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R2006-193 11-13-06 RESOLUTION NO. R2006-193 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A MAINTENANCE AND USE AGREEMENT FOR TIRZ IMPROVEMENTS AND DETENTION FACILITIES BETWEEN SHADOW CREEK RANCH TOWN CENTER PROPERTY OWNERS ASSOCIATION, SHADOW CREEK RETAIL, L.P., AND BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35. BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Maintenance and Use Agreement for TIRZ Improvements and Detention Facilities between the City of Pearland, Texas; Shadow Creek Ranch Town Center Property Owners Association; Shadow Creek Retail, L.P.; and Brazoria County Municipal Utility District No. 35, a copy of which is attached as Exhibit "A" and made a part hereof for all purposes, is hereby approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest the original of the attached agreement for and on behalf of the City of Pearland. PASSED, APPROVED and ADOPTED this the 13th day of November, 2006. Tom Reid Mayor ATTEST: / Yo�,ng Lorf ,,-27 C/ �"y Secr:Jry APPROVED AS TO FORM: Darrin M. Coker City Attorney 193 TIRZ Maintenance.193 EXHIBIT b w MAINTENANCE AND USE AGREEMENT FOR TIRZ IMPROVEMENTS AND DETENTION FACILITIES BETWEEN SHADOW CREEK RANCH TOWN CENTER PROPERTY OWNERS ASSOCIATION, SHADOW CREEK RETAIL, L.P, BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35, AND THE CITY OF PEARLAND, TEXAS This Maintenance and Use Agreement (the "Agreement") is made and entered into as of the day of , 2006, by and between the CITY OF PEARLAND, TEXAS (the "City"), a home rule municipality located in the counties of Brazoria, Harris, and Fort Bend, Texas, and SHADOW CREEK RANCH TOWN CENTER PROPERTY OWNERS ASSOCIATION (the "Association"), a Texas non-profit corporation and SHADOW CREEK RETAIL, L.P. (the "Sub-Developer"), a Delaware limited partnership, and BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35 (the "MUD"), a body politic and subdivision of the State of Texas RECITALS The City created Reinvestment Zone Number Two, City of Pearland, Texas, a tax increment reinvestment zone created pursuant to Chapter 311 of the Texas Tax Code, as amended (the "Zone"), to provide for the construction of improvements, by, among others, the Sub-Developer, contained in the Zone's approved Project Plan and Financing Plan Amendment No. 2 (the "TIRZ Improvements"). The Sub-Developer also is financing certain MUD detention facilities. With the City's approval, upon completion of certain of the TIRZ Improvements and the MUD detention facilities,the Sub-Developer will deed such improvements to the Association on behalf of the public. The Sub-Developer and the City have determined that it is in their best interests to grant to the Association the use of certain of the TIRZ Improvements and the MUD detention facilities in return for the Association assuming their maintenance as set forth in Section 2. The Association has determined that it is in its best interest to maintain these certain TIRZ Improvements and the MUD detention facilities in accordance with the responsibilities set forth in this Agreement in return for the right to use such improvements. AGREEMENT For and in consideration of the mutual promises, covenants and the benefits and obligations hereinafter set forth, the City of Pearland, Texas, Shadow Creek Town Center Property Owners Association, and Shadow Creek Retail, L.P. and Brazoria County Municipal Utility District No. 35 hereby agree and contract as follows: Section 1: Rights. (a) Use of Improvements. The Sub-Developer hereby agrees to grant to the Association, as such improvements are completed and inspected and approved by the City,the right to the use -4163961 and enjoyment of all Improvements [excluding schools, streets, water and sewer facilities and storm sewer facilities including inlets and outfalls] (the"Association Improvements")by deeding such Association Improvements to the Association. Examples of such Association Improvements include, but are not limited to, lakes, channels, the hike and bike trial system, the greenbelts and parks, landscaping and monuments. The Association recognizes that the Association Improvements constructed to provide drainage, including detention (the "Drainage Improvements") have the primary purpose of providing drainage, and not recreation, in accordance with the drainage plans approved by the City. The City shall notify the Association in writing of any uses that interfere with its ability to use the Drainage Improvements for their intended purposes, and the Association hereby agrees that upon receipt of such notice, it will immediately cease all such uses. In the event the Association does not cease such uses within 60 days of receipt of such notice,this Agreement shall terminate automatically. (b) Construction of Structures. In connection with the rights granted to the Association by the Sub-Developer, the Association shall have the right to construct recreational structures or facilities in, on or around the Association Improvements; provided, however, prior to any construction,the Association shall obtain the written consent of the City to such construction and shall provide the City the following information in writing: (1) the proposed structure or facility to be constructed; (2) a plat or plan showing the location(s)of the proposed structure or facility; and (3) the proposed date on which installation or construction will begin. Within 60 days of receipt of the information from the Association, the City will provide the Association with a written answer regarding whether the proposed structure or facility can be constructed without interfering with the purpose of the Association Improvements. The City agrees that it shall not unreasonably withhold its consent and will consent to any proposed construction by the Association as long as the City determines that the proposed construction will not interfere with the primary purpose of the Association Improvements. Section 2: Association's Obligations. (a) Improvements. The Association, upon execution of this Agreement, shall assume the obligation and expense to operate, maintain and repair all Association Improvements, once conveyed by deed from the Sub-Developer, for all purposes. (b) Easement Enforcement. Upon request of the City, the Association shall take all necessary steps to enforce the obligations of any public utility established in an easement over property in the Zone. Section 3: Sub-Developer's Obligations. Upon completion, the Sub-Developer shall deed the completed and approved Association Improvement to the Association for maintenance on behalf of the public. Section 4: Insurance. The Association shall secure comprehensive general liability insurance coverage relating to its use of the Association Improvements in the minimum amount -4163961 of$1,000,000, with additional umbrella coverage in the minimum amount of$1,000,000. The Association shall keep such coverage current and shall provide a certificate of insurance evidencing same to the City and the MUD. The City and the MUD shall be added as an additional insured. Section 5: FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND THE BENEFITS AND OBLIGATIONS SET FORTH HEREIN, THE ASSOCIATION, FOR ITSELF, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, ADMINISTRATORS, LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, HAS AGREED TO AND DOES HEREBY FULLY AND COMPLETELY INDEMNIFY AND HOLD THE CITY AND THE MUD HARMLESS FROM EVERY CLAIM, ACTUAL LOSS, DAMAGE, INJURY, COST, EXPENSE, JUDGMENT OR LIABILITY SUSTAINED OR INCURRED BY OR BROUGHT AGAINST THE CITY AND/OR THE MUD, OF EVERY KIND OR CHARACTER WHATSOEVER, IN CONTRACT, TORT OR OTHERWISE, DIRECT OR INDIRECT, INCLUDING INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES, FOR BODILY INJURY, DEATH, PROPERTY DAMAGE OR ECONOMIC LOSS IN CONNECTION WITH THE PLANNING, CONSTRUCTION/INSTALLATION, OPERATION, USE, OWNERSHIP AND/OR EXISTENCE OF THE ASSOCIATION'S RECREATIONAL FACILITIES. THIS INDEMNITY AND HOLD HARMLESS AGREEMENT RUNNING IN FAVOR OF THE CITY AND THE MUD IS SPECIFICALLY INTENDED TO COVER ALL COSTS OF ANY FUTURE CLAIM OR LITIGATION, INCLUDING ATTORNEYS' FEES AND OTHER DEFENSE COSTS. FURTHERMORE, THIS INDEMNITY AND HOLD HARMLESS AGREEMENT RUNNING IN FAVOR OF THE CITY AND THE MUD IS SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED, CHARGED, OR PROVEN THAT ALL OR SOME OF THE FACTS, INCIDENTS, OR EVENTS COMPLAINED OF OR ALL OR SOME OF THE DAMAGES SOUGHT WERE SOLELY AND COMPLETELY CAUSED BY THE FAULT OR THE SOLE OR CONCURRENT NEGLIGENCE OF THE CITY AND/OR THE MUD, OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS. FINALLY, IT IS AGREED THAT NO STATUTE OF LIMITATIONS PERIOD OR PERIOD OF LACHES SHALL BEGIN TO RUN AGAINST THIS HOLD HARMLESS/INDEMNITY AGREEMENT UNTIL EACH CLAIM, DEMAND, OR CAUSE OF ACTION FOR WHICH HOLD HARMLESS OR INDEMNITY PROTECTION IS SOUGHT HAS BEEN ASSERTED AGAINST THE PARTY OR PARTIES SEEKING TO INVOKE THE PROTECTION OF THIS HOLD HARMLESS/INDEMNITY AGREEMENT AND UNTIL SUCH PARTY HAS RECEIVED WRITTEN NOTIFICATION OF SUCH CLAIM, DEMAND, OR CAUSE OF ACTION. THESE CONTRACTUAL PROVISIONS RELIEVE ONE PARTY FOR RESPONSIBILITY IT WOULD OTHERWISE HAVE UNDER THE LAW FOR DAMAGES OR OTHER LIABILITY ARISING OUT OF THIS AGREEMENT. THE PARTIES HAVE NEGOTIATED IN GOOD FAITH TO ELIMINATE UNKNOWN AND ARBITRARY ASPECTS OF THEIR RELATIONSHIP AND TO ALLOCATE THE RISKS OF LOSS IN A MANNER THAT IS COMMENSURATE WITH THE EXPECTED BENEFITS. -4163961 THE PARTIES HAVE ATTEMPTED TO STATE THEIR AGREEMENT CLEARLY AND EXPRESSLY WITHIN THE FOUR CORNERS OF THIS INSTRUMENT. THE PARTIES AGREE THAT ALL PROVISIONS OF THIS CONTRACT ARE INTENDED TO APPLY EVEN IF THEY HAVE THE RESULT OF RELIEVING ONE PARTY FOR RESPONSIBILITY IT WOULD OTHERWISE HAVE UNDER THE LAW FOR ITS CONDUCT, INCLUDING ITS SOLE OR CONCURRENT NEGLIGENCE, OR FOR ANY DAMAGES OR LIABILITIES THAT WOULD OTHERWISE BE IMPOSED BY THE LAW IN CONNECTION WITH THIS AGREEMENT. EACH PARTY AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE 'ENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT UNDER THE "EXPRESS NEGLIGENCE" RULE AND EACH PARTY AGREES AND COVENANTS THAT IF A PROVISION OF THIS AGREEMENT IS NEVERTHELESS DEEMED BY A COURT TO BE SUBJECT TO THE "EXPRESS NEGLIGENCE" RULE AND THAT IF THE PROVISION IS AMBIGUOUS, SUCH PROVISION WILL NOT BE DECLARED UNENFORCEABLE. INSTEAD, SUCH AMBIGUOUS PROVISION SHALL BE ENFORCED IN ACCORDANCE WITH THE COMMERCIAL AND ECONOMIC TERMS OF THE PARTIES' OVERALL AGREEMENT AND, TO THAT END, ORAL TESTIMONY AND OTHER WRITINGS SHALL BE CONSIDERED BY THE COURT OR JURY TO DETERMINE THE INTENT OF THE PARTIES WITH RESPECT TO SUCH PROVISION. Section 6: Association Default. In the event the Association does not, in the opinion of the City or the MUD, satisfactorily maintain said Association Improvements in accordance with its obligations set forth in this Agreement, or adequately insure the Association Improvements, the City, the MUD or the Sub-Developer shall have the right to terminate this Agreement upon 60 days written notice; provided, however, the Association shall have this 60 day time period to cure the default to the satisfaction of the City or the MUD. Section 7: Consideration. The City, the MUD, the Sub-Developer and the Association agree that this Agreement is being entered into as an inducement for the Sub- Developer, the MUD and the City to relinquish the right to the use and enjoyment of the Association Improvements and for the Association to accept the permanent operation and maintenance of the Association Improvements. Section 8: Benefits to Parties. While the provisions of this Agreement are, in part, intended to establish as between the parties hereto, an acceptable manner of providing proper maintenance of the Association Improvements that will serve the residents of the land within the boundaries of the City and the MUD, this Agreement shall be for the sole and exclusive benefit of the Association, the Sub-Developer, the MUD and the City, and shall not be construed to confer any benefit or right upon any other party. Section 9: Assignability. This Agreement is not assignable by any party hereto except with the written consent of all parties, which consent shall not be unreasonably withheld or unduly delayed. Section 10: Merger Clause. This Agreement constitutes the entire agreement between the parties relative to the subject matter hereof. There have been and are no agreements, -4163961 covenants, representations or warranties between the parties other than those expressly stated or provided for herein. Section 11: Term. This Agreement shall be for a period of 99 years from the date first written above; provided, however, if the Association fails to comply with the responsibilities and obligations in this Agreement, the Sub-Developer, the MUD and the City shall have the right to terminate the Agreement as provided in Section 6, hereof. The Agreement shall renew at the end of the initial term for one year periods unless terminated by mutual written consent of the parties. Section 12: Amendment. This Agreement shall not be amended, revised or changed without the written consent of all parties, which consent shall not be unreasonably withheld or unduly delayed. Section 13: Enactment Clause; Law. Each party hereby agrees that it will take all actions and execute all documents necessary to carry out the purposes and intent of this Agreement. This Agreement shall be governed by the laws of the State of Texas. [EXECUTION PAGES FOLLOW.] -4163961 IN WITNESS WHEREOF, the parties have executed this Agreement in multiple copies, each of which shall be deemed an original as of the date and year first written above. THE CITY OF PEARLAND, TEXAS By: ATTEST: City Manager By: City Secretary APPROVED AS TO FORM: By: City Attorney -4163961 SHADOW CREEK TOWN CENTER PROPERTY OWNERS ASSOCIATION a Texas non-profit corporation By: Name: Title: -4163961 SHADOW CREEK RETAIL, LP, a Delaware limited partnership By: Shadow Creek Retail GP, LLC, a Delaware limited liability company, General Partner By: Pearland Retail Development Partners, LLP, a Delaware limited liability partnership, Manager and Sole Member By: WCF Development X, L.P., a Texas limited partnership, General Partner By: WCF Development, L.L.C., a Texas limited liability company, General Partner By: Name: Title: By: TDC Pearland, L.P., a Delaware limited partnership, General Partner By: Transwestern Development Company GP, L.L.C., a Delaware limited liability company, General Partner By: Name: Title: -4163961 BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35 By: ATTEST: Name: Title: By: Name: Title: (SEAL) --•4163961