Ord. 0884 11-09-98ORDINANCE NO. 884
AN ORDINANCE GRANTING THE CONSENT OF THE CITY OF
PEARLAND, TEXAS, TO THE CREATION OF BRAZORIA COUNTY
MUNICIPAL UTILITY DISTRICT NO. 18 WITHIN THE CITY'S
CORPORATE BOUNDARIES.
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. 18)
for 352.2294 acres located in the City's corporate boundaries, a
copy of which petition is attached hereto and incorporated herein
as Exhibit "A"; and
WHEREAS, Section 54.016 of the Texas Water Code provides
that land within a city's corporate boundaries may not be
included within a district without the city's written consent;
NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL
OF THE CITY OF PEARLAND, TEXAS:
That the City Council of the City of Pearland, Texas, gives
its written consent to the creation of Brazoria County Municipal
Utility District No. 18 on 352.2294 acres of land, as described
in the attached petition.
That the City' Council of the City of Pearland,.exas,
authorizes and directs the City Manager to execute the Uti13
Agreement (a copy of which.is attached hereto) on behalf of an
as the duly authorized act of the City of Pearland, Texas.
The importance of this ordinance and the impending creation
of Brazoria County Municipal Utility District No. 18 create an
emergency and an imperative public necessity, so that this
ordinance shall be effective as of the date below upon its first
and final reading. �^
PASSED AND APPROVED this ylth day of , 1998.
Mayor, City of Pearland
OVED :
AWL^ ^ it- (irp
'ty Attorney
PETITION FOR CONSENT TO INCLUDE
LAND IN A MUNICIPAL UTILITY DISTRICT
TO THE HONORABLE MAYOR AND
CITY COUNCIL OF THE CITY OF PEARLAND:
The undersigned, hereinafter called "Petitioners", being the
holder of title to a majority in value of the lands hereinafter
described, as such values are indicated by the tax rolls of
Brazoria County, Texas, acting pursuant to the provisions of
Section 54.016, Texas Water Code, respectfully petitions for the
inclusion of land in a municipal utility district, hereinafter
called "District", within the terms and provision of Section 59,
Article XVI, Constitution of Texas. In support of this petition
for consent to include said lands within the District, Petitioners
show as follows:
I.
The name of the District will be BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 18.
II.
The area of the land to be included in the District contains
352.2294 acres, more or less, and lies wholly within Brazoria
County, Texas. All of said area is within the corporate limits of
the City of Pearland, Texas. Petitioners hereby certify that the
lienholders executing this petition below are the only holders of
liens against the land to be included in the District.
The land, described by metes and bounds, sought to be
included within the area of the District, is described in Exhibit
"A" attached hereto and incorporated herein for all purposes.
IV.
The District will be organized for the purposes of and the
general nature of the work proposed to be done shall be the
purchase, construction, acquisition, repair, extension and
improvement of land, easements, works, improvements, facilities,
plants, equipment and appliances necessary to:
(1) provide a water supply for municipal uses, domestic uses
and commercial purposes;
(2) collect, transport, process, dispose of and control all
domestic, industrial or communal wastes whether in fluid, solid or
composite state; and
(3) gather, conduct, divert and control local storm water or
other local harmful excesses of water in the District and the
payment of organization expenses, operational expenses during
construction and interest during construction.
The District may also finance one or more facilities designed
or utilized to perform fire -fighting services and may purchase
interests in land for the purpose of providing parks land to the
extent authorized and permitted under state law.
V.
There is a necessity for the improvements above described for
the following reasons: The area of the District is urban in
nature, is within the growing environs of the City of Pearland,
and is in close proximity to populous and developed sections of
Brazoria County. The District's area will, within the immediate
future, experience a substantial and sustained residential and
commercial growth. Said area is not supplied with adequate water
and sanitary sewer facilities and services or with adequate
drainage facilities and does not have adequate fire suppression
facilities or parks land. The health and welfare of the future
inhabitants of the area and of territories adjacent thereto
require the installation and acquisition of an adequate water
supply and sewage disposal system, an adequate drainage system for
and within the area of the District, adequate fire suppression
facilities and adequate parks land.
A public necessity exists for the organization of such
District to provide for the purchase, construction, extension,
improvement, maintenance and operation of such waterworks and
sanitary sewer system, such drainage facilities, such fire
suppression facilities and parks land, in order to promote and
protect the purity and sanitary condition of the State's waters
and the public health and welfare of the community.
VI.
It is now estimated by those filing this petition, from such
information as they have at this time, that the ultimate cost of
the development contemplated will be approximately $12,800,000.
WHEREFORE, Petitioners respectfully pray that this petition
be granted in all respects and that the City of Pearland give its
written consent to the inclusion of the aforesaid land in said
District. NNII
Dated this .311 day of k(ote+tthtc , 1998.
- 2 -
THE STATE OF TEXAS §
§
COUNTY OF BRAZORIA
"PETITIONERS"
TRACT 1
PEARLAND WEST OAKS SECTIONS
3 & 4, LTD., a Texas limited
partnership
BY: Yale -West Ventures, a
Texas general partnership,
General Partner
BY: R. WEST DEVELOPMENT
COMPANY, INC., a Texas
corporation, Partner
By: C_
r V.
Renee L. West, Prendent
19
trument was acknowledged before me on this OW day
of (�( , 1998, by Renee L. West, President of R.
West velo ment Company, Inc., partner of Yale -West Ventures,
general partner of Pearland West Oak Secti. ns 3 44 td.
(S
""=F'4 NITA CHRISTIAN
., J . NOTARY PUBLIC
i,_ State of Texas
OF. Comm. Exp. 05-20-2001
otary Publi n and for the
State o Texas
- 3 -
TRACT 2
LAURA MASSE ARpOLD, Owner
R. WEST DEVELOPMENT COMPANY,
INC., a Texas corporation and
Contract;.,_ krchaser
THE STATE OF TEXAS
§
acknowledged before me on
1998, by La ey n
NITA CHRISTIAN
NOTARY PUBLIC
State of Texas
Comm. Exp. 05-20-2001
THE STATE OF TEXAS §
COUNTY sF Brazoria §
of
diyt�
Westff'evelopment
(SE
ment
was
Notary Pub c
State •f Texas
this
igtkiNday
in and for the
acknowledged before me on this R O day
, 1998, by Renee _ West, President of R.
Company, Inc.
NITA CHRR I—TI-H
}*1 NOTARY PUBLIC
° i State of Texas
' Comm. Exp. 05-20-2001
otary ?ublic in and for the
State of Texas
- 4 -
THE STATE 0
COUNTY
§
TRACTS 3 & 4
GALANTINE ASSOCIATES, a
California limited partnership
and also known as Gallentine
Associates
By:
erome L. Strom,
General Partner
By:
Rosie Ann Strom,
General Partner
rb'x{ient was acknowledged before me on this 020 day
of , 1998, by Jerome L. Strom, general partner
of t.Iantine Associates.
NITA CHRISTIAN
* NOTARY PUBLIC
State of Texas
Comm. Exp. 05-20-2001
(SEAL)
otary
State o
is in and for the
was acknowledged before me on this day
of /,' '1 4 , 1998, by Rosie Ann Strom, genera artner
of antine Associates.
NITA CHRISTIAN
NOTARY PUBLIC
State of Texas
Comm. Exp. 05-20-2001
(SEAL)
otary
State o
and for the
- 5
TRACTS 5 & 6
HOUSTON PINE HOLLOW ASSOCIATES
LIMITED, a Texas limited
partnership
BY: Millennium Development
Corp., an Arizona
corporation, General
Partn
B
ame:
Titl
THE STATE OFF lL ra,. ) §
�,,.�/�" §
COUNTY OF §
Ths instrument was acknowledged before e on this ir4— day
of 1 1998, by Way T7P41e
Mete r of Millenium Development Corp.,general
partner of -iouston Pine Hollow Associates Limited.
0"4-- NITA CHRISTIAN
�\* NOTARY PUBLIC
State of Texas
E i." Comm. Exp. 05-20-2001
(SEAL)
otary Public in and for the
State . Texas
-6-
R. WEST DEVELOPMENT COMPANY,
INC., a Texas corporation and
Contract Purchaser
By:
THE STATE OF TEXAS §
COUNTY OF JJy ? , §
his instrt ent was acknowledged before me on this
of , 1998, by Elizabeth A. Nisbet
Renee L. West, President
(SEAL)
� `Y tPt, NITA CHRISTIAN
NOTARY PUBLIC
° �Slaw. of Texas I Comm Exp C5-20-2001
§
—day
otary ubli —i and for the
State of Texas
was acknowledged before me on this /c day
of — , 1998, by Renee L. West, President of R.
West velopment Company, Inc.
THE STATE OF TEXAS
COUNTY OF
his instru�
tNITA CHRISTIAN
• NOTARY PUBLIC
�t • State of Texas
Comm. Exp. 05-20-2001
(SEAL)
otary Public n and for the
State oTexas
-7-
THE STATE OF TEXAS
COUNTY OF BRAZORIA
of
Wes
Section 2, Ltd.
NITA CHRISTIAN
NOTARY PUBLIC
State of Texas
Comm. Exp. 05-20-2001
TRACT 8
RAVENWOOD SECTION 2, LTD., a
Texas limited partnership
BY: R. West Development
Company, Inc., a Texas
corporation, General
Partn?r
By:!,
//
Refiee L. West, PYesident
§
rument was acknowledged before me on this dday
, 1998, by Renee L. West, Presi ent of R.
opment Company, Inc., general partner of Ravenwood
Notary Public in and for the
State .f Texas
- 8 -
THE STATE OF TEXAS
COUNTY OF
of
West
TRACT 9
R. WEST DEVELOPMENT COMPANY,
INC., a Texas corporation and
Owner
By:
Renee L. West; President
RAVENWOOD SECTION 3, LTD., a
Texas limited partnership and
Contract Purchaser
BY: R. West Development
Company, Inc., a Texas
corporation, General
Partner
By:
§
§
nee L. West, President
his instrii(nent was acknowledged before me on this day
, 1998, by Renee L. West, Presid nt of R.
.I:
velopment Company, Inc.
�7. ` NITA CHRISTIAN
* * NOTARY PUBLIC
, State of Texas
?o�,a ~ Comm. Exp. 05-20-2001
(SEAL)
THE STATE OF TEXAS
West Development
Sect n 3, Ltd.
(SEAL)
§
Notary 'u•lic in and or t
State oTexas
was acknowledged before me on this / 7 day
, 1998, by Renee L. West, President of R.
Company, Inc., general partner of Ravenwood
NITA CHRISTIAN
NOTARY PUBLIC
State of Texas
Comm. Exp. 05-20-2001
otary 'ublic in and for the
State o% Texas
-9-
The undersigned, being lienholders on all or a portion of the
property described in the foregoing Petition consents to the
creation of BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 18 over
the land which is more particularly described in said Petition,
and to the filing of said Petition with the City of Pearland,
Texas.
TRACT 1
THE FROST NATIONAL BANK
By:
Name:
Title:
r✓t9 nn
7)%/42/Ce / PfiriPn7
THE FROST NATIONAL BANK,
Successor in Interest to
Harrisburg Bank
Nam: A 1J
Name: �,, p o
Title: /9,4ALkef /%Pc/r✓en*
THE STATE OF I4 §
§
COUNTY OF !jQZe2l� §
This instrument was acknowledged before me -on this .�- day
of U9.NquA, 1998, by )-4,yy tc Loner
Cx `GT ULe_5LoG.,.S- of The rost ationalA Bank, a
, on behalf f said >(
LAURA AUSTIN
.\ Notary Public , State of Texas
81mInission Expires 8-14-00
THE STATE OF 1 JJM3 §
n §
j? COUNTY OF LGZ&(4_c-A- §
of ry Public in and for the
State of I pAms
This instrument was acknowledged before me on this day
of Qyrt 1998, by i�l/J, 4 �< N(T ,
YAG91 et ii. t9-P. ,,�i of The Frost �jational -1 Bank, a
1 Val?,, on behalf of said !g'-1)prLt OZ1 ,
successor in interest to Harrisburg nk.
C�0 { -
LAURA AUSTIN
otary Public, State of Texas
=� Commission Expires 8-14-00
tahry Public in and for the
State of 12AS
- 10 -
THE STATE OF TEXAS
COUNTY OF BRAZORIA
§
§
TRACTS 3 & 4
JOHN MASSEY
GLOIS E. MASSEY
T s srument was acknowledged before me on this
of t` CAD Gv , 1998, by John R. Massey.
i*1
(SE
i-"NITA CHRISTIAN
NOTARY PUBLIC
tie State of Texas
?�of Comm. Exp. 05-20-2001
THE STATE OF TEXAS
COUNTY OF BRAZORIA
§
Notary
State
Public
of Texas
n and for the
s/ ument was acknowledged before me on this
, 1998, by Glois E. Massey.
c
NITA CHRISTIAN
NOTARY PUBLIC
State of Texas
Comm. Exp. 05-20-2001
otary ublic in and for the
State o Texas
cKray
Merchants Bank, a state banking corporation, joins in the
execution of this petition, not as a "Petitioner", but as a
"Lienholder" on the property generally described as Tracts 5 and
6 on Exhibit "A" attached hereto and incorporated herein. By
joining in execution of this Petition, Merchants Bank in no way,
express or implied, shall incur any liability with reference to
this Petition nor with reference to operation of Brazoria County
Municipal Utility District No. 18.
TRACTS 5 & 6
MERCHANTS BANK
By.
Name: Connie B
Title: Branch President
THE STATE OF TEXAS §
COUNTY OF BRAZORIA §
This instrument was acknowledged before me on this 23rd
day of June , 1998, by Connie Beaumont ,
Branch President of Merchants Bank, a state banking
corporation, on behalf of said corporation. .
(Seal)
-12-
NOTARY PUBLIC, STATE TEXAS
SH'ArRON L!VINGGSTON
u Notary public, State of Texas
My Commission Expires 12-02-99
LXHIBIT "A11
REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
352.2294 ACRES LOCATED IN VARIOUS SURVEYS FOR THE PROPOSED BRAZORIA COUNTY
>IUNICIPAL UTILITY DISTRICT NO. 18 (INNER CITY M.U.D.), CITY OF PEARLAND, BRAZORIA
COUNTY, TEXAS.
Beim!. 352.2294 acres of land located in various surveys in the City of Pearland, Brazoria County, Texas. said
352.2294 acres being in nine (9) separate tracts as described by metes and bounds as follows (.All bearings recited
herein are grid bearings based on the City of Pearland Horizontal Control Monuments, established in 1995, reflecting
the Texas Coordinate System, South Central Zone, NAD 83 datum. All coordinates and distances recited herein are
surface coordinates and distances).
TRACT ONE
LEGAL DESCRIPTION OF WEST OAKS SECTION 3 B & C
Beim_ a 19.9707 acre (869,923 square foot) tract of land being pan of Section 15 of the H.T. & B. RR Co Survec.
Abstract No. 241, Brazoria County, Texas, and being out of a called 34.98 acre tract conveyed to Laura ;;Vassev
.Arnold as recorded in Volume 772, Page 94 of the Deed Records of Brazoria Co'mh•, Texas;
BEGINNING at a I/2-inch iron rod found at the southeast corner of West Oaks, Section Three - Phase 'A'. as
recorded in Volume 19, Pages 631-632 of the Plat Records of Brazoria County, Texas, and being the northeast
corner of the herein described tract;
THENCE South 02°34'36" East, along the west right-of-way line of County Road No 103, basc.a on a width of 60
feet, a distance of 662.00 feet to a 1/2-inch iron rod set for the southeast corner of the herein described tract;
THENCE South 87°25'24" West, along the future right-of-way line of Old Oaks Bct:levard (based on a 80 foot
width) a distance of 1194.83 feet to a 1/2-inch iron rod set for the Point of Curvature of a curve to the left:
THENCE in a westerly direction along tne arc of said curve to the left and along the future right-of-way of line of
said Old Oaks Boulevard, having a Radius of 160.00 feet, an Arc Length of 52.10 feet, a Central Angle of 18=39'24-,
and a Long Chord which bears South 78°05'44" West, 51.87 feet to a I/2-inch iron rod set for corner at the end of
said curve:
THENCE, South 68°46'09" West, along the future right-of-way line of said Old Oaks Boulevard, a distance of 46 43
feet to a 1/2-inch iron rod found in the east line of West Oaks Village, Section One-B, as recorded in Volume 19,
Pages 489-490 of the Plat Records of Brazoria County, Texas;
THENCE Nonh 02°34'36" West, along the east line of said West Oaks Village, Section One-B, a distance of 677 37
feet to a I/2-inch iron rod found at the southwest corner of said West Oaks, Section Three - Phase 'A'. same being the
northwest corner of the herein described [tact;
THENCE North 87°25'24" Fast, along the south line of said West Oaks, Section Three - Phase A', a distance of
246 02 feet to a I/2-inch iron rod found in the easterly right-of-way line of West Oaks Boulevard (based on a 60 foot
n idth) at the Beginning of a curve to the Left whose center bears South 73°36'43" West and being an interior corner
of the herein described tract;
THENCE in a northwesterly direction alo,:g the arc of said curve to the left having a Radius of 700.00 feet, an Arc
Length of 28.88 feet, a Central Angle of 02°21'49", and a Long Chord which bears Nonh 17°34' 11" West. 28.88
feet to a I/2-inch iron found in the said easterly right-of-way line, same being the southwest corner of Lot I. Block 3
of said West Oaks, Section Three - Phase 'A' for corner at the end of said curve;
5301 HOLLISTER. SUITE 485 - HOUSTON. TEXAS 77040
PHONE: (713) 895-8080/8081 • FAX: (713) 895-7686
le
REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
THENCE North 87°25'24" East, continuing alone the south line of said Block 3 of West Oaks. Section Three -
Phase '.A', a distance of 854.46 feet to a I/2-inch iron rod found in the west right-of-way line of Sumac Driyc (based
on a 60 foot width) for an angle corner of the herein described tract:
THENCE South 02°34'36" East, continuing along the said west right-of-way line of Sumac Drive, a distance of
20.00 feet to a 1/2-inch iron rod found for an interior corner of the herein described tract;
THENCE North 87°25'24" East, continuing along the south line of said West Oaks, Section Three - Phase *. . a
distance of 197.00 feet to the PLACE OF BEGINNING of the herein described tract, containing 19.9707 acres
(869,293 square feet) of land.
TRACT TWO
LEGAL DESCRIPTION OF WEST OAKS, SECTION 4
BEING a 25 1806 acre (1,096,865 square foot) tract of land located in the H.T.& B. RR Company Survey. Abstract
No. 241, Brazoria County, Texas and also being out of a called 34.98 acre tract described in an instrument recorded
in Volume 772, Page 94 of the Deed Records of Brazoria County, Texas and being more particularly described b\
metes and bounds as follows;
BEGINNING at a I/2-inch iron rod set for the northwest corner of the herein described tract. same being. the
southwest corner of the aforementioned Tract Three;
THENCE North 68°46'09" East, along the north line of the herein described tract, a distance of 46 43 feet to a 1 '-
inch iron rod set for corner at the beginning of a tangent curve to the right;
THENCE along the arc of said curve to the right having a Radius of 160.00 feet, an Arc Length of 52.10 feet. a
Central Angle of 18°39'24", an a Long Chord which bears North 78°05'44" East, 51.87 feet to a I/2-inch iron rod
set for corner at the Point ot'Tangency of the arc of said curve;
THENCE North 87°25'24" East, continuing along the north line of the herein described tract, a distance of 1 194 83
feet to a 1/2-inch iron rod set for the northeast corner of the herein described tract at the west right-of-way line of
Harkey Road (County Road 103), based on a width of 60 feet;
THENCE South 02°34'36" East, along the east line of the herein described tract, same being the west right-of-way
line of said Harkey Road, a distance of 414.10 feet to a 1/2-inch iron rod set for southeast corner of the herein
described tract;
THENCE South 33°22'20" West, along the southeasterly line of the herein described tract, same being the
northwesterly line of a 50-foot wide pipeline easement dedicated to Seminole Pipeline Company, as per an instrument
recorded in Clerk's File No. 93-020700 of the Deed Records of Brazoria County, Texas, a distance of 441.58 feet to
a 1/2-inch iron rod found for an ankle corner of the herein described tract;
THENCE South 71°47'08" West, along the southerly line of the herein described tract, same being the northerly line
of an 80-foot detention pond easement, a distance of 1070.39 feet to a 1/2-inch iron rod set for the southwest corner
of the herein described tract;
THENCE North 02°34'36" West, along the west line of the herein described tract, a distance of 10 36.85 feet to the
PLACE OF BEGINNING, containing 25.1806 acres (1,096,865 square feet) of land
Pate 2 of 8
5301 HOLLISTER, SUITE 485 HOUSTON, TEXAS 77040
PHONE: (713) 895-8080/8081 FAX: (713) 895-7686
REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
TRACT 'DIREF:
LEGAL DESCRIPTION OF WEST OAKS VILLAGE SECTION 3
BEING a 35 7427 acre (1,556,950 square foot) tract of land located in the H.T. & B. RR Co. Survey, Abstract No
241. Brazoria County, Texas, said 35.7427 acre tract of land being out of the residue of a called 160 acre tract
conveyed to John Massey as per an instrument recorded in Volume 708, Page 109 of the Deed Records of Brazoria
County, Texas and being more particularly described by metes and bounds as follows;
BEGINNING at a point for the southeast comer of an 80.0000 acre tract conveyed to the Pearland Independent
School District as per an instrument recorded under Film Code No. 95-022923 of the Official Records of Brazoria
County. Texas:
THENCE North 02°33'37" West, along the west line of the herein described tract, same being the east line of the
said 80.0000 acre tract, a distance of 1320.00 feet to a point for the northwest corner of the herein described tract.
THENCE North 87°25'24" East, along the north line of the herein described tract, a distance of 1205.94 feet to a
point for the northwes, comer of the herein described tract;
THENCE South 02°34'36- East, a distance of 1180.00 feet to a point for the southeast corner of the herein
described tract:
THENCE South 87°25'24- West, along the most easterly south line of the herein described tract. a distance of
251.00 feet to a point for an interior corner of the herein described tract,
THENCE South 02°34'36' East, a distance of 140.00 feet to a point for the most southerly southeast corner of the
herein described tract;
THENCE South 87°25'24" West, along_ the south line of the herein described tract, a distance of 955 32 feet to the
PLACE OF BEGINNING, containing 35.7427 acres (1,556,950 square feet) of land.
TRACT FOUR
LEGAL DESCRIPTION OF WEST OAKS VILLAGE. SECTION 4
BEING a 20.5592 acre (895,557 square foot) tract of land located in the H.T. & B. RR Co. Survey. Abstract No.
241. Brazoria County, Texas, said 20.5592 acre tract of land being out of the residue of a called 160 acre tract
conveyed to John Massey as per an instrument recorded in Volume 708, Page 109 of the Deed Records of Brazoria
County. Texas and being more particularly described by metes and bounds as follows;
BEGINNING at a point for the northwest corner of the herein described tract, same being the northeast corner of an
80.0000 acre tract conveyed to the Pearland Independent School District as per an instrument recorded under Film
Code No. 95-022923 of the Official Records of Brazoria County, Texas, said point also being in the south right -oft way line of County Road No. 91 (Fite Road), based on a width of 60 feet, as per an instrument recorded in Volume
1093, Page 830 of the Deed Records of Brazoria County, Texas;
THENCE North 87°25'24" East, along the north line of the herein described tract; same being the said south right-
of-way line of County Road No. 91 (Fite Road), a distance of 71058 feet to a point for the northeast corner of the
herein described tract, same being the northwest corner of a called 18.75 acre tract conveyed to the Dad's Club;
Paue 3 018 5301 HOLLISTER, SUITE 485 HOUSTON, TEXAS 77040
PHONE: (713) 895-8080/8081 FAX: (713) 895-7686
REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
(HENCE South 02'34'36' East, along the east line of the herein described Ir<tct. same being the “cst line ('f said
Dad's Club tract, a distance of 1260.00 feet to a point for the southwest corner of the said Dad's Club tract. and the
southeast corner of the herein described tract, said point also being in the north line of Future West Oaks village.
Section 3.
THENCE South 87°25'24" West, along the south line of the herein described tract. same being the north line of
Future West Oaks Village, Section 3, a distance of 710.94 feet to a point for the southwest comer of the herein
described tract, same being the northwest corner of Future West Oaks Village, Section 3;
THENCE North 02°33'37" West, along the west line of the herein described tract. same being the east line of the
said 80.0000 acre tract, a distance of 1260.00 feet to the PLACE OF BEGINNING. cunrtinine 20 5592 acre,
(895,557 square feet) of land.
TRACT FIVE
LEGAL DESCRIPTION OF PINE HOLLOW SECTION
Field Note Description of 49.6070 acres of land, being all of lots 27. 44 and a portion of lots 42. 45. 46. 47 and 41:
out of the George W. Jenkins Subdivision of 306.38 acres as recorded in Volume 2_. page 20 of the Brazoria Cuuntn
Deed Records, located in the James T. Perry and Emily Austin League. Abstract No III. (3razoria County. Texas_
said 49.6070 acres also being a portion of teat certain called 187.08'4 acre tract of land conveyed to fine 1Iu1Io‘'
Associates, LTD. by Deed recorded under Brazoria County, Texas. said 49.6070 acre tract being more particularlc
described by metes and bounds as follows:
BEGINNING at a I/2 inch iron pipe found in the Southerly right-of-way line of said FAL 51S Fix the \ortheas
corner of that certain called 2.55318 acre tract recorded in Volume 1302, Page 38 of the B.C.D.R same being an
exterior corner of said called 187.084 acre tract, the common Northerly corner of Lots 27, and 28 of said George \W
Jenkins Subdivision, and the Northerly corner of the herein described tract;
THENCE South 63° 00' 05" East, along the said Southerly right-of-way line of F.N1. 518, a distance of 371 78 feet to
a point for the easterly corner of the herein described tract, said point falling in the centerline of 40.00 feet wide
dedicated Road right-of-way as recorded in Vol. 2 Page 20 of the B.D.C.R. same being the Northwesterly line of a
called 68.1273 acre tract conveyed to George A. Bofysill, Trustee by Deed Recorded in Volume 1210. Page 433
B C.D.R. said point also falling within an existing drainage ditch (\can's Creek Bypass Channel). from said point a
found 5/8 inch iron rod bears South 63° 00' 05" East, 51.88 feet;
THENCE South 41° 46' 48" West, along the centerline of said dedicated Road and said drainage ditch. a distance of
3.343.93 feet to a point on the southerly line of the City of Pearland City Limit Line for the southeasterly corner of
the herein described tract;
THENCE South 86° 44' 28" West, along the said City Limits Line. a distance of 517.45 feet to a point for the
southwesterly corner of the herein described tract;
THENCE North 24° 21' 00" East. along a line parallel to and 12.50 feet Southeasterly of an existing 8 inch Texas
Eastern transmission Corp. gas Pipeline, said line also being parallel to and 12.50 feet Northwesterly of another
existing Texas Eastern Transmission Petroleum Pipeline, a distance of 2,126.79 feet to a 5/8 inch iron rod found for
corner on the occupied common line between lot 42 and lot 43 of said George W. Jenkins Subdivision;
5301 HOLLISTER, SUITE 485 • HOUSTON, TEXAS 77040
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REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
THENCE South 48° 23' 14" East, along the common line between said Lot 42 and Lot 43. a distance of 139 8: tc•c!
to a 3.4 inch galvanized iron pipe found for the South corner of said lot 43. the east corner of Lot 42 and an interau
n:
corner of the herein described tract;
FHE\'CE North 41° 52' 22" East, along the common line between Lot 43 and Lot 44, a distance of 502 37 feet to a
3/4 inch galvanized iron pipe found on the Southwesterly line of a called 6.9310 acre tract conveyed to Texas
Windmill Apts. by Deed recorded in Volume 92996, Page 331 of the B.C.D.R. for the east corner of the herein
described tract;
THENCE South 48' 20' 41" East, along the Southwesterly line of said 69310 acre tract saute being th,
northeasterly line of Lot 44, a distance of 504.14 feet to 5/8 inch iron rod found at a fence post fix the South comer
of Lot 28, the West corner of Lot 27 and 27 and an interior corner of the herein described tract.
THENCE North 41° 41' 47" East, along the common line between Lots 27 and 28 , at 828 81feet pass a 1.2 inch
iron pipe found for the East corner of said 6.9310 acre tract, and the South corner of a called 2.55 318 acre tract
conveyed to George B. Eng by Deed Recorded in Volume 1302, page 38 of the B.C.D.R. and continuing a total
distance of 1,08221 feet to the PLACE OF BEGINNING and containing 49.6070 acres of land
TRACT SIX
LEGAL DESCRIPTION of PINEHOLLO1k', SECTION 3
-15.6769 acres (1,989,684 square feet ) of land, being all of Lots 39 and 40 a portion of Lots 41. 42. 45, 46, 47 and
48 out of the George W. Jenkins Subdivision of 306.38 acres as recorded in Volume 2, Page 20 of the Brazoria
County Deed Records, located in the James T. Perry and Emily Austin League, .Abstract No. III, Brazoria County.
Texas and also being a pan of that certain called 187.084 acre tract conveyed to Houston Pine Hollow Associates
LTD. by Deed Recorded under Brazoria County Clerk's File No. 95-001759 of the Official Records of Brazoria
County, Texas said 45.6769 acre tract being more particularly described by metes and bounds as follows:
BEGINNING at a 5/8 inch iron rod found in the centerline of a 50 foot wide Texas Eastern Transmission Corp
Easement recorded in Volum_ 6E9, page 16, .,i toe b.C.D.R. said iron marks the Southeasterly corner of Pine
Hollow Section I-C, as recorded in Volume 19, page 727 & 728 of the Brazoria County Map Records, and the
Northerly Northeast corner of the herein described tract;
THENCE, South 48° 23' 14" East, a distance of 237.31 feet to a 5/8 inch iron rod found for -the Easterly corner of
the herein described tract;
THENCE South 24°21'00" West, a distance of 2126.79 feet to a point for a corner in the southerly City Limits Line
of the City of Pearland said point marks the southeasterly corner of the herein described tract;
THENCE South 86° 44' 28" West, along the said City Limits Line, a distance of 46.03 feet to a point for the
southwesterly corner of the herein described tract;
THENCE North 48° 14' 07" West, a distance of 1328.86 feet to a 5/8 inch iron rod set for a southwest corner of the
herein described tract;
THENCE North 41°46'27" East, a distance of 947.60 feet to a point for an interior corner of the herein described
tract;
THENCE North 48° 16' 29" West, along the common line between said Lots 36 and 37, a distance of 181 58 feet to
a 5;8 inch iron rod set for the Southwesterly corner of said Pine Hollow Section I-C and the Northwesterly corner of
5301 HOLLISTER, SUITE 485 - HOUSTON, TEXAS 77040
Page ' ofs PHONE: (713) 895-8080/8081 • FAX: (713) 895-7686
REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
the herein described tract, said point also falling in the centerline of a 50 foot wide easement and right-otiv.av
conveyed to Texas Eastern Transmission Corp., by Deed recorded in Volume 669. Page 464 ofthe B.C.DR.
THENCE North 722' 45' 22" East, along the centerline of said 50 toot wide easement and right-of-way. saute beam
the Southerly line of said Pine Hollow Section I-C, a distance of 129923 feet to the PLACE OF BEGINNING and
containing 45.6769 acres (1,989,684 square feet) of land.
TRACT SEVEN
LEGAL DESCRIPTION of NESBIT TRACT
BEING 76.7925 Acres of Land, being a part of lots 16, 17, 18 and 25 of the L.W. Murdock Subdivision of A.0 H
B Survey, Section 2 Abstract 507, Brazoria County, Texas, according to the plat recorded in Volume 29, Page 174,
Deed Records of Brazoria County, Texas and being a part of'the H. Stevens Survey, Abstract 594, Brazoria County.
Texas and being a part of certain 207.179 acre tract described in a deed from John Alexander and a Guy Crouch a>
independent executors and trustees of the Estate of Helen F Alexander to Elizabeth Alexander Nisbett, dated June 4.
1981, and recorded in Volume 1597, page 315 Deed Records, said 76 7925 acres being more particularly described
as tollows:
COMMENCING, at a 1 inch iron pipe set in the Northeast right-of-way line of State Highway No. 35 (100 toot
right-of-way) for the Northwest corner of the herein described tract and the Southwest corner of a 6.8744 acre tract
described in Deed from Elizabeth A. Nisbet to the City of Pearland recorded in Clerk's File No. 96-038855, said point
being located South 29 ° 37' 20" East - 135.0 feet from a 5/8" iron rod found at the Southwest corner of an 83 3719
acre tract heretofore sold to Pearland Independent School District out of the Original 207.179 acre tract and recorded
in Volume (88)552, Page 385, Official Records of Brazoria County. Texas
THENCE, in an Easterly direction, along the Southerly line of said 6.8744 acre tract hereafter referred to as the south
line of Oiler Drive, following a curve to the right having a radius of 865.0 feet, a Central Angle 20' 19' 49" , an arc
distance of 306.93 feet (Chord Bearing & Distance - North 70° 19' 27" East - 305.32 ) to a 1 inch iron pipe set at the
P.T. of said curve;
'ffiNCE North 78° 02' Si" East, continuing along the South line of Oilei Drive, a distance of Z,.89 feet to a 1
inch iron pipe set at the P.C. of a curve to the left;
THENCE, continuing along the Southerly Line of Oiler Drive, following a curve to the left having a Radius of 2135 3
feet, a Central Angle 03° 17' 46", an arc distance of 122.83 feet (Chord Bearing and Distance - North 76° 25' 19"
East - 122.81) to a 1/2 inch iron rod set for the PLACE OF BEGINNING of the herein described tract and the
Northeast corner of a 40.29 acre tract and the Northeast corner of a 40.29 acre tract this day surveyed:
THENCE, continuing along the Southerly line of Oiler Drive, following the curve to the left having a Radius of
2135.00 feet, a Central Angle 28° 58' 46", an arc distance of 1079.85 feet (Chord of Bearing and distance - North 60`
17' 03" East - 1068.38) to an "X" chiseled in concrete, at the Southeast corner of said 6.8744 acre tract and being in
the Northeast line of the aforementioned 207.179 acre tract and the Southwest line of the Aaron Pasternak, trustee,
tract recorded in Volume 1023, Page 297, Deed Records, said point being in the common line of the A.C.H & B.
Survey, Abstract 507, and the W.D.C. Hall Survey, 'Abstract 70;
THENCE South 48° 31' 37" East, along the common line of said Surveys and the Northeast line of said 207.179 acre
tract and the Southwest line of Pasternak tract, at 02 feet pass a 1 inch iron pipe set and continue for a total distance
of 882.94 feet to a 6" x 6" concrete monument found at the South corner of the Pasternak tract and the west corner
of Shadycrest Subdivision as recorded in Volume 8, page 907. Plat Records;
Page 6 of 8
5301 HOLLISTER, SUITE 485 • HOUSTON, TEXAS 77040
PHONE: (713) 895-8080/8081 FAX: (713) 895-7686
REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
THENCE, South 48°•10' 05" East, continuing along the common line of said Surveys and the northeast line of said
207.179 acre tract and the Southwest line of Shadycrest Subdivision, passing several 1/2 inch iron rods found on line.
at 1089.78 feet pass a 1 inch iron pipe found at the South corner of Shadycrest Subdivision and the West corner of
Lot 17, Narregangs Subdivision, as described in a Deed to Alma Barnes Snyder recorded in Clerk's File No 97'_ 003122, continue along the Southwest line of Snyder tract passing the Southeast corner of the A.C.H.& B. Survey.
.Abstract 507 and the Northeast corner of H. Stevens Survey Abstract, 594, and continue along the common line of
the Stevens Survey and the Hall Survey for a total distance of 1905.15 feet to a 2 inch iron pipe found at the
Southeast corner of the aforementioned 207.179 acre tract and the Northeast corner of Lot 161 of the Zcchilnski
Subdivision of the G.C. Smith Survey, Abstract 551, Brazoria County, Texas, which is the Northeast corner of the
ray C. McKenzie, Jr. tract recorded in Clerk's File 93-003219:
THENCE South 86° 35' 53" West along the North line of the G.C. Smith Survey, Abstract 551, and a South line of
the H. Stevens Survey Abstract 594, and the North line of lot 161, passing it's Northwest corner and the Northeast
corner of Lot 162 as described in the Deed to Mary Ethel Wolff recorded in Clerk's File No. 94-030005, and continue
along the North of Lot 162, at 2341.45 feet (call 2346.91 feet in Nisbet Deed) pass a 2 inch iron pipe found at the
Northwest corner lot 162 and the Northwest corner of the G.C. Smith Survey, Abstract 551, and an ell corner of the
207.179 acre tract, and continue for a total distance of 2558.28 feet to a 1/2 inch iron rod set for the South' est
corner of the herein described tract and a corner of said 40.29 acre tract.
THENCE North 32° 06' 34" West along the East line of said 40.29 acre tract, a distance of 433 79 feet to a 1 2 inch
iron rod set for corner;
THENCE North 05° 22' 41"
East a distance of 186.71 feet to a 1/2 inch iron rod set for corner;
THENCE, North 12° 17' 30" West, along the east line of said 40
iron rod set for corner;
THENCE, following a curve to the ri;,ht having a Radius of
Bearing and Distance North 29° 44' 1 8" West - 132.78 feet) for
set at the P.C. of said curve;
.29 acre tract, a distance of455.50 feet to a 1/2 inch
269 00 feet, a Central Angle 28° 34' 37", (Chord
an arc distance of 134 17 feet to a 1/2 inch iron rod
THENCE North 12° 17' 30" West, along the East line of said 40.29 acre tract, a distance of 372.46 feet to the
PLACE OF BEGINNING and containing 76.7925 acres of land.
TRACT EIGHT
LEGAL DESCRIPTION OF RAVENWOOD ESTATES SECTION 2
BEING a 38.6998 acre (1,685,763 square foot) tract of land out of the south one-half of the southeast one-fourth of
Section 16, H.T.&B. RR. Company Survey, Abstract No. 546, Brazoria County, Texas, and being more particularly
described by metes and bounds as follows:
COMMENCING at a P.K. Nail set in asphalt at the southeast corner of Ravenwood Estates Section One an addition
to the City of Pearland as recorded under Volume 19, Page 759-760 of the Map Records of Brazoria County, Texas
at the intersection of the centerline of County Road No. 101 (based on a right -of -way 60 feet wide) and the
centerline of County Road No. 103 (also known as Harkey Road and based on a right-of-way 60 feet wide);
THENCE South 87°21' 13" West, along the centerline of said County Road No. 101, a distance of 1,384 62 feet to a
P K. Nail set in asphalt being the PLACE. OF BEGINNING of the herein described tract;
5301 HOLLISTER. SUITE 485 ' HOUSTON. TEXAS 77040
Paue 7 of 8 PHONE: (713) 895-8080/8081 • FAX: (713) 895-7686
Ad
REKHA ENGINEERING, INC.
CONSULTING ENGINEERS
THENCE South 87°21'13" West, continuing along the said centerline of County Road No 101. a distance of
1,257.66 feet to a point in the east line of West Lea Section Three an addition to the City of Pearland as record under
Volume 12, Page 23-24 of the Map Records of Brazoria County. Texas for corner of the herein described tract.
THENCE North 02°36'30" West, along the east line of said West Lea Addition, Section Three a distance of I.33! 1 •,
feet to a point for corner of the herein described tract;
THENCE North 87°21'12" East, a distance of 1,324.09 feet to a point in the nest line of said Ravenwood Estate,
Section One for corner of the herein described tract;
THENCE South 02°38'48" East, along the west line of said Ravenwood Estates Section One a distance of 3S9 __
feet to a point for corner of the herein described tract;
THENCE South 87°21' 12" West, continuing along the west line of said Ravenwood Estates Section One a distance
of 67 31' to a point for corner of the herein described tract:
THENCE South 02°38'48" East, continuing along the west line of said Ravenwood Estates Section One a distance of
93023 feet to the PLACE OF BEGINNING containing 38.6998 acres (1,685,763 square feet) of land
TRACT NINE
LEGAL DESCRIPTION OF R.AVENWOOD ESTATES SECTION 3
BEING a 40.0000 acre (1,742,400 square foot) tract of land out of the south one-half of the southeast one-fourth of
Section 14, H.T.&B_ RR. Company Survey, Abstract No. 509, Brazoria County, Texas, and being more particularly
described by metes and bounds as follows:
BEGINNING at a P.K. Nail set in asphalt at the southeast corner of Ravenwood Estates Section One an addition to
the City of Pearland as recorded under Volume 19, Page 759-760 of the Map Records of Brazoria County. Texas at
the intersection of the centerline of County Road No. 101 (based on a right -of -way 60 feet wide) and the centerline
of County Road No. 103 (also known as Harkey Road and based on a right-of-way 60 fee: wide):
THENCE North 02°36'30" West, along the centerline of said County Road 103 (also known as Harkey Road), being
the east line of said Ravenwood Estates Section One a distance of 1,320.00 feet to a point in the north line of said
Ravenwood Estates Section One and being in the south line of Sharondale Subdivision, an unrecorded addition to the
City of Pearland, Brazoria County, Texas for corner of the herein described tract;
THENCE North 87°21'13" East, a distance of 1,320.00 feet to a point for corner of the herein described tract:
THENCE South 02° 36'29" East, a distance of 1,320.00 feet to a point in the centerline line of said County Road No
101 for corner of the herein described tract;
THENCE South 87°21 ' 13" West, along the centerline of said County Road No. 101 a distance of 1.320 00 feet to
the PLACE OF BEGINNING, containing 40.0000 acres (1,742,400 square feet) of land
I n7du: a ix%
r . >o,<mMr 4. 1998
Paee8of8
5301 HOLLISTER, SUITE 485 k-IOUSTON, TEXAS 77040
PHONE: (713) 895-8080/8081 FAX: (713) 895-7686
UTILITY AGREEMENT
This UTILITY AGREEM NT ( he "Agreement), is made and entered
into as of the day of tAbvta0400 q , 1998, by and between the
CITY OF PEARLAND, TEXAS, a municipal corporation and home -rule
city of the State of Texas (the "City"), and R. West Development
Company, Inc., a Texas corporation (the "Developer"), on behalf
of proposed BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 18, 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.
"Approving Bodies" means any or all of the following
entities, as appropriate in a particular context, the City;
Harris County, Texas and/or Brazoria County, Texas, as
applicable; 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
Impact Fees, 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.
"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
- 2 -
Costs" regarding a particular construction project once that
project is complete.
"Developer" means R. West Development Company, Inc., a Texas
corporation.
"Director" means the City's Manager or his designee.
"District" means Brazoria County Municipal Utility District
No. 18, a body politic and corporate and a governmental agency of
the State of Texas organized under the provisions of Article XVI,
Section 59 of the Texas Constitution. The term "District" shall
be construed to include both the Developer and the District, as
it is the intention of the parties to this Agreement that all
rights, benefits, and obligations pursuant to this Agreement
shall ultimately be assigned by the Developer to the District
upon its creation.
"District Assets" means (i) all rights, title, and interests
of the District in and to the Facilities, (ii) any Bonds of the
District which are authorized but have not been issued by the
District, (iii) all rights and powers of the District under any
agreements or commitments with any persons or entities pertaining
to the financing, construction, or operation of all or any
portion of the Facilities 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 Ferro Saylors, 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.
"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.
"Impact Fee" 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.
- 3 -
"Monthly Revenue Payments" means the monthly payments to be
made by the City to the District, as defined in Section 6.04
hereof.
"Oversized Facilities" means water, sewer, and/or drainage
facilities sized to serve areas outside the District or
constructed to serve areas outside the District, as defined in
Section 2.04.
"Payment Date" means the date each year when the Annual
Payments are due, as defined in Section 6.02.
"TNRCC" means the Texas Natural Resource Conservation
Commission, or any successor or successors exercising any of its
duties and functions related to water conservation and
reclamation districts.
"Utility Development Agreement" means the District's
agreement, if any, as defined in Section 3.04.
ARTICLE II
DESIGN AND CONSTRUCTION OF THE FACILITIES
2.01. Design. The Facilities shall be designed 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 the review
and approval of the District, the City, and the Approving Bodies
with jurisdiction. The District shall not make any changes to the
Approved Plans without the approval of the City. The City shall
not require that the Facilities be designed to requirements more
stringent than the City's requirements applicable to the design
of similar facilities outside the District but within the City's
jurisdiction. The District shall design the Facilities in such
phases or stages as the District from time to time, in its sole
discretion, may determine to be necessary and economically
feasible.
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 or construct the
Facilities on behalf of the District. 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
- 4 -
the applicable requirements of the Approving Bodies. The District
shall require warranties/maintenance bonds from contractors in
accordance with City requirements, currently for a two (2) year
period following completion of the Facilities. 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 arrange for appropriate inspection
during construction of the Facilities, and shall recommend final
acceptance of the Facilities to the District's Board of Directors
and the City when appropriate. The District Engineer shall file
all required documents with the TNRCC.
2.03. Construction by Third Parties. From time to time,
the District may enter into one or more agreements (the "Utility
Development 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
Utility Development Agreement shall be subject to all the terms
and conditions of this Agreement. Each Utility Development
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 Utility Development 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; and/or (iii) under the terms of Article VII below.
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 to the City 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 as built
construction drawings of the Facilities to the District, in
accordance with City requirements. 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.
2.05. Oversized Facilities. In conjunction with the
District's design and construction of the Facilities, as
- 5 -
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 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 the Oversized
Facilities, the City and the District agree to enter into a
development agreement, in a 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.
ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. (a) Subject to
subsection (b), the District shall have authority to issue, sell,
and deliver Bonds from time to time, as deemed necessary and
appropriate by the Board of Directors of the District, for the
purposes, in such forms and manner, and as permitted or provided
by federal law, the general laws of the State of Texas, and the
Consent Ordinance. The District shall not be authorized to sell
Bonds until it has provided the City with a certified copy of the
TNRCC order approving each bond issue in which the TNRCC
concludes that a District debt service tax rate of $1.00 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
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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.
(b) The District shall not sell or issue any bonds unless
(i) the terms of such bonds expressly provide that the District
reserves and shall have the right to redeem the bonds not later
than on any interest payment date subsequent to the 15th
anniversary of the date of issuance, without premium; (ii) the
bonds, other than refunding bonds, are sold after the taking of
public bids therefor; (iii) none of such bonds, other than
refunding bonds, are sold for less than 95% of par; and (iv) 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, does not exceed two percent 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
notice of the sale of such bonds is given and bids for the bonds
will be received not more than forty-five days after notice of
sale of the bonds is given.
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.
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
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security interest, and the City shall own the Facilities free and
clear of such security interest. When the District conveys the
Facilities to the City under this Article IV, the District shall
also assign to the City the construction contractor's two 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, in accordance with its procedures
regarding acceptance of facilities, 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 as built
construction drawings for such Facilities, or as otherwise
required by the City.
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.
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(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) The City shall provide a monthly written report to the
District indicating the total number of connections within the
District.
If requested by the District, the City may provide a City
representative to attend a District meeting to discuss any
operation 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
"B", 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
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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 the
term of this Agreement, a written projection of the new
improvements within the District expected to be connected to the
Facilities within the coming year, and such other related
information as the City may reasonably require.
5.02. Wastewater Collection and Treatment Facilities. The
City shall provide the District with its ultimate requirements
for wastewater collection and treatment capacities. The number
and location of the points of connection between the City's
wastewater collection system and the Facilities shall be mutually
agreed upon by the District and the Director. The City
acknowledges its obligation to provide wastewater collection and
treatment capacities for the actual requirements of the
development within the District's boundaries. Any wastewater
collection and treatment capacities so required by the District
shall be reserved and allocated by the City exclusively to serve
the property within the District and the City shall not use such
capacities to serve any other property. The City shall at all
times manage the capacities in its wastewater collection and
treatment facilities so that capacity to serve development within
the District is available at the time such improvements are to be
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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 Director 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 and the City acknowledge that developers,
homebuilders or other entities, as appropriate, pay to the City
one thousand nine hundred ninety-seven dollars ($1,997.00) per
equivalent single-family residential connection to the Facilities
(the "Impact Fee"). Equivalent single-family residential
connections shall be computed in accordance with the service unit
factors as set forth in Exhibit "B", 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 Impact Fee shall be paid to the City by or on
behalf of the District before the connection of each particular
improvement to the Facilities at the same time and manner as such
fees are paid for improvements in other areas of the City outside
the District. The City shall not allow connection of any
improvement to the Facilities for which the appropriate Impact
Fee has not been paid. The City may amend the Impact Fee from
time to time in accordance with the requirements of state law;
provided, however, the Impact Fee shall be the same as the impact
fee required outside the District and within the City limits.
The District acknowledges and agrees that, besides the Impact
Fee, any new connection by a builder to the Facilities will be
subject to the fees, charges and costs routinely charged by the
City in regards to any new connection to the City's utilities,
whether inside or outside the District.
ARTICLE VI
ANNUAL PAYMENTS. MONTHLY REVENUE PAYMENTS. AND DISTRICT TAXES
6.01. Calculation of Annual Payment. In consideration of the
development of the land within the District and the related
increase in the taxable value of such land to the City through
the acquisition and construction of the Facilities by the
District and in order to enhance the economic feasibility of the
District and more equitably distribute among the taxpayers of the
City and the District the burden of ad valorem taxes to be levied
from time to time by the City and the District, the City agrees
to collect and pay to the District a portion of the ad valorem
taxes collected by the City in future years on the land and
improvements within the District (the "Annual Payment"). That
portion of the City property tax which will be returned to an in -
city water district, including the District, shall be at a rate
of $0.15 per $100 of assessed valuation. The Annual Payment
shall be a payment of a portion of the City's tax revenues
actually collected and received by the City, exclusive of any
interest and penalties paid by the taxpayer to the City and
exclusive of any collection costs incurred by the City. All
Annual Payments received by the District from the City shall be
deposited by the District into a debt service fund of the
District and shall be applied solely to the payment of the Bonds
and other debts, liabilities, and obligations of the District to
or for the benefit of any persons or entities relating to the
financing, construction, and acquisition of all or any portion of
the Facilities.
6.02. Payment of Annual Payment. The Annual Payment shall
begin on May 1 in the calendar year following the calendar year
for which the District initially receives a tax roll from the
Brazoria County Appraisal District and shall be payable each May
1 thereafter (the "Payment Date"), with each such Annual Payment
being applicable to the calendar year preceding the calendar year
of each such May 1 (e.g., if the District receives a tax roll for
the calendar year 1998, the Annual Payment for such year will be
due May 1, 1999). Each Annual Payment that is not paid on or
before the Payment Date shall be delinquent and shall incur
interest at the rate of one percent (1%) of the amount of the
Annual Payment per month, for each month or portion thereof
during which the Annual Payment remains unpaid. The obligation of
the City to make Annual Payments to the District shall terminate
upon the termination of this Agreement in accordance with Section
9.15 below.
6.03. Supplemental Tax Rolls: Correction Tax Rolls;
Adjustment to Annual Payment. The parties recognize and
acknowledge that, from time to time, the Brazoria County
Appraisal District may submit to the District one or more
supplemental tax rolls and/or correction tax rolls and that each
such supplemental tax roll and/or correction tax roll may affect
the total value of taxable properties within the District for a
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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; 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 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 percent (19s) of the amount of the
Monthly Revenue Payment per month, for each month or portion
thereof during which a Monthly Revenue Payment remains unpaid
upon expiration of such sixty (60) day period. The obligation of
the City to make Monthly Revenue Payments shall terminate upon
the termination of this Agreement in accordance with Section 9.15
hereof. The City and the District acknowledge and agree that the
District is dependent upon the Monthly Revenue Payments in order
that development within the District may be competitive with
development in surrounding areas.
6.05. Access to Records for Verifying Calculation of Annual
and Monthly Revenue Payments. The City shall maintain proper
books, records, and accounts; shall provide the District with an
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accounting together with each Annual and/or Monthly Revenue
Payment, and shall afford the District or its designated
representatives reasonable access to its books, records, and
accounts for purposes of verifying the amounts of each Annual
Payment and/or Monthly Revenue Payment or recalculated Annual
Payment and/or Monthly Revenue Payment which is or becomes due
and payable by the City hereunder. The District shall maintain
proper books, records, and accounts of all Bonds and the
District's debt service requirements and shall afford the City 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 principal, redemption premium, if
any, or interest on the Bonds and to establish and maintain any
interest and sinking fund, debt service fund, or reserve fund and
(ii) for maintenance purposes, all in accordance with applicable
law. The parties agree that nothing herein shall be deemed or
construed to prohibit, limit, restrict, or otherwise inhibit the
District's authority to levy ad valorem taxes as the Board of
Directors of the District from time to time in its sole
discretion may determine to be necessary. The City and the
District recognize and agree that all ad valorem tax receipts and
revenues collected by the District, together with all Annual
Payments and Monthly Revenue Rebate Payments shall become the
property of the District and may be applied by the District to
the payment of all proper debts, obligations, costs, and expenses
of the District and may be pledged or assigned to the payment of
all or any designated portion of the principal or redemption
premium, if any, or interest on the Bonds or otherwise in
accordance with applicable law. Each party to this Agreement
agrees to notify the other party as soon as is reasonably
possible in the event it is ever made a party to or initiates a
lawsuit for unpaid taxes.
6.07. Pledge of Payments. The parties acknowledge and agree
that the District may pledge the Annual Payments, the Monthly
Revenue Payments, and/or any portion of either in connection with
the District's issuance of its Bonds.
ARTICLE VII
DISSOLUTION OF THE DISTRICT
7.01. Dissolution of District. The City and District
recognize and agree that the City may, pursuant to the procedures
and provisions and subject to the limitations set forth in the
general laws of the State of Texas including, but not limited to,
Section 43.074, Texas Local Government Code, abolish and dissolve
the District and assume the District Assets and District
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Obligations upon a vote of not less than two-thirds (2/3) of the
entire membership of the City Council to adopt an ordinance to
such effect, if the City Council finds: (a) that the District is
no longer needed, (b) that the services and functions performed
by the District can be served and performed by the City, and (c)
that it would be in the best interests of the citizens and
property within the District and the City that the District be
abolished. In order to ensure that the property owners and
inhabitants of the City and the District are afforded sufficient
time and opportunity to realize the benefits and public utility
to be derived from the creation and operation of the District and
the financing, construction and implementation of the plan of
improvements for the District, and in order to contribute to the
financial stability and feasibility of the District by ensuring a
sufficient longevity of the District's existence to permit the
District to reach a satisfactory level of financial maturity, the
City agrees that the District shall not be abolished until such
time as the District is fully developed and has sold all Bonds
necessary to finance the costs of the Facilities and has
reimbursed all developers and landowners within the District in
accordance with the Financing and Reimbursement Agreements
previously entered into by the District.
7.02. Transition upon Dissolution. In the event all required
findings and procedures for the dissolution of the District have
been duly, properly, and finally made and satisfied by the City,
and unless otherwise mutually agreed by the City and the District
pursuant to then existing law, the District agrees that its
officers, agents, and representatives shall be directed to
cooperate with the City in any and all respects reasonably
necessary to facilitate the dissolution of the District and the
transfer of the District Assets to and the assumption of the
District Obligations by the City.
ARTICLE VIII
REMEDIES IN EVENT OF DEFAULT
The parties hereto expressly recognize and acknowledge that
a breach of this Agreement by either party may cause damage to
the nonbreaching party for which there will not be an adequate
remedy at law. Accordingly, in addition to all the rights and
remedies provided by the laws of the State of Texas, in the event
of a breach hereof by either party, the other party shall be
entitled to the equitable remedy of specific performance.
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
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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:
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If to the City, to:
City Manager
City of Pearland
3519 Liberty Dr.
Pearland, Texas 77581
If to the District, to:
Brazoria County Municipal Utility District No. 18
c/o Schwartz, Page & Harding, L.L.P.
1300 Post Oak Boulevard
Suite 1400
Houston, Texas 77056
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
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provisions of the Consent Ordinance appear to be inconsistent or
in conflict with the provisions of this Agreement, then the
provisions contained in this Agreement shall be interpreted in a
way which is consistent with the Consent Ordinance.
9.10. Modification; Exhibit. This Agreement shall be subject
to change or modification only with the mutual written consent of
the City and the District. The exhibit attached to this
Agreement is incorporated by this reference for all purposes.
9.11. Captions. The captions of each section of this
Agreement are inserted solely for convenience and shall never be
given effect in construing the duties, obligations or liabilities
of the parties hereto or any provisions hereof, or in
ascertaining the intent of either party, with respect to the
provisions hereof.
9.12. Interpretations. This Agreement and the terms and
provisions hereof shall be liberally construed to effectuate the
purposes set forth herein and to sustain the validity of this
Agreement.
9.13. Severability. If any provision of this Agreement or
the application thereof to any person or circumstances is ever
judicially declared invalid, such provision shall be deemed
severed from this Agreement and the remaining portions of this
Agreement shall remain in effect.
9.14. Term and Effect. This Agreement shall remain in effect
until the earlier to occur of (i) the dissolution of the District
by the City or (ii) the expiration of forty (40) years from the
date hereof. Further, this Agreement shall automatically
terminate in the event that the TNRCC does not adopt an order
creating the District on or before December 31, 1999.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in multiple copies, each of equal dignity, as of the
date first given above.
ATTEST:
THE CITY OF PEARLAND, TEXAS
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APPROVED AS TO FORM:
By:
City Attorney
R. WEST DEVELOPMENT COMPANY,
INC., a Texas corporation
By:
Renee L. West, `Pflsident
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EXHIBIT "A"
DEVELOPMENT AGREEMENT
(EXHIBIT "A" TO RESOLUTION R_= J
This Agreement is entered into this a day of , 199_, by and between
the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and , a
Texas general partnership (hereinafter "Developer").
WHEREAS, Developer petitioned City for the creation of an In -City Municipal Utility
District (hereinafter "MUD") and City consented to the creation of the MUD on
199_, encompassing _ acres, generally located at • and
WHEREAS, Developer plans to construct a water main, sanitary sewer main, and
appurtenances necessary for the City to provide water and sanitary sewer service to the
MUD and to dedicate said water main, sanitary sewer main, and appurtenances to the
City for operation and maintenance; and
WHEREAS, City desires to cooperate with Developer to provide water and sanitary
sewer service to the MUD, and at the same time, increase and improve City's capacity
to serve other properties in the vicinity of the MUD; and
WHEREAS, City and Developer desire an agreement to set forth their respective
responsibilities with regard to providing water and sanitary sewer service to the MUD.
WIIHe$fEIH:
NOW THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, it
is hereby agreed as follows:
1. A -inch sanitary sewer gravity main and an -inch water main are needed
to serve Developer's requirements for the MUD and are required to be extended
to the MUD from the existing termination points of the utilities in the vicinity of
2. To serve additional tracts, the City has requested that Developer construct a
_-inch sanitary sewer gravity main and a _-inch water main.
3. The estimated costs for the water and sanitary sewer main extensions to serve
Developer's requirements are $ . The estimated costs for the water
and sanitary sewer main extensions as requested by the City are $ .
Therefore, the estimated oversizing cost is $ and the engineering
allocation for the oversizing is $ . The total estimated oversizing cost
to be reimbursed by City to Developer is $ as described in Exhibit A.
1
Upon completion of the project, actual costs will be accounted and reported to the
City. Actual oversizing reimbursement shall not exceed the total estimated
oversizing cost by more than 5% without prior approval of the City.
4. Developer will cause its engineers, reasonably approved by the City, to prepare
plans and specifications for the constnx Lion of the water and sanitary sewer
mains desired by the City.
5. The bid specifications shall require each bidder to reflect the difference in the cost
of constructing the water and sanitary sewer main extensions as reflected in the
plans and specifications and the cost which would have been incurred had the
water and sanitary sewer main extensions been constructed to the size required
by Developer.
6. Upon approval of the plans and specifications by the City, Developer's engineers
will obtain competitive line item bids for the construction of the water and sanitary
sewer main extensions in accordance with the plans and specifications. The bids
will be reviewed by Developer and the City and a contract will be awarded to the
successful bidder by Developer. City reserves the right to reject any and all bids
for the construction of the water and sanitary sewer main extensions.
7. Upon approval of the bids by the City, Developer shall cause the work to be
completed in accordance with the plans and specifications. Developer's engineer
and the City Engineer or designee shall monitor the progress and workmanship
of the contractor. Developer shall advance the funds necessary to pay the
contractor for the work performed.
8. The City will reimburse Developer, as defined in Paragraph 3, In three equal
annual payments, the first payment of which shalt be made within 30 days after
acceptance of the improvements by the City and evidence of paid invoices.
Subsequent payments shall be made on the anniversary date of the first payment.
9. The initial term of this Agreement shall be for a period of three (3) years,
commencing on the day of , 199_, and terminating on the
day of , 200 , at which time, this agreement may be
automatically renewed in one (1) year increments contingent upon need and the
necessary funds being appropriated for said project in accordance with the City's
annual budgeting process.
10. This agreement may only be amended, modified, or supplemented by written
agreement and signed by both parties.
11. No assignment by a party hereto of any rights under or interests in this agreement
will be binding on another party hereto without the written consent of the party
sought to be bound; and specifically but without limitation moneys that may
become due and moneys that are due may not be assigned without such consent
2
THEIR AGENTS, EMPLOYEES, SUCCESSORS, OR ASSIGNS ARISING IN
CONNECTION WITH SUCH CONSTRUCTION BY DEVELOPER. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION,
EXPIRATION, OR CANCELLATION OF THIS AGREEMENT.
In witness whereof, the parties have hereunto set their hands and signatures on the date
first above mentioned.
ATTEST:
STATE OF TEXAS
BRAZORIA COUNTY
§
Developer
a Texas general partnership
By:
Title:
CITY OF PEARLAND,
a Texas mun japal corporation
§
rohman, City Manager
This instrument was acknowledged before me on this day of
, 1997, by on behalf of said
partnership.
Notary Public, State of Texas
My Commission Expires:
STATE OF TEXAS
BRAZORIA COUNTY
4
This instrument was acknowledged before me on this 'day of
7, by Paul Grohman, City Manager of the City of Pearland, a Texas
munidp:y ty, on behalf of = dpality.
' �i
• ` l
►'1►l.
No• 11� lic, State oft'
My ommission Expires:
5
LAURIE C. HARRIST
Notary Public, State of Texas
Comm.ssion Expires 5-1-02 f
EXHIBIT "C"
ASSUMPTION OF AGREEMENT
Brazoria County Municipal Utility District No. 18, a
conservation and reclamation district created under the authority
of Article XVI, Section 59 of the Texas Constitution by the Texas
Natural Resource Conservation Commission to provide water supply,
sanitary sewer, and drainage facilities to serve the area within
its boundaries (the "District"), has assumed, and by these
presents does assume, the terms of the Utility Agreement (the
"Agreement"), dated , 1998, a copy of which is
attached and incorporated into this document for all purposes.
Specifically, the District has accepted and does accept all
the rights, title, interest, obligations, liabilities, and
responsibilities of the "District" as defined in the Agreement
and the Developer, as defined in the Agreement, shall have no
further rights, title, interest, obligations, liabilities, or
responsibilities under the Agreement.
All notices to the District pursuant to the Contract shall
be addressed to:
Brazoria County Municipal Utility District No. 18
c/o Schwartz, Page & Harding, L.L.P.
1300 Post Oak Boulevard
Suite 1400
Houston, Texas 77056
Attn:
EXECUTED AND DELIVERED ON
ATTEST:
By:
Name:
Title:
(SEAL)
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 18
By:
Name:
Title:
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