R2004-179 10-25-04 •
RESOLUTION NO. R2004-179
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A UTILITY AGREEMENT WITH BRAZORIA COUNTY
MUNICIPAL UTILITY DISTRICT NO. 34.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Utility Agreement by and between the City of Pearland and
Brazoria County Municipal Utility District No. 34, a copy of which is attached hereto 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 a Utility Agreement with Brazoria County Municipal Utility
District No. 34.
PASSED, APPROVED and ADOPTED this the 25th day of October
A.D., 2004.
TOM REID
MAYOR
ATTEST:
Y NGL , M
IT SE ETARY
APPROVED AS TO FORM:
� — � •�
DARRIN M. COKER
CITY ATTORNEY
" EXHIBIT 0
UTILITY AGREEMENT
This UTILITY AGREEMENT (the "Agreement), is made and entered into as of the
day of , 2003, by and between the CITY OF PEARLAND, TEXAS, a municipal
corporation and home-rule city of the State of Texas (the "City"), and CONIFER
DEVELOPMENT, LTD., a Texas limited partnership, (the "Developer"), on behalf of proposed
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 34, to be created as a body
politic and corporate and a governmental agency of the State of Texas organized under the
provisions of Article XVI, Section 59 of the Texas Constitution (the "District").
RECITALS
The.District is in the process of being created within the City's corporate limits for the
purposes of, among other matters, providing water distribution, wastewater collection, and
drainage facilities to serve development occurring within and near the District inside the City
limits.
Under the authority of Texas Local Government Code Section 402.014, as amended, the
. City and.the District may enter into an agreement under the terms of which (i) the District will
acquire for the benefit of and conveyance to the City the water distribution, wastewater
collection, and drainage facilities needed to serve lands being developed within and near the
boundaries of the District and (ii) in order to enhance the economic feasibility of the District and
more equitably distribute among the taxpayers of the City and the District the burden of ad
valorem taxes to be levied from time to time by the City and the District, the City will make
annual tax and monthly water and sewer revenue rebate payments to the District in consideration
of the District's financing, acquisition, and construction of such facilities.
The City and the Developer, on behalf of the District have determined that they are
authorized by the Constitution and laws of the State of Texas to enter into this Agreement and
have further determined that the terms, provisions, and conditions hereof are mutually fair and
advantageous to each.
AGREEMENT
For and in consideration of these premises and of the mutual promises, obligations, covenants,
and benefits herein contained, the City, the Developer and the District contract and agree as follows:.
ARTICLE I
DEFINITIONS 0
•
The capitalized terms and phrases used in this Agreement shall have the meanings as
• • follows:
"Annual Payment" means the annual payment to be made by the City to the District, as
defined in Section 6.01 hereof.
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"Approved Plans" means plans and specifications approved in accordance with
Section 2.01.
•
"Approving Bodies" means any.or all of the following entities, as appropriate in a
particular context: the City; Brazoria County, Texas, 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 of the Facilities, the construction of the Facilities, or the subject
matter of this Agreement.
"Bonds" means the District's bonds, notes, or other evidences of indebtedness issued from
time to'time for the purpose of purchasing, constructing, acquiring, operating, repairing,
improving, or extending•the Facilities, payment of Connection Charges, and. far such other
purposes permitted or provided by state law, whether payable from ad valorem taxes, the
proceeds of one or more future bond issues, or otherwise, and including any bonds, notes, or
similar obligations issued to refund such bonds.
"City" means the.City of Pearland, Texas, a municipal corporation and home-rule city of
the State of Texas.
"City Manager" means the City Manager of the City or the City Manager's designee.
"Connection Charge" means the amount to be paid to the City for water and wastewater.
capacity for each improvement within the District.at the time of connection of the improvement
to the Facilities, as defined in Section 5.04.
"Consent Ordinance" means the ordinance or resolution to be adopted by the City
evidencing the City's consent to the inclusion of land within the District in accordance with
Texas Local Government Code Section 42.042 and Texas Water Code Section 54.016, each as
amended.
"Construction Costs" means costs. associated with any particular construction project
under the terms of this Agreement, including, 'but not limited to, costs of construction,
acquisition, and installation; engineering fees and expenses; costs of advertising; costs of
acquiring necessary licenses, permits, waste control orders, discharge permits or amendments
thereto; fiscal, legal, and administrative costs; material-testing costs; site, easement, and permit
• costs; and all other costs and expenses directly relating to the foregoing, together with an amount
for contingencies or estimated Construction Costs of not more than fifteen percent (15%) of the
foregoing, provided that no contingency amount shall be included in "Construction Costs"
regarding a particular construction project once that project is complete.
"Developer" means Conifer Development, Ltd., a Texas limited partnership.
"District" means Brazoria County Municipal Utility District No. 34, 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 term "District" shall be construed to
include both Developer and the District, as it is the intention of the parties to this Agreement that
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all rights, benefits, and obligations pursuant to this Agreement shall ultimately be assigned by the
Developer to the District upon its creation.
"District Assets" means (i) all rights, title, and interests of the District in and to the
Facilities, (ii) any Bonds of the District which are authorized but have not been issued by the
District, (iii) all rights and powers of the District under any agreements or commitments with any
persons or entities pertaining to the financing, construction, or operation of all or any portion of
the Facilities and/or the operations of the District, (iv) all cash and investments, and amounts
owed to the District, and (v) all books, records, files, documents, permits, funds,- and other
materials or property of the District.
"District Engineer" means Brown & Gay Engineering, Inc. or such other engineering firm
as the District may engage from time to time.
"District Obligations" means (i) all outstanding Bonds of the District, (ii)all other debts,
liabilities, and obligations of the District to or for the benefit of any persons or entities relating to
the financing, construction, or operation of all or any portion of the Facilities or the operations of '
the District, and (iii) all functions performed and services rendered by the District for and to the
owners of property within the District and the customers of the services provided from the
Facilities.
"Financing and Reimbursement Agreement" means the District's agreement, if any,.as
defined in Section 3.04.
"Facilities" means and includes the water distribution, wastewater collection, and
drainage systems constructed or acquired or to be constructed or acquired by the District-to serve
lands within and near its.boundaries, and all improvements, appurtenances, additions, extensions,
enlargements, or betterments thereto, including.any.pro rata interest or share in such facilities,
together with all contract rights, permits, licenses, properties, rights-of-way, easements, sites, and
other interests related thereto.
"Monthly Revenue Payments" means the monthly payments to be made by the City to the
District, as defined in Section 6.04 hereof.
"Oversized Facilities" means water, sewer, and/or drainage facilities sized to serve areas
outside the District or constructed to serve areas outside the District, as defined in Section 2.04.
"Payment Date" means the date each year when the Annual Payments are due, as defined
in Section 6.02.
"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.
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ARTICLE!!
DESIGN AND CONSTRUCTION OF THE FACILITIES
2.01. Design. The Facilities shall be designed by the District Engineer in accordance
with sound engineering principles and in compliance with all applicable requirements of the
Approving Bodies. The plans and specifications for the Facilities shall be subject to review and
approval by the City, the District, and the Approving Bodies with jurisdiction (the "Approved
Plans"). The District shall not make any changes to the Approved Plans without the approval of
the City. The City shall not require that the Facilities be designed to requirements more stringent
than the,City's requirements applicable to the design of similar facilities outside the District but
within the City's jurisdiction. The District shall design the Facilities in such phases or stages as
the District and/or Developer from time to time, in their sole discretion, may determine to be
necessary and economically feasible.
2.02. Construction. When the District or the Developer determines, in their.sole
discretion, that it is necessary and economically feasible to construct the Facilities, the District or
the Developer shall proceed to award a construction contract for the Facilities based upon the
Approved Plans. The Facilities shall be installed, construction contracts shall be awarded, and
payment and performance bonds'obtained all in accordance with the general law for municipal
utility districts and in full compliance with the applicable requirements of the Approving Bodies.
In addition to any other construction contract provisions, any construction contract for the
Facilities shall include the contractor's two (2) year warranty of work performed under the
contract. - The District or Developer (whoever is the, owner of the contract) shall submit all
change orders to the City for its recOrds. The District or Developer (whoever is the owner of the
contract) shall file all required documents with the TCEQ.
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2.03. Acceptance of Facilities. Upon completion of the Facilities, the District:or
Developer (whoever is the owner of the contract) shall order the District's Engineer to certify
that the Facilities have been completed in substantial compliance with the Approved Plans; the
District or Developer (whoever:is the owner of the contract) shall certify that all bills and sums
of money due in connection with the construction and installation of the Facilities have been
fully paid and that the Facilities are free of any and all liens and claims, all-according to the.
certification of the construction contractor. The District or Developer (whoever is the owner of
the contract) shall require the District's Engineer to provide three (3) copies of construction
drawings of the Facilities to the District. The District or the Developer (whoever is the owner of
the contract) shall accept the construction of the Facilities in writing from the construction
contractor. The District or Developer (whoever is the owner of the contract) shall then convey
the Facilities to the City in accordance with the City's procedure for acceptance of such facilities
in areas outside the District and within the City and the provisions of Article IV below.
2.04. Oversized Facilities. In conjunction with the design and construction of the
Facilities, as described in this Article II, the City may determine from time to time that certain
Facilities should be sized to serve areas outside the District, as well as areas within the District,
or the City and the District may determine that the District should construct certain water, sewer,
and/or drainage facilities outside the District to serve areas outside the District (in either case,
facilities sized or constructed to serve areas outside the District shall be referred to in this
Agreement as the "Oversized Facilities"). Subject to the terms and conditions of this Section
2.04, the District hereby agrees that, in conjunction with the design and construction of the
Facilities as set out in this Agreement, the District shall cooperate with the City to include the
Oversized Facilities as required by the City. The City, in turn, hereby agrees that as between the
District and the City, the City shall fund its share of the Construction Costs of the Oversized
Facilities. In order to carry out the design and construction of Oversized Facilities, the City and
the District agree to enter into a Development Agreement for the oversizing of such facilities. If
the Oversized Facilities are designed and constructed by the District as part of the design and
construction of Facilities (collectively, the Oversized Facilities and the Facilities, the "Project"),
the Construction Costs of the Oversized Facilities shall be determined in accordance with TCEQ
rules and regulations so that Project Construction Costs will be shared by the City and the
District on the basis of benefits received, which are generally the design capacities in the Project
for the City and the District respectively.
ARTICLE III
• FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. The District shall have authority to issue,
sell, and deliver Bonds from time to time, as deemed necessary and appropriate by the Board of
Directors of the District, for the purposes, in such forms and manner, and as permitted or
provided by federal law,the general laws of the State of Texas, and the Consent Ordinance. The
District shall not be authorized to sell Bonds until it has provided the City with an executed copy
of the TCEQ order approving each 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. The District's obligation.to provide a
copy of the TCEQ order including such conclusion shall not be construed as a limitation on the
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District's authority to levy an unlimited tax rate, it being understood and acknowledged that the
District's bonds shall be payable from and secured by a pledge of the proceeds of an ad valorem
tax,without legal limitation as to rate or amount. The,District shall provide the City with copies
of the Official Statement and the District's resolution authorizing the issuance of the Bonds for
each issue prior to the delivery of the Bonds to the initial purchaser.
3.02. Distribution of Bond Proceeds. The proceeds of Bonds issued by the District
shall be used and may be invested or reinvested, from time to time, as provided in the order or
orders of. the District authorizing the issuance, sale, and delivery of such Bonds and in
accordance with the federal, state, and local laws and regulations governing the proceeds of the
District's sale of its Bonds.
3.03. Bonds as Obligation of District. Unless and until the City shall. dissolve the
District and assume the District Assets and District Obligations, the Bonds of the District, as to
both principal and interest, shall be and remain obligations solely of the District and shall never
be deemed or construed to be obligations or indebtedness of the City; provided, however, that
nothing herein shall limit or restrict the District's ability to pledge or assign all or any portion of
the Annual Payments or Monthly Revenue Payments, to be made by the City to the District as
provided in this Agreement, to,the payment of the principal of, the redemption premium, if any,
or interest on the Bonds or other contractual obligations of the District relating to the financing,
acquisition, or use of the Facilities.
3.04. Financing by Third Parties. From time to time, the District may enter into one or
more agreements (the "Financing and Reimbursement Agreement") with the Developer or other
landowners of property located within the District whereby the Developer or such landowners
will construct the Facilities on behalf of the District or advance funds to or on behalf of the
District for the acquisition and construction of the Facilities. The construction of any Facilities
financed under the terms of a Financing and Reimbursement Agreement shall be subject to all
the terms and conditions of this Agreement. Each Financing and Reimbursement Agreement
will provide for the District's reimbursement of the person or entity advancing funds for the
Facilities (i) from the proceeds of the District's sale of its Bonds, subject to all the terms and
conditions of such Financing and Reimbursement Agreement, including,g, among other
conditions, the approval of the TCEQ of the sale of the Bonds and the use of sale proceeds for
such purpose; (ii)from District funds lawfully available for such purpose.
•
•
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ARTICLE IV
OWNERSHIP, OPERATION,AND MAINTENANCE OF FACILITIES
4.01. Conveyance of Facilities. As the Facilities are constructed and accepted in
accordance with Article II and the Facilities are conveyed to the City, a security interest shall be.
reserved for the purpose of securing the performance of the City under this Agreement. At such
time as the Bonds issued to acquire and construct the Facilities have been discharged, the District
shall execute a release of such security interest, and the City shall own the Facilities free and
clear of such security interest. When the Facilities are conveyed to the City under this
Article IV, the construction 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 Facilities are constructed and completed, representatives
of the City shall inspect the same and, if the City finds that the Facilities have been completed in
substantial compliance with the approved plans and specifications, the City will accept the
conveyance of the Facilities, and the Facilities so conveyed shall be operated. maintained, and
repaired by the City at its sole expense as provided in this Agreement. The City shall accept
ownership of the Facilities under this Section 4.02 in accordance with the City's procedure for.
acceptance of such facilities in areas outside the District and within the City. If. the Facilities
have not been completed in substantial compliance with the approved plans and specifications,
the City will immediately advise in what manner the Facilities do not comply so that the
problems may immediately be corrected; whereupon the City shall again inspect the Facilities.
and accept the same if the non-complying items have been corrected. In conjunction with the
City's acceptance of the Facilities, the City shall be provided with one (1) set of the construction
drawings for such Facilities. =_
4.03. Operation of the Facilities by the City. Upon the acceptance of the Facilities by
the City, the City will operate the Facilities and provide services from the Facilities to users
within the District without discrimination. The City shall at all times maintain the Facilities, or
cause the same to be maintained, in good condition and working order and will operate the same,
or cause the same to be operated, in an efficient and economical manner at a reasonable cost and
in accordance with sound business principles, and the City will comply with all the terms and
conditions of this Agreement and with all applicable federal, state, and local laws and
regulations.
(a) The City shall provide competent, trained personnel, licensed or certified as
necessary by the appropriate regulatory authority, to operate, inspect, maintain, and repair the
Facilities. The City shall inventory and maintain a listing of all of the equipment comprising the
Facilities as required to provide relevant information for the scheduled maintenance and repair or
replacement of the equipment comprising the Facilities. The City shall implement a scheduled
maintenance program for the Facilities and shall ensure that the Facilities are maintained in the
same fashion and with the same frequency as similar facilities owned and operated by the City to
serve areas outside the District.
(b) The City shall maintain all customer information and records necessary to provide
monthly billings to customers served by the Facilities. The City shall coordinate with the
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District's consultants, such as attorneys, engineers, auditors, tax assessors, and financial advisors
as necessary to maintain efficient operation of the Facilities. Thel City shall respond to inquiries
or correspondence from governmental or regulatory authorities and the District's directors,
customers, or consultants.
(c) The City shall provide a monthly written report to the District indicating the total
number of service connections within the District. If requested by the District, the City may
provide. a City representative to attend a District meeting to discuss any operating and
maintenance information regarding the Facilities.
4.04. Rates and Conditions of Service. The connection of improvements to the
Facilities shall be made by the City, in the same manner, by the same procedures, and for the
same charges as the City makes other water and wastewater connections. Water and wastewater
customers within the District shall pay rates and charges for such services to the City, on the
same basis and conditions as the City provides such services to similar City customers who do
not receive services from the Facilities; provided, however, in addition to the rates and charges
imposed by the City on its water and wastewater customers outside the District, the City shall
• impose on and• collect from each customer of the Facilities within the District a monthly
surcharge of five dollars ($5.00) per equivalent single family residential connection. The
equivalent number of single family residences attributable to any particular connection shall be
computed in accordance with the service unit factors set forth in Exhibit "A" as such factors may
be amended from time to time by the City in its sole discretion, provided that the City shall
always apply the same service unit factors within the District as it applies to other areas within
the City. The City shall bill and collect charges from the customers of the Facilities, calculated
in accordance with this Section 4.04, in the same manner and under the same procedures as it
bills and collects from other customers of the City that are not served by the Facilities.
•
4.05. Repair of the Facilities. After its acceptance of the Facilities, the City shall
provide all personnel and equipment necessary to perform repairs on, and shall bear sole cost
responsibility for repair of, the Facilities, including, but not limited to, service line leaks, leaks at
water meters, water main breaks, repairs to valves and fire hydrants, manhole repairs, and sewer
line repair and cleaning, as.needed. The City shall not, however, bear cost or responsibility for
initial repair of any equipment or facilities identified by the City as in need of correction prior to
the City's acceptance of the Facilities under Section 4.02 above. The cost of all materials and
supplies used to operate, maintain, and repair the Facilities shall be borne solely by the City.
•
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ARTICLE V
CITY PLANT CAPACITY AND FINANCING
5.01. Water Supply and Distribution Facilities. The City shall provide the District with
its ultimate requirements for water supply and distribution capacities.. The number and location
of the points of connection between the City's water distribution system and the Facilities shall
be mutually agreed upon by the District and the City Manager. The City acknowledges its
obligation to provide water supply and distribution capacities for the, actual requirements of the
development within the District's boundaries. Any water supply and distribution capacities so
required by the District shall be reserved and allocated by the City exclusively to serve the
property within the District and the City shall not use such capacities to serve any other property.
The City shall at all times manage the capacities in its water supply and distribution facilities so •
that capacity to serve development within the District is available at the time such improvements
• are to be connected to the Facilities. The City's obligation shall specifically include the
obligation to expand, enlarge, and modify its water supply and distribution facilities and to
secure all necessary approvals of the Approving Bodies as necessary to.have capacity available
to serve new improvements within the District. To enable the City to effectively manage its
water system capacities in compliance with the City's obligation under this Section 5.01, the
District shall provide to the City,. by December 31 of each year during' the .term of this
Agreement, a written projection of the new improvements within the District expected to be
connected to the Facilities within the coming year, and such other related information,as the City
may reasonably require. .
5.02. Wastewater Collection and Treatment Facilities. The City shall provide the
District with its ultimate requirements for wastewater collection and treatment capacities. The
number and location of the points of connection between the City's wastewater collection system _
and the Facilities shall be mutually agreed upon by. the District and the.Director. The City
acknowledges its obligation to provide wastewater collection and treatment capacities for the
actual requirements of the development within the District's boundaries. Any.wastewater.
collection and treatment capacities so required by the District shall be reserved and allocated by
the City exclusively to serve the property within the District and the City shall not use such
. capacities to serve any other property. The City shall at all times manage the capacities in its
wastewater collection and treatment facilities so that capacity to serve development within the
District,is available at the time such improvements are to be connected to the Facilities. The
City's obligation shall specifically include the obligation to expand, enlarge, and modify its
wastewater collection and treatment facilities and to secure all necessary approvals of the
Approving Bodies as necessary to have capacity available to serve new improvements within the
District. To enable . the City to effectively manage its wastewater system capacities in
compliance with the City's obligation under this Section 5.02, the District shall provide the City
no less than annually a written projection of the new improvements within the District expected
to be connected to the Facilities within the coming year, and such other related information as
the City may reasonably require.
5.03. Letter of Capacity Assurance; Assignability. The City agrees that the City
Manager shall, upon reasonable request from the District, issue a letter of assurance to the owner
of platted property within the District confirming water and wastewater utility availability for•
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such platted property, based upon the standard City criteria published by the City regarding the
calculation of water and wastewater requirements for various types of improvements.
5.04 Financing City Water and Wastewater Capacities. In consideration of the City's
provision of water supply and distribution capacity and wastewater collection and treatment
capacity, the District agrees to pay to the City two thousand six hundred seventy eight dollars
($2,678) per equivalent single-family residential connection to the Facilities (the "Connection
Charge"). Equivalent single-family residential connections shall be computed in accordance
with the service unit factors as set forth in Exhibit "A," as such factors may be amended from
time to time by the City in its sole discretion,provided that the City shall always apply the same
service unit factors within the District as it applies to other areas within the City. The
Connection Charge shall be paid to the City by or on behalf of the District before the connection
of each particular improvement to the Facilities at the same time and manner as such fees are
paid for improvements in other areas of the City outside the District. The.City shall not allow
connection of any improvement to the Facilities for which the appropriate Connection Charge
has not been paid. The City may amend the Connection Charge from time to time in accordance
with the requirements of state.law; provided, however, the Connection Charge shall be the same
as the connection charge required outside the District and within the City limits. The District
acknowledges and agrees that, besides the Connection Charge, any new connection to the •
Facilities will be subject to the fees, charges, and costs routinely collected by the City in regards
to any new connection to the City's utilities whether inside or outside the District.
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 d
of the Facilities by the District and in order to enhance the economic feasibility of the District _
and more equitably distribute among the taxpayers of the City and the District the burden of ad
valorem taxes to be levied from time to time by the City and the District, the City agrees to
collect and pay to the District a portion of the ad valorem taxes collected by the.City in future
years on the land and improvements within the District (the "Annual Payment"). The Annual
Payment shall be a payment of a portion of the City's tax revenues actually collected and
received by the City, exclusive of any interest and penalties paid by the taxpayer to the City and
exclusive of any collection costs incurred by the City. All Annual Payments received by the
District from the City shall be deposited by the District into a debt service fund of the District
and shall be applied solely to the payment of the Bonds and other debts, liabilities, and
obligations of the District to or for the benefit of any persons or entities relating to the financing,
construction, and acquisition of all or any portion of the Facilities.
(b) The initial Annual Payment shall be at a rate of $0.15 per $100 of assessed
valuation.
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(c) The Annual Payment shall be incrementally reduced upon the occurrence of the
following:
• (i) The Developer and all developers within the District have been fully•
reimbursed, with interest, in accordance with the rules of the TCEQ;
(ii) The District has completely financed and constructed 100% of its
Facilities; and
(iii) The District levies a debt service tax at a rate that is less than $0.80 per
$100 of assessed valuation.
(d) Once all the conditions of subsection (c) have been met, the Annual Payment shall
be reduced by an amount equal to the decrease in the District debt service tax rate. ,For example,
if the Board of Directors.of the District sets a debt service tax rate of$0.79 per $100 of assessed
valuation (a decrease of$0.01), the Annual Payment will be reduced by $0.01 to $0.14 per $100
of assessed valuation. The Annual Payment will be recalculated annually, and will continue to
be reduced to the extent that the District debt service tax rate is decreased. For example, if the
Board of Directors of the District sets a debt service tax rate of $0.70 per $100 of assessed
valuation (an aggregate decrease of $0.10), the Annual Payment would be $0.05 per $100 of
assessed valuation. Once the Annual Payment is reduced, it shall not thereafter be increased, and
any increase in the District debt service tax rate does not affect the calculation of the Annual
Payment.
(e) If the District Tax Rate decreases to the rate of $0.65 per $100 of assessed
valuation, the City is thereafter relieved of any obligation to make Annual Payments pursuant to
this Agreement. My subsequent increase in the District debt service tax rate does not obligate
the City to again make Annual Payments. .
6.02. Payment of Annual Payment. The Annual Payment shall begin on May 1 in the
calendar year following the calendar year for which the District initially receives a tax roll from
the appropriate county Appraisal District and shall be payable each May 1 thereafter (the
"Payment Date"), with each such Annual Payment being applicable to the calendar year
preceding the calendar year of each such May 1 (e.g., if the District receives a tax roll for the
calendar year 2004, the Annual Payment for such year will be due May 1, 2005). 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 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 •
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supplemental tax.roll and/or correction tax roll, the District shall deliver such supplemental tax
roll and/or correction tax roll to the City. Promptly upon receiving a supplemental tax roll and/or
collection tax roll from the District, the City shall recalculate the amount of the Annual Payment
pertaining .thereto and shall notify the District of the amount of such recalculated Annual
Payment. Within forty-five (45) days from the date on which the District receives notice of a
recalculated Annual Payment, the City shall pay to the District the amount, if any, by which the
recalculated Annual Payment exceeds the amount of the Annual Payment previously paid by the
City to the District for the year in question, or the District shall pay to the City the amount, 'if
any, by which the recalculated Annual Payment is less than the amount of the Annual Payment
previously paid; provided, however,that if such amount in either instance is less than $1,000.00,
rather than payment within such 45 days, the next Annual Payment shall be adjusted accordingly.
6.04. Payment of Monthly Revenue Payments. In addition to the Annual Payment, the
City shall make a payment each month to the District ("Monthly Revenue Payment") equal to
$5.00 per equivalent single-family connection located within the District; equivalent
single-family connections shall be computed in accordance with the service unit factors as set
forth in Exhibit "A," attached to this Agreement and incorporated for all purposes, as such
factors may be amended from time to time by the City in its sole discretion, provided that the
City shall always apply the same service unit factors within the District as it applies to other
areas within the City. The Monthly Revenue Payment shall be paid by the City to the District
within thirty (30) days of the last day of the month for which the Monthly Revenue Payment
applies (the "Due Date"). Each Monthly Revenue Payment that is not paid on or before the Due
Date shall be delinquent. If the City fails or refuses to pay a delinquent Monthly Revenue
Payment for a period in excess of sixty (60) days from the receipt of written.notice from the
District regarding same, then each Monthly Revenue Payment included in such notice shall incur
interest at the rate of one per cent (1%) of the amount of the Monthly Revenue Payment per
month, for each month or portion thereof during which a Monthly Revenue Payment remains
unpaid upon expiration of such sixty. (60) day period. The obligation of the City to make
Monthly Revenue Payments shall terminate upon the termination of this Agreement in
accordance with Section 9.14 hereof. The City and the District acknowledge and agree that the
District is dependent upon the Monthly Revenue Payments in order that development within the
District may be competitive with development in surrounding areas.
6.05. Access to Records for Verifying Calculation of Annual and Monthly Revenue
Payments. The City shall maintain proper books, records, and accounts; shall.provide the
• District with an accounting together with each Annual and/.or Monthly Revenue Payment, and
shall afford the District or its designated representatives reasonable access to its books, records,
and accounts for purposes of verifying the amounts of each Annual Payment and/or Monthly
Revenue Payment or recalculatedAnnual 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 and the District's debt service requirements and shall afford
the City or its designated representatives reasonable access thereto for purpose of verifying the'
amounts of Annual and/or Monthly Revenue Payments relative to the District's debt service
requirements and general operating requirements. .
6.06. District Taxes. The District is authorized to assess, levy, and collect ad valorem
taxes upon all taxable properties within the District to provide.for (i) the payment in full of the
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District Obligations, including principal, redemption premium, if any; or interest on the Bonds
and to establish and maintain any interest and sinking fund, debt service fund, or reserve fund
and (ii)for maintenance purposes, all in accordance with applicable law. The parties agree that
nothing herein shall be deemed or construed to prohibit, limit, restrict, or otherwise inhibit the .
District's authority to levy ad valorem taxes as the Board of Directors of the District from time to
time in its sole discretion may determine to be necessary. The City and the District recognize
and agree that all ad valorem tax receipts and revenues collected by the District,together with all
Annual Payments and Monthly Revenue Rebate Payments shall become the property of the
District and may be applied by the District to the payment of all proper debts, obligations, costs,
and expenses of the District and may be pledged or assigned to the payment of all or any
designated portion of the principal or redemption premium, if any, or interest on the Bonds or
otherwise in accordance with applicable law: Each party to this Agreement agrees,to notify the-
other party as soon as is reasonably possible in the event it is ever made a party to or initiates a
lawsuit for unpaid taxes.
6.07. Pledge of Payments. The parties acknowledge and agree that the District may
pledge the Annual Payments, the Monthly Revenue Payments, and/or any portion of either in
connection with the District's issuance of its Bonds.
ARTICLE VII
DISSOLUTION OF THE DISTRICT
7.01. Dissolution of District. The City and District recognize and agree that the City
may, pursuant to the procedures and provisions and subject to the limitations set forth in the
general laws of the State of Texas including, but not limited to, Section 43.074, Texas Local
Government Code, abolish and dissolve the District and assume the District Assets and District
Obligations upon a vote of not less than two-thirds (2/3) of the entire membership of the City
Council to adopt an ordinance to such effect, if the City Council finds: (a) that the District is no
longer needed, (b) that the services and functions performed by the District can be served and
performed by the City, and (c) that it would be in.the best interests of the citizens and property
within the District and the City that the District be abolished. In order to ensure that the property
owners and inhabitants of the City and the District are afforded sufficient time and opportunity to
realize the benefits and public utility to be derived from the creation and operation of the District
and the financing, construction and implementation of the plan of improvements for the District,
and in order to contribute to the financial stability and feasibility of the District by ensuring a
sufficient longevity of the District's existence to permit the District to reach a satisfactory level
of financial maturity, the City agrees that the District shall not be abolished until such time as the
District is fully developed and has sold all Bonds necessary to finance the costs of the Facilities
and has reimbursed developers and landowners within the District in accordance with the
Financing and Reimbursement Agreements previously entered into by the District.
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
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District and the transfer of the District Assets to and, the assumption of the District Obligations
by the City.
ARTICLE VIII
REMEDIES IN EVENT OF DEFAULT
•
The parties hereto expressly recognize and acknowledge that a breach of this Agreement
by either party may cause damage to the non-breaching party for which there will.not be an
adequate remedy at law. Accordingly, in addition to all the rights and remedies provided by the
laws of the State of Texas, in the event of a breach hereof by either party, the other party shall be.
entitled to the equitable remedy of specific performance.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01. Permits, Fees, Inspections. The District understands and agrees that all City
ordinances and codes, includipg applicable permits, fees, and inspections, shall be of full force
and effect within its boundaries the same as to other areas within the City's corporate limits.
9.02. Force Majeure. In the event either party is rendered unable, wholly or in part, by
force majeure to carry out any of its obligations under this Agreement, except the obligation to
pay amounts owed or required to be paid pursuant to the terms of this Agreement, then the
obligations of such party, to the extent affected by sucli force majeure and to the extent that due
diligence is being used to resume performance at the earliest practicable time, shall be suspended
during the continuance of any inability so caused to the extent provided but for no longer period.
As soon as reasonably possible after the occurrence of the force majeure relied upon, the party
whose contractual obligations are affected thereby shall give notice and full particulars of such
force majeure to the other party. Such cause, as far as possible, shall be remedied with all
reasonable diligence. The term "force majeure," as used herein, shall include without limitation
of the generality thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of
the public enemy, orders of any kind of the government of the United States or the State of Texas
or any civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earth-quakes, 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.
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9.04. Address and Notice. Any notice to be given under this Agreement shall be given
in writing, addressed to the party to be notified as set forth below, and may be given either by
depositing the notice in the United States mail postage prepaid, registered or certified mail, with
return receipt requested; by messenger delivery; or by telefacsimile. Notice deposited by mail
shall be effective three (3) days after posting. Notice given in any other manner shall be
effective upon receipt by the party to be notified. For purposes of notice, the addresses of the
parties shall be as follows:
If to the City, to:
City of Pearland
Attn: City Manager
3519 Liberty Dr.
Pearland, Texas 77581
Telefacsimile No. 341-485-7992 •
If to the District, to:
Brazoria County Municipal Utility District No. 34
c/o Allen Boone Humphries LLP
3200 Southwest Freeway; Suite 2600
Houston, Texas 77027
Attn: Stephen M. Robinson
Telefacsimile No. 713-860-6672.
If to the Developer, to:
Conifer Development,.Ltd.
Attn: James Johnson .
Alliance Commercial Investments Inc. .
900 Apollo Lane, Suite C ' .
Houston, Texas 77058
•
The parties shall have the right from time to time to change their respective addressees by giving
at least fifteen (15) days'written notice of such change to the.other party.
9.05. Assignability. This Agreement shall be assignable by the Developer; provided,
however, that it is assigned to another developer within the District. Furthermore, upon the
creation and confirmation of the District, the District's written assumption of the Agreement,in
the form attached to this Agreement, and incorporated for all purposes, as Exhibit "B," duly
delivered to the City, in accordance with the provisions of Section 9.05, shall effectively convey
all the rights and obligations of the "Developer" under this Agreement to the District and the
Developer shall no longer have any rights or obligations under this Agreement. Other than such
unique assignment from the Developer to the District or to another developer within the District,
this Agreement shall not be assignable by either party.
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OLD Sc.e.:o<, 9 .► `t
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9.06. No Additional Waiver Implied. The, failure of either party to insist upon
performance of any provision of this Agreement shall not be construed as a waiver of the future
performance of such provision by the other party.
9.07. Reservation of Rights. All rights, powers, privileges and authority of the parties
hereto not restricted or affected by the express terms and provisions hereof are reserved by the
parties and, from time to time, may be exercised and enforced by the parties.
9.08. Parties in Interest. This Agreement shall be for the sole and exclusive benefit of
the parties hereto and shall not be construed to confer any rights upon any third parties.
9.09. Merger. This Agreement embodies the entire understanding between the parties
and there are no representations, warranties, or agreements between the parties covering the
subject matter of this Agreement other than the Consent Ordinance between. the City and the
District. If any provisions of the Consent Ordinance appear to be inconsistent or in conflict with
the provisions of this Agreement, then the provisions contained in this Agreement shall,be
interpreted in a way which is consistent with the Consent Ordinance.
9.10. Modification; Exhibit. This Agreement shall be subject to change or modification
only with the mutual written consent of the City and the District. The exhibit attached to this
Agreement is incorporated by this reference for all purposes.
9.11. Captions. The captions of each section of this Agreement are inserted solely for
convenience and shall never be given effect in construing the duties, obligations or liabilities of
the parties hereto or any provisions hereof,. or in ascertaining the intent of either party, with
respect to the provisions hereof.
9.12. Interpretations. This Agreement and the terms and provisions hereof shall be
liberally construed to effectuate the purposes set forth herein and to sustain the validity of this
Agreement.
• 9.13. Severability. If any provision of this Agreement or the application thereof to any
person or circumstances is ever judicially declared invalid, such provision shall be deemed
severed from this Agreement and the remaining portions of this Agreement shall remain in
effect. .
9.14. Term and Effect. This Agreement shall remain in effect until the earlier to occur
of(i)the dissolution of the District by the City or (ii) the expiration of forty (40) years from the
date hereof. ;
[EXECUTION PAGES FOLLOW]
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fryostk dew 9. r`4
9.06. No Additional Waiver Implied. The failure of either party to insist upon
performance of any provision of this Agreement shall not be construed as a waiver of the future
performance of such provision by the other party.
9.07. Reservation of Rights. All rights, powers, privileges and authority of the parties
hereto not restricted or affected by the express terms and provisions hereof are reserved by the
parties and, from time to time, may be exercised and enforced by the parties.
9.08. Parties in Interest. This Agreement shall be for the sole and exclusive benefit of
the parties hereto and shall not be construed to confer any rights upon any third parties.
9.09. Merger. This Agreement embodies the entire understanding between the parties
and there are no representations, warranties, or agreements between the parties covering the
subject matter of this Agreement other than the Consent Ordinance between the City and the
District. If any provisions of the Consent Ordinance appear to be inconsistent or in conflict with
the provisions of this Agreement, then the provisions contained in this Agreement shall be
interpreted in a way which is consistent with the Consent Ordinance.
9.10. Modification; Exhibit. This Agreement shall be subject to change or modification
only with the mutual written consent of the City and the District. The exhibit attached to this
Agreement is incorporated by this reference for all purposes.
9.11. Captions. The captions of each section of this Agreement are inserted solely for
convenience and shall never be given effect in construing the duties, obligations or liabilities of
the parties hereto or any provisions hereof, or in ascertaining the intent of either party, with
respect to the provisions hereof.
9.12. Interpretations. This Agreement and the terms and provisions hereof shall be
liberally construed to effectuate the purposes set forth herein and to sustain the validity of this
Agreement.
9.13. Severability. If any provision of this Agreement or the application thereof to any
person or circumstances is ever judicially declared invalid, such provision shall be deemed
severed from this Agreement and the remaining portions of this Agreement shall remain in
effect.
9.14. Term and Effect. This Agreement shall remain in effect until the earlier to occur
of(i)the dissolution of the District by the City or (ii) the expiration of forty (40) years from the
date hereof.
[EXECUTION PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of equal dignity, as of the date first given above.
THE CITY OF PEARLAND, TEXAS
By:
ATTEST: City Manager
By:
City Secretary
(SEAL)
APPROVED AS TO FORM:
By:
City Attorney
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•
•
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RESPECTFULLY SUBMITTED this • day of 2003.
CONIFER DEVELOPMENT, LTD.,
a Texas limited partnership by . Conifer
Group,_GP, LLC
By:
Name:
Title: •
ATTEST:
By:
Name:
Title:
THE STATE OF TEXAS §
COUNTY OF •
This instrument was acknowledged before me on the day of
2003, by of Conifer Group, GP, LLC, a
limited liability corporation and general partner of CONIFER DEVELOPMENT, LTD., a Texas
limited partnership, on behalf of said limited partnership
Notary Public, State of
(NOTARY SEAL)
•
4035 -18-
ALLEN BOONE HUMPHRIES LLP
ATTORNEYS AT LAW
PHOENIX TOWER
3200 SOUTHWEST FREEWAY
SUITE 2600
HOUSTON,TEXAS 77027
TEL(713)860-6400
FAX (713)860-6401
abhllp.com
Direct Line: (713)860-6406 Lynne B.Humphries
Direct Fax: (713)860-6606 lhumphries@abhllp.com Partner
October 5, 2004
Mr. Darrin Coker
City of Pearland
3519 Liberty Drive
Pearland,Texas 77581-5415
Re: Brazoria County Municipal Utility District No. 34 (the "District")
Dear Mr. Coker:
On November 24, 2003, the City Council of Pearland consented to the creation of
the District by passing and approving Ordinance Number 1135. Attached as
Exhibit "B-1" to the District's "Petition for Consent to the Creation of A Municipal
Utility District" is a Utility Agreement between the City of Pearland and the District.
Article 9.14 of the Utility Agreement provides that the agreement"...shall automatically
terminate in the event that the TCEQ does not adopt an order creating the District on or
before December 31, 2003." As you know, the submission to the TCEQ requesting
creation of the District could not be filed until City consent was received; therefore, it is
impossible to have received a TCEQ order creating the District as the TCEQ creation
process is 6 to 9 months. The TCEQ actually issued its order creating the District on
August 30, 2004. I do not believe that the City of Pearland or the District intended such
time restriction to be part of the Utility Agreement. I believe this is a hold over from the
Utility Agreement used for Shadow Creek Ranch or another municipal utility district.
Therefore, I would like the City Council to approve a revised Utility Agreement that
does not contain such restriction. I have enclosed for your review a copy of the original
Utility Agreement as well as our proposed revision to Article 9.14. The District has a
November 2 confirmation election and will approve the Utility Agreement at a meeting
to be held November 10, 11, 12 or 15. We would like to have the City approve the
Utility Agreement before that date, if possible.
•
43995
Mr. Darrin Coker
October 5, 2004
Page 2 of 2
Please contact me if you have any questions.
incerely,
d.
e B. Humphries
Enclosures
43995