R2000-116 10-09-00 RESOLUTION NO. R2000-116
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, GRANTING CONSENT TO THE CREATION OF BRAZORIA
COUNTY MUNICIPAL UTILITY DISTRICT NO 23
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. 23) for 542 817 acres, more or less (the "Property"), a copy of
which petition is attached hereto and incorporated herein as Exhibit "A", and
WHEREAS, the Property is currently located entirely within the extraterritorial
jurisdiction of the City and it is anticipated that the Property will be annexed by the
City and thus will be entirely located within the City's corporate boundaries, and
WHEREAS, Section 54 015 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 RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS.
Section 1 That the City Council gives its written consent to the creation of
Brazoria County Municipal Utility District No 23 on 542 817 acres of land, more or
less, as described in the attached petition and the consent conditions attached thereto
Section 2. That the City Council authorizes and directs the Interim
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
1
RESOLUTION NO. R2000-116
PASSED, APPROVED and ADOPTED this the 9 day of October
A.D , 2000
c-- ). 440
TOM REID
MAYOR
ATTEST
0 NGLOS11 /
C Y SEC' ARY
APPROVED AS TO FORM
DARRIN M COKER
CITY ATTORNEY
2
PETITION FOR CREATION OF
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO 23
THE STATE OF TEXAS §
COUNTIES OF BRAZORIA AND HARRIS §
TO THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION*
The undersigned (herein the "Petitioners"), holding title to a majority in value of the land
described in Exhibit"A"attached hereto and incorporated herein for all purposes, as indicated by the
tax rolls of Brazoria County,Texas and Harris County,Texas, and acting pursuant to the provisions of
Chapters 49 and 54, Texas Water Code, together with all amendments and additions thereto,
respectfully petitions the Commissioners of the Texas Natural Resource Conservation Commission(the
"TNRCC")for the creation of a municipal utility district,and in support thereof would respectfully show
the following*
The name of the proposed District shall be BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO 23 (herein the "District"). There is no other conservation or reclamation district in
Brazoria County, Texas with the same name.
I I
The District shall be created and organized under the terms and provisions of Article XVI,
Section 59, of the Texas Constitution and Chapters 49 and 54, Texas Water Code, together with all
amendments and additions thereto.
III
The District shall have all the rights,powers,privileges,authority and functions conferred by and
be subject to all duties imposed by the Texas Water Code and the general laws relating to municipal
utility districts. The District shall contain 542.817 acres of land, more or less, situated in Brazoria
County,Texas and Harris County,Texas. All of the land to be included in the District is or will be within
the corporate boundaries of the City of Pearland, Texas (the "City"). All of the land proposed to be
included may properly be included in the District. The land proposed to be included within the District
consists of two tracts as described by metes and bounds in Exhibit"A"attached hereto and incorporated
herein for all purposes(the"Property").
IV
The Petitioners, hold fee simple title to the Property Petitioners hold title to the Property
within the proposed District and are the owners of a majority of value of the Property as indicated
by the tax rolls of Brazoria County, Texas and Harris County, Texas.
V
Petitioners represent that there are no lienholders on the Property and that there are no
residents on the Property
:ODMA MHODMA\Houston;330968;1
VI
Beazer Homes Texas, L.P ("Beazer"), has entered into an earnest money contract to
purchase all of the Property and desires to be considered a Petitioner for the consent to creation
of the District.
VII
The general nature of the work proposed to be done by the District at the present time is
the purchase, construction, acquisition, maintenance and operation of a waterworks and sanitary
sewer system for residential and commercial purposes, and the construction, acquisition,
improvement, extension, maintenance and operation of works, improvements, facilities, plants,
equipment and appliances helpful or necessary to provide more adequate drainage for the
District, and to control, abate and amend local storm waters or other harmful excesses of waters,
all as more particularly described in an engineer's report filed simultaneously with the filing of this
petition, to which reference is hereby made for more detailed description, and such other
purchase, construction, acquisition, 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 (the"Project").
VIII
There is a necessity for the improvements above described. The territory to be included
in said proposed District is or will soon be located wholly within the corporate boundaries of the
City of Pearland, Texas, and will be developed for residential and commercial purposes. There
is not available within the area proposed to be included in the District an adequate waterworks
system, sanitary sewer system, or drainage and storm sewer system, and the health and welfare
of the present and future inhabitants of the District and of the areas adjacent thereto require the
purchase, construction, acquisition, maintenance and operation of an adequate waterworks
system, sanitary sewer system, and drainage and storm sewer system.
IX.
The proposed improvements are feasible and practicable. There is an ample supply of
water available, and the terrain of the territory to be included in the proposed District is such that
a waterworks system, a sanitary sewer system, and drainage and storm sewer system can be
constructed at a reasonable cost.
X.
A preliminary investigation has been made to determine the cost of the Project and it is
now estimated by the Petitioners, from such information as they have at this time, that the cost
of the Project will be approximately$19,700,000.
WHEREFORE, the Petitioners respectfully pray that this petition be properly filed, as
provided by law; that all interested persons be notified of the procedures for requesting a public
hearing on this petition as required by 30 Tex. Admin. Code § 293.12; that this petition be set for
consideration at a date to be fixed in keeping with the provisions of Chapters 49 and 54, Texas
Water Code, and the rules of the TNRCC; that, if necessary, a hearing be held and notice thereof
be given as provided in Chapters 49 and 54, Texas Water Code, and the rules of the TNRCC;
that this petition be in all things granted; that the District be created and five directors thereof
appointed to serve until their successors are duly elected and qualified; and that such other
orders, acts, procedure and relief be granted as are proper and necessary and appropriate to the
creation and organization of the District, as the TNRCC shall deem proper and necessary
[EXECUTION PAGE FOLLOWS]
:ODMAIMHODMA\Houston;330968;1 -2-
RESPECTFULLY SUBMITTED this 07 day of ,5e,-/-end , 2000
T&B ALEXANDER FAMILY LIMITED
PARTNERSHIP,
a Texas limited partnership
By T&B Alexander, Inc.,
a Texas corporation,
its general partner
By. aj
Tom Alexander, President
ATTEST
B • /
Na Q/p2)
Title. See - /.Pe.s
THE STATE OF TEXAS §
COUNTY OF BRAZORIA §
This instrument was acknowledged before me on the Ti day of e ,
2000, by Tom Alexander, President of T&B Alexander, Inc., a Texas corporation a d general
partner of T&B Alexander Family Limited Partnership, on behalf of said partnership and
corporation.
""4 LINDA=exa
rys Nota Public-State of
Common Expires •
(SEAL
:ODMAIMHODMA\Houston;330968;1 -3-
BARTLETT PROPERTIES, INC.,
a 7.70 45 corporation
By dial.,) daft
Name: ,l�ebn / 2r-�/ ,4' i ,
Title: `Th9$,e,,4
ATTEST
By a
J
Name: Y-1 a r� 3'r 41 i'tf
Title: Ee 2�-I-&r i
THE STATE OF
COUNTY OFF §
Thi instrument w s ack owled ed before me on thel*da of ,
y
2000, by �� � � � \ �q�a'� `� of Bartlett Propert s, Inc., on
behalf of said corporation.
4,5 z.. UNDA H.HAYN1 EScsi:jolck
• Notary Public.Stele° Texas a Notary Public-State of
Comminkm Expires
:ODMAIMHODMAIHouston;330968;1 -4-
PATRICIA A.WOOD
THE STATE OF Vi §
COUNTY OF "' htev\tY..Nr\. §
This instrument was acknowledged before me on the day of ,
2000, by Patricia A.Wood.
• • No CHILD R 8 Notary Public-State of
MATE oF�a c S'�
eem
(SE a•t`DI 0co,9 a
:ODMAIMHODMAIHouston;330966;1 -5-
BAN YEN WANG
2, V . G-- 7
�--L 17 n!.0 . Pft.44 QaI
THE STATE OF 1IV3 §
COUNTY OF war) §
This instrument was acknowledged before me on the 1944` 1 day of 5901116d,2000, by Ban Yen Wang.
Y,` ' BETSY LAM
tip. MY COMMISSION EXPIRES 4— (91(m,--____,
Nota Pu I!C-State of:;P �: November20,2002 /imp
(SEAL)
:ODMAIMHODMA1Houston:330968:1 -7-
NAI LI WANG
i„..... ... ..) AL
THE STATE OF evrs §
COUNTY OF ( FA2f-3 §
This instrument was acknowledged before me on the( '1 day of PY)1&1 ,
2000, by Nai Li Wang
.Irrn�c: BETSY LAM Notary Public-State of
; i MY COMMISSION EXPIRES
'4 ;w, " November20,2002
•
(SEAL)
:OOMAIMHODMAIHouston;3309681 -6-
BEAZER HOMES TEXAS, L.P ,
a Delaware limited partnership
(Earnest Money Contract Holder)
By BEAZER HOMES TEXAS HOLDINGS, INC ,
a Delaware corporation,
its general partner
am •
e.
ATTEST
Name: /y7i,
Title, f s�ilq i�
THE STATE OF1 V4C3 §
COUNTY OF ///ir-RS. §
This instrument was acknowledge .befor e on the $ day ofret36,--Iber,2000, by\l�[�����[,,.•nW-2311D.ASYN, \j 1 C�. mffis of BEAZEROMES TEXAS
HOLDINGS, INC , a Delaware corporation and general partner of Beazer Homes Texas, L.P , on
behalf of said partnership and corporation.
,�►*Y : M
T* !L!LPj
No
PublicSta �,4
:ODMA MHODMAW ouston;330968;1 -8-
EXHIBIT A
METES AND BOUNDS DESCRIPTION
527.062 ACRES OUT OF
THE D. H. M. HUNTER SURVEY, ABSTRACT No. 76, BRAZORIA COUNTY,
ABSTRACT No. 36, HARRIS COUNTY
AND THE H. T. & B. R. R. SURVEY, ABSTRACT No. 233
PEARLAND, BRAZORIA AND HARRIS COUNTY, TEXAS
All that certain 527.062 acres out of the D. H. M. Hunter Survey, Abstract No. 76, Brazoria
County, and Abstract No. 36, Harris County, and the H. T. & B. R. R. Survey, Abstract No. 233
and including all or a portion of Lots 6, 7, and 15 — 18 out of Walcott's Pearland Subdivision
according to the plat thereof filed in Volume 35, Page 241- 242 Brazoria County Deed Records
and a portion of Lots 96 — 102 out of the Zychlinski Subdivision according to the plat thereof
filed in Volume 29, Page 43 Brazoria County Deed Records and being those same tracts
described in a deed dated 12-18-1996 from Thomas P. Alexander and Bettye M. Alexander to
T. & B. Alexander Family Limited Partnership as filed in Official Records of Real Property of
Brazoria County at Clerk's File Number 96-044931 and in a deed dated 01-23-1992 from First
Interstate Bank of Texas, N. A., to Nai U Wang and Ban Yen Wang as filed in Volume (92)997,
Page 03 Brazoria County Official Records and in a deed dated 06-041981 from John
Alexander, trustee to Patricia Alexander Wood as filed in Volume 1596, Page 110 Brazoria
County Deed Records and being a residue of that certain tract described in a deed dated 09-
06-1984 from Mary Alexander, et con, to Bartlett Properties, Inc. as filed in Official Records of
Real Property of Harris County at Clerk's File Number J-724634 Film Code Number 096-85-
0644 and being more particularly described by metes and bound as follows, with all bearings
expressed as grid and being generated from the Texas State Plane Coordinate System, South
Central Zone with distances expressed in surface feet;
Commencing at a found brass disc in concrete stamped "City of Pearland GPS Monu 6 1995"
(N:13,774,749.068', E:3,148,704.854') from which a found brass disc in concrete stamped
"City of Pearland GPS Monu 5 1995" bears S 04° 33' 51" E— 2,670.57'; Thence S 76° 33' 18" E
— 2,964.39' to a set 5/8" iron rod with cap on the east right-of-way line of Old Alvin Road and
marking the southwest corner of said Patricia Alexander Wood tract, and said point marking a
point on a curve to the right having a radius of 1,956.66' and a central angle of 03° 31' 48",
and said point marking the POINT OF BEGINNING of herein described tract;
Thence with said curve and the east right-of-way line of Old Alvin Road an arc distance of
120.55' and a chord bearing and distance of N 04° 27' 45" W — 120.53' to a set 5/8" iron rod
with cap for corner from which a found 1/2" iron rod (disturbed) bears N 69° 52' 05" W —
1.31';
Thence N 02° 41' 51" W continuing with the east right-of-way line of Old Alvin Road, passing
the northwest corner of said Patricia Alexander Wood tract at 493.74' and continuing a total
distance of 1,418.51' to a set 5/8" iron rod with cap marking the northwest corner of said
Wang tract;
Thence N 87° 11' 57" E — 984.18' (deed 984.74') with the north line of said Wang tract to a
call and found 1/2" iron rod marking the east corner of that certain tract described in a deed
dated 12-18-1996 from Thomas P. Alexander and Bettye M. Alexander to T. & B. Alexander
20-14-1E M&b.doc
Family Limited Partnership as filed in Official Records of Real Property of Brazoria County at
Clerk's File Number 96-044928;
Thence N 48° 23' 49" W — 1,375.16' with the common northeast line of the H. T. & B. R. R.
Survey, Abstract No. 233 and the southwest line of said D. H. M. Hunter Survey, Abstract No.
76, and the north line of said T. & B. Alexander Family Limited Partnership tract (Clerk's File
Number 96-044928) to a set 5/8" iron rod with cap for corner on the east right-of-way line of
Old Alvin Road;
Thence N 02° 41' 51 W—940.77'with the east right-of-way line of Old Alvin Road to a call and
found 1/2" iron rod for corner on the south line of Lot 8 of said Walcott's Pearland Subdivision,
said point marking the northwest corner of said T. & B. Alexander Family Limited Partnership
tract (Clerk's File Number 96-044931),
Thence N 87° 10' 37" E — 2,256.18' (plat 2,258.18') with the south line of Lots 8, 14, 19, and
29 of said Walcott's Pearland Subdivision to a call and found 1/2" iron rod for corner, from
which a found 2" iron pipe bears N 38° 35' 03"W — 0.35';
Thence N 41° 32' 17" E with the east line of Lots 29, 30, 40, 41, 42, and 43 of said Walcott's
Pearland Subdivision, passing at 4,040.36' a set 5/8" iron rod with cap for reference point and
continuing a total distance of 4,640.36'to a point for corner;
Thence S 48° 19' 35" E with the southwest line of those certain tracts described in an Agreed
Judgment dated 12-09-1994 from John B. Niday, Jr., et al to Harris County Flood Control
District as filed in Official Records of Real Property of Harris County at Clerk's File Number R-
254525 Film Code Number 502-65-3814 and that certain tract described in a deed dated 07-
12-1984 from John B. Niday, Jr to County of Harris and City of Houston as filed in Official
Records of Real Property of Harris County at Clerk's File Number J-653244 Film Code Number
091-93-1787, passing a found 1/2" iron rod marking the east corner of said T. & B. Alexander
Family Limited Partnership tract (Clerk's File Number 96-044931) at 877.81', passing a set 5/8"
iron rod with cap marking the east corner of said Bartlett Properties, Inc. tract at 1,755 62',
and continuing a total distance of 2,633.43' to a call and found 1/2" iron rod for corner
marking the east corner of said Patricia Alexander Wood tract;
Thence S 41° 40' 03" W with the northwest line of that certain tract described in a deed dated
06-04-1981 from John Alexander, trustee to Sue Alexander Morrison as filed in Volume 1596,
Page 93 Brazoria County Deed Records, passing the centerline of Clear Creek at 2,675.00' and
continuing a total distance of 6,889 73' to a call and found 1/2" iron rod for corner in the
common northeast line of said H. T. & B. R. R. Survey, Abstract No. 233 and the southwest
line of said D. H. M. Hunter Survey, Abstract No. 76;
Thence S 87° 11' 57" W — 2,554.59' with the north line of said Sue Alexander Morrison tract to
the POINT OF BEGINNING and containing 527.062 acres of land more or less.
Compiled by:
C.L. Davis & Company
Job Number: 20-14-1E, 07/13/2000
20-14-1E M&b.doc
EXHIBIT
METES AND BOUNDS DESCRIPTION
15.755 ACRES OUT OF
LOTS 30, 31, 32, 39 AND 40
WALCOTF'S PEARLAND SUBDIVISION
PEARLAND, BRAZORIA COUNTY, TEXAS
All that certain 15.755 acres out of Lots 30, 31, 32, 39 and 40, Walcott's Pearland
Subdivision, according to the plat thereof filed in Volume 35, Page 241 & 242, Brazoria
County Deed Records, D. H. M. Hunter Survey, Abstract Number 76, Pearland, Brazoria
County, Texas and being more particularly described by metes and bounds as follows,
with all bearings expressed as grid and being generated from the Texas State Plane
Coordinate System, South Central Zone with distances expressed in surface feet;
Commencing at a found brass disc in concrete stamped "City of Pearland GPS Monu 6
1995" (N:13,774,749.068', E:3,148,704.854') from which a found brass disc in concrete
stamped "City of Pearland GPS Monu 5 1995" bears S 04° 33' 51" E - 2,670.57'; Thence
N 57° 45' 44" E - 6,528.53' to a set 5/8" iron rod with cap marking the intersection of
the proposed east right-of-way line of Pearland Parkway and the northwest line of that
certain tract described in a dccd dated 12-18-1996 from Thomas P. Alexander and
Bettye M. Alexander to T. & B. Alexander Family Limited Partnership as filed in Official
Records of Real Property of Brazoria County at Clerk's File Number 96-044931 and
marking the POINT OF BEGTNNING of herein described tract, said point being on a
curve to the right having a radius of 1,002.00' and a central angle of 36° 18' 45";
Thence with said curve and the proposed easterly right-of-way line of said Pearland
Parkway an arc distance of 635.04' and a chord bearing and distance of N 09° 07' 51" E
- 624.46' to a set 5/8" iron rod with cap for corner;
Thence N 27° 17' 14" E - 1,069.84' continuing with the proposed easterly right-of-way
line of said Pearland Parkway to a set 5/8" iron rod with cap marking the beginning of a
curve to the left having a radius of 1,935.00' and a central angle of 12° 59' 08";
Thence with said curve and continuing with the proposed east right-of-way line of said
Pearland Parkway an arc distance of 438.55' and a chord bearing and distance of N 20°
47' 40" E - 437.61' to a set 5/8" iron rod with cap for corner;
Thence N 87° 18' 00" E - 109.41' to a found 5/8" iron rod with cap stamped Walsh
Surveying, Inc. for corner marking the northwest corner of that certain tract described
in a deed dated 10-05-1993 from Brazoria County Historical Museum Foundation to
Thomas P. Alexander, Jr. as filed in Official Records of Real Property of Brazoria County
at Clerk's File Number 93-036860;
20--1,+-1G M&b. doc
Thence S 02° ~,2' 00" E with the west line of said Thomas P. Alexander, Jr. tract,
paSSing at 966.07' a found 5/8" iron rod with cap stamped Walsh Surveying, Inc. and
continuing a total distance of 967.03' to a set 5/8" iron rod with cap for corner;
Thence S ~,1° 32' 17" W 1,356.88' with the northwest line of said T. & B. Alexander
Family Limited Partnership tract to the POINT OF BEGINNING and containing 15.755
acres of land more or less
Compiled by:
C.L. Davis & Company
.]ob Number: 20-1~-15 Acres
08/29/2000
Revised 8/30/2000
20-1~r1G
EXHIBIT "B" '
(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 "B-l," 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
confirmation, the District shall assume all the rights, obligations, and interests of the developers under
the Utility Agreement, as set forth therein.
(b) The District may issue bonds, including refunding bonds, for any purposes authorized
by law, including but not limited to, purchasing, refinancing, 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 date subsequent to the fifteenth (15th) anniversary of the date of issuance (or any earlier
date at the discretion of the District) 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 the 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.
C:\WINDOWS\TEMP\ci~y consent conditions. WPD
EXHIBIT "B-1"
UTILITY AGREEMENT
This UTILITY AGREEMENT (the "Agreement), is made and entered into as of the__ day
of , , by and between the CITY OF PEARLAND, TEXAS, a municipal
corporation and home-rule city of the State of Texas (the "City"), and BEAZER HOMES TEXAS,
L.P., a Texas limited partnership (the "Developer"), on behalf of proposed BRAZORIA COUNTY
MUNICIPAL UTILITY DISTRICT NO. 23, to be created as a body politic and corporate and a
governmental agency of the State of Texas organized under the provisions of Article XVI,
Section 59 of the Texas Constitution (the "District").
RECITALS
The District 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 near the boundaries of
the District and (ii) in order to enhance the economic feasibility of the District and more equitably
distribute among the taxpayers of the City and the District the burden of ad valorem taxes to be
levied from time to time by the City and the District, the City will make annual tax and monthly
water and sewer revenue rebate payments to the District in consideration of the District's
financing, acquisition, and construction of such facilities.
The City and the 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.
C:\WINDOWS\TEMP~Form of Utility Agreement. WPD
"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 BEAZER HOMES TEXAS, L.P., a Texas limited partnership.
"District" means Brazoria County Municipal Utility District No. 23, a body politic and
corporate and a governmental agency of the State of Texas organized under the provisions of
Article XVl, Section 59 of the Texas Constitution. The term "District" shall be construed to include
both Developer and the District, as it is the intention of the parties to this Agreement that 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
C:\Wn',roowS\TEMPXForm of Utility Agr¢¢mcnt. WPD 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 LJA Engineering & Surveying, 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 br 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 yearwhen the Annual Payments are due, as defined
in Section 6.02.
"TNRCC" means the Texas Natural Resource Conservation Commission, orany 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
Distdct 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.
C:\WINDOWS\TEMPkForm of Utility Agr¢¢ment. WPD 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.
C:XWn,~OWSX~',Fo,-m ofUt~UV ^r~,,m,,~.w~o page 4
ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of Distdct 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 Distdct
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 Developer
of property located within or near the District whereby such landowners or Developer 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.
C:\WINDOWS\TEMPkForm of Utility Agreement. WPD page 5
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, arid 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
correspondence from governmental or regulatory authorities and the District's directors,
customers, or consultants.
C:\WINDOWS\TF. MI~Form of Utility Agr~cmCnt. WPD page 6
(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
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
C:\WINDOWS\TEIV~kForm of Utility Agr¢cmCnt. WPD j0o~'e 7
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 forwastewater 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
($2,968.00) 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 City of Pearland Ordinance No. 960, 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 forwhich the appropriate Connection Charge
has not been paid. The City may amend the Connection Charge from time to time in accordance
with the requirements of state law; provided, however, the Connection Charge shall be the same
as the connection charge required outside the District and within the City limits. The District
acknowledges and agrees that, besides the Connection Charge, any new connection to the
Facilities will be subject to the fees, charges, and costs routinely collected by the City in regards
to any new connection to the City's utilities whether inside or outside the District.
C:\WINDOWS\TEMPXForm of Utility Agrecment. WPD page 8
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 I thereafter (the "Payment
Date"), with each such Annual Payment being applicable to the calendar year preceding the
calendar year of each such May I (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 I of each calendar
year, the City shall cause to be paid to the District those portions of the Annual Payment which
reflect collections made by the City subsequent to the Payment Date. The obligation of the City
to make Annual Payments to the District shall terminate upon the termination of this Agreement
in accordance with Section 9.14 below.
6.03. Supplemental Tax Rolls; Correction Tax Rolls; Adjustmentto 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 the amount of the Annual Payment previously paid by the City to the
District for the year in question, or the District shall pay to the City the amount, if any, by which the
recalculated Annual Payment is less than the amount of the Annual Payment previously paid;
C:\WINDOWS\TEMP~Form of Utility Agre~m~nt. WPD page 9
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 9.14 hereof. The City and the District
acknowledge and agree that the District is dependent upon the Monthly Revenue Payments in
order that development within the District may be competitive with development in surrounding
areas.
6.05. Access to Records for Verifying Calculation of Annual and Monthly Revenue
Payments. The City shall maintain proper books, records, and accounts; shall provide the District
with an accounting togetherwith 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 or its
designated representatives reasonable access thereto for purpose of verifying the amounts of
Annual and/or Monthly Revenue Payments relative to the District's debt service requirements and
general operating requirements.
6.06. District Taxes. The District is authorized to assess, levy, and collect ad valorem
taxes upon all taxable properties within the District to provide for (i) the payment in full of the
District Obligations, including principa!, redemption premium, if any, or interest on the Bonds and
to establish and maintain any interest and sinking fund, debt service fund, or reserve fund and
(ii) for maintenance purposes, all in accordance with applicable law. The parties agree that
nothing herein shall be deemed or construed to prohibit, limit, restrict, or otherwise inhibit the
District's authority to levy ad valorem taxes as the Board of Directors of the District from time to
time in its sole discretion may determine to be necessary. The City and the District recognize and
agree that all ad valorem tax receipts and revenues collected by the District, together with all
Annual Payments and Monthly Revenue Rebate Payments shall become the property of the
District and may be applied by the District to the payment of all proper debts, obligations, costs,
and expenses of the District and may be pledged or assigned to the payment of all or any
designated portion of the principal or redemption premium, if any, or interest on the Bonds or
otherwise in accordance with applicable law. Each party to this Agreement agrees to notify the
C:\WINDOWS\TEMPkForm of Utility Agreement. WPD peg e 10
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. Pled,qe of Payments. The parties acknowledge and agree that the District may
pledge the Annual Payments, the Monthly Revenue Payments, and/or any portion of either in
connection with the District's issuance of its Bonds.
ARTICLE VII
DISSOLUTION OF THE DISTRICT
7.01. Dissolution of District. The City and District recognize and agree that the City may,
pursuant to the procedures and provisions and subject to the limitations set forth in the general
laws of the State of Texas including, but not limited to, Section 43.074, Texas Local Government
Code, abolish and dissolve the District and assume the District Assets and District Obligations
upon a vote of not less than two-thirds (2/3) of the entire membership of the City Council to adopt
an ordinance to such effect, if the City Council finds: (a) that the District is no longer needed,
(b) that the services and functions performed by the District can be served and performed by the
City, and (c) that it would be in the best interests of the citizens and property within the District and
the City that the District be abolished. In order to ensure that the property owners and inhabitants
of the City and the District are afforded sufficient time and opportunity to realize the benefits and
public utility to be derived from the creation and operation of the District and the financing,
construction and implementation of the plan of improvements for the District, and in order to
contribute to the financial stability and feasibility of the District by ensuring a sufficient longevity
of the District's existence to permit the District to reach a satisfactory level of financial maturity,.
the City agrees that the District shall not be abolished until such time as the District is fully
developed and has sold all Bonds necessary to finance the costs of the Facilities and has
reimbursed developer 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.
C:\WINDOWS\TEMPIForm of Utility Agr ..... t. WPD page 11
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 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 not within the control of the party claiming such inability,
which such party could not have avoided by the exercise of due diligence and care.
9.03. Approvals and Consents. Approvals or consents required or permitted to be given
under this Agreement shall be evidenced by an ordinance, resolution or order adopted by the
governing body of the appropriate party or by a certificate executed by a person, firm or entity
previously authorized to give such approval or consent on behalf of the party. Approvals and
consents shall be effective without regard to whether given before or after the time required for
giving such approvals or consents.
9.04. Address and Notice. Any notice to be given under this Agreement shall be given
in writing, addressed to the party to be notified as set forth below, and may be given either by
depositing the notice in the United States mail postage prepaid, registered or certified mail, with
return receipt requested; by messenger delivery; or by telefacsimile. Notice deposited by mail
shall be effective three (3) days after posting. Notice given in any other manner shall be effective
upon receipt by the party to be notified. For purposes of notice, the addresses of the parties shall
be as follows:
If to the City, to:
City of Pearland
Attn: City Manager
3519 Liberty Dr.
Pearland, Texas 77581
Telefacsimile No. 281-485-7992
C:\W1NDOW$\TEMI~Fonn of Utility Agrc~m~nt. WPD page 12
If to the District, to:
Brazoria County Municipal Utility District No. 23
cio 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.
C:\WINDOWS\TEMP~Forrn of Utility Agr¢em~nt. WPD 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. Severabilit¥. 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
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C:\WINDOWS\TEMP~orm ofUtili~ Agreemcn/.WPD 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 ASTO FORM:
By:
City Attorney
C:\WINDOWS\TEMP~Form of Utility Agr¢¢rncnt. WPD page 15
ATTEST:
By:.
Name:
Title:
(SEAL)
BEAZER HOMES TEXAS, L.P.,
a Texas limited partnership
By:
BEAZER HOMES uSA, INC.,
a Texas corporation,
its general partner
By:
Name:
Title:
C:\WINDOWS\TEM]'LForm of Ufili~ Agreement. WPD page 16
EXHIBIT "C"
ASSUMPTION OF AGREEMENT
Brazoria County Municipal Utility District No. 23, 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 ,
, 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. 23
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
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 23
ATTEST:
By:
Name:
Title:
By:
Name:
Title:
(SEAL)
C:\WINDOVv'S\TEMPXFonn ot'Utili~ ^greemem. WPD page 17
PETITION FOR CREATION OF
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 23
THE STATE OF TEXAS
COUNTIES OF BRAZORIA AND HARRIS §
TO THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION:
The undersigned (herein the "Petitioners"), holding title to a majority in value of the land
described in Exhibit "A" attached hereto and incorporated herein for all purposes, as indicated by the
tax rolls of Brazoria County, Texas and Harris County, Texas, and acting pursuant to the provisions of
Chapters 49 and 54, Texas Water Code, together with all amendments and additions thereto
respectfully petitions the Commissioners of the Texas Natural Resource Conservation Commission (the
"TNRCC') for the creation of a municipal utility district and in support thereof would respectfully show
the following*
The name of the proposed District shall be BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 23 (herein the "District"). There is no other conservation or reclamation district in
Brazoria County, Texas with the same name
The District shall be created and organized under the terms and provisions of Article XVI,
Section 59, of the Texas Constitution and Chapters 49 and 54, Texas Water Code, together with all
amendments and additions thereto.
III.
The District shall have all the rights, powers, privileges, authority and functions conferred by and
be subject to all duties imposed by the Texas Water Code and the general laws relating to municipal
utility districts. The Distnct shall contain 542 817 acres of land, more or Tess situated in Brazoria
County, Texas and Harris County, Texas All of the land to be included in the District is or will be within
the corporate boundaries of the City of Pearland, Texas (the "City"). All of the land proposed to be
included may properly be included in the District. The land proposed to be included within the District
consists of two tracts as described by metes and bounds in Exhibit "A" attached hereto and incorporated
herein for all purposes (the "Property").
IV.
The Petitioners, hold fee simple title to the Property. Petitioners hold title to the Property
within the proposed District and are the owners of a majority of value of the Property as indicated
by the tax rolls of Brazoria County, Texas and Harris County Texas.
V.
Petitioners represent that there are no Iienholders on the Property and that there are no
residents on the Property.
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VI.
Beazer Homes Texas, L.P. ("Beazer"), has entered into an earnest money contract to
purchase all of the Property and desires to be considered a Petitioner for the consent to creation
of the District.
VII.
The general nature of the work proposed to be done by the District at the present time is
the purchase, construction, acquisition, maintenance and operation of a waterworks and sanitary
sewer system for residential and commercial purposes, and the construction, acquisition,
improvement, extension, maintenance and operation of works, improvements, facilities plants,
equipment and appliances helpful or necessary to provide more adequate drainage for the
District, and to control, abate and amend local storm waters or other harmful excesses of waters,
all as more particularly described in an engineer s report filed simultaneously with the filing of this
petition, to which reference is hereby made for more detailed description, and such other
purchase, construction, acquisition 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 (the "Project").
Vill.
There is a necessity for the improvements above described. The territory to be included
in said proposed District is or will soon be located wholly within the corporate boundaries of the
City of Pearland Texas, and will be developed for residential and commercial purposes. There
is not available within the area proposed to be included in the District an adequate waterworks
system, sanitary sewer system, or drainage and storm sewer system, and the health and welfare
of the present and future inhabitants of the District and of the areas adjacent thereto require the
purchase, construction, acquisition maintenance and operation of an adequate waterworks
system, sanitary sewer system, and drainage and storm sewer system.
IX.
The proposed improvements are feasible and practicable. There is an ample supply of
water available, and the terrain of the territory to be included in the proposed District is such that
a waterworks system a sanitary sewer system, and drainage and storm sewer system can be
constructed at a reasonable cost.
X.
A preliminary investigation has been made to determine the cost of the Project and it is
now estimated by the Petitioners, from such information as they have at this time, that the cost
of the Project will be approximately $19,700,000.
WHEREFORE, the Petitioners respectfully pray that this petition be properly filed, as
provided by law; that all interested persons be notified of the procedures for requesting a public
hearing on this petition as required by 30 Tex. Admin. Code § 293.12; that this petition be set for
consideration at a date to be fixed in keeping with the provisions of Chapters 49 and 54, Texas
Water Code and the rules of the TNRCC; that, if necessary, a hearing be held and notice thereof
be given as provided in Chapters 49 and 54, Texas Water Code, and the rules of the TNRCC,
that this petition be in all things granted, that the District be created and five directors thereof
appointed to serve until their successors are duly elected and qualified and that such other
orders, acts procedure and relief be granted as are proper and necessary and appropriate to the
creation and organization of the District, as the TNRCC shall deem proper and necessary.
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