of the District
Obligations and the acquisition by the City of the District Assets or (ii) the expiration of forty
(40) years from the date hereof.
9.17. Authority for Execution. The city hereby certifies, represents, and warrants that
the execution of this Agreement is duly authorized and adopted in conformity with the general
laws of the State of Texas applicable to the City, the City charter, and any applicable City
ordinances. The District hereby certifies, represents, and warrants that the execution of this
Agreement is duly authorized and adopted in conformity with the general laws of the State of
Texas applicable to municipal utility districts and any applicable orders, resolutions, or policies of
the District.
9.20. Counterparts. This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original and all of which together shall constitute but one and
the same instrument.
[EXECUTION PAGES FOLLOW]
61
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of equal dignity, as of the date first given above.
ATTEST:
By:
(SEAL)
By:
City Secretary
City Manager
THE CITY OF PEARLAND, TEXAS
By:
Mayor
APPROVED AS TO FORM:
By:
62
City Attorney
BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 69
Pre3idell t, Board of Directors
63
Secretary, Board ki Directors
(SEAL)
Exhibit A
to Utility Services Agreement
City of hearla►td Service Unit hactors
No.
Development Type
UnItolMeasuro
S,U,E,
Remarks
1
113kery
Square Fool
0.0007DO
2
DarberShop
Chair
0,470000
3
Bea ut Saton
Bowl
O,470000
4
Govillng Alley
Lane
0,6350D0
Does not
Include
restaurant
5
Car Re alr
Square Foot
0.000160
i Does not Include
canvash
6
Canvas h, Tunnel Sell ServIca
lane
6,350000
7
Canvash,Wand
TypeSell
Service
Bay
1.220000
8
Convash
Tunnel With Attendants
Lane
31,430000
Does not Includereclamallon
9
Church Administrallon
Occupant
0,047000
Occupancy toads establlshedb
die adopted
bulldla
codes
10
Climb,Audltodurn
Seat
0,003200
11
Church,
Classroom
Seat
0.004700
12
Club avern/tounge
Seat
0.03100D
13
Convenlence
Store
square
root
0,000220
14
Count Club
Occupant
0.39000D
Occupancy Loads establlshedu liteadopted bulldln codes
15
Day Care Center
Occupant
0.031700
Occupancy Loads establlshedb
the adopted bulldln codes
16
Dormitory
Bed
0.2860D0
17
MIZO
Rana
Tea
0,210000
18
FlroMallon
Employee
0/786000
19
Funerolllome
Embalming
Station
2.140000
20
Gas Stalion,5alf-SerAe
Island
01800000
Island isdollnedasl um In station • Does not Include convash
21
Gas Station
Full•Sarvlce
Island
0.86D000
Island Isdellnedasl
pumping
stallon-DoesnotIncludecanvash
22
Grocery5tore
S uareFoot
0.000260
Dom not Includermlauranl
23
Health Club
Occupant
0.016000
Occupancy toads establlshedb Vie adopted buildingcadas
24
Health Club w/Whir oof orSwImmInS Pool
Occupant
0,032000
OccupaM Loads established b the adopted bulldln codes
25
Hos
Ital
Bed
0,635000
Patient Core Area- Does not Include
deli
naledoffceareas
26
Hotel Molal
Room
0,251000
Does not Include restaurant
27
Hotal hlalelwithKitchenaltes
Room
OA30000
28
Ice Cream Padorwllh
Seating
Seat
04047000
29
Ind00fEnteitalnmentAminement
w/o
Restaurant
Occupant
0,031000
Occupancy Loads establlshed bythe adopted bulldln codes
30
Industrial
Laundry
50IN
0.950000
31
Manufacturin
• S 0arereot
0.000160
Avara e: Each development
mustbelndivldualh
evaluated
32
flursIng
Home
Bed
0.286000
33
OfRKBulldln
`= -Square Foot
0,000335
94
Pholo Store, 1,HoutPiocestino
Store
4,000000
35
PostOfflce* ExcludIng Dock
SquireFoot
0.000254
36
Re uelbaltClub
Court
0.510000
37
RecrestianalVehlclePark
Space
0.238100
38
Resldent Apartment
Dwellln Unit
0,700000
Basic Service Unit
39
Resldent Condominlum
Owa1An Unit
1.000D00
40
Resident, Duplex
OvlellIngUnit
1.000000
41
Resident, Mobile
Home
OwellIngUnit
0,700000
42
Resldent, Single Famlly
thyelt'n8 Unit
1.000D00
43
Resldent
Town House
DwellIng Unit
11000000
44
Restaurant, Full•Servlce
General
Seat
0,110000
45
Restaurant Fast Food Win SeallngSeat
0,047000
46
neslaurnnt,rest Food v,4lhoulSealing
Square
Foot
0/002300
47
Aeslau
rant, De[fat vAthsealln •
Seat
001100DO
'Non,dis ossb►eDlnnervrareandFlatware
48
Restaurant Buffet WthSeotin'•
Seat
0,070500
'Dis posibleDinnenvareandflehvare
49
newlistoro
Square
Foot
04000223
50
School
Ill h
Seat
01047600
Does not
Include resident dormitory
51
School Other
Seat
0,031700
Does not lncluderesldentdormitory
52
SkalingAM
Occupant
U16000
Occupancy Loads atabllshedb the adopted bulldlng codes
53
SwImmIng
Pool
Occupant
O10HODO
Occupancy Loads established b ilia adopted bulldln
codas
54
Sladluns
Sent
OW010000
55
Tlscave Ortvadn
space
0.016000
56
Theatre, Indoor
Seat
10DIG000
57
Tollet
non•s eciRc
Tollet
0,2540D0
58
Trans orlallonTerminalvrllhout0eslnurant
Passenger
0,016000
59
Warehouse
5 uareFoot
0.000100
Co
washaterla
Machlno
1.580000
65
EXHIBIT TC
Approved Cost Estimate for Required Easements
Ssgmout
Extont
Slde
Parcels
Total
Assumed
P
Ac
Total Cost
(Acros)
(Acres)
ValuolBF
Cosrty
Cost
costslon
coals
FM 112a
Bailey • Massey
Ranch
East
17
2.20
$ 6.00
$ 4701100
$ 564,160
85 3000
Massey Ranch
FM1128-Properly
North
8
3.62
$ 3,00
$ 472*600
40000
$ 612,500
Bailey - Massey
Hefty North
Ranch
West
21
3.91
3.00
510,950
106 000
016 969
BaBey- Massey
Veterans
Ranch
East
23
4.00
3 6.00
071,200
116
000
986 200
Masse Ranch
Veterans - Harkey
South
7
7.33
1.00
W9 29b
36,000
$ 354 205
Massey Ranch w
Harkey South
Pro art
East
4
3.94
1.00
171620
$ 20 000
$ 191,026
Totals 80 ' 26.00 S 2 824 740 $ 400 000 $ 3 224 740
Assume
Acqursition
Coate . S 6 000 per parcel
66
EXHIBIT L
SUBDIVISION IMPROVEMENT AGREEMENT
This Agreement is entered into this day of by
and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and
(hereinafter "Developer").
WHEREAS, Developer has filed for approval by City a final subdivision plat for
(hereinafter the "Project"); and
WHEREAS, City's Unified Development Code (UDC) mandates completion of all public
improvements required to serve the subdivision prior to approval of the final plat for said
subdivision; and
WHEREAS, approval of the final plat for Project requires the completion of the
following public improvements (hereinafter the "Improvements"), which have been
constructed:
and
WHEREAS, Sections 3.1.8.3 and 3.1.8.4 provide a procedure whereby Developer may
postpone completion of the required public improvements until after final plat approval
upon execution of a subdivision improvement agreement and posting of adequate
security; and
WHEREAS, City and Developer desire an agreement to set forth their respective
responsibilities with regard to the Project.
WITNESSETH:
NOW THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Developer shall complete construction of the Improvements by 20 ,
which date shall not be later than twenty-four (24) months after recordation of
the final subdivision plat for the Project.
2. Developer shall require a performance bond from the contractor that Developer
retains to construct the Improvements sufficient to cover the cost of the
Improvements, and said bond shall name City as a co -obligee.
67
3. Developer shall warrant the Improvements for a period of two (2) years
following their acceptance by City, and shall provide City a maintenance bond in
an amount equal to one hundred percent (100%) of the costs of the
Improvements to cover any warranty repairs needed to the Improvements
during the warranty period.
4. Pursuant to Section 3.1.8.4 of the UDC, Developer posts security for completion
of the Improvements by the instrument attached hereto as Exhibit A. This
security shall be in an amount equal to one hundred twenty-five percent (125%)
of the cost of the Improvements. City shall be entitled to cash, call, or otherwise
redeem said security and take possession of the funds upon presentation to the
surety or financial institution that issued the security or upon which it is drawn,
of a sworn affidavit from the City Engineer or his designee setting forth the
manner in which Developer has failed to comply with (1), (2), or (3) above.
5. City agrees to accept for filing and presentation to City's Planning and
Zoning Commission for final approval Developer's final subdivision plat of the
Project.
6. This Agreement may only be amended, modified, or supplemented by
written agreement and signed by both parties.
7. No assignment by a party hereto of any rights under or interests in this
agreement will be binding on another party hereto without the written
consent of the party sought to be bound; and specifically but without limitation
moneys that may become due and moneys that are due may not be assigned
without such consent (except to the extent that the effect of this restriction may
be limited by law), and unless specifically stated to the contrary in any written
consent to an assignment no assignment will release or discharge the assignor
from any duty or responsibility under this Agreement.
8. Nothing herein is intended to supersede or waive any City ordinance or
regulation pertaining to such construction.
9. Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is prohibitive or invalid under applicable law, such
provision shall be ineffective to the extent of such provision or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
10. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Texas.
11. The Parties agree that any suit arising out of or related to this Agreement shall
be filed in Brazoria County Texas.
68
IN WITNESS WHEREOF, the parties have hereunto set their hands and signatures
on the date first above mentioned.
ATTEST:
City Secretary
Name of Developer
By:
Name:
Title:
CITY OF PEARLAND, TX
By: Clay Pearson,
City Manager
69
EXHIBIT M
Survey Requirements
The areas to be surveyed will be in accordance with Section 4.5 (b) of the Development
Agreement.
Topographic Surveys
The survey will cover from the centerline of pavement to 25-feet outside of the right -of -
right -line. The half of the right-of-way to be surveyed will be mutually determined by the
City of Pearland and Developer and reported to surveyor prior to the commencement of
the topographic surveys.
1. Established horizontal and vertical control points for each segment to be
surveyed. The nature, location and density of the points will be sufficient to be
recovered or re-established and utilized during the construction phase of the
project.
2. Contact the private utility providers and pipeline companies to mark and provide
the depth of the underground utilities within the project areas. City of Pearland
will be responsible for marking the underground routing of the City water lines.
3. Recover sufficient property corner monumentation to be able to establish the
horizontal location of the right-of-way line.
4. Horizontally locate all visible features within the project area, including, but not,
limited to: pavement, drives culverts, signs, significant trees (or the edge of the
limits of trees in high density areas), power poles, valves, meters, fire hydrants,
pipeline markers, ditches, bridges, manholes, inlets, structures, etc.
5. Establish cross-section elevations at 50400t intervals. A typical cross-section will
have elevations established the centerline of pavement, edge of pavement, top of
banks of ditch, flow line of ditch, right-of-way line and 254eet outside of the right-
of-way.
6. Prepare a 2-D plan map with the surface TIN created showing the results of the
survey using AutoCAD Civil 3D 2011. Provide the DWG files of the final
drawings.
Property Description
A property description shall be prepared for each parcel of land to be acquired.
Property descriptions shall include, but need not be limited to, the following items of
information:
All property description shall be signed and sealed by a Registered Professional
Land Surveyor. The property description shall begin with a general description which
shall include minimum:
1. State, County, and Survey within which
acquired is located.
2.
the proposed parcel of land to be
subdivisions by name, lot, block, and
70
3. A reference by name to the grantor and grantee, date and recording data of the
most current instrument(s) of conveyance describing the parent tract.
It is the preference of the City to use execution dates in deed references as opposed
to recording or filling date. In any case, the property description shall make clear
which date is being used. The property description shall continue with metes and
bounds description which shall include as a minimum:
1. A point of commencing.
2. A point of beginning with the appropriate N and E surface coordinates.
3. A series of courses, identified by number and proceeding in a clockwise
direction, describing the perimeter of the parcel of land to be acquired, and
delineated with appropriate bearings, distances and curve data.
4. Curve data shall include the radius, delta angle, arc length, and long chord
bearings and distance.
5. Each course shall be identified either as a proposed right-of-way line, and
existing right-of-way line, or a property line of the parent tract. Each property
line of the parent tract shall be described with an appropriate adjoined call.
6. A description of all monumentation set or found shall include, as a minimum,
size and material.
7. A reference to the source of bearings, coordinates and datum used.
Exhibit Maps (Parcel Plat)
A parcel plat shall be prepared for each parcel of land to be acquired. All parcel plat
shall be signed and sealed by a Registered Professional Land Surveyor.
The following general specifications for right-of-way mapping shall apply:
1. Completed right-of-way maps shall be submitted to the City on single or
double matte mylar, 22 inches by 34 inches in size with a 21 inch by 32 inch
printed border positioned Y2 inch from the top, bottom, and right edge of the
sheet.
2. Parcel plats shall be submitted to the City on 8 Y2 inch by 11 inch bond paper
with respective borders of 7 '/2 inches by 10 inches, position Y2 inch from the
top, bottom, and right edge of the sheet. Match lines shall be used where
more that one sheet is required.
3. Right of way maps shall be drawn to a preferred scale of 1 inch = 50 feet, but
appropriate scale other than 1 inch = 50 feet may be used upon prior approval
by the City Engineer.
4. Since right-of-way maps are reduced in size by one-half for archiving
purposes, but the smallest size lettering acceptable on a right of way map
shall be 1/10 of one inch. A right-of-way map less than 1/10 of one inch will
not be accepted by the City.
5. Parcel plats shall be drawn to a preferred scale of 1 inch = 50 feet. An
appropriate scale other than 1 inch = 50 feet may be used on some proposed
right-of-way projects upon prior approval by the City. In the case of a very
large parcel which would be difficult to show with clarity on a single 8 Y2 inch
71
by 11 inch sheet, the Surveyor shall use multiple 8 '/2 inch by 11 inch sheets
with matching lines.
6. The smallest size lettering acceptable on a parcel plat shall be 0.06 of an
inch.
7. Property descriptions shall be submitted on 8 1/2 inch by 11 inch bond paper.
8. Include existing permanent improvements within 25 feet of the proposed right-
of-way or easement.
9.
General Requirements
General requirements which apply:
1. Copies of instruments of record submitted to the City shall be indexed by
parcel number.
2. Coordinates appearing on right-of-way maps, on parcel plats and in property
descriptions shall be surface coordinates based on the Texas Coordinate
System of 1983. The combined adjustment factors (sea level factor x scale
factor) should be grid coordinates multiplied by a combined adjustment per
project locations to obtain surface coordinates.
3. Line and curve tables may be used when necessary.
4. The number of centerline alignment stations to be shown on a single plan
sheet shall be restricted to the extent necessary to allow approximately 4
inches between match lines and sheet borders for future details and notes.
5. A minimum 4 inch by 4 inches space shall be reserved at the bottom right
corner of each map sheet for future revision notes.
Right of Way Map
The Surveyor shall field locate property corners, existing right-of-way markers,
improvements, visible utilities, verify and update the planimetric file, if provided and as
directed by the City.
A right-of-way map shall be prepared for each proposed right-of-way project. Aright -of -
way map shall include a title sheet, an index sheet, a survey control index sheet, a
horizontal and vertical control data sheet, and sufficient plan sheet to cover the
proposed project or as directed by the City. Plan sheets shall include, but not limited to
the following items of information:
By mutual agreement between the Texas Board of Professional Land Surveying and
City, right-of-way maps need not be signed and sealed by a Registered Professional
.and Surveyor.
1. Proposed right-of-way lines shall be delineated with appropriate bearings,
distances and curve data. Curve data shall include the radius, delta angle,
arc length, and long chord bearing distance.
2. Existing right-of-way lines shall be delineated with appropriate bearings,
distances, and curve data to the extent necessary to describe the individual
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parcels of land to be acquired. Curve data shall include the radius, delta
angle, arc length, and long chord bearing distance.
3. The proposed project baseline alignment shall be delineated with appropriate
bearings, distances and curve data. Curve data shall include the stations of
the curve Point of Intersection (PI), radius, delta angle, arc length, tangent
length, long chord bearing and distance, and the N and E coordinates of the
curve PI. All alignments PCs, PTs and even 500 foot stations shall be labeled
as to station.
4. Proposed paving lines combined with relevant existing paving lines shall be
shown to the extent necessary to compile a complete picture of proposed
traffic movements. Proposed paving on the final mylars submitted to the City
shall be shaded with a dot pattern or highlighted by some other means
acceptable to the City.
5. Access denial lines shall be shown sufficiently to indicate areas where access
is to be denied and where access is to be permitted.
6. Private property lines shall be delineated with appropriate bearing, distances
and curve data to the extent necessary to describe the individual parcels of
land to be acquired. Curve Data shall include the radius, delta angle, arc
length, and long chord bearings and distance.
7. League lines and survey lines shall be shown and identified by name and
abstract number.
8. County lines and City limit lines shall be located and identified by name.
9. A north arrow shall be shown on each sheet, and if possible, located in the
upper right corner of the sheet.
10. Monumentation set of found shall be shown and described as to material and
size.
11.A station and offset shall be shown for each PC, PT and angle point in the
proposed right-of-way lines. Stations and offsets shall be with respect to the
proposed centerline alignment.
12.Intersecting and adjoining public right-of-way shall be shown and identified by
name, right-of-way width, and recording data.
13. Railroads shall be shown and identified by name, right-of-way width, and
recording data.
14. Utility corridors shall be identified as to easement or fee.
15. Easements and fee strips shall be shown and identified by width, owner and
recording data.
16. Building lines or set back lines shall be shown and identified.
17. Visible improvements located within the proposed right-of-way corridor or
within 50 feet of a proposed right-of-way line shall be shown and identified.
18. Structure shall be identified as commercial or residential, by number of stories
and as to type (brick, wood frame, etc.).
19. Structures which are severed by a proposed right-of-way line shall be
dimensioned to the extent necessary to completely delineate the severed
parts.
20. Parking areas, billboards and other on premise signs which are severed by a
proposed right-of-way line shall be dimensioned to the extent necessary to
delineate that portion of the parking area, billboard, or sign which is located
within the proposed right-of-way corridor.
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21.In case where structures are located outside the proposed right-of-way
corridor and within 10 feet of a proposed right-of-way line, the shortest
distance between the structure and the proposed right-of-way line shall be
shown.
22. If the structure is an element of the planimetric furnished to the Surveyor by
the City, the Surveyor map shall estimate the shortest distance from the
structure to the proposed right-of-way line. However, if the distance is less
than 3 feet, it shall be field verified.
23. Visible utilities located within the proposed right-of-way corridor or within 50
feet of a proposed right-of-way line shall be shown and identified.
24. The location of underground fuel storage tank situated within the proposed
right-of-way corridor or within 50 feet of proposed right-of-way line shall be
determined and shown. The visible location of vents and filler caps in
conjunction with available design and as -built drawings may be used to
determine a most probable location in the event an actual location is
indeterminable.
25. Points of commencing and points of beginning shall be shown and labeled.
Points of beginning shall be shown with their respective N and E surface
coordinates. As an exception, a point of commencing will not be required in
the case of a total taking without a remainder.
26. Each parcel of land to be acquired shall be identified by a parcel number
which shall appear in the ownership tabulation and on the right-of-way map in
the proximity of the respective parcel.
27.An ownership tabulation shall be shown which shall include the parcel
number exiting area of the parent tract, lot(s) and block(s) constituting the
parent tract when applicable, owner's name, type of conveyance, film code,
county clerk's file number, taking area, and remaining area of the parent tract
located left and right of the centerline alignment. Types of conveyance, film
code and file number refer to conveyance into the City and will be added to
the right-of-way map by the City at a later date. Several blank lines shall be
provided in the tabulation block to facilitate future map additions.
28.A parent tract inset shall be shown for each parent tract which cannot be
shown to scale on the right-of-way map. The use of broken scale lines shall
be avoided. When parent tract insets are used, the point of commencing with
the appropriate bearing and distance to the point of beginning may be shown
on the parent tract inset.
29.A note shall be included on the title sheet and each map sheet stating the
source of bearings, coordinate and datum used.
30. Appropriate notes shall be included on the title sheet and each map sheet
stating the following:
a. Month(s) and year abstracting upon which the map is based.
b. Month(s) and year field surveys were conducted upon which the map
is based.
c. Month and year the map was completed by the Surveyor.
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