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R99-058 08-16-99RESOLUTION NO. R99-58 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO AN INTERLOCAL AGREEMENT WITH BRAZORIA DRAINAGE DISTRICT NO. 4 TO COOPERATE IN ESTABLISHING CONDITIONS FOR PARTICIPATION IN TAX INCREMENT REINVESTMENT ZONE NO. 2 WITHIN THE CORPORATE CITY LIMITS OF PEARLAND. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: S ection 1. That certain interlocal agreement by and between the City of Pearland and Brazoria Drainage District No. 4, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. S ection 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 o n behalf of the City of Pearland, to cooperate with the aforementioned entity in e stablishing conditions for participation in Tax Increment Reinvestment Zone No. 2 within the corporate city limits of Pearland. PASSED, APPROVED and ADOPTED this the ( Gre day of + , A.D., 1999. ATTEST: OUN ITY CRE APPROVED AS TO FORM: DARRIN M COKER CITY ATTORNEY 1 44.4; TOM REID MAYOR THE STATE OF TEXAS COUNTIES OF BRAZORIA, FORT BEND, AND HARRIS DRAFT INTERLOCAL AGREEMENT FOR TAX INCREMENT PARTICIPATION 1. PARTIES A. Address THIS INTERLOCAL AGREEMENT FOR TAX INCREMENT PARTICIPATION (the "Agreement"), is made by and between the CITY OF PEARLAND, TEXAS (the "City"), a municipal corporation and home -rule city of the State of Texas, principally situated in the Counties of Brazoria, Fort Bend, and Harris, located at 3519 Liberty Drive, Pearland, Texas 77581, acting by and through its governing body, the City Council; BRAZORIA DRAINAGE DISTRICT NO. 4 (the "District"), a Conservation and Reclamation District of the State of Texas, principally situated in the County of Brazoria, located at 4805 W. Broadway, Pearland, Texas 77581, acting by and through its governing body, the Board of Commissioners; and the REINVESTMENT ZONE NUMBER TWO, CITY OF PEARLAND, TEXAS (the "Reinvestment Zone"), a reinvestment zone created by the City of Pearland pursuant to Chapter 311 of the Texas Tax Code and City of Pearland Ordinance 891, located at 3519 Liberty Drive, Pearland, Texas 77581, acting by and through its Board of Directors. This Agreement is made pursuant to Chapter 791 of the Texas Government Code and Section 311.013 of the Texas Tax Code. City District Reinvestment Zone A:\ia-ikey.wpd August 12, 1999 - 6:00 p.m. The initial addresses of the parties, which each party may change by giving written notice of its changed address to the other parties, are as follows: City City Manager or Designee City of Pearland, Texas 3519 Liberty Drive Pearland, Texas 77581 The District Brazoria Drainage District No. 4 Attention Superintendent 4805 W. Broadway Pearland Texas 77581 The Reinvestment Zone Reinvestment Zone Number Two, City of Pearland, Texas Attention: Chairman c/o City of Pearland, Texas 3519 Liberty Drive Pearland, Texas 77581 B Index The City, the District and the Reinvestment Zone hereby agree to the terms and conditions of this Agreement. This Agreement consists of the following sections: Section I. II. III. IV. V. VI. VII. Description Parties Definitions Background Obligations of the District Obligations of City and the Reinvestment Zone Term and Termination Miscellaneous City District Page 1 6 7 7 9 11 12 Reinvestment Zone A:tia-ikey.wpd August 12, 1999 - 6:00 p.m. Page 2 Exhibit "A" - City of Pearland Ordinance No. 891 C. Parts Incorporated All of the above described sections and documents are hereby incorporated into this Agreement by this reference for all purposes. [The remainder of this page is intentionally left blank.] City District Reinvestment Zone A:1ia-ikey.wpd August 12, 1999 - 6:00 p.m. Page 3 IN WITNESS HEREOF, the City, the District and the Reinvestment Zone have made and executed this Agreement in multiple copies, each of which is an original. CITY OF PEARLAND, TEXAS, BRAZORIA DRAINAGE DISTRICT NO. 4 a Texas Home Rule Municipality By: City Mayor Date Chairman, Board of Commissioners Date ATTEST: Secretary, Board of Commissioners Date City Secretary Date (SEAL) COUNTERSIGNED: APPROVED AS TO FORM: City Manager Date Attorney Date APPROVED AS TO FORM: City Attorney Date City District Reinvestment Zone A:\ia-ikey.wpd August 12, 1999 - 6:00 p.m. Page 4 REINVESTMENT ZONE NUMBER TWO, CITY OF PEARLAND, TEXAS By: Date Title: Chairman, Board of Directors ATTEST/SEAL: By' Date Title: Secretary, Board of Directors [The remainder of this page is intentionally left blank.] City District Reinvestment Zone A:\ia-ikey.wpd August 12, 1999 - 6:00 p.m. Page 5 II. DEFINITIONS As used in this Agreement, the following terms shall have the meanings set out below: "Agreement" means this agreement between the City, the District and the Reinvestment Zone. "Agreement Term" is defined in Section VI. "Captured Appraised Value" for a given tax year means the certified total appraised value of the real property in the Reinvestment Zone Tess the Tax Increment Base. "City" is defined in Section I of this Agreement and includes its successors and assigns. "Countersignature Date" means that date shown as the date countersigned by the City Manager on the signature page of this Agreement. "Developer" means Shadow Creek Ranch Development Company, L.P., a Nevada limited partnership. "The District" is defined in Section I of this Agreement and includes its successors and assigns. "The District Tax Increment Participation" means the amount of the District tax levy on the Captured Appraised Value, which the District agrees to contribute to the Reinvestment Zone pursuant to Section IV of this Agreement. "Master Drainage Plan for the Reinvestment Zone" means a conceptual plan prepared by an engineer detailing concepts for the drainage of a project. This plan presents design methodology and is used to demonstrate that the proposed development does not adversely impact existing areas by a) increasing the 100 year flood plain or b) increasing the 100 year water surface elevation in the channel or bayou. • "Project Plan" means the project plan and reinvestment zone financing plan for the Reinvestment Zone adopted by the board of directors of the Reinvestment Zone and approved by the City Council of the City. City District Reinvestment Zone A:\ia-ikey.wpd Page 6 "Reinvestment Zone" means Reinvestment Zone Number Two, City of Pearland, Texas created by the City on December 14, 1998, by Ordinance No. 891, attached as Exhibit "Al" and includes its successors and assigns. "Tax Increment Base" means the market value of all real property located in the Reinvestment Zone for the 1998 tax year, as determined by the Brazoria County Central Appraisal District (excluding exemptions). "Tax Increment Fund" means the tax increment fund created by the City in the City Treasury for the Reinvestment Zone. Otherwise, the terms used herein shall have the meanings ascribed to them in Chapter 311, Texas Tax Code, as applicable. III. BACKGROUND By Ordinance No. 891, adopted December 14, 1998, the City created the Reinvestment Zone for the purposes of development and redevelopment in the area of the Reinvestment Zone. The City will deposit, into the Tax Increment Fund, tax increments produced in the Reinvestment Zone. The District desires to participate in the Reinvestment Zone in consideration for the agreements set forth below. IV. OBLIGATIONS OF THE DISTRICT A. Tax Increment Participation by the District For and in consideration of the agreement of the parties set forth herein, and subject to the remaining sections of this Agreement, the District agrees to participate in the Reinvestment Zone, by contributing to the Tax Increment Fund, the below listed amounts of the tax increment produced in the City District Reinvestment Zone A:\ia-ikey.wpd Page 7 Reinvestment Zone attributable to the District, collected by the County in each of the tax years at the tax rate described in Table IV -A below: Table IV -A TAX DISTRICT TAX RATE PER PERCENTAGE OF TOTAL YEAR ONE HUNDRED DOLLARS TOTAL DISTRICT OF ASSESSED VALUE TAX RATE 1999 - 2028 $0.0707 50% In the event, the District tax rate is less than the tax rate for the indicated tax year listed above, the District Tax Increment Participation is the percentage of the total amount of taxes collected by the District at the actual tax rate of the District on the Captured Appraised Value. In a tax year in which the tax rate is greater than the District tax rate set forth in Table IV -A ("District Tax Rate"), the District Tax Increment Participation shall be limited to the amount of tax produced at the District Tax Rate, and the District shall retain that portion of the taxes attributable to the District in excess of the actual tax rate levied by the District over the applicable District Tax Rate. The District's Tax Increment Participation and obligation to participate in the Reinvestment Zone shall be restricted to its tax increment collected on the Captured Appraised Value in the Reinvestment Zone in the amount shown above. The District shall not be obligated to pay its District Tax Increment Participation from other District taxes or revenues and the District shall not be obligated to pay its District Tax Increment Participation until the District Tax Increment Participation in the Reinvestment Zone is actually collected. The obligation to pay the District Tax Increment Participation will accrue as taxes representing the District tax increment are received by the District and payment shall be due on the 1st day of August, each year. The City and the Reinvestment Zone agree that no interest or penalty will be charged to the District. City District Reinvestment Zone A:\ia-ikey.wpd Page 8 B Expansion of the Investment Zone The obligation of the District to participate in the Reinvestment Zone is limited to the area described in Exhibit "A" attached hereto and incorporated herein for all purposes. The District's participation shall not extend to the tax increment on any additional property added to the Reinvestment Zone by the City unless the District approves the participation. C. Board of Directors The District shall designate an individual eligible, in accordance with Chapter 311 of the Texas Tax Code, to serve on the Reinvestment Zone Board of Directors. The City shall appoint said individual as a member of the Reinvestment Zone Board of Directors. Failure of the District to appoint a person to the Board of Directors of the Reinvestment Zone by September 30, 1999, shall be deemed to be a waiver of the District's right to appoint a director by a later date. V. OBLIGATIONS OF CITY AND THE REINVESTMENT ZONE A. Copy of Project Plan A copy of the Reinvestment Zone Project Plan, along with any amendments thereto, has been provided to the District. Any amendment to the Project Plan shall be submitted to the District for review prior to adoption. B Approval of Drainage Plans The City and the Reinvestment Zone agree that the City and the District shall both approve the Master Drainage Plan for the Reinvestment Zone prior to the approval of any final plats or plans within the Reinvestment Zone. The Master Drainage Plan shall be amended only by mutual approval of the City and the District. Upon submission of final plats or plans to the City for property within the Reinvestment Zone, the City shall require drainage plats and plans to be submitted to the District for review and comment to insure conformance with said Plan. The District, at its discretion, may charge City District Reinvestment Zone A:\ia-ikey.wpd Page 9 reasonable review fees payable by the requestor of the plat approval. Accordingly, the District shall have the right of access for inspection purposes during construction, upon providing the City and the Reinvestment Zone reasonable notice. The City agrees to only approve final plats and plans that conform to said Master Drainage Plan. C. Construction and Maintenance of Drainage Facilities The City and the Reinvestment Zone agree that the City and/or the Reinvestment Zone shall be responsible for construction and maintenance of any and all drainage facilities in the Reinvestment Zone in accordance with the Master Drainage Plan for the Reinvestment Zone in perpetuity. The City shall cause the developer to arrange for the maintenance of lakes and channels within the Reinvestment Zone through a PID assessment or homeowner's association assessment or similar organization. D. Disannexation Once Reinvestment Zone bonds have been sold, the City agrees that it will never disannex any property within the Reinvestment Zone. E Responsibility for Reinvestment Zone Debt The City and the Reinvestment Zone agree that the District is not liable for any debt of the Reinvestment Zone, or any debt issued by the City or related instrumentality thereof secured by revenues of the Tax Increment Fund, or other revenues available to pledge to such bonds. F. Development in Accordance with the Planned Unit Development The City and the Reinvestment Zone agree that all development within the Reinvestment Zone shall be in accordance with the Planned Unit Development. The City will enforce the requirements of the Planned Unit Development on all development within the Reinvestment Zone. City District Reinvestment Zone A:\ia-ikey.wpd Page 10 G. Financial Audit The Reinvestment Zone and the City agree that the District has the right to conduct a reasonable audit of the records, including but not limited to the financial records of the Reinvestment Zone and access to such records shall not be unreasonably withheld or delayed. The Reinvestment Zone and the City agree to provide the annual financial audit of the Reinvestment Zone within 90 days of the completion of such audit. H. Developer Interest The City agrees that the Project Plan will include a provision that limits the amount of reimbursement to the Developer (for the full amount of eligible Master Improvements, plus amounts required to reimburse the Developer for funds advanced in connection with the creation and administration of the Reinvestment Zone and the conception, design and construction of the TIRZ Improvements), that is reimbursable at simple interest calculated at eight percent per annum, until paid, for a maximum period of five years from the completion of the applicable TIRZ Improvements, to $20 million for the eligible Master Improvements and $1 million for the creation and administration of the Reinvestment Zone. VI. TERM AND TERMINATION A. Agreement Term This Agreement shall become effective as of the date of the final signature affixed hereto, and shall remain in effect until the earlier of (a) the expiration of thirty (30) years thereafter, or (b) termination of the Reinvestment Zone in accordance with Chapter 311 of the Texas Tax Code. The first payment of the District Tax Increment Participation shall be for those taxes levied by the District in the year 1999 and payments shall continue in accordance with this Agreement until it terminates in accordance with this paragraph. City District Reinvestment Zone A:1ia-ikey,wpd Page 11 B Early Termination of Reinvestment Zone by Ordinance The City shall not adopt an ordinance terminating the Reinvestment Zone earlier than the duration of the Zone established in Ordinance No. 891, without the prior consent of the District, provided that the Reinvestment Zone may otherwise terminate by operation of law. D. Disposition of Tax Increments Upon termination of the Reinvestment Zone, if all public improvements in the Project Plan have been constructed and financed and if all Reinvestment Zone debt is paid in full, the City and the Reinvestment Zone shall pay to the District all monies remaining in the Tax Increment Fund that are attributable to the District Tax Increment Participation. VII. MISCELLANEOUS A. Severability In the event any term, covenant or condition herein contained shall be held to be invalid by any court of competent jurisdiction, such invalidity shall not affect any other term, covenant or condition herein contained, provided that such invalidity does not materially prejudice either the District, the City or the Reinvestment Zone in their respective rights and obligations contained in the valid terms, covenants or conditions hereof. In the event any term, covenant or condition contained herein shall be held invalid and affects in any manner the limitations on the District, its contributions or participation, then this Agreement shall be void as to the District and the District shall have no further obligations hereunder and no liability for any incremental or other payments as may otherwise be provided for in this Agreement. City District Reinvestment Zone A:\ia-ikey.wpd Page 12 B Entire Agreement This Agreement merges the prior negotiations and understandings of the parties hereto and embodies the entire agreement of the parties, and there are no other agreements, assurances, co conditions, covenants (express or implied) or other terms with respect to the covenants, whether written o r verbal, antecedent or contemporaneous, with the execution hereof. C. Written Amendment Unless otherwise provided herein, this Agreement may be amended only by written instrument duly executed on behalf of each party. D. Notices All notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third (3rd) day following deposit in a United States Postal Service post office or receptacle with proper postage affixed (certified mail, return receipt requested) addressed to the respective other party at the address prescribed in Section I of this Agreement or at such other address as the receiving party may have theretofore prescribed by notice to the sending party. E. Non -Waiver Failure of any party hereto to insist on the strict performance of any of the agreements herein o r to exercise any rights or remedies accruing hereunder upon default or failure of performance shall n ot be considered a waiver of the right to insist on, and to enforce by any appropriate remedy, strict compliance with any other obligation hereunder or to exercise any right or remedy occurring as a result of any future default or failure of performance. City District Reinvestment Zone A:\ia-ikey.wpd Page 13 F. Assignment N o party shall assign this Agreement at law or otherwise without the prior written consent of the other parties. N o party shall delegate any portion of its performance under this Agreement without the prior written consent of the other parties. G. Successors This Agreement shall bind and benefit the parties and their legal successors. This Agreement does not create any personal liability on the part of any officer or agent of the City or of any officer, agent or employee of the District. H. No Waiver of Immunity N o party hereto waives or relinquishes any immunity or defense on behalf of itself, its trustees, officers, employees, and agents as a result of its execution of this Agreement and performance of the covenants contained herein. I. Separate Powers The terms, phrases, conditions, and covenants, contained herein, are not and shall not be intended to alter, diminish, or enhance the separate and individual power, authority, responsibility, obligation, or liability imposed upon any party hereto in accordance with state law. [The remainder of this page is intentionally left blank] City District Reinvestment Zone A:\ia-ikey.wpd Page 14