Ord. 0860 1998-07-31ORDINANCE NO. 860
AN ORDINANCE GRANTING THE CONSENT OF THE CITY OF PEARLAND,
TEXAS, TO THE CREATION OF BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 19 WITHIN THE CITY'S CORPORATE BOUNDARIES.
WHEREAS, the City of Pearland, Texas, received a Petition for Consent to the Creation of
a MUNICIPAL UTILITY DISTRICT (to be known as Brazoria County Municipal Utility District
No. 19) for 180.7796 acres located in the City's corporate boundaries, a copy of which petition is
attached hereto and incorporated herein as Exhibit "A"; and
WHEREAS, Section 54.016 of the Texas Water Code provides that land within a city's
corporate boundaries may not be included within a district without the city's written consent; NOW,
THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL
OF THE CITY OF PEARLAND, TEXAS:
That the City Council of the City of Pearland, Texas, gives its written consent to the creation
of Brazoria County Municipal Utility District No. 19 on 180.7796 acres of land, as described in the
attached petition and the consent conditions attached thereto.
That the City Council of the City of Pearland, Texas, authorizes and directs the City Manager
to execute the Utility Agreement (as defined in the consent conditions attached to the petition
attached hereto) on behalf of and as the duly authorized act of the City of Pearland, Texas...
The importance of this ordinance and the impending creation of Brazoria County Municipal
Utility District No. 19 create an emergency and an imperative public necessity, so that this ordinance
shall be effective as of the date below upon its first and final reading.
PASSED AND APPROVED on the day of , 1998.
Mayor, City of Pearland
ATTEST: APPROVED:
City Secretary City Attorney
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Exhibit A
PETITION FOR CONSENT TO THE CREATION
OF A MUNICIPAL UTILITY DISTRICT
TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
The undersigned (herein the "Petitioner"), acting pursuant to the provisions of Chapters 49 and
54, Texas Water Code, respectfully petitions the City Council of the. City of Pearland, Texas, for its
written consent to the creation of a municipal utility district and would show the following:
The name of the proposed District shall be BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 19 (the "District").
The District shall be created ;and: organized under the terms :and;provisions of Article XVI,
Section 59 of the Constitution of Texas and Chapters 49 and,54,.:Texas Water Code.
III.
L\Crry-I
The District shall contain an area of 180.7796 acres of land, more or Tess, situated in Brazoria
County, Texas AJI,.of, the, ,la_nd-to.be:ir)cipdedin.the..District:is.with ion the,pop daries.,of.the City of
I3--garlarnd, ie�Cas (the, "City"). ,411Lo4 the land proposed,to be ihclud i-:_m0y, properayi be,nc(uded in t o
Di�strtct T.he land proposed to be includedY;lithin the Distrct consistsiof twq treats described tiy metes
�a l
and bounds in Exhibit "A", which is attached hereto and incorporated herein for all purposes (the
"Land").
1 ^•f •'l^i' .Je;:Jt.1 ,c1 !�(;�, �.. !i, I`I• il,•I�.:"dl`ii� i Th , 1
DISTRICT NO f01,"'
The Ritson'Morris Corporation, a Texas corporation ("Ritson"), holds fee simple title to the
117.6207 acre tract which comprises a portion of the Land, which tract is described more particularly
on Exhibit "B," attached hereto and incorporated herein (the "Ritson Land"). Petitioner hereby
representlie.,Ritson Land,gas indicatedby,tthe,tax;.roll oBrzre,Cpunt]iToxas„cotstUi1utes r'a
magrty, wi_ncluded- to the Dtsfrict•
V.
Ritson. represents that attached,hereto{as::Exhibit "C" are the'con�sents,_Qf;aIJ !!P40c 1ders;o fl tf e
Ritson, Land and that there are noresidents pn the Ritson Land.
;The general nature of the work to be done by the District at the presenttime is 'the design,
construction, acquisition, maintenance and operation of a waterworks and sanitary sewer system for
domestic and commercial purposes, and the construction, acquisition, improvement, extension,
maintenance and operation Of Works, improvements, facilities; plants; equipment and• appliances' helpful
or -necessary to, provi. e:more adequate drainage,for the.Dlstrict, end to, control, abate. and: amend .local
storm-; waters or, -other harmful excesses, of. waters, an ,.such other consf ctt n, ac isttion
:ODMA\SOFCSOL3II\VEHOt109\62259\o ,
improvement, maintenance and operation of such additional facilities, systems, plants and enterprises
as shall be consonant with all of the purposes for which the District is created.
VII.
There is, for the following reasons, a necessity for the above -described work. The area
proposed to be within the District is urban in nature, is within the growing environs of the City of
Pearland, Texas, and is in close proximity to populous and developed sections of Brazoria County,
Texas. There is not now available within the area, which will be developed for single family residential
and commercial uses, an adequate waterworks system, sanitary sewer system, or drainage and storm
sewer system. The health and welfare of the present and future inhabitants of the area and of the
territories adjacent thereto require the purchase, design, construction, acquisition, ownership, operation,
repair, improvement and extension of an adequate waterworks system, sanitary sewer system, and
drainage and storm sewer system. A public necessity, therefore, exists for the creation of the District,
to provide for the purchase, design, construction, acquisition, ownership, operation, repair, improvement
and extension of such waterworks system, sanitary sewer system, and drainage and storm sewer
system, to promote the purity and sanitary condition of the State's waters and the public health and
welfare of the community.
VIII.
Petitioner, by submission of this Petition, requests the City's consent to the creation of the
District containing the Land under the same conditions set forth in Exhibit "D" which is attached hereto
and incorporated herein for all purposes.
IX.
A preliminary investigation has been made to determine the cost of the proposed District's
project, and it is now estimated by the Petitioner, from such information as it has at this time, that such
cost will be approximately $6,350,000.
WHEREFORE, Petitioner prays that this petition be heard and that your Honorable Body duly
pass and approve an ordinance or resolution granting the consent to the creation of the District and
authorizing the inclusion of the land described herein within the District.
::ODMA\SOFTSOL\31 I\V EH0009\62259\0
RESPECTFULLY SUBMITTED this ,)/ — day of , 1998.
THE RITSON MORIS CORPORATION,
a Texas corporation
ATTEST:
Name: Laura -Hill Taylor -
Title: Secretary
THE STATE OF TEXAS §
COUNTY OF /5.2Wza1 §
By:
''1
Name: C. Travis Tray or, J
Title:. President
This instrument was acknowledged before me on the -3/ day of
1998, by C. Travis Traylor, Jr., President of The Ritson Morris Corporation, a Terms Qoj ration, on
behalf of said corporation.
(SEAL)
►� -YP
1.4
STEPHANIE MATTHEWS
Wary Public, State of Texas
MY Comadesicn Expires
JUNE 2-1, 2002.
::ODMA\SOFTSOLV 1 I\VEHOU09\62259\0
Notary, ublic, State'o
r
METES AND BOUNDS DESCRIPTION
63.1589 ACRES OUT OF
SOUTHEAST 1/4 OF SECTION 21
H.T. & B. RR COMPANY SURVEY ABSTRACT 309
PEARLAND, BRAZORIA COUNTY, TEXAS
All that certain 63.1589 acres out of the southeast 1/4 of section 21, H.T. & B. RR
Company Survey, Abstract - 309, Brazoria County, Texas and being part of that
certain tract of land as described in deed dated 11-22-1972 from George P. Kelly
to Rose M.A. Bagnoli filed in Volume 1144, Page 902 Brazoria County Deed
Records and being more particularly described by metes and bounds as, follows;
Commencing at a found 1" iron rod marking the southeast corner of that certain
tract described in a deed dated 9-15-1997 from Ruth Marie Kelley to Beazer Homes
Texas, L.P. as filed in Official Records of Real Property of Brazoria County at
Clerk's File Number 97-032965; Thence N 02° 41' 15" W - 500.74' with the east
line of said Beazer Tract to a found 5/8" iron rod with cap for angle point; Thence
N 02° 37' 55" W - 884.65' continuing with said Beazer Tract to a call and found
5/8" iron rod with cap; Thence N 02° 37' 53" W - 500.36' with the east Tine of
said Bagnoli Tract to a point for corner; Thence S 87° 16' 24" W - 30.00' to a set
5/8" iron rod marking the POINT OF BEGINNING of herein described tract;
Thence N 02° 37' 53" W - 754.70' to a set 5/8" iron rod for corner;
Thence S 87° 20' 24" W - 2,615.56' with the north line of said Bagnoli Tract to a
found 5/8" iron rod for corner from which a found 5/8" iron rod bears S 56°. 31'
13" E - 1.36' from said point;
Thence S 02° 46' 34" E - 1,255.02' (called 1,254.00') with the east line of that
certain 120' Drainage Easement filed in Volume (85) 115, Page 516 Brazoria
County Deed Records and the east line of said ,Bagnoli tract to a found 5/8" iron
rod with cap for corner marking the northwest corner of Village Edgewater Estates
Section One according to the plat thereof filed in Volume 20, Page 71-72 Brazoria
County Plat Records;
Thence N 87° 20' 24" E - 945.00' with the north line of said Village of Edgewater
Estates Section One to a found 5/8" iron rod marking a point on a curve to the left
having a radius of 1,835.00' and a central angle of 16° 44' 17";
Thence with said curve an arc distance of 536.07' and a chord bearing and
distance of N 65° 38' 38" E - 534.16' to a set 5/8" iron rod for corner;
20-09NF M&b.doc
Thence N 57° 16' 31" E — 130.11' to a set 5/8" iron rod marking the point of
curvature of a curve to the right having a radius of 1,765.00' and a central angle
of 29° 59' 53";
Thence with said curve an arc distance of 924.09' and a chord bearing and
distance of N 72° 16' 27" E — 913.57 to a set 5/8" iron rod for corner;
Thence N 87° 16' 24" E — 176.53' to the POINT OF BEGINNING and containing
63.1589 acres of land more or Tess.
Compiled by:
C.L. Davis & Company
Land Surveying
Job Number: 20-09NF
July 7, 1998
20-09NF M&b.doc
EXIfi
r
DESCRIPTION
Of 117.6207 acres or 5,123,557 square feet of land being all of Tots 23, 24, 25, 26, 27 and
28, along with a portion of lots 21, 31, 32, 33, 35 and 36 of Allison - Richey Gulf Home
Company's Suburban Gardens Subdivision, Section 85, H.T.&B.R.R. Company Survey
Abstract 304, Brazoria County, Texas, as recorded in Volume 2, Page 107-108 Plat
Records Brazoria County, Texas, said 117.6207 acres being more particularly described
by metes and bounds as follows:
BEGINNING at a 5/8 inch iron rod found in the South Right -Of -Way line of County Road
403 (70 foot wide Right -Of -Way), with the West Right -Of -Way line of County road 93
(variable width right-of-way);
THENCE South 00 deg. 00 min. 28 sec. West, along the West Right -Of -Way line of
County Road 93, a distance of 1465.15 feet (call 1465.00 feet) to a 5/8 inch iron rod found
for comer,
THENCE North 89 deg. 58 min. 10 sec. West, along the common line of lots 33 and 34,
a distance of 849.53 feet to a'/ inch iron rod found for the common comer of Tots 23, 24,
33 and 34;
THENCE South 00 deg. 00 min. 35 sec. West, along the common Tine of lots 24 and 34,
a distance of 495.02 feet (call 495.00 feet) to a 5/8 inch iron rod found for the common
comer of lots 24, 25, 34 and 35;
THENCE South.89 deg. 58 min. 15 sec. East, along the common line of Tots 34 and 35, a
distance of 849.55 feet to a 5/8 inch iron rod found for corner in the West Right -Of -Way
line of County Road 93;
THENCE South 00 deg. 00 min. 28 sec. West, along the West Right -Of -Way line of
County Road 93, a distance of 991.00 feet (call 990.00 feet) to a'/ inch iron rod found for
comer;
THENCE North 89 deg. 59 min. 15 sec. West, along the common line of lots 36 and 37,
a distance of 851.19 feet to a 5/8 inch iron rod set for the common line of lots 26, 27, 36
and 37;
THENCE South 00 deg. 01 min. 51 sec. West, along the common line of lots 27, 28, 37
and 38, a distance of 990.00 feet to a 5/8 inch iron rod set for the common comer of Tots
28, 29, 38 and 39;
Page 1 of 3
DESCRIPTION CONTINUED
THENCE North 89 deg. 59 min. 15 sec. West, along the common line of Tots 28 and 29,
a distance of 880.00 feet to a 5/8 inch iron rod set for the common comer of lots 18, 19,
28 and 29;
THENCE North 00 deg. 01 min. 51 sec. East, along the common line of Tots 18, 28, 17, 27,
16, 26, 15, 25, 14, 24, 13, 23, a distance of 2973.04 feet (call 2970.00 feet) to a 5/8 inch
iron rod set for the common comer of lots 12, 13, 22 and 23;
THENCE South 89 deg. 55 min. 30 sec. East, along the common line of lots 22 and 23, a
distance of 880.88 feet (call 880.00 feet), to a 5/8 inch iron rod set for the common corner
of lots 22, 23, 32 and 33;
THENCE North 00 deg. 00 min. 35 sec. East, along the common line of Tots 22 and 32, a
distance of 495.00 feet to a 5/8 inch iron rod set for the common comer of Tots 21, 22, 31
and 32;
THENCE North 89 deg. 55 min. 30 sec. West, along the common line of Tots 21 and 22,
a distance of 880.69 feet (call 880.00 feet) to a 5/8 inch iron rod set for the common corner
of lots 11, 12, 21 and 22;
THENCE North 00 deg. 01 min. 51 sec. East, along the common line of lots 11 and 21, a
distance of 475.00 feet to a 5/8 inch iron rod found for corner in the South Right -Of -Way
line of County Road 403 (70 foot wide right-of-way);
Page 2of3
DESCRIPTION CONTINUED
THENCE South 89 deg. 55 min. 30 sec. East, along the South Right -Of -Way line of County
Road 403, a distance of 1730.00 feet to the PLACE OF BEGINNING.
WITNESS MY HAND AND SEAL THIS THE 6th DAY OF JULY, 1998
J. RLYN RAINER
R GISTERED PROFESSIONAL LAND SURVEYOR NO. 4722
JOB NO. 98030
FOSTER -RAINWATER AND ASSOCIATES SURVEYING
4202 ALLEN ROAD
PEARLAND, TEXAS 77584
(281)489-0189
Page 3 of 3
Exhibit "C"
(Consent of All Lienholders on the Ritson Land - 117.6207 acres)
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EXHIBIT "D"
(a) The City of Pearland, Texas (the "City"), by execution of its City Manager, and the
developer on behalf of the District shall enter into and execute a utility agreement, in substantially the
form attached hereto as Exhibit "D-1," to specify the terms and conditions for providing water and
sewage treatment services to the District (the "Utility Agreement"). Upon the District's creation and
ocnfirmation, the District shall assume all the rights, obligations, and interests of the developers under
the Utility Agreement, as set forth therein.
(b) The District will issue bonds only for the purposes authorized by law, including but not
limited to, purchasing, designing and constructing, or purchasing, designing, and constructing or
otherwise acquiring waterworks systems, sanitary sewer systems, storm sewer systems, and drainage
facilities, or parts of such systems or facilities, and to 'make any and all necessary purchases,
constructions, improvements, extensions, additions, and repairs thereto, and to purchase or acquire all
necessary land, right-of-way, easements, sites, equipment, buildings, plants, structures, and facilities
therefor, and to operate and maintain same, and to sell water, sanitary sewer, and other services within
or without the boundaries of the District. Such bonds must provide that the District reserves the right
to redeem said bonds on any interest -payment date subsequent to the fifteenth (15th) anniversary of
the date of issuance without premium, and none of such bonds, other than refunding bonds, will be sold
for less than 95% of par; provided that the net effective interest rate on bonds so sold, taking into
account any discount or premium as well as the interest rate borne by such bonds, will not exceed two
percent (2%) above the highest average interest rate reported by the Daily Bond Buyer in its weekly "20
Bond Index" during the one -month period next preceding the date of the sale of such bonds. The
resolution authorizing the issuance of the District's bonds will contain a provision that the pledge of any
revenues from the operation of the District's water and sewer and/or drainage system to the payment
of the District's bonds will terminate when and if the City annexes the District, takes over the assets of
the District and assumes all of the obligations of the District.
(c) Before the commencement of any construction within the District, its directors, officers,
or developers and landowners will submit to the City, or to its designated representative, all plans and
specifications for the construction of water, sanitary sewer and drainage facilities to serve such 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.
(d) Prior to the sale of any lot or parcel of land, the owner or the developer of the land
included within the limits of the District will obtain the approval of the Planning and Zoning Commission
of the City of a plat which will be duly recorded in the Official Records of Brazoria County, Texas, and
otherwise comply with the rules and regulations of the Engineering Department and the Department of
Public Works of the City of Pearland.
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-7-
THE STATE OF TEXAS
COUNTY OF
I, the Secretary of the City of Pearland, Texas, do hereby certify that a signed copy of the
Petition for Creation of Brazoria County Municipal Utility District No. 19 has been filed in my office.
WITNESS MY HAND AND THE SEAL OF THE CITY, this day of
• , 1998.
City Secretary,
City of Pearland, Texas
(SEAL)
::ODMA\SOF(SOL'711 \VEH0009\6225910
Exhibit D-1
UTILITY AGREEMENT
This UTILITY AGREEMENT (the "Agreement), is made and entered into as of the day
of , 1998, by and between the CITY OF PEARLAND, TEXAS, a municipal corporation
and home -rule city of the State of Texas (the "City"), and THE RITSON MORRIS CORPORATION,
a Texas corporation (the "Developer"), on behalf of proposed BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 19, to be created as a body politic and corporate and a governmental
agency of the State of Texas organized under the provisions ofArticle XVI, Section 59 of the Texas
Constitution (the "District").
RECITALS
The District was 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 nearthe 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 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 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.
"Approved Plans" means plans and specifications approved in accordance with
Section 2.01.
vehou09.62846 8-5-98
"Approving Bodies" means any or all of the following entities, as appropriate in a particular
context: the City; Brazoria County, Texas; Harris County, Texas; the TNRCC; the Attorney General
of Texas; the Comptroller of Public Accounts of Texas; the United States Department of Justice;
and all other federal, state, and local 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 for such other purposes permitted
or provided by state law, whether payable from ad valorem taxes, the proceeds of one or more
future bond issues, or otherwise, and including any bonds, notes, or similar obligations issued to
refund such bonds.
"City" means the City of Pearland, Texas, a municipal corporation and home -rule city of the
State of Texas.
"City Manager" means the City Manager of the City or the City Manager's designee.
"Connection Charge" means the amount to be paid to the City for water and wastewater
capacity for each improvement within the District at the time of connection of the improvement to
the Facilities, as defined in Section 5.04.
"Consent Ordinance" means the ordinance or resolution to be adopted by the City
evidencing the City's consent to the inclusion of land within the District in accordance with Texas
Local 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 THE RITSON MORRIS CORPORATION, a Texas corporation.
"District" means Brazoria County Municipal Utility District No. 19, 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 the Developer and the District, as it is the intention of the parties to this Agreement that all
rights, benefits, and obligations pursuant to this Agreement shall ultimately be assigned by the
Developer to the District upon its creation.
"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
vehou09.62846 8-5-98
page 2
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 Dannenbaum Engineering Corporation 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, together with all contract rights, permits, licenses, properties,
rights -of -way, easements, sites, and other interests related thereto.
"Monthly Revenue Payments" means the monthly payments to be made by the City to the
District, as defined in Section 6.04 hereof.
"Oversized Facilities" means water, sewer, and/or drainage facilities sized to serve areas
outside the District or constructed to serve areas outside the District, as defined in Section 2.04.
"Payment Date" means the date each year when the Annual Payments are due, as defined
in Section 6.02.
"TNRCC" means the Texas Natural Resource Conservation Commission, or any successor
or successors exercising any of its duties and functions related to water conservation and
reclamation districts.
ARTICLE II
DESIGN AND CONSTRUCTION OF THE FACILITIES
2.01. Design. The Facilities shall be designed by the District Engineer in accordance with
sound engineering principles and in compliance with all applicable requirements of the Approving
Bodies. The plans and specifications for the Facilities shall be subject to, review and approval by
the City, the District, and the Approving Bodies with jurisdiction (the "Approved Plans"). The District
shall not make any changes to the Approved Plans without the approval of the City. The City shall
not require that the Facilities be designed to requirements more stringent than the City's
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.
vehou09.62846 8-5-98
page 3
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 a
construction contract for the Facilities based upon the Approved Plans. The Facilities shall be
constructed, and all easements, equipment, materials, and supplies required in connection with the
Facilities shall be acquired in the name of the District so that the District is the owner; provided,
however, the District may enter financing arrangements with a third party or parties to advance
funds on behalf of the District for the construction of the Facilities. 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 Engineer shall serve as project
engineer for the District for the Facilities construction, shall make a recommendation regarding
award of the construction contract, shall make monthly reports to the District Board of Directors on
the progress of construction, shall review and approve all pay estimates submitted for the District
Board of Directors' approval, shall submit all change orders to the District Board of Directors for
approval and to the City for its records, shall provide appropriate inspection during construction of
the Facilities, and shall recommend final acceptance of the Facilities to the District's Board of
Directors when appropriate. The District Engineer shall file all required documents with the TNRCC.
2.03. Acceptance of Facilities. Upon completion of the Facilities, the District Engineer shall
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 Engineer
shall 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 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 District's 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 District's 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 a development agreement in the form attached to this Agreement, and
incorporated for all purposes, as Exhibit "A." If the Oversized Facilities are designed and
constructed by the District as part of the design and construction of Facilities (collectively, the
Oversized Facilities and the Facilities, the "Project"), the Construction Costs of the Oversized
Facilities shall be determined in accordance with TNRCC rules and regulations so that Project
Construction Costs will be shared by the City and the District on the basis of benefits received,
which are generally the design capacities in the Project for the City and the District respectively.
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ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. The District shall have authority to issue, sell,
and deliver Bonds from time to time, as deemed necessary and appropriate by the Board of
Directors of the District, for the purposes, in such forms and manner, and as permitted or provided
by federal law, the general laws of the State of Texas, and the Consent Ordinance. The District
shall not be authorized to sell Bonds until it has provided the City with a certified copy of the
TNRCC order approving each bond issue in which the TNRCC concludes that a District debt
service tax rate of $1.50 or less per $100 of assessed valuation is feasible in accordance with the
TNRCC's rules in effect at the time, of such determination. The District's obligation to provide a
certified copy of the TNRCC order including such conclusion shall not be construed as a limitation
on the District's authority to levy an unlimited tax rate, it being understood and acknowledged that
the District's bonds shall be payable from and secured by a pledge of the proceeds of an ad
valorem tax, without legal limitation as to rate or amount. The District shall provide the City with
copies of the Official Statement and the District's resolution authorizing the issuance of the Bonds
for each issue prior to the delivery of the Bonds to the initial purchaser.
3:02. Distribution of Bond Proceeds. The proceeds of Bonds issued by the District shall
be used and may be invested or reinvested, from time to time, as provided in the order or orders
of the District authorizing the issuance, sale, and delivery of such Bonds and in accordance with
the federal, state, and local laws and regulations 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 landowners or developers
of property located within or near the District whereby such landowners or developers will advance
funds to or on behalf of the District for the acquisition and construction of the Facilities. The
construction of any Facilities financed under the terms of a Financing and Reimbursement
Agreement shall be subject to all the terms and conditions of this Agreement. Each Financing and
Reimbursement Agreement will provide for the District's reimbursement of the person or entity
advancing funds for the Facilities (i) from the proceeds of the District's sale of its Bonds, subject
to all the terms and conditions of such Financing and Reimbursement Agreement, including, among
other conditions, the approval of the TNRCC of the sale of the Bonds and the use of sale proceeds
for such purpose; (ii) from District funds lawfully available for such purpose.
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ARTICLE IV
OWNERSHIP. OPERATION, AND MAINTENANCE OF FACILITIES
4.01. District Conveyance. As the Facilities are constructed and accepted by the District
in accordance with Article II, the District shall convey the Facilities to the City, reserving, however,
a security interest therein 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 District conveys Facilities to the City
under this Article IV, the District shall also assign to the City the construction contractor's two (2)
year warranty of its work, as required under Section 2.02 above.
4.02. City Acceptance. As the Facilities are constructed and._ completed by the District,
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 from the District, 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 the District in what manner the Facilities do not
comply, and the District shall immediately correct the same; 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 District shall provide the City 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 from the District, the City will operate the Facilities and provide services from the Facilities to
users within the District without discrimination. The City shall at all times maintain the Facilities,
or cause the same to be maintained, in good condition and working order and will operate the
same, or cause the same to be operated, in an efficient and economical manner at a reasonable
cost and in accordance with sound business principles, and the City will comply with all the terms
and conditions of this Agreement and with all applicable federal, state, and local laws and
regulations.
(a) The City shall provide competent, trained personnel, licensed or certified as
necessary by the appropriate regulatory authority, to operate, inspect, maintain, and repair the
Facilities. The City shall inventory and maintain a listing of all of the equipment comprising the
Facilities as required to provide relevant information for the scheduled maintenance and repair or
replacement of the equipment comprising the Facilities. The City shall implement a scheduled
maintenance program for the Facilities and shall ensure that the Facilities are maintained in the
same fashion and with the same frequency as similar facilities owned and operated by the City to
serve areas outside the District.
(b) The City shall maintain all customer information and records necessary to provide
monthly billings to customers served by the Facilities. The City shall coordinate with the District's
consultants, such as attorneys, engineers, auditors, tax assessors, and financial advisors as
necessary to maintain efficient operation of the Facilities. The City shall respond to inquiries or
r vehou09.62846 8-5-98
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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.
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 City shall provide such
capacities at the District's boundaries. 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 Director. 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
vehou09.62846
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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 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 one thousand nine hundred ninety-seven dollars
($1,997.00) 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,
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8-5-98 page 8
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. 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). That
portion of the City property tax which will be returned to an in -city water district, including the
District, shall be at a rate of $0.15 per $100 of assessed valuation. 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.
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
Brazoria County Appraisal District and shall be payable each May 1 thereafter (the "Payment
Date"), with each such Annual Payment being applicable to the calendar year preceding the
calendar year of each such May 1 (e.g., if the District receives a tax roll for the calendar year 1998,
the Annual Payment for such year will be due May 1, 1999). Each Annual Payment that is not paid
on or before the Payment Date shall be delinquent and shall incur interest at the rate of one
percent (1 %) of the amount of the Annual Payment per month, for each month or portion thereof
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 9.15 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
vehou09.62846 8-5-98
page 9
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 Tess 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
"B," 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 9.15 hereof. The City and the District acknowledge
and agree that the District is dependent upon the Monthly Revenue Payments in order that
development within the District may be competitive with development in surrounding areas.
6.05. Access to Records for Verifying Calculation of Annual and Monthly Revenue
Payments. The City shall maintain proper books, records, and accounts; shall provide the District
with an accounting together with each Annual and/or Monthly Revenue Payment, and shall afford
the District or its designated representatives reasonable access to its books, records, and accounts
for purposes of verifying the amounts of each Annual Payment 'and/or Monthly Revenue Payment
or recalculated Annual Payment and/or Monthly Revenue Payment which is or becomes due and
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 orits designated
representatives reasonable access thereto for purpose of verifying the amounts of Annual and/or
Monthly Revenue Payments relative to the District's debt service requirements and general
operating requirements.
6.06. District Taxes. The District is authorized to assess, levy, and collect ad valorem
taxes upon all taxable properties within the District to provide for (i) the payment in full of the
District Obligations, including principal, redemption premium, if any, or interest on the Bonds and
to establish and maintain any interest and sinking fund, debt service fund, or reserve fund and
(ii) for maintenance purposes, all in accordance with applicable law. The parties agree that nothing
herein shall be deemed or construed to prohibit, limit, restrict, or otherwise inhibit the District's
authority to levy ad valorem taxes as the Board of Directors of the District from time to time in its
sole discretion may determine to be necessary. The City and the District recognize and agree that
all ad valorem tax receipts and revenues collected by the District, together with all Annual
Payments and Monthly Revenue Rebate Payments shall become the property of the District and
may be applied by the District to the payment of all proper debts, obligations, costs, and expenses
of the District and may be pledged or assigned to the payment of all or any designated portion of
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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 ofeither 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 limitation`s '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 all 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 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 nonbreaching 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.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01. Permits. Fees, Inspections. The District understands and agrees that all City
ordinances and codes, including applicable permits, fees, and inspections, shall be of full force and
effect within its boundaries the same as to other areas within the City's corporate limits.
9.02. Force Majeure. In the event either party is rendered unable, wholly or in part, by
force majeure to carry out any of its obligations under this Agreement, except the obligation to pay
amounts owed or required to be paid pursuant to the terms of this Agreement, then the obligations
of such party, to the extent affected by such force majeure and to the extent that due diligence is
being used to resume performance at the earliest practicable time, shall be suspended during the
continuance of any inability so caused to the extent provided but for no longer_period. As soon as
reasonably possible after the occurrence of the force majeure relied upon, the party whose
contractual obligations are affected thereby shall give notice and full particulars of such force
majeure to the other party. Such cause, as far as possible, shall be remedied with all reasonable
diligence. The term "force majeure," as used herein, shall include without limitation of the generality
thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy,
orders of any kind of the government of the United States or the State of Texas or any civil or
military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes,
storms, floods, washouts, drought, arrests, restraint of government, civil disturbances, explosions,
breakage or accidents to machinery, pipelines or canals, partial or entire failure of water supply
resulting in an inability to provide water necessary for operation of the water and wastewater
systems hereunder, and any other, inabilities of any party, whether similar to those enumerated or
otherwise, which are notwithin 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. 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 certifiedmail, 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. 281-485-7992
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page 12
If to the District, to:
Brazoria County Municipal Utility District No. 19
c/o Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: James A. Boone
Telefacsimile No. 713-615-5523
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 not be assignable by either party; provided,
however, that, 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 "C," duly delivered to the City, in accordance with the provisions of Section 9.05, shall
effectively convey all the rights and obligations of the "District" 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, this Agreement shall not be assignable
by either party.
9.06. No Additional Waiver Implied. The failure of either party to insist upon performance
of any provision of this Agreement shall not be construed as a waiver of the future performance of
such provision by the other party.
9.07. Reservation of Rights. All rights, powers, privileges and authority of the parties
hereto not restricted or affected by the express terms and provisions hereof are reserved by the
parties and, from time to time, may be exercised and enforced by the parties.
9.08. Parties in Interest. This Agreement shall be for the sole and exclusive benefit of the
parties hereto and shall not be construed to confer any rights upon any third parties.
9.09. Merger. This Agreement embodies the entire understanding between the parties
and there are no representations, warranties, or agreements between the parties covering the
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.
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page 13
9.12. Interpretations. This Agreement and the terms and provisions hereof shall be
liberally construed to effectuate the purposes set forth herein and to sustain the validity of this
Agreement.
9.13. Severability. If any provision of this Agreement or the application thereof to any
person or circumstances is ever judicially declared invalid, such provision shall be deemed severed
from this Agreement and the remaining portions of this Agreement shall remain in effect.
9.14. Term and Effect. This Agreement shall remain in effect until the earlier to occur of
(i) the dissolution of the District by the City or (ii) the expiration of forty (40) years from the date
hereof. Further, this Agreement shall automatically terminate in the event that the TNRCC does
not adopt an order creating the District on or before December 31, 1999.
[EXECUTION PAGES FOLLOW]
vehou09.62846 8-5-98 page 14
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
vehou09.62846 8-5-98
page 15
THE RITSON MORRIS CORPORATION,
a Texas corporation
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
(SEAL)
vehou09.62846 8-5-98 page 16
EXHIBIT "C"
ASSUMPTION OF AGREEMENT
Brazoria County Municipal Utility District No. 19, a conservation and reclamation district
created under the authority of 'Article XVI, Section 59 of the Texas Constitution by the Texas
Natural Resource Conservation Commission to provide water supply, sanitary sewer, and drainage
facilities to serve the area within, its boundaries,(the "District"), has assumed, and by these presents
does assume, the terms of the Utility Agreement (the "Agreement"), dated , 1998,
a copy of which is attached and incorporated into this document for all purposes.
Specifically, the District has accepted and does accept all the rights, title, interest, obligations,
liabilities, and responsibilities of the "District" as defined in the Agreement and the Developer, as
defined in the Agreement, shall have no further rights, title, interest, obligations, liabilities, or
responsibilities under the Agreement.
All notices to the District pursuant to the Contract shall be addressed to:
Brazoria County Municipal Utility District No. 19
c/o Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: James A. Boone
EXECUTED AND DELIVERED ON
ATTEST:
By:
Name:
Title:
(SEAL)
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 19
By:
Name:
Title:
vehou09.82846
8-5-98
page 97
Exhibit A
DEVELOPMENT AGREEMENT
(EXHIBIT "A" TO RESOLUTION
This Agreement is entered into this day of , 199_, by and between
the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and , a
Texas general partnership (hereinafter "Developer").
WHEREAS, Developer petitioned City for the creation of an In -City Municipal Utility
District (hereinafter "MUD") and City consented to the creation of the MUD on
199_, encompassing acres, generally located at ; and
WHEREAS, Developer plans to construct a water main, sanitary sewer main, and
appurtenances necessary for the City to provide water and sanitary sewer service to the
MUD and to dedicate said water main, sanitary sewer main, and appurtenances to the
City for operation and maintenance; and
WHEREAS, City desires to cooperate with Developer to provide water and sanitary
sewer service to the MUD, and at the same time, increase and improve City's capacity
to serve other properties in the vicinity of the MUD; and
WHEREAS, City and Developer desire an agreement to set forth their respective
responsibilities with regard to providing water and sanitary sewer service to the MUD.
WITNESSETH:
NOW THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, it
is hereby agreed as follows:
1. A -inch sanitary sewer gravity main and an -inch water main are needed
to serve Developer's requirements for the MUD and are required to be extended
to the MUD from the existing termination points of the utilities in the `vicinity of
2. To serve additional tracts, the City has requested that Developer construct a
-inch sanitary sewer gravity main and a -inch water main.
3. The estimated costs for the water and sanitary sewer main extensions to serve
Developer's requirements are $ . The estimated costs for the water
and sanitary sewer main extensions as requested by the City are $
Therefore, the estimated oversizing cost is $ and the engineering
allocation for the oversizing is $ . The total estimated oversizing cost
to be reimbursed by City to Developer is $ as described in Exhibit A.
1
Upon completion of the project, actual costs will be accounted and reported to the
City. Actual oversizing reimbursement shall not exceed the total estimated
oversizing cost by more than 5% without prior approval of the City.
4. Developer will cause its engineers, reasonably approved by the City, to prepare
plans .and specifications for the construction of the water and sanitary sewer
mains desired by the City.
5. The bid specifications shall require each bidder to reflect the difference in the cost
of constructing the water and sanitary sewer main extensions as reflected in the
plans and specifications and the cost which would have been incurred had the
water and sanitary sewer main extensions been constructed to the size required
by Developer.
6. Upon approval of the plans and specifications by the City, Developer's engineers
will obtain competitive line item bids for the construction of the water and sanitary
sewer main extensions in accordance with the plans and specifications. The bids.
will be reviewed by Developer and the City and a contract will be awarded to the
successful -bidder by Developer. City reserves the right to reject any and all bids
for the construction of the water and sanitary sewer main extensions.
7. Upon approval of the bids by the City, Developer shall cause the work to be
completed in accordance with the plans and specifications. Developer's engineer
and the City Engineer or designee shall monitor the progress and workmanship
of the contractor. Developer shall advance the funds necessary to pay the
contractor for the work performed.
8. The City will reimburse Developer, as defined in Paragraph 3, in three equal
annual payments, the first payment of which shall be made within 30 days after
acceptance of the improvements by the City and evidence of paid invoices.
Subsequent payments shall be made on the anniversary date of the first payment.
9.
The initial term of this Agreement shall be for a period of three (3) years,
commencing on the day of , 199_, and terminating on the
day of , 200_, at which time, this agreement may be
automatically renewed in one (1) year increments contingent upon need and the
necessary funds being appropriated for said project in accordance with the City's
annual budgeting process.
10. This agreement may only be amended, modified, or supplemented by written
agreement and signed by both parties.
11. 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
2
(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.
12. Nothing herein is intended to supersede or waive any City ordinance or regulation
pertaining to such construction.
13. 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.
14. This agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Texas.
15. This agreement and all obligations created hereunder shall be performable in
Brazoria County, Texas.
16. Resolution No. R= is incorporated herein and made a part of this
Development Agreement for all purposes.
17. To accomplish execution of this agreement, it may be executed in multiple
counterparts.
18. DEVELOPER HEREBY RELEASE, ACQUIT, AND FOREVER DISCHARGE THE
CITY, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS
FROM ANY AND ALL CLAIMS, DEMANDS, RIGHTS OR CAUSES OF ACTION
OF WHATSOEVER CHARACTER OR NATURE, INCLUDING ATTORNEYS'
FEES, ARISING FROM OR BY REASON OF ANY AND ALL BODILY OR
PERSONAL INJURIES, INCLUDING DEATH AND MENTAL ANGUISH,
DAMAGE TO PROPERTY AND THE CONSEQUENCES THEREOF WHICH MAY
BE SUSTAINED BY DEVELOPER, -ITS HEIRS, EXECUTORS, ADMINISTRA-
TORS, SUCCESSORS, OR ASSIGNS AS A RESULT OF THE CONSTRUCTION
BY DEVELOPER OF THE IMPROVEMENTS REFERENCED ABOVE, UNLESS
CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF THE CITY, ITS
OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS.
DEVELOPER SHALL KEEP AND HOLD HARMLESS THE CITY, ITS OFFICERS,
AGENTS, EMPLOYEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL
COST, LIABILITY, DAMAGE OR EXPENSE OF ANY NATURE AND
HOWSOEVER CAUSED, INCLUDING ATTORNEYS' FEES, CLAIMED OR
RECOVERED BY ANYONE BY REASON OF INJURY TO OR DEATH OF ANY
PERSON OR PERSONS OR DAMAGE TO OR DESTRUCTION OF PROPERTY
CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF DEVELOPER,
3
THEIR AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN
CONNECTION WITH SUCH CONSTRUCTION BY DEVELOPER. THE
PROVISIONS OF THIS SECTION _SHALL SURVIVE THE TERMINATION,
EXPIRATION, OR CANCELLATION OF THIS AGREEMENT.
In witness whereof, the parties have hereunto set their hands and signatures on the date
first above mentioned.
Developer
a Texas general partnership
By:
Title:
ATTEST: CITY OF PEARLAND,
a Texas municipal corporation
By:
Young Lorfing, City Secretary Paul Grohman, City Manager
STATE OF TEXAS
BRAZORIA COUNTY
This instrument was acknowledged before me on this day of
, 1997, by , , on behalf of said
partnership.
Notary Public, State of Texas
My Commission Expires:
STATE OF TEXAS
BRAZORIA COUNTY
4
This instrument was acknowledged before me on this _ day of
1997, by Paul Grohman, City Manager of the City'of Peariand, a Texas home Hale
municipality, on behalf of said municipality'
Notary Public, State of Texas
My Commission Expires:
1
5
No. 221 (Application No. 301) and Ordinance No. 509-224 (Application No. 308) on their
second and final reading.
Voting "Aye" Councilmembers Beckman, Tetens, Wilkins, Berger, and Seeger.
Voting "No" None.
Motion Passed 5 to 0.
MATTERS REMOVED FROM CONSENT AGENDA
None.
NEW BUSINESS:
City Attorney Darrin Coker stated that in the body of the Ordinance 859, 860 and 861 an
emergency is declared. If Council so desires, they can adopt the Ordinances on the first
and only reading.
FIRST AND ONLY READING OF ORDINANCE NO. 859 - AN ORDINANCE GRANTING
THE CONSENT OF THE CITY OF PEARLAND, TEXAS, TO THE CREATION OF
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 17 WITHIN THE CITY'S
CORPORATE BOUNDARIES.
FIRST AND ONLY READING OF ORDINANCE NO. 860 - AN ORDINANCE GRANTING
THE CONSENT OF THE CITY OF PEARLAND, TEXAS, TO THE CREATION OF
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 19 WITHIN THE CITY'S
CORPORATE BOUNDARIES.
FIRST AND ONLY READING OF ORDINANCE NO. 861 - AN ORDINANCE GRANTING
THE CONSENT OF THE CITY OF PEARLAND, TEXAS, TO THE CREATION OF
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 18 WITHIN THE CITY'S
CORPORATE BOUNDARIES.
Councilmember Tetens made the motion, seconded by Mayor Pro-Tem Wilkins, to
approve Ordinance No. 859, Ordinance No 860 and Ordinance No 861 on their first and
only reading.
City Manager Paul Grohman stated that the Council has had several Weeks to review the
proposed In -City Municipal Utility Districts. M.U.D. No. 17 is a Clinton Wong
Development, MILD. i.D. 19 is a Beeper Home Development and M.U.D. No. 18 is a Renee
Page 6 of - 17 8/10
19
West Development. These developments will have. approximately $350 Million of value.
He further stated that In -City Municipal Utility Districts are very common throughout the
Houston area. He further stated that there is additional Municipal Utility District Tax
assessed to the property owner over and beyond the City tax rate. The City will operate
the water and wastewater system. We will get impact fees and manage the utilities. Mr.
Grohman recommended their approval.
Dave Miller, 2706 Shady Creek, addressed Council and gave them several reasons why
it would be beneficial to adopt the in -city municipal utility districts.
Voting "Aye" Councilmembers Seeger, Berger, Wilkins, Tetens, and Beckman.
Voting "No" None.
Motion Passed 5 to 0.
COUNCIL ACTION -TEMPORARILY SUSPENDING APPLICATION OF THE PEDDLERS
ORDINANCE AS APPLIED TO REGISTRANTS PURSUANT TO SECTION III-2 OF THE
CITY OF PEARLAND CODE OF ORDINANCES, CHAPTER 22 (PEDDLERS
ORDINANCE).
Mayor Pro-Tem Wilkins made the motion, seconded by Councilmember Beckman, to
approve to temporarily suspend the application of the Peddlers Ordinance as applied to
Registrants pursuant to Section III-2 of the City of Pearland Code of Ordinances, Chapter
22 (Peddlers Ordinance).
City Manager stated that we are having a real problem with how nonprofit permits are
administered. Mr. Grohman stated that we will correct it with time. However, it is time for
school to start, and all the kids will be out sellingtheir f
u fund-raising items.
b' 44_ 44 ^_____
s ,erae.<+. - ve e
Voting "No" None.
Motion Passed 5 to 0.
Seeger, Berger Wilkins, Tetens,and Beckman.
Berger, �l , 5'�Iiic71 Sa,
COUNCIL ACTION - RESOLUTION NO. 93 O _ A E £= 2 dO _ — __ CITY
COUNCIL OF THE CITY OF PEARLAND, TEXAS, APPROVING THE TRANSFER OF
THE r__ _ _ _ ___ _P_1 FRANCHISE.
Councilmember Berge ax.Q. a e mcginn,
approve Resolution No. R98-50.
.4- r,
�'c cie 7 of - 3 i ,s1'& o