R2009-058 - 2009-04-27RESOLUTION NO. R2009-58
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO AN ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSOCIATED WITH THE CONSTRUCTION OF WATER AND SEWER
IMPROVEMENTS.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Assignment and Assumption Agreement a copy of which
is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby
authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an Assignment and Assumption Agreement for water and
sewer improvements.
PASSED, APPROVED and ADOPTED this the 27th day of A ril, A.D., 2009.
TOM REID
MAYOR
ATTEST:
Y NG ING R
T SE RETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. R2009-58
ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment
and Assumption") dated April 27, 2009, is entered into by and between Boardwalk At
The Spectrum, L.P., ("Assignor"), and the City of Pearland ("Assignee"):
RECITALS
A. Reference is hereby made to that certain Reimbursement Agreement dated
as of July 15, 2008 by and between Assignor, Assignee and Nova Strategic Solutions,
LTD. (the "Contract"), attached hereto as Exhibit "A". All initially capitalized terms not
otherwise defined herein shall have the meanings set forth in the Contract unless the
context clearly indicated otherwise.
B. Assignor desires to assign to Assignee, all of Assignor's right, title and
interest, to and under the Contract, and Assignee desires to accept the assignment thereof
and assume Assignor's obligations thereunder.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
AGREEMENT
1. Assignment and Assumption; Assumption.
1.1 Assi n~ment_. Assignor hereby transfers, assigns and conveys all of
Assignor's rights, interest, liabilities and obligations in and to the Contract. Immediately
upon execution of this Agreement, Assignor agrees to provide Assignee copies of the
plans, specifications and bids that Assignor obtained pursuant to the Contract. Assignor
understands and agrees that this Agreement does not release Assignor, or successors in
interest to property owned by Assignor, from paying pro-rata contributions for
connecting to the Improvements referenced in the Contract.
1.2 Assumption. Assignee hereby assumes all of the terms and provisions
under the Contract, and all of Assignor's obligations under the Contract arising after the
date hereof and agrees fully and faithfully to pay, perform and discharge, as and when
payment, performance and discharge are due, all of Assignor's obligations under the
Contract arising after the date hereof.
1.3 This Assignment and Assumption shall be binding on and inure to the
benefit of Assignor and Assignee and their respective heirs, executors, administrators,
successors in interest and permitted assigns.
1.4 This Assignment and Assumption is contingent upon its approval by the
Nova Strategic Solutions, LTD.
2. Counterparts. This Assignment and Assumption may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument. Each counterpart may be delivered
by facsimile transmission. The signature page of any counterpart may be detached
therefrom without impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption as of the day and year first above written.
"ASSIGNOR"
Boardwalk at the Spectrum, L.P., by and through it general partner
Boardwal 288 GP, LLC
By:
Tracy E. Goswick, Manager
"ASSIGNEE"
City of Pearland
A Texas Municipal Corporation
By: ~ ~.~_.
Bill Eisen, City Manager
APPROVED:
Nova Strategic Solutions, LTD., by and through its general partner,
Stiletto Real Estate Investments, LLC
By:
Vince T. Casimir, Manager
1.4 This Assignment and Assumption is contingent upon its approval by the
Nova Strategic Solutions, LTD.
2. Counterparts. This Assignment and Assumption may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument. Cacti counterpart may be delivered
by facsimile transmission. 'The signature page of an_y counterpart may be detached
therefrom without impairing the legal etTect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption as of the day and year first above written.
"ASSIGNOR"
Boardwalk at the Spectrum, L.P., by and through it general partner
Baardwa~ 288 GP, LLC
} ~ ~ i i `'
Tracy E. Goswick, Manager l
"ASSIGNEE"
City of Pearland
A Texas Municipal Corporation
By:
Bilt Eisen, City Manager
APPROVCD:
Nova Strategic Solutions, L,TD., by and through its general partner,
Stiletto .Real Estate Investments, LLC
By:
Vince "i'. Casimir, Manager
1.4 This Assignment and Assumption is contingent upon its approval by the
Nova Strategic Solutions, LTD.
2. Counterparts. This Assignment and Assumption may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which when taken
together shall constitute one and the same instrument. Each counterpart may be delivered
by facsimile transmission. The signature page of any counterpart may be detached
therefrom without impairing the legal effect of the signature(s) thereon provided such
signature page is attached to any other counterpart identical thereto.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption as of the day and year first above written.
"ASSIGNOR"
Boardwalk at the Spectrum, L.P., by and through it general partner
Boardwa1288 GP, LLC
B y:
Tracy E. Goswick, Manager
"ASSIGNEE"
City of Pearland
A Texas Municipal Corporation
B y:
Bill Eisen, City Manager
APPROVED:
Nova Strategic Solutions, LTD., by and through its general partner,
Stiletto Real E~te Investments, LLC
_. f
By:
mce T. Casimir, Manager
L](IIIIJIt M
R2008-87 Fiie No. 08-0133
Nova Strategic Solutions Ltd•
REIMBURSEIvIENT AGREEMENT
THE STATE OF TEXAS
COUNTY OF I3RAZORIA
THIS REIMBURSEMENT AGREEMENT {the "Agreement"), is made and entered into
by and between NOVA STRATEGIC SOLUTIONS, LTD., a Texas limited pv-nership,
(hereinafter referred to as `Nova Strategic"), BOARDWALK AT THE SPECTRUM, L.P., a
Texas limited partnership, (hereinafter referred to as "WaterLights"), and the CITY OF
PEAIZLAND, (hereinafter referred to as "City").
WITNESSETH:
WHEREAS, Nova Strategic and WaterLights, (collectively referred to as "Developers"),
desire to complete construction of water and sanitary sewer facilities along N. Spectrum Blvd.,
Promenade Shops Dr., and Spectrum Bivd. in Pearland, Texas, which is more accurately
described and depicted on Exhibit "A" attached hereto (the "Improvements");
WHEREAS FURTHER, the Developers desire to share in the cost of constructing the
Improvements whereas Nova Strategic shall advance twenty-five percent (25%) of the costs for
construction of the Improvements and WaterLights shall advance seventy-five percent (75%) of
the costs for construction of the Improvements;
WHEREAS FURTHER, City is desirous of entering into an agreement with Developers
whereby the Improvements will be constructed to accommodate further development in
surrounding areas that require the construction of the Improvements before such development
can proceed; and
WHEREAS FUR`CHER, Developers are agreeable to entering into such an agreement,
provided City agrees to reimburse Developers for the construction costs incurred by Developers
to construct the Improvements;
NOW THEREFORE, for and in consideration of the premises and mutual covenants
herein contained, the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. Developers shall instals the Improvements in accordance with Exhibit "A"
attached hereto. The estimated cost for the Improvements is Four-Hundred Fifty-Seven
Thousand Two Hundred Thirteen Dollars ($457,213) (the" Estimated Cost"), as set forth in the
City approved Cost Estimate attached hereto as Exhibit "B". Therefore, the total estimated cost
to be reimbursed by City to Developers is Four-Hundred Fifty-Seven Thousand Two Hundred
Page 1 of 9
Thirteen Dollars ($457,2li) (hereinafter '`City's Cost"). The City shall reimburse Developers
pro rata of the percentage of advancements each developer advanced for the costs of the
lntproventents. Reimbursement shall be made in accordance ~~~ith Section 4 of tl~is Agreement.
2. L.lA [:ngineering Sc Surveying, Inc. shall obtain competitive line item bids in
accordance with Local Govenunent Code Chapter 252 for the construction of the Improvements
in accordance with the plans and specifications. Developers and the City will review the bids
and Developers will award a contract to the successful bidder. City reserves the right to reject
Suzy and all bids for the construction of the Improvements within ten (10) days Following
submission to the City for review for good cause, following the expiration oI• which the bids
selected by Developers shall be deemed approved by the City.
3. Following approvak ol•the bids by the City, Developers shall cause construction of
the Improvements to commence on or before the date two (2) weeks following the later of such
approval, and shall cause the Improvements to be completed in accordance with the plans and
specit7caiions within a reasonable period of time. If Developers shall Fail to cause construction
to commence by the aforementioned date, and following thirty (30) days' written notice to
Developers, the City shall have the tight to terminate this Agreement. LJA Engineering &
Surveying, Inc. and the City Engineer or his designee shall monitor the progress and
workmanship of• the contractor Developers shall advance the funds necessary in their pro rata
share to pay the contractor for the work performed.
4. 'T`he City shall reimbtn•se Developers in accordance with their proportionate
participation in constructing the lnlprovements. The City shall reimburse Nova Strategic taventy-
t7ve l.~ercent (25%) of the total City's Costs and the City shall reimburse WaterLights seventy-
tive percent (75%) of the total City's Costs. Upon completion of the construction of the
improvements, the City agrees to deliver to Developers its pro-rata share of the oversizing
payment, which totals an estimated thit~y-five percent (35%) of the total Cost Estimate of the
Improvements which is estimated to total One I-iwldred Sixty "Thousand Twenty-Five and 00/100
Dollars ($160,025.00). Thereafter, City agrees to deliver to Developers its pro-rata share of tha
C'ity's Costs not paid in the oversi~ing payment, which is estimated to total "fwo l-lundred Ninety
Seven Thousand One hundred Eighty-Eight and 00/100 Dollars ($297,188.00) upon collection
of• the pro-rata contributions from third parttes, as described on Exhibit "C" attached hereto.
1'he reimbursement reflects the combined pro-rata contributions from third parties that connect to
the- hnprovements after the improvements arc conslructecl. Reimbursement of Developers shall
occur within forty five (~45) days following collection of pro-rata contributions From third parties
connecting to the Improvements as provided in City of i'earland Ot•clinance No.220-9A.
Provided, however, that the City shall not be obligated under any circumstance, except as
provided herein, to reimburse Developers for more than 100% of the Cost Estimate contained in
}.:xhibit "B" attached hereto. Any increase beyond 100% oi'the Cost Estimate shall reduire City
Council approval prior to construction of the hnprovements that result in the additional costs. If
City Council does approve an increase beyond i00% of the Cost Estimate, the City shall be
re~luired to reimburse Developers for the additions! costs from the consU-uction of the
improvements that were approved by City Council. Furthermore, Developers shalt be
responsible For all additional costs that are not approved as provided herein.".
Page ? of 9
5. The initial team of this Agreement shall be for a period of eighteen {18) months,
commencing on the ~S~'' day of J~\ y 2008, and terminating on the _-_~t_~ day of
'C1a.c~-v~.v(, 2009, provided, however, that this Agreement shall be automatically renewed in
one (1) month increments until all of the obligations of the parties hereunder have been fully
discharged or specifically waived in writing by the beneficiary thereof.
6. It is expressly understood that Developers may perform its obligations under this
Agreement or may have others perform such obligations.
7. Time is of the essence of this Agreement However, if a date specified or
computed under this Agreement for the performance of an obligation by any party, or for the
occurrence of any event provided herein, shall be a Saturday, Sunday or "legal holiday" {defined
for purposes hereof as any holiday observed by the City), then the date of such performance or
occurrence shall automatically be extended to the next calendar day that is not a Saturday,
Sunday or legal holiday.
8. Before any failure of any party to perform its obligations under this Agreement
shall be deemed to be a breach, the party claiming such failure shall notify, in writing, the party
alleged to have failed to perform of the alleged failure and shall demand performance. No
breach of this Agreement may be found to have occurred if performance has commenced to the
reasonable satisfaction of the complaining party within 30 days of the receipt of such notice.
Upon a breach of this Agreement, the non-defaulting party, in any court of competent
jurisdiction, by an action or proceeding at law or in equity, may secure the specific performance
of the covenants and agreements herein contained. All parties shall have the affirmative
obligation to mitigate its damages in the event of a default by the other party.
9. No breach of this Agreement may be found to have occurred for failure to
perform under this Agreement if such failure to perform arises out of causes beyond the control
and without the fault or negligence of the Developers. Such causes may include, but are not
limited to, acts of God or public enemy, fires, floods, epidemics, quarantine restrictions, freight
embargoes, and unusually severe weather. This provision shall become effective only if the
Developers immediately notify the City of the extent and nature of the problem, limits delay in
performance to that required by the event, and takes all reasonable steps to minimize delays.
This provision shall not be effective unless failure to perform is beyond the control and without
the fault or negligence of the Developers.
i0. Should any of the parties to this Agreement engage the services of attorneys or
initiate legal proceedings to enforce its rights or remedies under this Agreement, the prevailing
party to such dispute or proceedings shall be entitled to recover its reasonable attorneys' fees and
similar costs incurred in connection with the resolution of such dispute or the institution,
prosecution or defense in such proceedings, as adjudged by the applicable court, from the non-
prevailing party ar parties.
11. This Agreement shall become a binding obligation on the signatories and their
respective permitted successors and assigns upon execution by all signatories hereto. City
warrants and represents that the individual executing this Agreement on behalf of City has fiill
Page 3 of 9
authority to execute this Agreement and bind the City to the same. Nova Strategic warrants and
represents that the individual executing this Agreement on its behalf has full authority to execute
this Agreement and bind Nova Strategic to the same. WaterLights warrants and represents that
the individual executing this Agreement on its behalf has frill authority to execute this
Agreement and bind WaterLights to the same.
12. If any article, section, subsection, term or provision of this Agreement or the
application thereof to any party or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of the article, section, subsection, term or provision of this Agreement or the
application of same to parties or circumstances other than those to which it is held invalid or
unenforceable shall not be affected thereby and each remaining article, section, subsection, terns
or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law, provided that no such severance shall serve to deprive either party of the enjoyment of its
substantial benefits under this Agreement.
13. Nothing contained in this Agreement shall be deemed or construed by the parties
hereto or by any third party to create the relationship of principal and agent, partnership, joint
venture or any association between Nova Strategic, WaterLights, and the City.
14. This Agreement shall be a legally binding agreement, in full force and effect, as
of the Effective Date as set forth below.
15. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas, and all obligations of the parties created hereunder are performable in
Brazoria County, Texas. Venue for any action arising under this Agreement shall lie in the state
district courts of Brazoria County, Texas.
16. The exhibits, if any, attached to this Agreement are incorporated herein and shall
be considered a part of this Agreement for the purposes stated herein, except that in the event of
any conflict between any of the provisions of such exhibits and the provisions of this Agreement,
the provisions of this Agreement shall prevail. All titles or headings are only for convenience of
the parties and shall not be construed to have any effect or meaning as to the agreement between
the parties hereto. Any reference herein to an exhibit shall be considered a reference to the
applicable exhibit attached hereto unless otherwise stated.
17. This Agreement constitutes the entire understanding and agreement of the parties
as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement
shall be effective unless given in writing and signed by all of the parties hereto.
18. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which shall constitute one and the same document.
19. All notices required or permitted to be given hereunder by one party to the other
shall be lit writing and same shall be given and shall be deemed to have been served and given
upon the first to occur of (i) delivery in person to the address set forth herein below for the party
to whom the notice is given, {ii} three (3} days after placing in the United States mail by certified
Page 4 of 9
address hereinafter specified, or {iii) one (1) day after deposit into the custody of an express,
overnight courier for delivery to the address set forth herein below for the party to whom the
notice is given. Any party may change its address for notices under this Agreement by giving
formal written notice to the other party, specifying that the purpose of the notice is to change the
party's address. For notice purposes, each party agrees to keep the other informed at all times of
its current address. The initial addresses of the parties for the purpose of notice in the manner
described above under this Agreement shall be as follows:
If to Nova Strategic: Nova Strategic Solutions, Ltd.
1 155 Dairy Ashford, Suite 300
Houston, Texas 77079
Tel: 281-870-1124
Fax:281-870-1647
With a copy to: Griffin & Matthews
1155 Dairy Ashford, Suite 300
Houston, Texas 77079
Tel: 281-870-1124
Fax: 281-870-1647
If to WaterLights
With a copy to:
Boardwalk at the Spect-•um, L.P.
14326 Highway 288 South
Houston, Texas 77047
TeI:7l3-823-2864
Fax: 713-434-3400
Boyar 8c Miller
Attention: Stephen Johnson
4265 San Felipe, Suite 1200
Houston, Texas 77027
Tel: 832-615-4266
Fax:832-615-4267
If to the City: City of Pearland
Attention: City of Pearland Engineering Department
3523 Liberty Drive
Pearland, Texas 77581
Tel: 281-652-1649
Fax: 281-652-1702
[END OF PAGE -SIGNATURE PAGE FOLLOWS]
Page ~ of 9
EXECUTED to be effective for all purposes as of the ~ day of ,
2008 (the "Effective Date").
Nova Strategic Solutions, Lt ., by and through its
general partner, Stiletto Real Estate Investments,
LLC /7
~- ~ ~~
~`~.~-
By: `--~ ~'
Name: Vince T'Casimir
Title: Manager
Boardwalk at the Spectrum, L.P., by and tluough
its general partner, Boardwalk 288 GP, LLC
Name: Tracy E. oswick
Title: Manager
City of Pearland
By:
Name: ~ ; ~ 1 ~' ~S.~n
Title: G 1 ~~ M ~~ ~,
Page 6 of 9
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EXHIBIT
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ORDINANCE NO. 220-9A
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AMENDING ARTICLE 2, RATES AND CHARGES, OF
CHAPTER 30, UTIL1TtES, OF THE CITY OF PEARLAND CODE OF
ORDINANCES, AS IT MAY HAVE BEEN, FROM TIME TO TIME,
AMENDED, RELATING TO WATER AND SEWER EXTENSIONS,
PRO RATA CHARGES, AND OTHER CHARGES ESTABLISHED;
PROVIDING A PENALTY FOR VIOLATION; HAVING A SAVINGS
CLAUSE, A SEVERABILITY CLAUSE, AND A REPEALER CLAUSE;
PROVIDING FOR CODIFICATION, PUBL[CAT10N AND AN EFFECTIVE
DATE; AND DECLARING AN EMERGENCY BECAUSE THE NEED TO
FAIRLY DISTRIBUTE THE COST OF EXTENDING WATER AND SEWER
LINES WHERE THOSE SERVICES ARE NOT AVAILABLE INURES TO
THE BENEFIT OF THE PUBLIC AND, THEREFORE, BEARS DIRECTLY
UPON THE HEALTH, SAFETY AND WELFARE OF THE CITIZENRY.
BE IT ORDAINED BY THE GITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That Article 2, Rates and Charges, of Chapter 30, Utilities, of the
City of Pearland Code of Ordinances, be and the same is hereby amended by ADDING
subsection (6} to Section 30-44 {a) hereafter provide as follows:
"Section 30-44. Pro Rata and Other Charges Established.
(a) A charge, which shall be known as the pro rata shall be made against each lot or
tract of land, and the owner thereof, whose water or sewer fines shall be
hereafter connected with any water mains or sewer mains in the following
manner and in accordance with procedures and service area maps promulgated
by City staff:
(6} Promenade Shops Drive south of North Spectrum Boulevard,
Spectrum Boulevard between Promenade Shops Drive and SH 288,
north along the SH 288 Frontage Road and east along the Beltway 8
Frontage Road to Fellows Road.
Water $ 18.30 per linear foot
Sewer $ 11.40 per linear foot
(b) In addition to the pro rata charge on water and sewer mains, the property owner
must pay all other applicable charges as established by City ordinance.
ORDINANCE NO. 220-9A
Section 2. That all pro rata charges made against any owner of a lot or tract of
land whose water and sewer lines are connected with the City water and sewer mains shall
be in accordance with Exhibit "A"attached hereto and incorporated herein for all purposes.
Section 3. Penalty. Any person who shall violate the provisions of this section
shall be deemed gull#y of a misdemeanor and shall, upon conviction by a court of
competent jurisdiction, be punished by a fine in any sum not exceeding
Two Hundred Dollars ($200.00).
Section 4. Declaration of Emergency. The Council finds and determines that
the need to fairly distribute the cost of extending water and sewer lines where those
services are not available inures to the benefit of the public and, therefore, bears directly
upon the health, safety and welfare of the citizenry; and that this Ordinance shall be
adopted as an emergency measure,. and that the rule requiring this Ordinance to be read
on two (2) separate occasions be, and the same is hereby waived.
Section 5. Savings. All rights and remedies which have accrued in favor of the
City under this Ordinance and amendments thereto shall be and are preserved for the
benefit of the Gity.
Section 6. Severability. if any section, subsection, sentence, clause, phrase or
portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise
unenforceable by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shah not affect the validity
of the remaining portions thereof.
AMENDED AGENDA
Added Executive Session No. 2 and New Business No. 3
AGENDA—SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS,TO BE HELD ON MONDAY, MAY 4,2009,AT 7:00 P.M., IN THE TEMPORARY
MUNICIPAL COURT ROOM LOCATED AT THE CITY OF PEARLAND COMMUNITY
CENTER, 3523 LIBERTY DRIVE, PEARLAND, TEXAS.
I. CALL TO ORDER
II. PURPOSE OF THE MEETING:
1. CONSIDERATION AND POSSIBLE ACTION — REGARDING THE
APPOINTMENT OF BRANDON K. DANSBY TO SERVE IN
POSITION NO. 3 ON THE DEVELOPMENT AUTHORITY OF
PEARLAND BOARD FOR AN UNEXPIRED TERM EXPIRING
NOVEMBER 1, 2009. Mayor Tom Reid.
EXECUTIVE SESSION UNDER TEXAS GOVERNMENT CODE
1. SECTION 551.074 — PERSONNEL MATTERS —
DISCUSSION REGARDING CITY MANAGER'S ANNUAL
GOALS. City Council.
2. SECTION 551.072 - REAL PROPERTY—REGARDING THE
SALE, LEASE, PURCHASE, OR EXCHANGE OF REAL
PROPERTY — RIGHT-OF-WAYS. Mr. Darrin Coker, City
Attorney.
NEW BUSINESS CONTINUED:
2. CONSIDERATION AND POSSIBLE ACTION — REGARDING CITY
MANAGER'S ANNUAL GOALS. City Council.
3. CONSIDERATION AND POSSIBLE ACTION — REGARDING THE
SALE, LEASE, PURCHASE, OR EXCHANGE OF REAL PROPERTY
— RIGHT-OF-WAYS. City Council.
III. ADJOURNMENT
This site is accessible to disabled individuals. For special assistance, please call Young
Lorfing at 281-412-8101 prior to the meeting so that appropriate arrangements can be
made.
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