R2003-0158 10-27-03
RESOLUTION NO. R2003-158
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A STRATEGIC PARTNERSHIP AGREEMENT AND SALES
AND USE TAX AGREEMENT WITH BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 16.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Strategic Partnership Agreement and Sales and Use Tax
Agreement by and between the City of Pearland and Brazoria County Municipal Utility
District No. 16, copies of which are attached hereto as Exhibits "A" & "B" and made a part
hereof for all purposes, are hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest a Strategic Partnership Agreement and Sales and Use Tax
Agreement with Brazoria County Municipal Utility District No. 16.
~J)q
TOM REID
MAYOR
"'-
ATTEST:
APPROVED AS TO FORM:
r8 .tJ~
DARR~OKER
CITY ATTORNEY
STRATEGIC PARTNERSHIP AGREEMENT
BETWEEN THE CITY OF PEARLAND, TEXAS AND
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 16
THE STATE OF TEXAS ~
~
COUNTY OF BRAZORIA ~
This STRATEGIC PARTNERSHIP AGREEMENT (this "Agreement") is made and
entered into as of fJI"..h6M 27 ,2003, by and between the CITY OF PEARLAND, TEXAS,
a municipal corporation and home-rule city of the State of Texas ("City") and BRAZORIA
COUNTY MUNICIPAL UTILITY DISTRICT NO. 16 (the "District"), a conservation and
reclamation district created pursuant to Article XVI, Section 59, Texas Constitution and operating
pursuant to Chapters 49 and 54, Texas Water Code.
RECITALS
WHEREAS, Texas Local Government Code, 943.0751 (the "Act") authorizes the City and
certain utility districts to negotiate and enter into a strategic partnership agreement by mutual
consent, and the City and the District wish to enter into such an agreement;
WHEREAS, the District was duly created by Order of the Texas Water Commission, dated
January 7, 1987, as a conservation and reclamation district created under and essential to accomplish
the purposes of Section 59, Article XVI, of the Texas Constitution and operating pursuant to
Chapters 49 and 54 of the Texas Water Code, as amended;
WHEREAS, the District contains approximately 255.77 acres ofland, located entirely within
the extraterritorial jurisdiction ("ETJ") ofthe City and is described by that certain metes and bounds
description of the District is attached hereto as Exhibit "A;"
WHEREAS, MHI Partnership, Ltd. (the "Developer") owns approximately 238.414 of the
255.77 acres located within the boundaries of the District (the "Property");
WHEREAS, the remaining 17.356 acres within the District consists of Lakeside Estates,
Section One ("Lakeside Estates"), a subdivision currently being developed within the District;
WHEREAS, Developer owns approximately 29.99 acres adjacent to the District and within
the municipal boundaries of the City, illustrated as Commercial Tracts #1 and 2 on Exhibit "B"
attached hereto (the "Commercial Property");
WHEREAS, Developer desires that the City exclude the Commercial Property from the
municipal boundaries ofthe City and consent to the annexation ofthe Commercial Property into the
boundaries of the District;
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WHEREAS, the District desires to annex the Commercial Property into its boundaries;
WHEREAS, the City desires to purchase approximately (i) 65.0 acres of the Property for a
regional detention facility and recreational facility, illustrated as Future City of Pearland
Park/Regional Detention on Exhibit "B" attached hereto (the "Detention Property");
WHEREAS, prior to the sale of the Detention Property by the Developer to the City,
Developer has requested that City address certain issues relating to the future development of the
Property and operation of the District; and
WHEREAS, the City and the District, after the provision of required notices, held public
hearings in compliance with the Act and based upon public input received at such hearings, the City
and the District desire to set forth in this Agreement (i) the procedure for the conveyance of the
Detention Property from Developer to the City; (ii) the exclusion ofthe Commercial Property from
the municipal boundaries of the City and the annexation of the Commercial Property into the
District; (iii) the terms and conditions under which services will be provided by the City and the
District and under which the District will continue to exist for an extended period oftime after the
District is annexed for limited purposes; (iv) certain development issues related to the land currently
owned by the Developer; (v) water supply and wastewater treatment to the land located within the
District and other land that maybe annexed into the boundaries of the District; (vi) the payment of
certain costs occasioned by these actions; and (vii) resolution of several other matters among the
parties.
AGREEMENT
NOW, THEREFORE, in consideration ofthe mutual covenants herein contained and further
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
all parties hereto, the City and the District hereto agree to the terms and conditions here and after set
forth, to wit:
ARTICLE I
GENERAL STATEMENT
Subject to the specific terms and conditions stated in this Agreement, the City will defer
annexation of the Property located within the District into its municipal boundaries and the
dissolution of the District until such time as set forth herein. Developer shall convey the Detention
Property subject to certain conditions set forth herein. The City, the Developer and the District will
cooperate fully and will expedite all actions necessary to accomplish the provisions set forth within
this Agreement.
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ARTICLE II
DEFINITIONS AND FINDINGS
Section 2.01 Definitions. Unless the context requires otherwise, and in addition to the
terms defined above, the following terms and phrases used in this Agreement shall have, solely for
the purposes of this Agreement, the meanings set out below:
A. "Act" means Texas Local Government Code, 943.0751 (Vernon Supp. 2002) and any
amendments thereto.
B. "Agreement" means this strategic partnership agreement by and between the City and
the District.
C. "Board" means the Board of Directors of the District.
D. "City" means the City of Pearland, Texas, a municipal corporation principally
situated in Brazoria County, Texas.
E. "City's Consent" means the consent of the City to the inclusion of land in the
District.
F. "City Council" means the City Council ofthe City or any successor governing body.
G. "Developer" means MHI Partnership, Ltd., a Texas limited partnership.
H. "District" means Brazoria County Municipal Utility District No. 16, a conservation
and reclamation district created pursuant to Article XVI, Section 59, Texas
Constitution and operating pursuant to Chapters 49 and 54, Texas Water Code.
1. "ETJ" means the extraterritorial jurisdiction of the City.
J. "Party" or "Parties" means a party or the parties to this Agreement, being the City
and the District.
K. "Resident" means a person that resides in the District.
L. "Sales and Use Tax" means the sales and use tax authorized to be imposed in the
Commercial Property by the Act and Texas Tax Code Chapter 321.
M. "TCEQ" means the Texas Commission on Environmental.Quality or its successor
agency.
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Section 2.02 Findings. The City and the District hereby find and declare:
A. The Act authorizes the City and the District to enter into this Agreement.
B. In compliance with Subsection (p) ofthe Act, this Agreement (1) does not require the
District to provide revenue to the City solely for the purpose of an agreement with
the City to forgo annexation ofthe District, and (2) provides benefits to the City and
the District, including revenue, services, and regulatory benefits which are reasonable
and equitable with regard to the benefits provided to the other Party.
C. All the terms and conditions contained in this Agreement are lawful and appropriate
to provide for the provision of municipal services and limited purpose annexation.
D. This Agreement has been duly adopted by the City and the District after conducting
two public hearings at which members ofthe public who wanted to present testimony
or evidence regarding the Agreement were given the opportunity to do so. Notice of
each hearing was published in the format required byTexas Local Government Code,
S43.123(b) and was published at least once on or after the 20th day before each
public hearing.
ARTICLE III
CONVEYANCE OF DETENTION PROPERTY
Section 3.01 Purchase of Detention Property.
A. The City agrees to purchase the Detention Property for the purposes of constructing
regional detention and storm water facilities and the operation of a park, including
sports facilities (herein the "Recreational Facilities"). The City shall use its best
efforts to cause the Recreational Facilities to be constructed no later than twenty (20)
years from the Effective Date of this Agreement.
B. The conveyance instrument shall restrict the development of the Detention Property
to drainage, storm water retention and recreational uses, including services ancillary
to such uses.
Section 3.02 Purchase Price. The purchase price to be paid by City to Developer for the
Detention Property shall be the product of $19,000.00 multiplied by the number of acres within the
Detention Property, as determined by the Survey (as herein described in Section 2.04)( the "Purchase
Price").
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Section 3.03 Terms of Payment. The Purchase Price shall be paid to Developer by City
within ninety (90) days ofthe effective date ofthis Agreement, or at such time as Developer conveys
title to the Detention Property as set forth in Section 3.06 hereof, in cash, by cashier's check or other
immediately available funds.
Section 3.04 Survey. The City shall cause to be prepared an updated Survey of the
Detention Property (the "Survey") prepared by the same duly licensed land surveyor that prepared
the recent survey of the Detention Property. The cost of the updated Survey shall be the sole
obligation of the City.
Section 3.05 Title Insurance Commitment. Within thirty (30) days after the effective date
of this Agreement, Developer shall cause to be furnished to the City, a current commitment for an
Owner's Policy of Title Insurance issued by the title company (the "Title Commitment") setting forth
the state of title of the Detention Property and all exceptions.
Section 3.06 Conveyance of Detention Property. Subject to the contingencies set forth
in Articles IV, V and VII hereof, within ninety (90) days of the effective date of this Agreement,
Developer shall convey to City by Special Warranty Deed, good and indefeasible title in fee simple
to the Detention Property, subject to the permitted exceptions set forth in the Title Commitment.
Developer shall retain all minerals to the Detention Property, however, Seller agrees to waive all of
its rights to use the surface of the Detention Property for mineral exploration and production
purposes. The excavation of sand, gravel and other surface materials from the Drainage Property
shall be permitted to a depth of not more than fifteen (15) feet and only as such excavation is
required for the construction of detention facilities. Any and all materials below a depth of fifteen
(15) feet shall remain the property of the Developer.
Section 3.07 Excavation by Developer. Developer shall have the right to excavate from
the Detention Property any fill material needed to develop the Property, Commercial Property or
other similar properties in accordance with the applicable City rules and regulations and subject to
the written consent ofthe City Engineer, which shall not be unreasonably withheld. The City agrees
to apply a credit to Developer for Developer's participation in the regional detention facility for any
volume excavated by Developer from the Detention Property. Such credit shall be applied as set
forth in Section 8.04 herein.
Section 3.08 Lift Station Site. The City agrees to allow the Developer to construct a lift
station on a site within the Detention Tract that is of a size and in a location mutually agreeable to
the City and the Developer. In conjunction with the District's design and construction of such lift
station, as described in this Section 3.08, the City may determine from time to time that the lift
station should be sized to serve areas outside the District. The District hereby agrees that, in
conjunction with the District's design and construction ofthe lift station, the District shall cooperate
with the City to include any oversizing requirements as requested 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 any such oversizing ofthe lift station and any future improvements related to
oversizing the lift station to serve areas outside the District.
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Section 3.09 Commissions. Developer and City hereby acknowledge and affirm to each
other that there is no real estate broker entitled to any commission in connection with this
transaction.
ARTICLEN
EXCLUSION AND ANNEXATION OF COMMERCIAL PROPERTY
Section 4.01 Disannexation of Commercial Property from Municipal Boundaries of City.
Upon the execution of this Agreement, Developer shall promptly file with the City a petition
requesting the disannexation ofthe Commercial Property from the municipal boundaries ofthe City.
Upon or prior to the disannexation of the Commercial Property from the municipal boundaries of
the City, the Developer and District will submit a Petition for Consent to annex the Commercial
Property into the boundaries ofthe District to the City. The City agrees to schedule public hearings
and other actions necessary to approve consent to the annexation of the Commercial Property into
the boundaries of the District at the earliest possible dates.
Section 4.02 Contingencies. The conveyance of the Detention Property from Developer
to City shall be subject to the City de-annexing the Commercial Property from the municipal
boundaries ofthe City and consenting to the annexation ofthe Commercial Property into the District.
Section 4.03 Detention. The City agrees that a portion of the Detention Property may be
used to mitigate off-site drainage requirements for the Commercial Property as set forth herein. Such
mitigation requirements will be determined by the then applicable City and Brazoria County rules
and regulations at such time as the Commercial Property is developed.
ARTICLE V
WASTEWATER TREATMENT AND WATER SUPPLY
Section 5.01 Termination of Wastewater Treatment Facilities Agreement. The District and
City hereby agree to terminate that certain Wastewater Treatment Facilities Agreement dated
December 6, 1995, which provides for wastewater treatment service to be provided by the parties
to the development of certain lands located either within the City or within the City's ETJ.
Section 5.02 Termination of Water Purchase Agreement. The District and City hereby
agree to terminate that certain Water Purchase Agreement dated December 6, 1995, which provides
for water supply to be provided by the parties to the development of certain lands located either
within the City or within the City's ETJ.
Section 5.03 Water Purchase and Waste Disposal Agreement. The conveyance of the
Detention Property from Developer to City shall be subject to the City and District entering into the
Waste Disposal and Water Purchase Agreement in the form attached hereto as Exhibit "C."
ARTICLE VI
CR 403
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Section 6.01 Constmction ofCR 403. At such time as the Developer submits a plat for the
construction of improvements on Developer's Property adjacent to CR 403, Developer hereby agrees
to dedicate one-half of the right-of-way for the extension of CR 403 over its respective tract, as
shown on the City's Thoroughfare Plan. At such time as the plat for Developer's Property adjacent
to CR 403 is approved by the City, Developer agrees to post a road/paving bond or letter of credit
with the City or Brazoria County in the amount of Developer's proportionate share of the costs to
construct CR 403. Concurrent with the construction of public road improvements on Developer's
Property adjacent to CR 403, Developer shall be responsible for the construction ofCR 403. The
City and Developer agree that either party shall have the right to construct CR 403 prior to
Developer's obligation set forth herein and each party hereby grants the other party an easement and
the right to enter upon its respective property to the extent necessary for such construction. The City
and Developer further agree that the total cost of constructing CR 403 shall be allocated between
them in the percentages of fifty percent (50%) to the owner of Developer's Property adjacent to
CR 403 and fifty percent (50%) to the City. Each party agrees to reimburse the other party
constructing CR 403 for its proportionate share ofthe costs incurred by such party within thirty (30)
days after receipt of a statement therefor, which shall include copies ofthe invoices or expenses paid
by the party constructing CR 403. In the event that the City elects to proceed with construction of
CR 403 within two years from the date hereof or prior to Developer's obligation to construct
CR 403, Developer shall not have to pay its proportionate share ofthe costs until two years from the
date hereof or such later time that CR 403 is constructed by the City.
ARTICLE VII
EXTERIOR ILLUMINATION AT RECREATIONAL FACILITIES
Section 7.01. Exterior Illumination. The City agrees that any exterior illumination installed
on the Detention Property shall be designed to light only the Recreational Facilities, parking areas
and walkways located on the Detention Property and will not produce any glare on adjacent
properties. Any such exterior illumination shall cease by 10:30 p.m. Sunday through Thursday
evenings and 11 :30 p.m. on Friday and Saturday evenings.
ARTICLE VIII
DEVELOPMENT ISSUES
Section 8.01 Commercial Retail Development. The parties agree that commercial or retail
development located within the boundaries ofthe District will be constructed in accordance with the
City's applicable Land Use and Urban Development Ordinance in effect at such time of construction.
Such use of the Commercial Property will be consistent with the General Business Uses and Sign
requirements of the City's Land Use and Urban Development Ordinance.
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Section 8.02 Building Permits and Inspections. The parties agree that all new construction
of vertical improvements within the District shall be required to obtain building permits from the
City and shall be subject to City inspections.
Section 8.03 Participation in Regional Detention Facility. The parties agree that the
Commercial Property shall be allowed to participate in the regional detention facility constructed by
the City. Developer shall pay the then applicable "buy-in" fee approved and charged by the City to
participate in the regional detention facility, less any credit accrued to Developer for the removal of
fill from the Detention Property; provided, however, that the City agrees that for the 10 years
following the effective date ofthis Agreement, such "buy-in" fee will not exceed an increase of 10%
over the current "buy-in" fee of$7,500 per acre/foot.
Section 8.04 Restriction on Multi-Family Developments. The Developer agrees that no
multi-family developments will be constructed within the District, including the Commercial
Property once it has been de-annexed from the City and annexed into the District.
ARTICLE IX
LIMITED-PURPOSE ANNEXATION OF THE DISTRICT
Section 9.01 Generally. As soon as practicable following the approval of this Agreement
by City Council, the City shall annex the District into the City for the limited purposes of providing
water and wastewater treatment services to the District, in accordance with the Waste Disposal and
Amended and Restated Water Purchase Agreement in the form attached hereto as Exhibit "C", and
Fire/EMS services to the District, in accordance with Section 9.04 below.
Section 9.02 Property Taxes and District Liability for Debts of the City. During the term
of this Agreement, except as provided in Article XI: (1) neither the District nor any owners of
taxable property within the District is liable for any present or future debts of the City, and (2)
current and future ad valorem taxes levied by the City will not be levied on taxable property within
the District.
Section 9.03 Operations Prior to Full-Purpose Annexation. Prior to full-purpose
annexation into the City, except as may be specifically provided in this Agreement, the District is
authorized to exercise all powers and functions of a municipal utility district provided by law,
including, without limiting the foregoing, the power to incur additional debts, liabilities, or
obligations, to construct additional utility facilities, or to contract with others for the provision and
operation thereof, or sell or otherwise transfer property without prior approval of the City, and the
exercise of such powers is hereby approved by the City; provided that the authority granted hereby
shall be limited to actions in compliance with the City Consent.
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Section 9.04 Allocation of Municipal Services within the District.
A. City Fire/EMS Services. The City and the District agree that, pursuant to this
Agreement, the District shall receive fire and emergency medical services from the
Pearland Volunteer Fire Department. Within 30 days after final approval of this
Agreement, the City will include on each water bill for customers within the District
a monthly charge of $4.38 per each single-family residence and comparable
equivalent charges for commercial or high-density customers. In consideration ofthe
Fire/EMS Services, the City shall collect the monthly payments as provided below:
1. Residential Properties. The City shall collect a monthly charge for
each residential unit in the District that is connected to and
receiving service from the District's water supply system, as
determined each calendar quarter following the effective date of
this agreement. A residential unit shall mean any building or part
of a building designed for permanent occupancy by one family. A
detached single-family residential unit is one residential unit; a
duplex is two residential units; and each living unit in an
apartment complex is one residential unit.
2. Nonresidential Properties. The City shall also collect a monthly
charge for each 2,000 square feet or part thereof of building floor
area for every "improved nonresidential" property located in the
District that is connected to and receiving service from the
District's water supply system on or before the twentieth day of
the immediately preceding month. "Improved Nonresidential
Property" means any improved real property, on which there is
located a building or structure that is nonresidential property. The
square footage used to determine the charge is based on the
records of the Brazoria County Appraisal District.
B. Police protection. The District may provide for the provision of enhanced police
protection services within the District by contracting with the City for such services.
If provided by the City, the level of police services to be provided shall be
determined by mutual agreement of the City and the District. Payment to the City
with regard to any police protection provided under this Section shall be based upon
the actual costs of the City, including reasonable overhead, in providing such
servIces.
Section 9.05 Costs and Assessments.
A. Determination of Costs of Municipal Services. The City shall determine its actual
costs of providing municipal services described in Section 9.04 using generally
accepted municipal accounting procedures and shall provide such cost to the District
annually, at least 60 days prior to the beginning of the District's fiscal year. The
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costs of each City service shall be separately accounted for and, to the extent the City
receives fees or other revenues in connection therewith, such revenues shall be
described and used to offset the City's costs. The District agrees to pay the
reasonable expenses incurred by the City in computing the cost of municipal services,
including reasonable consultants' fees.
B. Fee Derived From Residential Property. The City shall impose a fee on residential
and non-residential property within the District to be used to pay the City a fee for
municipal services. The fee shall be equal to the costs of providing municipal
services within the District as computed in accordance with Section 9.04, above.
Fees with respect to multi - family properties, if any, shall be allocated based upon the
number of dwelling units within each property.
ARTICLE X
FULL PURPOSE ANNEXATION OF THE DISTRICT
Section I 0.0 1 Conditions to Annexation. The parties agree that the District and its residents
should be allowed to develop and function with certainty regarding the conditions under which
annexation will be authorized by the City. As a result, the City and the District agree that without
regard to the City's rights and powers under existing or subsequently enacted law, the City will not
annex the District until the following conditions have been met, and shall thereafter be authorized,
but not required, to annex the District for any purpose:
A. (1) the District has sold all Bonds necessary to finance the costs of the water,
wastewater treatment and drainage facilities to serve the Property located within the
District; and (2) all developers of property within the District have been reimbursed
by the District to the maximum extent permitted by the Rules of the TCEQ; or
B. the City agrees to assume all debts, obligations and liabilities of the District;
provided, however, that the City shall not be able to annex the District into its
boundaries at any time prior to the ten (10) year anniversary of the date set forth on
the first page of this Agreement.
ARTICLE XI
SALES TAX AGREEMENT
Section 11.01 Imposition ofthe City's Sales and Use Tax. Pursuant to subsection (n) of the
Act, the City shall impose a Sales and Use Tax within the District upon the limited-purpose
annexation ofthe District into the City. The Sales and Use Tax shall be imposed on the receipt from
the sale and use at retail of taxable items at the rate of one and one-half percent (1 Yz %) or the rate
specified under future amendments to Chapter 321 of the Texas Tax Code. The Sales and Use Tax
shall take effect on the date described in Texas Tax Code, ~321.102.
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Section 11.02 Eligibility. This Article shall become effective upon the receipt of notice by
the District from the City that, as a result of any Federal Census, the City is an eligible municipality
under subsection (n) of the Act.
Section 11.03 Hearings. Upon receipt of the notice described in Section 11.02. above, the
District will cooperate with the City to schedule two public hearings regarding the imposition ofthe
City's Sales and Use Tax in the District, following the same notification process as provided in
subsection (d) of the Act.
Section 11.04 Sales and Use Tax Agreement. Following the hearings, the City may direct
the District to approve and execute the Sales and Use Tax Agreement attached hereto as Exhibit "D."
The District agrees that, upon receipt of such direction, it will execute the Sales and Use Tax
Agreement within sixty (60) days thereafter.
Section 11.05 Notification of Comptroller. The City shall send notice ofthis Agreement and
the limited-purpose annexation of the District to the Texas Comptroller of Public Accounts in the
manner provided by Texas Tax Code, S321.102.
Section 11.06 Cooperation. The Parties will cooperate to provide such documentation as
the City may reasonably require to satisfy the requirements of the State Comptroller in connection
with the collection of sales and use taxes within the commercial tract.
ARTICLE XII
BINDING AGREEMENT, TERM AND AMENDMENT
Section 12.01 Beneficiaries. This Agreement shall bind and inure to the benefit of the
Parties, their successors and assigns. This Agreement shall be recorded with the County Clerk in
Official Records of each county in which the District is located, and shall bind and benefit each
owner and each future owner ofland included within the District's boundaries in accordance with
subsection (c) of the Act. District agrees to use its best effort to notify prospective residents of the
District of the terms of this agreement.
Section 12.02 Term. This Agreement shall commence and bind the City and the District
as of the date set forth on the first page hereof and shall continue until the conditions set forth in
Article IX have been satisfied.
Section 12.03 Amendment. The Parties by mutual written consent may amend the terms
and conditions of this Agreement at any time.
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ARTICLE XIII
DEFAULT. NOTICE AND REMEDIES
Section 13.01 Default. Notice. A breach of any material provision of this Agreement after
notice and an opportunity to cure shall constitute a default. The non-breaching Party shall notify the
breaching Party of an alleged breach, which notice shall specify the alleged breach with reasonable
particularity. Ifthe breaching Party fails to cure the breach within a reasonable time not sooner than
30 days after receipt of such notice (or such longer period of time as the non-breaching Party may
specify in such notice), the non-breaching Party may declare a default hereunder and exercise the
remedies provided in this Agreement in the event of default.
Section 13.02 Remedies. In the event of a default hereunder, the remedies of the non-
defaulting Party shall be limited to either or both of the following:
A. Monetary damages for actual losses incurred by the non-defaulting Party if such
recovery of monetary damages would otherwise be available under existing law and
the defaulting Party is not otherwise immune from paying such damages; and
B. Injunctive relief specifying the actions to be taken by the defaulting Party to cure the
default or otherwise comply with its obligations hereunder. Injunctive relief shall be
directed solely to the default and shall not address or include any activity or actions
not directly related to the default.
ARTICLE XN
MISCELLANEOUS PROVISIONS
Section 14.01 Notice. Any notices or other communications (a "Notice") required to be
given by one Party to another by this Agreement shall be given in writing addressed to the Party to
be notified at the address set forth below for such Party, (1) by delivering the same in person (2) by
depositing the same in the United States Mail, certified or registered, return receipt requested,
postage prepaid, addressed to the Party to be notified, (3) by depositing the same with Federal
Express or another nationally recognized courier service guaranteeing "next day deli very," addressed
to the Party to be notified, or (4) by sending the same by telefax with confirming copy sent by mail.
Notice deposited in the United States mail in the manner hereinabove described shall be deemed
effective from and after the date of such deposit. Notice given in any other manner shall be effective
only if and when received by the Party to be notified. For the purposes of notice, the addresses of
the Parties, until changed as provided below, shall be as follows:
City: City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Attn: City Manager
District: Brazoria County Municipal Utility District No. 16
c/o Coats, Rose, Yale, Ryman & Lee, P.C.
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1001 Fannin, Suite 800
Houston, Texas 77002
Attn: Julianne B. Kugle
The Parties shall have the right from time to time to change their respective addresses, and
each shall have the right to specify as its address any other address within the United States of
America by giving at least fifteen (15) days written notice to the other Party. If any date or any
period provided in this Agreement ends on a Saturday, Sunday or legal holiday, the applicable period
for calculating the Notice shall be extended to the first business day following such Saturday, Sunday
or legal holiday.
Section 14.02 Time. Time is of the essence in all things pertaining to the performance of
this Agreement.
Section 14.03 Severability. If any provision ofthis Agreement is held to be illegal, invalid,
or unenforceable then, and in that event, it is the intention of the Parties hereto that the remainder
of this Agreement shall not be affected. The Parties agree to negotiate in good-faith to replace any
illegal, invalid or unenforceable provision of the agreement with a provision that is believed to be
valid. If such an agreement cannot be reached by both Parties, nothing shall prohibit the City from
instituting proceedings to annex the district in accordance with the provisions in Article IX, above.
Section 14.04 Waiver. Any failure by a Party hereto to insist upon strict performance by
the other Party of any material provision of this Agreement shall not be deemed a waiver thereof or
of any other provision hereof, and such Party shall have the right at any time thereafter to insist upon
strict performance of any and all of the provisions of this Agreement.
Section 14.04 Applicable Law and Venue. The construction and validityofthis Agreement
shall be governed by the laws of the State of Texas without regard to conflicts of law principles.
Venue shall be in Brazoria County, Texas.
Section 14.05 Reservation of Rights. To the extent not inconsistent with this Agreement,
each Party reserves all rights, privileges, and immunities under applicable laws.
Section 14.06 Further Documents. The Parties agree that at any time after execution of this
Agreement, they will, upon request of another Party, execute and deli ver such further documents and
do such further acts and things as the other Party may reasonably request in order to carry out the
terms of this Agreement.
Section 14.07 Incorporation of Exhibits and Other Documents by Reference. All Exhibits
and other documents attached to or referred to in this Agreement are incorporated herein by reference
for the purposes set forth in this Agreement.
Section 14.08 Effect of State and Federal laws. Notwithstanding any other provision of this
Agreement, the District shall comply with all applicable statutes or regulations of the United States
and the State of Texas, as well as any City ordinances or rules implementing such statutes or
003114.0000011303594.6 JKAHN
-13-
regulations, and such City ordinances or rules shall not be deemed a breach or default under this
Agreement.
Section 14.09 Authority for Execution. The City hereby certifies, represents, and warrants
that the execution of this Agreement is duly authorized and adopted in conformity with the City
Charter and City Ordinances. The District hereby certifies, represents, and warrants that the
execution ofthis Agreement is duly authorized and adopted by the Board of Directors ofthe District.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
003114.0000011303594.6 JKAHN
-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.
"CITY"
CITY OF PEARLAND, TEXAS
,-~~.)(q
, Mayor
By:
Tom Reid
By:
, City Secretary
APPROVED AS TO FORM:
By:
Od
~
Darri n Coker , City Attorney
THE STATE OF TEXAS S
COUNTY OF BRAZORIA S
This instrument was acknowledged before me on the a r day of OClb btr; 2003, by
----rom R. e',cl , as Mayor of Pearl and, Texas, a home-rule municipality, on behalf of
said municipality,
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003114.000001 \303594.6 JKAHN
-15-
"DISTRICT"
BRAZORIA COUNTY MUNICIPAL
UTILITY D TRICT NO. 16
By:
\
Board of Directors
, President
By:
ATTEST:
THE STATE OF TEXAS ~
COUNTY OF BRAZORIA ~
This instrument was acknowledged before me on the IStk day of (k:..;~ ,2003,
by ~ Ur'illc..v , as elfeS\~t of Brazoria County Municipal Utility
District o. 16, a political subdivision of the State of Texas, on behalf of said polItIcal subdIVIsIon.
~
~ta Texas
.
. . JOSH J. KAHN
. ~ . Notary Public, Slate 01 Texaa
(N OT P R · J) My Commission EXpilll8 0!)'16f2006
EXHIBIT "A"
EXHIBIT "B"
EXHIBIT "C"
District Property
Commercial Property and Detention Property
Waste Disposal and Amended and Restated Water
Purchase Agreement
Sales and Use Tax Agreement
EXHIBIT "D"
003] ] 4.00000 I \303594.6 JKAHN
-16-
EXHIBIT "A"
METES AND BOUNDS DESCRIPTION OF THE DISTRICT
003114.00000 I \303594.6 JKAHN
.'
Brazoria County Municipal Utility District No. 16
255.77 Acres
H.T. & B.R.R. Company Survey
Abstract No. 505
STATE OF TEXAS
~
EXHIBIT A
COUNTY OF BRAZORIA
~
A METES AND BOUNDS description of a 255.77 acre tract (11,141 ,314square feet, square
footage based on the mathematical closure of the courses and distances described herein) of
land located in the H.T. & B.R.R. Company Survey, Abstract No. 505, Brazoria County, Texas.
Said 255.77 acres being a part of Lots 10-24, Lots 36-43 and Lots 45-49 of the Allison
Richey Gulf Coast Home Company Subdivision of Section 10 located in the H.T. & B.R.R.
Company Survey, Abstract No. 505, Brazoria County, Texas. Said 255.77 acre tract of land
being more particularly described as follows:
COMMENCING at a point marking the intersection of the north right-of-way line of FM 518
with the west right-of-way line of County Road 108;
THENCE, North 00010'27"West, 500.00feet along the west right-of-way line of said County
Road 108 to the POINT OF BEGINNING of the herein described tract;
THENCE, North 89059'00'" West, 1462.00feet leaving said west right-of-way line of County
Road 1 08 to a point for corner;
THENCE, North 00001 '00" East, 450.00 feet to a point for corner;
THENCE, North 89059'00" West, 606.70 feet to a point for corner, said point being located
in the east right-of-way line of County Road 521;
THENCE, North 00010'58" West, 5275.97 feet along said east right-of-way line of County
Road 521 to a point for corner;
THENCE, South 89056'38" East, 2068.44 feet leaving said east right-of-way line of County
Road 521 to a point for corner, said point being located in the aforementioned west right-of-
way line of County Road 108;
THENCE, South 00009'07'" East, 3410.48 feet along said west right-ot-way line of County
Road 108 to a point for corner;
THENCE, South 89058'32" West, 1032.85 feet leaving said west right-ot-way line of County
Road 108 to a point for corner;
THENCE, South 00011 '51" East, 408.47 feet to a point for corner;
THENCE, South 89059'17" East, 1033.57 feet to a point for corner, said point being located
in the aforementioned west right-of-way line of County Road 108;
THENCE, South 00010'27" East, 1904.94 feet to the POINT OF BEGINNING, CONTAINING
255.77 acres of land in Brazoria County, Texas.
SURV\JDW\M&B\25577
EXHIBIT "B"
DESCRIPTION OF THE COMMERCIAL PROPERTY AND DETENTION PROPERTY
003114.000001 \303594.6 JKAHN
29.99 Acres
EXHIBIT H
H.T. & B.A.A. Company Survey
Abstract No. 505
STATE OF TEXAS ~
COUNTY OF BRAZORIA ~
A METES AND BOUNDS description of a 29.99 acre tract (1 ,306,212 square feet, square
footage based on the mathematical closure of the courses and distances described herein) of
land located in the H.T. & B.R.R. Company Survey, Abstract No. 505, Brazoria County, Texas.
Said 29.99 acre tract of land being more particularly described as follows:
BEGINNING at a point marking the southeast corner of the herein described tract, said point
being located at the intersection of the north right-of-way line of FM 518 with the west right-
of-way line of County Road 108;
THENCE, North 89059'00" West, 2067.06 feet along the north right-of-way line of said FM
518 to a point for corner, said point being located at the intersection of said north right-of-way
line of FM 51 8 with the east right-of-way line of County Road 561;
THENCE, North 00010'58" West, 950.01 feet along said east right-of-way line of County
Road 561 to a point for corner;
THENCE, South 89059'00" East, 606.70 feet leaving said east right-of-way line of County
Road 561 to a point for corner;
THENCE, South 00001 '00" West, 450.00 feet to a point for corner;
THENCE, South 89059'00" East, 1462.00 feet to a point for corner, said point being located
in the west right-of-way line at County Road 108;
THENCE, South 00010'27" East, 500.00 feet along said west right-at-way line of County
Road 108 to the POINT OF BEGINNING, CONTAINING 29.99 acres of land in Brazoria County,
Texas.
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EXHIBIT "c"
WASTE DISPOSAL AND WATER PURCHASE AGREEMENT
BETWEEN THE CITY OF PEARLAND, TEXAS AND
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 16
This WASTE DISPOSAL AND WATER PURCHASE AGREEMENT (the "Agreement")
is made and entered into as of ,2003, by and between the CITY OF PEARLAND,
TEXAS, a municipal corporation and home-rule city ofthe State of Texas ("City") and BRAZORIA
COUNTY MUNICIPAL UTILITY DISTRICT NO. 16 (the "District"), a conservation and
reclamation district created pursuant to Article XVI, Section 59, Texas Constitution and operating
pursuant to Chapters 49 and 54, Texas Water Code.
RECITALS
The District was created within the City's extraterritorial jurisdiction ("ETJ") for the
purposes of, among other matters, providing water distribution, wastewater collection, and drainage
facilities to serve development occurring within and near the District.
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 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 development within and near the boundaries of the District.
The City and the District have determined that they are authorized by the Constitution and
laws ofthe 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:
"Approved Plans" means plans and specifications approved in accordance with Section 2.01.
003114.000001\303594.6 JKAHN
"Approving Bodies" means any or all ofthe following entities, as appropriate in a particular
context: the City; Brazoria County, Texas; the TCEQ; the Attorney General of Texas; the
Comptroller of Public Accounts of Texas; the United States Department of Justice; and all other
federal, state, and local governmental authorities having regulatory jurisdiction and authority over
the financing of the Facilities, the construction of the Facilities, or the subject matter of this
Agreement.
"Bonds" means the District's bonds, notes, or other evidences of indebtedness issued from
time to time for the purpose of purchasing, constructing, acquiring, operating, repairing, improving,
or extending the Facilities, payment of Connection Charges, and 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 Pearl and, Texas, a municipal corporation and home-rule city ofthe
State of Texas.
"City's Consent Ordinance" means the consent of the City to the creation of and inclusion
of land in the District.
"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.
"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 MHI Partnership, Ltd., a Texas limited partnership.
"District" means Brazoria County Municipal Utility District No. 16, 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.
003114.000001\303594.6 JKAHN
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"District Assets" means (i) all rights, title, and interests of the District in and to the Facilities;
(ii) any Bonds of the District which are authorized but have not been issued by the District; (iii) all
rights and powers of the District under any agreements or commitments with any persons or entities
pertaining to the financing, construction, or operation of all or any portion of the Facilities and/or
the operations of the District; (iv) all cash and investments, and amounts owned to the District; and
(v) all books, records, files, documents, permits, funds, and other materials or property of the
District.
"District Engineer" means Jones & Carter, Inc., or such other engineering firm as the District
may engage from time to time.
"District Obligations" means (i) all outstanding Bonds of the District; (ii) all other debts,
liabilities, and obligations of the District to or for the benefit of any persons or entities relating to the
financing, construction, or operation of all or any portion of the Facilities or the operations of the
District; and (iii) all functions performed and services rendered by the District for and to the owners
of property within the District and the customers of the services provided from the Facilities.
"F acilities and Operating Costs Reimbursement Agreement" means the District's agreement,
if any, as defined in Section 3.04.
"Facilities" means and includes the water distribution and wastewater collection 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.
"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.
"TCEQ" means the Texas Commission on Environmental Quality, or any successor or
successors exercising any of its duties and functions related to water conservation and reclamation
districts.
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 ofthe 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 ofthe 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.
003114.000001\303594.6 JKAHN
-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 proj ect engineer
for the District for the Facilities construction, shall make a recommendation regarding award ofthe
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 TCEQ.
2.03. Water Line Crossing FM 518. Prior to the design and construction ofthe Facilities,
the City and the District agree to share proportionately in the design and construction of a 16" water
line crossing FM 518 for connection of the Facilities by the District. The City and District agree
that either party shall have the right to construct such 16" water line and each party hereby grants the
other party an easement and the right to enter upon its respective property to the extent necessary for
such construction. The City and District further agree that the total cost of constructing said 16"
water line shall be allocated between them in the percentages of fifty percent (50%) to the District
and fifty percent (50%) to the City. Each party agrees to reimburse the other party constructing said
16" water line for its proportionate share of the costs incurred by such party within thirty (30) days
after receipt of a statement therefor, which shall include copies of the invoices or expenses paid by
the party constructing said 16" water line.
2.04. 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's ETJ and
the provisions of Article IV below.
003114.00000 I \303594.6 JKAHN
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2.05. 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 ofthe 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. Ifthe 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 ofthe Oversized Facilities shall be determined in accordance with TCEQ rules and regulations
so that Project Construction Costs will be shared by the City and the District on the basis of benefits
received, which are generally the design capacities in the Project for the City and the District
respectively.
ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. The District shall have authority to issue, sell,
and deliver Bonds from time to time, as deemed necessary and appropriate by the Board of Directors
ofthe District, for the purposes, in such forms and manner, and as permitted or provided by federal
law and, the general laws of the State of Texas and the City's Consent Ordinance. The District shall
not be authorized to sell Bonds until it has provided the City with a certified copy of the TCEQ order
approving each bond issue in which the TCEQ concludes that a District debt service tax rate of$I.50
or less per $100 of assessed valuation is feasible in accordance with the TCEQ' s rules in effect at
the time of such determination. The District's obligation to provide a certified copy of the TCEQ
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 ofthe 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 ofthe 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.
003114.000001\303594.6 JKAHN
-5-
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 Monthly
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 "Facilities and Operating Costs 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 Facilities and Operating
Costs Reimbursement Agreement shall be subject to all the terms and conditions ofthis Agreement.
Each Facilities and Operating Costs 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 Facilities and Operating
Costs Reimbursement Agreement, including, among other conditions, the approval ofthe TCEQ of
the sale of the Bonds and the use of sale proceeds for such purpose, or (ii) from District funds
lawfully available for such purpose.
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, upon the City completing its inspection of such Facilities and
approving same for operation by the City, the District shall convey the Facilities to the City, free of
any liens. 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. Thereafter, the City shall own, operate and maintain the Facilities and
shall have the sole right to collect revenues for the services provided. The District shall have no
further rights or obligations regarding the ownership, operation or maintenance of the Facilities.
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's ETJ.
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
003114.00000]\303594.6 JKAHN
-6-
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 ofthe 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 ofthe 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 infornlation 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
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 providing the total
number of service connections within the District and a summary of account receivables and
expenditures. 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, including trash collection
service, on the same basis and conditions as the City provides such services to other similarly
situated customers located outside of the municipal boundaries of the City; provided, however, in
addition to the rates and charges imposed by the City on its water and wastewater customers inside
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
003114.000001\303594.6 JKAHN
-7-
connection shall be computed in accordance with the service unit factors attached hereto, 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 customer 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 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 ofthe 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 supply 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 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
003114.000001 \303594.6 JKAHN
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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 (i) one thousand six hundred seventy-eight dollars ($1,678.00)
per lot for wastewater treatment capacity at the time of connection to the Facilities, and (ii) one
thousand eight hundred eighteen dollars ($1,818.00) per lot for water supply at the time of
connection to the Facilities (collectively the "Connection Charge"); provided, however, that the City
agrees that all residents living within the District in Lakeside Estates, Section One at such time water
and wastewater service becomes available to such residents will not have to pay a Connection
Charge at the time of connection to the Facilities but, instead, such Connection Charges will be paid
to the City by the District from the proceeds of the District's first bond issue or such other funds of
the District. Other than those residents in Lakeside Estates, Section One who reside in the District
at the time of connection to the Facilities, 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's ETJ. The District acknowledges and agrees that besides
the Connection Charge, any new connection to the Facilities will be subject to the fees, charges and
costs routinely collected by the City in regards to any new connection to the City's utilities whether
inside or outside the District.
003114.000001\303594.6 JKAHN
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ARTICLE VI
MONTHLY PAYMENTS
6.01. Monthly Payments. The City shall make a payment each month to the District
("Monthly 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 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
Payment shall be used to pay the administrative and operating costs of the District. The Monthly
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 Payment applies (the "Due Date"). Each Monthly 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 Payment for a period in excess of sixty (60) days from the receipt of written notice from
the District regarding same, then each Monthly Payment included in such notice shall incur interest
at the rate of one per cent (1 %) of the amount of the Monthly Payment per month, for each month
or portion thereof during which a Monthly Payment remains unpaid upon expiration of such sixty
(60) day period. The obligation of the City to make Monthly 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 Payments in order that
development within the District may be competitive with development in surrounding areas.
6.02. Access to Records for Verifying Calculation of Monthly Payments. The City shall
maintain proper books, records, and accounts; shall provide the District with an accounting together
with each Monthly 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 Monthly
Payment which is or becomes due and payable by the City hereunder. The District shall maintain
proper books, records, and accounts of all Bonds and the District's debt service requirements and
shall afford the City or its designated representatives reasonable access thereto for purpose of
verifying the amounts of Monthly 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 Monthly 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 ofthe District and may be pledged or assigned to the payment
003114000001 \303594.6 JKAHN
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of all or any designated portion of the principal or redemption premium, if any, or interest on the
Bonds or otherwise in accordance with applicable law. Each party to this Agreement agrees to notify
the other party as soon as is reasonably possible in the event it is ever made a party to or initiates a
lawsuit for unpaid taxes.
6.07. Pledge of Payments. The parties acknowledge and agree that the District may pledge
the Monthly Payments or any portion of the Monthly Payments in connection with the District's
issuance of its Bonds.
ARTICLE VII
DISSOLUTION OF THE DISTRICT
7.01. Dissolution of District. The City and District recognize and agree that the City may,
pursuant to the procedures and provisions and subject to the limitations set forth in the general laws
ofthe 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 a simple majority 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 ofthe City and the District
are afforded sufficient time and opportunity to realize the benefits and public utility to be derived
form 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 ofthe 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 (a) the District has sold all Bonds necessary to finance the costs of
the water, wastewater treatment and drainage facilities to serve the Property located within the
District and all developers of property within the District have been reimbursed by the District to the
maximum extent permitted by the Rules of the TCEQ, or (b) the City agrees to assume all debts,
obligations and liabilities ofthe District; provided, however, that the City shall not be able to annex
the District into its boundaries at any time prior to the ten (10) year anniversary ofthe date set forth
on the first page of this Agreement.
7.02. Transition upon Dissolution. In the event all required findings and procedures for the
dissolution ofthe 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.
003114.000001\303594.6 JKAHN
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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 hereby by either party, the other party shall be entitled to the
equitable remedy of specific performance.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01. Permits, Fees, Inspections. The District understands and agrees that all City
ordinances and codes, 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 Maieure. 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 ofthe 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
not within the control ofthe 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 of after the time required for
giving such approvals or consents.
003114.000001\303594.6 JKAHN
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9.04. Address and Notice. Any notice to be given under this Agreement shall be given in
writing, addressed to the party to be notified as set forth below, and may be given either by
depositing the notice in the United States mail postage prepaid, registered or certified mail, with
return receipt requested; by messenger delivery; or by facsimile. 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 Drive
Pearland, Texas 77581
Facsimile: 281/485-7992
If to the District, to:
Brazoria County Municipal Utility District No. 16
c/o Coats, Rose, Yale, Ryman & Lee, P.c.
1001 Fannin, Suite 800
Houston, Texas 77002-6707
Attn: Julianne B. Kugle
Facsimile: 713/651-0220
The parties shall have the right from time to time to change their respective addresses 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.
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 ofthe future perfOlmance 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 ofthis Agreement other than the City's Consent Ordinance between the City and the District.
If any provisions of the City's 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 City's Consent Ordinance.
003] 14.000001 \303594.6 JKAHN
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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 ofthe
parties hereto or any provisions hereof, or in ascertaining the intent of either party, with respect to
the provisions hereof.
9.12. Interpretations. This Agreement and the terms and provisions hereof shall be liberally
construed to effectuate the purposes set forth herein and to sustain the validity of this Agreement.
9.13. Severability. If any provision of this Agreement or the application thereof to any
person or circumstances is ever judicially declared invalid, such provision shall be deemed severed
from this Agreement and the remaining portions of this Agreement shall remain in effect.
9.14. Term and Effect. This Agreement shall remain in effect until the dissolution of the
District by the City.
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
003114.000001\303594.6 JKAHN
-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.
"CITY"
CITY OF PEARLAND, TEXAS
( -_~ f2~
Tom Reid , Mayor
By:
ATTEST:
By:
, City Secretary
APPROVED AS TO FORM:
By:
o~~
Darri n Coker , City Attorney
THE STATE OF TEXAS S
COUNTY OF BRAZORIA S
This instrument was acknowledged before me on the J..-r day of (Jcl-hfx.r; 2003, by
-rDTYI fc-""J e tel , as Mayor of Pearl and, Texas, a home-rule municipality, on behalf of
said municipality.
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003114000001\303594.6 JKAHN
-15-
"DISTRICT"
BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 16
By:
~L
flL~ l \~ C"'Q ~
Board f DIrectors
, President
ATTEST:
By:
~~
~ 11\ LA As . Secretary
Board of Directors
THE STATE OF TEXAS S
COUNTY OF BRAZORIA S
This instrument was acknowledged before me on the {'lit.... day of N~, 2003,
by _r~di~ Cvo!t:.u , as President of Brazoria County Municipal Utility District No. 16, a
political su1:ldivision of the State of Texas, on behalf of said political subdivision.
S. JOSH J. KAHN
. ~. NolaIy Public, Slate of Texas
. :fR{: ~ Commission Expires 05I1ll12OO6
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003114.000001\303594.6 JKAIIN
-16-
EXHIBIT "D"
SALES AND USE TAX AGREEMENT
THE STATE OF TEXAS ~
~
COUNTY OF BRAZORIA ~
This SALES AND USE TAX AGREEMENT (the "Agreement") is made and entered into
effective as of , by and between the CITY OF
PEARLAND, TEXAS, a municipal corporation and home-rule city of the State of Texas (the
"City"), and BRAZORIA COUNTY MUN1CIP AL UTILITY DISTRICT NO. 16, a conservation and
reclamation district created pursuant to Article XIV, Section 59, Texas Constitution and operating
pursuant to Chapters 49 and 54, Texas Water Code (the "District").
RECITALS
The City and the District have previously entered into that certain Agreement,
dated as of ,2002 (the "Agreement"), providing for, inter alia, the imposition of
the City's sales and use taxes within the District.
NOW, THEREFORE, the City and the District hereby agree as follows:
Section 1. Capitalized terms used herein shall have the same meanings as provided in
the Development Agreement, unless otherwise defined herein.
Section 2. Effective upon the date first written above, the City is hereby authorized to
impose, levy and collect its Sales and Use Taxes within the District.
Section 3. The parties agree to take all reasonably necessary steps to give effect to the
terms of this Agreement.
003114.000001\303594.6 JKAHN
IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement effective
as of the date first written above.
CITY OF PEARLAND, TEXAS
By:
-d~f0
Tom Reid
, Mayor
ATTEST:
By:
, City Secretary
BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 16
By:
, President
ATTEST:
~
By:
Li As:s{Secretary-
oard of Directors '
r~ORD
STATE OPEXl.S
COUNT(OJ: BR/\Z.'.:F:'
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003114.000001\303594.6 JKAHN
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BRl7~~:JNTY CLER~EXf'S
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