Ord. 1136 11-24-03ORDINANCE NO. 1136
AN ORDINANCE GRANTING THE CONSENT OF THE CITY COUNCIL
OF THE CITY OF PEARLAND, TEXAS, TO THE CREATION OF
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35 WITHIN
THE CITY'S CORPORATE BOUNDARIES.
WHEREAS, the City of Pearland, Texas, received a Petition for Consent to the
Creation of Municipal Utility District (to be know as Brazoria County Municipal iJtility
District No. 35) for 110.41 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 wil:hin 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:
Section 1. That the City Council of the City of Pearland, Texas, gives its
written consent to the creation of Brazoria County Municipal Utility District No. 35 on
110.41 acres of land, as described in the attached petition and the consent conditions
attached thereto.
Section 2. That the City Council of the City of Pearland, Texas authorizes and
directs the City Manager to execute the Utility Agreement (as defined in the consent
conditions attached to the petition attached hereto) on behalf of and as the duly
authorized act of the City of Pearland, Texas.
PASSED and APPROVED ON FIRST READING this the 10th day of
November , A. D., 2003.
TOM REID
MAYOR
ORDINANCE NO. 1136
ATTEST:
NG IN , TMC
Y S CRETA Y
PASSED and APPROVED ON SECOND AND FINAL READING this the 24th
day of November , A. D., 2003.
TOM REID
MAYOR
ATTEST:
NG
Y SE''' ETARY
M
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
1
2
City of Pearland
In -City MUD Data Form
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35
4-Nov-03
General Information
Proposed Zoning Classification (also show on map)
Projected Date of Completion of All Homes/Businesses
Area
Existing Proposed
MUD Tract(s)
NA
NA
Existing
MUD
C, OP, SD
6/1/2006
Proposed
Tract(s)
Total
3
Total Acreage
0
110.41
110.41
4
Currently Platted Residential Acreage (including road rights of way)
0
0
0
5
Currently Platted Commercial Acreage (including road rights of way)
0
0
0
6
Currently Undeveloped Acreage
0
85.29
85.29
7
Projected Undeveloped Acreage to be Platted Residential
0
0
0
8
Projected Undeveloped Acreage to be Platted Commercial
0
85.29
85.29
9
Current and Projected Detention & Transmission Utility Easements (acres)
0
15.41
15.41
10
All Other Acreage (Landscaping Reserves, Parks, etc)
0
9.71
9.71
Note: Lines 7 and 8 should total to Line 6.
Lines 4, 5, 6, 9, and 10 should total to Line 3. Line 3 should equal the total acreage in the MUD or the Proposed Tracts.
Residential Lots
Existing
MUD
Proposed
Tract(s)
Total
11
Total Existing and Planned Residential Lots
0
0
0
12
Number of Currently Completed/Occupied Homes
0
0
0
13
Number of Currently Completed Lots
0
0
0
14
Number of Lots Under Construction
0
0
0
15
Number of Future Lots
0
0
0
Note: Lines 12, 13, 14, and 15 should total to Line 11
Property Values
Existing
MUD
Proposed
Tract(s)
Total
16
Most Recent BCAD Valuation (Date: January 1, 2003)
$ -
$ 304,660.00
$3C4,660.00
17
Projected Total Valuation at Build Out Date
$ -
$ 119,406,000.00
$119,4C6,000.00
18
Projected Residential Valuation at Build Out
$ -
$ -
0
19
Projected Commercial Valuation at Build Out
$ -
$ 119,406,000.00
$119,406,000.00
20
Estimated Average Home Value (Date: January 1, )
$
N/A
0
21
Estimated Average Home Value - at Build Out
$ -
N/A
0
Note: Lines 18 and 19 should total to Line 17
Prooertv Tax Revenues
Existing
MUD
Proposed
Tract(s)
Total
22
Pre -Development General Fund Taxes @ $.696/100 (Date Jan. 1, 2003)
$ -
$ 2,120.43
$2,120.43
23
Most Recent Year City Property Taxes @ $.696/$100
$ -
$ 2,120.43
$2,120.43
24
Projected City Property Taxes @ $.696/$100 at Build Out
$ -
$ 831,065.76
$831,065.76
25
Most Recent Year MUD Rebate Amount
$ -
$ 0
0
26
Projected MUD Rebate Amount at Build Out @ $.150/100
$ -
$ 179,109.00
$179,109.00
Calculations
Existing
MUD
Proposed
Tract(s)
Total
27
Approx. Net Density at Build Out- Homes/Acre (Line 11/(3-9))
$ -
$ -
$ -
28
Net Annual Revenue to City - Current Estimate (Line 23-25-22)
$ -
$ -
$ -
29
Net Annual Revenue to City - Build Out Estimate (Line 24-26-22)
$ -
$ 649,836.33
$ 649,836.33
BCMUD 35 MUDDataForm.xls (2)
1
City of Pearland
In -City MUD Data Form
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35
4-Nov-03
Existing Subdivisions Within Existing MUD
Subdivision Name
NO EXISTING SUBDIVISIONS
Area (Acres)
NA
Projected
Lots
NA
Percent
Complete
NA
BCMUD 35 MUDDataForm.xls (2) 2
City of Pearland
In -City MUD Data Form
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35
4-Nov-03
Proposed Subdivisions Within Annexation Request
Subdivision Name
NO PROPOSED SUBDIVISIONS
Area (Acres)
NA
Projected
Lots
NA
Percent
Complete
NA
BCMUD 35 MUDDataForm.xls (2) 3
City of Pearland
In -City MUD Data Form
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35
4-Nov-03
Existing Non -Residential Businesses Within Existing MUD
Business Name
NO EXISTING NON-RESIDENTIAL BUSINESSES
Type of Business
NA
BCMUD 35 MUDDataForm.xls (2) 4
City of Pearland
In -City MUD Data Form
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35
4-Nov-03
Proposed Non -Residential Businesses Within Annexation Request
Business Name
Memorial Herman Hospital System
Type of Business
Hospital/Medical Care Facilities
Bank
Retail
To be Determined
BCMUD 35 MUDDataForm.xls (2) 5
City of Pearland
In -City MUD Data Form
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35
4-Nov-03
Anticipated Future Annexation Requests
General Tract Description
NO ANTICIPATED FUTURE ANNEXATIONS
Area (Acres)
NA
Projected
Lots
NA
BCMUD 35 MUDDataForm.xls (2) 6
PETITION FOR CONSENT TO THE CREATION
OF A MUNICIPAL UTILITY DISTRICT
TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS:
The undersigned (herein the "Petitioners"), acting pursuant to the provisions of Chapters
49 and 54, Texas Water Code, respectfully petition the City Council of the City of Pearland,
Texas (the "City Council"), for its written consent to the creation of a municipal utility district
and in support thereof would show the following:
I.
The name of the proposed District shall be BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 35 (the "District").
II.
The District shall be created and organized under the terms and provisions of Article
XVI, Section 59 of the Constitution of Texas and Chapters 49 and 54, Texas Water Code.
The District shall contain an area of 110.41 acres of land, more or less, situated in
Brazoria County, Texas. All of the land to be included in the District is within the corporate
boundaries of the City of Pearland, Texas (the "City"). All of the land proposed to be included
may properly be included in the District. The land proposed to be included within the District
consists of the property described by metes and bounds in Exhibit "A" which is attached hereto
and incorporated herein for all purposes (the "Land").
IV.
Petitioners hold fee simple title to the land, which tract is described more particularly in
Exhibit "A," attached hereto and incorporated herein. Petitioners hereby represent that they own
a majority in value of the Land which is proposed to be included in the District, as indicated by
the tax rolls of Brazoria County, Texas.
V.
Petitioners represent that there are no lienholders on the Land except Southwest Bank of
Texas and Allied Houston Bank.
VI.
The general nature of the work to be done by the District at the present time is the
purchase, design, construction, acquisition, maintenance and operation of a waterworks and
sanitary sewer system for domestic and commercial purposes, and the construction, acquisition,
improvement, extension, maintenance and operation of works, improvements, facilities,
plants, equipment and appliances helpful or necessary to provide more adequate drainage
for the District, and to control, abate and amend local storm waters or other harmful
excesses of waters, and such other purchase, construction, acquisition, improvement,
maintenance and operation of such additional facilities, systems, plants and enterprises as
shall be consonant with all of the purposes for which the District is created.
VII.
There is, for the following reasons, a necessity for the above -described work. The
area proposed to be within the District is urban in nature, is within the growing environs
of the City of Pearland, Texas, and is in close proximity to populous and developed
sections of Brazoria County, Texas. There is not now available within the area, which
will be developed for single family residential and commercial uses, an adequate
waterworks system, sanitary sewer system, or drainage and storm sewer system. The
health and welfare of the present and future inhabitants of the area and of the territories
adjacent thereto require the purchase, design, construction, acquisition, ownership,
operation, repair, improvement and extension of an adequate waterworks system, sanitary
sewer system, and drainage and storm sewer system. A public necessity, therefore, exists
for the creation of the District, to provide for the purchase, design, construction,
acquisition, ownership, operation, repair, improvement and extension of such waterworks
system, sanitary sewer system, and drainage and storm sewer system, to promote the
purity and sanitary condition of the State's waters and the public health and welfare of the
community.
VIII.
Petitioner, by submission of this Petition, requests the City's consent to the
creation of the District containing the Land under the conditions relating to the creation
of districts in general, set forth in Exhibit "B," which is attached hereto and incorporated
herein for all purposes.
IX.
A preliminary investigation has been made to determine the cost of the proposed
District's projects, and it is now estimated by the Petitioner, from such information as
they have at this time, that such cost will be approximately $4,784,760.
WHEREFORE, Petitioners pray that this petition be heard and that the City
Council duly pass and approve an ordinance or resolution granting the consent to the
creation of the District and authorizing the inclusion of the land described herein within
the District.
[EXECUTION PAGE FOLLOWS]
Brazoria County MUD No[1]. 35 Petition for Consent to the Creation of a Municipal Utility District -2-
RESPECTFULLY SUBMITTED this 1 Sr day of G , 2003.
WCF DEVELOPMENT X, L.P.,
a Texas limited partnership
By: WCF Development, L.L.C.,
its General Partner
NNETH R. MELBER, TRUSTEE
e C. Fox, ¶nager
THE STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged before me on theoV day of Yi ,
2003, by Wayne C. Fox, as Manager of WCF DEVELOPMENT, L.L.C., a Texas limite iability
company, as general partner of WCF DEVELOPMENT X, L.P., a Texas limited partnership., on
behalf of said limited partnership.
ELLEN MASTIN t�
NOTARY PUBLIC, STATE OF TEXAS 1,
z-vEACOMMISSION EXPIRES 1
JULY 24, 2004
THE STATE OF TEXAS
COUNTY OF HARRIS
§
Notary Public, State of Texas
This instrument was acknowledged before me on the ' day of ""--r)/ -1 _ ,
2003, by KENNETH R. MELBER, TRUSTEE.
�v0.Ye, CONNIE M. HERN l
NOTARY PUBLIC, STATE OF TEXAS
4`• /\ w MY COMMISSION EXPIRES \ll
AUG. 25, 20105
(NOTARY SEAL)
Notary Public, State of Texas
Brazoria County MUD No[1]. 35 Petition for Consent to the Creation of a Municipal Utility District
-3-
Exhibit "A"
(Metes and Bounds Description of the Land —100.79 acres)
Brazoria County MUD No[1]. 35 Petition for Consent to the Creation of a Municipal Utility District
c c�r e r N e
xwnvr. tar..
3000 Merest On Suite 210 — Huuston,Texas 77042 — t713) 983-0327 j- Fax (713) 993-9231
METES AND BOUNDS DESCRIPTION
BRAZORIA COUNTY MUNICIPAL uTILi7y DISTRICT NUMBER 35
110.41 ACRES
T.C.R.R. CO. SURVEY, SECTION 4, ABSTRACT NUMBER 675
BRAZORIA COUNTY, TEXAS
Being a tract or parcel containing, 110.41 acres of land situated in the T.C.R.R. Co. Survey, Section 4,
Abstract Number 675, Brazoria County, Texas, and being all of Lots 1, 2 and 3 and a portion of Lot 4
in Block 20, and all of Lots 2, 3 and 4 in Block 21, and all of Lots 1 and 3 and a portion Lots 2 and 4
in Block 22, and a portion of Lots 1, 2, and 3 in Block 23 of the Allison -Richey Gulf Coast Homo Co.'s
Part of Suburban Gardens Subdivision according to the plat thereof recorded in Volume 2 Page 99 of
the Brazoria County Map Records; said 110.41 acre tract also being all of the 43.341 acre tract and all
of the 19.221 acre tract as described in the deed to WCF Development X, L.P., recorded under
Brazoria County Clerk's File Number 02-047224, all of the called 9.61 acre tract (surveyed as 9.6167
acres) as described in the deed to WCF Development X, L.P., executed on June 03, 2003, all of the
23.854 acre tract as described in the deed to WCF Development X, L.P., recorded under Brazoria
County Clerk's File Number 02-047225, all of the 4.790 acre tract as described in the deed to WCF
Development X, L.P., recorded under Brazoria County Clerk's File Number 02-363306, and all of the
9.586 acre tract as described in the deed to WCF Development X, L.P., recorded under Brazoria County
Clerk's File Number 02-063314; said 110.41 .acre tract being more particularly described by metes and
bounds as follows (all bearings are based on the westerly right-of-way line of State Highway 288
(width varies) as described in the deed recorded in Volume 1077, page 126 of the Brazoria County
Deed Records):
BEGINNING at a 5/8-inch iron rod found marking the intersection of the north line of the aforesaid Lot
2, Block 22, and said westerly right-of-way line of State Highway 288 common with the northeast
comer of the aforesaid called 43.341 acre tract and the northeast corner of the herein described tract;
THENCE, along said westerly right-of-way line the following eight (81 courses and distances;
South 03°00'20" West, along said west right-of-way tine, a distance of 1,077,58 feet to a
Texas Department of Transportation Concrete Monument found marking the Point of
Curvature of a curve to the left;
Along said curve to the left having a central angle of 01°10'51", an arc distance of
240.52 feet, a radius of 11,669.16 feet, and a chord which bears South 02°17'21" West,
240.51 feet to a Texas Department of Transportation Concrete Monument found marking
the Point of Reverse Curvature of a curve to the right;
Along said curve to the right having a central angle of 45°22'19", an arc distance of
789.08 feet, a radius of 996.45 feet, and a chord which bears South 24°33'31" West,
768.62 feet to a Texas Department of Transportation Concrete Monument found marking
the end of curve;
South 47°12'01" West, a distance of 163.98 feet to a Texas Department of
Transportation Concrete Monument found marking the Point of Curvature of a curve to the
left;
Along said curve to the left having a central angle of 37°37'36", an arc distance of
293.19 feet, a radius of 446.46 feet, and a chord which bears South 28°34'39" West,
287.95 feet to a Texas Department of Transportation Concrete Monument found marking
the end of Curve;
South 44°47'35" West, a distance of 148.77 feet to a Texas Department of
Transportation Concrete Monument found marking an angle corner in said westerly right-
of-way line;
South 86°39'17" West, a distance of 250.33 feet to a Texas Department of
Transportation Concrete Monument found rnarking an angle corner in said westerly right-
of-way line;
South 03°19'38" East, a distance of 57.88 feet to a PK Nail found in asphalt marking an
angle corner of the aforesaid 23.854 acre tract common with an angle corner of the herein
described tract in the centerline of County Road 92 (width varies) common with the south
line of the aforesaid Lot 4 in Block 20;
METES AND BOUNDS DESCRIPTION
BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NUMBER 35
110.41 ACRES
PAGE 2 OF 2
THENCE, South 86°43'06" West, along said centerline common with the south line of the aforesaid
Lot 4 in Block 20 and the south line of the aforesaid Lot 3 in Block 20 and the south lines of said
23.854 acre tract, the aforesaid 4.790 acre tract, and the aforesaid 9.586 acre tract, a distance of
1,217.71 feet to the southwest corner of the herein described tract common with the southwest
corner of said Lot 3 in Block 20 and the southwest corner ofsaid9.586 acre tract and the southeast
corner of the called 48 acre tract as described in the deed recorded under Brazoria County Clerk's File
Number 98-050039 from which a Rail Road Spike found in asphalt bears South 35°45' West, 0.15
feet;
THENCE, North 03°14'22" West, along the east line of said called 48 acre tract, passing at a distance
of 623.29 feet a 1/2-inch iron pipe found marking the northwest corner of said 9.586 acre tract and
continuing along said east line and then along the east line of the called 9.07 acre tract as described in
the deed recorded under Brazoria County Clerk's File Number 00-000636, passing at a distance of
1,248.26 feet a capped 518-inch iron rod found marking the northwest corner of said 23.854 acre tract
and continuing along the east line of said called 9.07 acre tract and then along the east line of the
called 21.045 acre tract as described in the deed recorded under Brazoria County Clerk's File Number
98-041753 for a total distance of 1,872.80 feet to 5/8-inch iron rod found marking the northwest
corner of the aforesaid 19.221 acre tract common with the southwest corner of Lot 1 in the aforesaid
Block 21 as described in the deed recorded in Volume 132,0, Page 340, of the Brazoria County Deed
Records and an angle corner of the herein described tract, from which a 1/2-inch iron pipe found
rnarking the northeast corner of said 21.045 acre tract bears North 03°14'22" West, 294.30 feet;
THENCE, North 86°44'01" East, along the south line of said Lot 1 in Block 21, passing at a distance
of 20.00 feet a 3/4-inch iron pipe found marking the intersection of said south line and the east line of
the 20 foot wide road shown on the aforesaid Allison -Richey Gulf Coast Home Co.'s Part of Suburban
Gardens Subdivision plat, and continuing along said south line for a total distance of 670.10 feet to a
1-inch iron pipe found marking the southeast corner of said Lot 1 in Block 21 common with the
southwest corner of the aforesaid Lot 2 in Block 21 and the southwest corner of the aforesaid called
9.61 acre tract and an angle corner of the herein described tract;
THENCE, North 03°14'20" West, along the east line of said Lot 1 in Block 21, a distance of 625.25
feet to a 5/8-inch iron rod with plastic cap stamped "TERRA SURVEYING" set marking the northwest
corner of the herein described tract in the smith line of the called 156.4523 acre tract as described in
the deed recorded in Volume (90)850, Page 856, of the Brazoria County Deed Records;
THENCE, North 86°45'40" East, along said south line, passing et a distance of 670.07 feet a 5/8-inch
iron rod found marking the northwest corner of the aforesaid 43.341 acre tract, and continuing along
said south line for a total distance of 1,685.52 feet to the PLACE OF BEGINNING and containing
110.41 acres of iand. This description is based on the plat of the District Boundary Map prepared by
Terra Surveying Company, Inc., last updated July 21, 2003, TSC Project Number 0043-0601-S.
REVISED 07121/03 - ADDED ACREAGE, VESTING DEEDS
Compiled by: Mark J. Piriano, S.I.T.
Terra Surveying Company, Inc.
3000 Wilcrest, Suite 210
Houston, Texas 77042
MP D:\project files100430201tmb11041district,doc
EXHIBIT "B"
(a) The City of Pearland, Texas (the "City"), by execution of its City Manager, and
the developer on behalf of the District shall enter into and execute a utility agreement, in
substantially the form attached hereto as Exhibit `B-1," to specify the terms and conditions for
providing water and sewage treatment services to the District (the "Utility Agreement"). Upon
the District's creation and confirmation, the District shall assume all the rights, obligations, and
interests of the developers under the Utility Agreement, as set forth therein.
(b) The District may issue bonds, including refunding bonds, for any purposes
authorized by law, including but not limited to, purchasing, refinancing, designing and
constructing, or otherwise acquiring waterworks systems, sanitary sewer systems, storm sewer
systems, and drainage facilities, or parts of such systems or facilities, and to make any and all
necessary purchases, constructions, improvements, extensions, additions, and repairs thereto, and
to purchase or acquire all necessary land, right-of-way, easements, sites, equipment, buildings,
plants, structures, and facilities therefor, and to operate and maintain same, and to sell water,
sanitary sewer, and other services within or without the boundaries of the District. Such bonds
must provide that the District reserves the right to redeem said bonds on any date subsequent to
the fifteenth (15th) anniversary of the date of issuance (or any earlier date at the discretion of the
District) without premium, and none of such bonds, other than refunding bonds, will be sold. for
less than 95% of par; provided that the net effective interest rate on bonds so sold, taking into
account any discount or premium as well as the interest rate borne by such bonds, will not
exceed two percent (2%) above the highest average interest rate reported by the Daily Bond
Buyer in its weekly "20 Bond Index" during the one -month period next preceding the date of the
sale of such bonds. The resolution authorizing the issuance of the District's bonds will contain a
provision that the pledge of any revenues from the operation of the District's water and sewer
and/or drainage system to the payment of the District's bonds will terminate when and if the City
annexes the District, takes over the assets of the District, and assumes all of the obligations of the
District.
(c) Before the commencement of any construction within the District, its directors,
officers, or developers and landowners will submit to the City, or to its designated representative,
all plans and specifications for the construction of water, sanitary sewer and drainage facilities to
serve the District and obtain the approval of such plans and specifications therefrom. All water
wells, water meters, flushing valves, valves, pipes, and appurtenances thereto, installed or used
within the District, will conform to the specifications of the City. All water service lines and
sewer service lines, lift stations, and appurtenances thereto, installed or used within the District
will comply with the City's standard plans and specifications as amended from time to lime.
Prior to the construction of such facilities within or by the District, the District or its engineer
will give written notice by registered or certified mail to the City, stating the date that such
construction will be commenced. The construction of the District's water, sanitary sewer, and
drainage facilities will be in accordance with the approved plans and specifications and with
applicable standards and specifications of the City; and during the progress of the construction
and installation of such facilities, the City may make periodic on -the -ground inspections.
Brazoria County MUD Noll]. 35 Petition for Consent to the Creation of a Municipal Utility District
(d) Prior to the sale of any lot or parcel of land, the owner or the developer of the land
included within the limits of the District will obtain the approval of the Planning and Zoning
Commission of the City of a plat which will be duly recorded in the Official Records of Brazoria
County, Texas, and otherwise comply with the rules and regulations of the Engineering
Department and the Department of Public Works of the City of Pearland.
Brazoria County MUD No[1]. 35 Petition for Consent to the Creation of a Municipal Utility District
�vw - : b:+ 6-1
UTILITY AGREEMENT
This UTILITY AGREEMENT (the "Agreement"), is made and entered into as of the
day of , 2003, by and between the CITY OF PEARLAND, TEXAS, a
municipal corporation and home -rule city of the State of Texas (the "City"), and WCF
DEVELOPMENT X, L.P., a Texas limited partnership (the "Developer"), on behalf of
proposed BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35, 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 is in the process of being 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 Developer, on behalf of 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, the Developer and the District contract
and agree as follows:
Execution Copy Utility Agreement_WCF Development X, L[1].P.
UTILITY AGREEMENT
This UTILITY AGREEMENT (the "Agreement"), is made and entered into as of the
294h day of th �emb212003, by and between the CITY OF PEARLAND, TEXAS, a
municipal corporation and home -rule city of the State of Texas (the "City"), and WCF
DEVELOPMENT X, L.P., a Texas limited partnership (the "Developer"), on behalf of
proposed BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 35, 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 is in the process of being 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 Developer, on behalf of 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, the Developer and the District contract
and agree as follows:
12969
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; Brazoria County, Texas, Harris County, Texas or Fort Bend
County, Texas (as appropriate); the TCEQ; the Attorney General of Texas; the Comptroller
of Public Accounts of Texas; the United States Department of Justice; and all other federal,
state, and local governmental authorities having regulatory jurisdiction and authority over
the financing of the Facilities, the construction of the Facilities, or the subject matter of this
Agreement.
"Bonds" means the District's bonds, notes, or other evidences of indebtedness issued
from time to time for the purpose of purchasing, constructing, acquiring, operating,
repairing, improving, or extending the Facilities, payment of Connection Charges, and for
such other purposes permitted or provided by state law, whether payable from ad valorem
taxes, the proceeds of one or more future bond issues, or otherwise, and including any
bonds, notes, or similar obligations issued to refund such bonds.
"City" means the City of Pearland, Texas, a municipal corporation and home -rule
city of the State of Texas.
"City Manager" means the City Manager of the City or the City Manager's designee.
"Connection Charge" means the amount to be paid to the City for water and
wastewater capacity for each improvement within the District at the time of connection of
the improvement to the Facilities, as defined in Section 5.04.
"Consent Ordinance" means the ordinance or resolution to be adopted by the City
evidencing the City's consent to the inclusion of land within the District in accordance with
Texas Local Government Code Section 42.042 and Texas Water Code Section 54.016, each as
amended.
"Construction Costs" means costs associated with any particular construction
project under the terms of this Agreement, including, but not limited to, costs of
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construction, acquisition, and installation; engineering fees and expenses; costs of
advertising; costs of acquiring necessary licenses, permits, waste control orders, discharge
permits or amendments thereto; fiscal, legal, and administrative costs; material -testing
costs; site, easement, and permit costs; and all other costs and expenses directly relating to
the foregoing, together with an amount for contingencies or estimated Construction Costs
of not more than fifteen percent (15%) of the foregoing, provided that no contingency
amount shall be included in "Construction Costs" regarding a particular construction
project once that project is complete.
"Developer" means WCF DEVELOPMENT X, L.P., a Texas limited partnership.
"District" means Brazoria County Municipal Utility District No. 35, 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 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 Dannenbaum Engineering Corporation or such other
engineering firm as the District may engage from time to time.
"District Obligations" means (i) all outstanding Bonds of the District, (ii) all other
debts, liabilities, and obligations of the District to or for the benefit of any persons or
entities relating to the financing, construction, or operation of all or any portion of the
Facilities or the operations of the District, and (iii) all functions performed and services
rendered by the District for and to the owners of property within the District and the
customers of the services provided from the Facilities.
"Financing and Reimbursement Agreement" means the District's agreement, if any,
as defined in Section 3.04.
"Facilities" means and includes the water distribution, wastewater collection, and
drainage systems constructed or acquired or to be constructed or acquired by the District to
serve lands within and near its boundaries, and all improvements, appurtenances,
additions, extensions, enlargements, or betterments thereto, including any pro rata interest
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or share in such facilities, together with all contract rights, permits, licenses, properties,
rights -of -way, easements, sites, and other interests related thereto.
"Monthly Revenue Payments" means the monthly payments to be made by the City
to the District, as defined in Section 6.04 hereof.
"Oversized Facilities" means water, sewer, and/or drainage facilities sized to serve
areas outside the District or constructed to serve areas outside the District, as defined in
Section 2.04.
"Payment Date" means the date each year when the Annual Payments are due, as
defined in Section 6.02.
"TCEQ" means the Texas Commission on Environmental Quality, or any successor
or successors exercising any of its duties and functions related to water conservation and
reclamation districts.
ARTICLE II
DESIGN AND CONSTRUCTION OF THE FACILITIES
2.01. Design. The Facilities shall be designed by the District Engineer in
accordance with sound engineering principles and in compliance with all applicable
requirements of the Approving Bodies. The plans and specifications for the Facilities shall
be subject to review and approval by the City, the District, and the Approving Bodies with
jurisdiction (the "Approved Plans"). The District shall not make any changes to the
Approved Plans without the approval of the City. The City shall not require that the
Facilities be designed to requirements more stringent than the City's requirements
applicable to the design of similar facilities outside the District but within the City's
jurisdiction. The District shall design the Facilities in such phases or stages as the District
and/or Developer from time to time, in their sole discretion, may determine to be
necessary and economically feasible.
2.02. Construction. When the District or the Developer determines, in their sole
discretion, that it is necessary and economically feasible to construct the Facilities, the
District or the Developer shall proceed to award a construction contract for the Facilities
based upon the Approved Plans. The Facilities shall be installed, construction contracts
shall be awarded, and payment and performance bonds obtained all in accordance with the
general law for municipal utility districts and in full compliance with the applicable
requirements of the Approving Bodies. In addition to any other construction contract
provisions, any construction contract for the Facilities shall include the contractor's two (2)
year warranty of work performed under the contract. The District or Developer (whoever
is the owner of the contract) shall submit all change orders to the City for its records. The
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District or Developer (whoever is the owner of the contract) shall file all required
documents with the TCEQ.
2.03. Acceptance of Facilities. Upon completion of the Facilities, the District or
Developer (whoever is the owner of the contract) shall order the District's Engineer to
certify that the Facilities have been completed in substantial compliance with the Approved
Plans; the District or Developer (whoever is the owner of the contract) shall certify that all
bills and sums of money due in connection with the construction and installation of the
Facilities have been fully paid and that the Facilities are free of any and all liens and claims,
all according to the certification of the construction contractor. The District or Developer
(whoever is the owner of the contract) shall require the District's Engineer to provide three
(3) copies of construction drawings of the Facilities to the District. The District or the
Developer (whoever is the owner of the contract) shall accept the construction of the
Facilities in writing from the construction contractor. The District or Developer (whoever
is the owner of the contract) shall then convey the Facilities to the City in accordance with
the City's procedure for acceptance of such facilities in areas outside the District and within
the City and the provisions of Article IV below.
2.04. Oversized Facilities. In conjunction with the design and construction of the
Facilities, as described in this Article II, the City may determine from time to time that
certain Facilities should be sized to serve areas outside the District, as well as areas within
the District, or the City and the District may determine that the District should construct
certain water, sewer, and/ or drainage facilities outside the District to serve areas outside
the District (in either case, facilities sized or constructed to serve areas outside the Di;strict
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
design and construction of the Facilities as set out in this Agreement, the District shall
cooperate with the City to include the Oversized Facilities as required by the City. The
City, in turn, hereby agrees that as between the District and the City, the City shall fund its
share of the Construction Costs of the Oversized Facilities. In order to carry out the design
and construction of Oversized Facilities, the City and the District agree to enter a
Development Agreement for the oversizing of such facilities. 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 TCEQ rules and
regulations so that Project Construction Costs will be shared by the City and the District on
the basis of benefits received, which are generally the design capacities in the Project for the
City and the District respectively.
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ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. The District shall have authority to
issue, sell, and deliver Bonds from time to time, as deemed necessary and appropriate by
the Board of Directors of the District, for the purposes, in such forms and manner, and as
permitted or provided by federal law, the general laws of the State of Texas, and the
Consent Ordinance. The District shall not be authorized to sell Bonds until it has prov ided
the City with an executed copy of the TCEQ order approving each bond issue in which the
TCEQ concludes that a District debt service tax rate of $1.50 or less per $100 of assessed
valuation is feasible in accordance with the TCEQ's rules in effect at the time of such
determination. The District's obligation to provide a copy of the TCEQ order including
such conclusion shall not be construed as a limitation on the District's authority to levy an
unlimited tax rate, it being understood and acknowledged that the District's bonds shall be
payable from and secured by a pledge of the proceeds of an ad valorem tax, without legal
limitation as to rate or amount. The District shall provide the City with copies of the
Official Statement and the District's resolution authorizing the issuance of the Bonds for
each issue prior to the delivery of the Bonds to the initial purchaser.
3.02. Distribution of Bond Proceeds. The proceeds of Bonds issued by the District
shall be used and may be invested or reinvested, from time to time, as provided in the
order or orders of the District authorizing the issuance, sale, and delivery of such Bonds
and in accordance with the federal, state, and local laws and regulations governing the
proceeds of the District's sale of its Bonds.
3.03. Bonds as Obligation of District. Unless and until the City shall dissolve the
District and assume the District Assets and District Obligations, the Bonds of the District, as
to both principal and interest, shall be and remain obligations solely of the District and
shall never be deemed or construed to be obligations or indebtedness of the City; provided,
however, that nothing herein shall limit or restrict the District's ability to pledge or assign
all or any portion of the Annual Payments or Monthly Revenue Payments, to be made by
the City to the District as provided in this Agreement, to the payment of the principal of,
the redemption premium, if any, or interest on the Bonds or other contractual obligations
of the District relating to the financing, acquisition, or use of the Facilities.
3.04. Financing by Third Parties. From time to time, the District may enter into one
or more agreements (the "Financing and Reimbursement Agreement") with the Developer
or other landowners of property located within the District whereby the Developer or such
landowners will construct the Facilities on behalf of the District or advance funds to or on
behalf of the District for the acquisition and construction of the Facilities. The construction
of any Facilities financed under the terms of a Financing and Reimbursement Agreement
shall be subject to all the terms and conditions of this Agreement. Each Financing and
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Reimbursement Agreement will provide for the District's reimbursement of the person or
entity advancing funds for the Facilities (i) from the proceeds of the District's sale of its
Bonds, subject to all the terms and conditions of such Financing and Reimbursement
Agreement, including, among other conditions, the approval of the TCEQ of the sale of the
Bonds and the use of sale proceeds for such purpose; (ii) from District funds lawfully
available for such purpose.
ARTICLE IV
OWNERSHIP, OPERATION, AND MAINTENANCE OF FACILITIES
4.01. Conveyance of Facilities. As the Facilities are constructed and accepted in
accordance with Article II and the Facilities are conveyed to the City, a security interest
shall be reserved for the purpose of securing the performance of the City under this
Agreement. At such time as the Bonds issued to acquire and construct the Facilities have
been discharged, the District shall execute a release of such security interest, and the City
shall own the Facilities free and clear of such security interest. When the Facilities are
conveyed to the City under this Article IV, the construction contractor's two (2) year
warranty of its work shall be assigned to the City, as required under Section 2.02 above.
4.02. City Acceptance. As the Facilities are constructed and completed,
representatives of the City shall inspect the same and, if the City finds that the Facilities
have been completed in substantial compliance with the approved plans and specifications,
the City will accept the conveyance of the Facilities, 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 in
what manner the Facilities do not comply so that the problems may immediately be
corrected; 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 City shall be provided with one (1) set of the construction drawings for such
Facilities.
4.03. Operation of the Facilities by the City. Upon the acceptance of the Facilities
by the City, 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.
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(a) The City shall provide competent, trained personnel, licensed or certified as
necessary by the appropriate regulatory authority, to operate, inspect, maintain, and repair
the Facilities. The City shall inventory and maintain a listing of all of the equipment
comprising the Facilities as required to provide relevant information for the scheduled
maintenance and repair or replacement of the equipment comprising the Facilities. The
City shall implement a scheduled maintenance program for the Facilities and shall ensure
that the Facilities are maintained in the same fashion and with the same frequency as
similar facilities owned and operated by the City to serve areas outside the District.
(b) The City shall maintain all customer information and records necessary to
provide monthly billings to customers served by the Facilities. The City shall coordinate
with the District's consultants, such as attorneys, engineers, auditors, tax assessors, and
financial advisors as necessary to maintain efficient operation of the Facilities. The City
shall respond to inquiries or correspondence from governmental or regulatory authorities
and the District's directors, customers, or consultants.
(c) The City shall provide a monthly written report to the District indicating the
total number of service connections within the District. If requested by the District, the
City may provide a City representative to attend a District meeting to discuss any
operating and maintenance information regarding the Facilities.
4.04. Rates and Conditions of Service. The connection of improvements to the
Facilities shall be made by the City, in the same manner, by the same procedures, and for
the same charges as the City makes other water and wastewater connections. Water and
wastewater customers within the District shall pay rates and charges for such services to
the City, on the same basis and conditions as the City provides such services to similar City
customers who do not receive services from the Facilities; provided, however, in addition
to the rates and charges imposed by the City on its water and wastewater customers
outside -the District, the- City shall impose on and collect from each customer of the
Facilities within the District a monthly surcharge of five dollars ($5.00) per equivalent
single family residential connection. The equivalent number of single family residences
attributable to any particular connection shall be computed in accordance with the service
unit factors set forth in Exhibit "A" as such factors may be amended from time to time by
the City in its sole discretion, provided that the City shall always apply the same service
unit factors within the District as it applies to other areas within the City. The City shall
bill and collect charges from the customers of the Facilities, calculated in accordance with
this Section 4.04, in the same manner and under the same procedures as it bills and collects
from other customers of the City that are not served by the Facilities.
4.05. Repair of the Facilities. After its acceptance of the Facilities, the City shall
provide all personnel and equipment necessary to perform repairs on, and shall bear sole
cost responsibility for repair of, the Facilities, including, but not limited to, service line
leaks, leaks at water meters, water main breaks, repairs to valves and fire hydrants,
manhole repairs, and sewer line repair and cleaning, as needed. The City shall not,
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however, bear cost or responsibility for initial repair of any equipment or facilities
identified by the City as in need of correction prior to the City's acceptance of the Facilities
under Section 4.02 above. The cost of all materials and supplies used to operate, maintain,
and repair the Facilities shall be borne solely by the City.
ARTICLE V
CITY PLANT CAPACITY AND FINANCING
5.01. Water Supply and Distribution Facilities. The City shall provide the District
with its ultimate requirements for water supply and distribution capacities. The 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 City Manager. 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 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
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necessary to have capacity available to serve new improvements within the District. To
enable the City to effectively manage its wastewater system capacities in compliance with
the City's obligation under this Section 5.02, the District shall provide the City no less than
annually a written projection of the new improvements within the District expected to be
connected to the Facilities within the coming year, and such other related information as
the City may reasonably require.
5.03. Letter of Capacity Assurance; Assignability. The City agrees that the City
Manager shall, upon reasonable request from the District, issue a letter of assurance t:o the
owner of platted property within the District confirming water and wastewater utility
availability for such platted property, based upon the standard City criteria published by
the City regarding the calculation of water and wastewater requirements for various types
of improvements.
5.04 Financing City Water and Wastewater Capacities. In consideration of the
City's provision of water supply and distribution capacity and wastewater collection and
treatment capacity, the District agrees to pay to the City the then effective impact or capital
recovery fee per equivalent single-family residential connection to the Facilities (the
"Connection Charge"). Equivalent single-family residential connections shall be computed
in accordance with the service unit factors as set forth in Exhibit "A," as such factors may
be amended from time to time by the City in its sole discretion, provided that the City shall
always apply the same service unit factors within the District as it applies to other areas
within the City. The Connection Charge shall be paid to the City by or on behalf of the
District before the connection of each particular improvement to the Facilities at the same
time and manner as such fees are paid for improvements in other areas of the City outside
the District. The City shall not allow connection of any improvement to the Facilities for
which the appropriate Connection Charge has not been paid. The City may amend the
Connection Charge from time to time in accordance with the requirements of state law;
provided, however, the Connection Charge shall be the same as the connection charge
required outside the District and within the City limits. The District acknowledges and
agrees that, besides the Connection Charge, any new connection to the Facilities will be
subject to the fees, charges, and costs routinely collected by the City in regards to any new
connection to the City's utilities whether inside or outside the District.
ARTICLE VI
ANNUAL PAYMENTS, MONTHLY REVENUE PAYMENTS, AND DISTRICT TAXES
6.01. Calculation of Annual Payment.
(a) In consideration of the development of the land within the District and the
related increase in the taxable value of such land to the City through the acquisition of and
construction of the Facilities by the District and in order to enhance the economic feasibility
of the District and more equitably distribute among the taxpayers of the City and the
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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"). 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.
(b) The initial Annual Payment shall be at a rate of $0.15 per $100 of assessed
valuation.
(c) The Annual Payment shall be incrementally reduced upon the occurrence of
the following:
(i) The Developer and all developers within the District have been fully
reimbursed, with interest, in accordance with the rules of the TCEQ;
(ii) The District has completely financed and constructed 100% of its
Facilities; and
(iii) The District levies a debt service tax at a rate that is less than $0.80 per
$100 of assessed valuation.
(d) Once all the conditions of subsection (c) have been met, the Annual Payment
shall be reduced by an amount equal to the decrease in the District debt service tax rate.
For example, if the Board of Directors of the District sets a debt service tax rate of $0.79 per
$100 of assessed valuation (a decrease of $0.01), the Annual Payment will be reduced by
$0.01 to $0.14 per $100 of assessed valuation. The Annual Payment will be recalculated
annually, and will continue to be reduced to the extent that the District debt service tax rate
is decreased. For example, if the Board of Directors of the District sets a debt service tax
rate of $0.70 per $100 of assessed valuation (an aggregate decrease of $0.10), the Annual
Payment would be $0.05 per $100 of assessed valuation. Once the Annual Payment is
reduced, it shall not thereafter be increased, and any increase in the District debt service tax
rate does not affect the calculation of the Annual Payment.
(e) If the District debt service tax rate decreases to the rate of $0.65 per $100 of
assessed valuation, the City is thereafter relieved of any obligation to make Annual
Payments pursuant to this Agreement. Any subsequent increase in the District debt service
tax rate does not obligate the City to again make Annual Payments.
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
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roll from the appropriate county Appraisal District and shall be payable each May 1
thereafter (the 'Payment Date"), with each such Annual Payment being applicable to the
calendar year preceding the calendar year of each such May 1 (e.g., if the District receives a
tax roll for the calendar year 1998, the Annual Payment for such year will be due May 1,
1999). Each Annual Payment that is not paid on or before the Payment Date shall be
delinquent and shall incur interest at the rate of one percent (1 %) of the amount of the
Annual Payment per month, for each month or portion thereof during which the Annual
Payment remains unpaid. On September 1 of each calendar year, the City shall cause to be
paid to the District those portions of the Annual Payment which reflect collections made by
the City subsequent to the Payment Date. The obligation of the City to make Annual
Payments to the District shall terminate upon the termination of this Agreement in
accordance with Section 9.14 below.
6.03. Supplemental Tax Rolls; Correction Tax Rolls; Adjustment to Annual
Payment. The parties recognize and acknowledge that, from time to time, the County
Appraisal District may submit to the District one or more supplemental tax rolls and/ or
correction tax rolls and that each such supplemental tax roll and/ or correction tax roll may
affect the total value of taxable properties within the District for a particular year and
therefore the Annual Payment due and payable by the City for such year. The District
agrees that promptly upon receiving a supplemental tax roll and/ or correction tax roll, the
District shall deliver such supplemental tax roll and/ or correction tax roll to the City.
Promptly upon receiving a supplemental tax roll and/or collection tax roll from the
District, the City shall recalculate the amount of the Annual Payment pertaining thereto
and shall notify the District of the amount of such recalculated Annual Payment. Within
forty-five (45) days from the date on which the District receives notice of a recalculated
Annual Payment, the City shall pay to the District the amount, if any, by which the
recalculated Annual Payment exceeds the amount of the Annual Payment previously paid
by the City to the District for the year in question, or the District shall pay to the City the
amount, if any, by which the recalculated Annual Payment is less than the amount of the
Annual Payment previously paid; 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 "A," attached to this Agreement and incorporated for all
purposes, as such factors may be amended from time to time by the City in its sole
discretion, provided that the City shall always apply the same service unit factors within
the District as it applies to other areas within the City. The Monthly Revenue Payment
shall be paid by the City to the District within thirty (30) days of the last day of the month
for which the Monthly Revenue Payment applies (the "Due Date"). Each Monthly Revenue
Payment that is not paid on or before the Due Date shall be delinquent. If the City fails or
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refuses to pay a delinquent Monthly Revenue Payment for a period in excess of sixty (60)
days from the receipt of written notice from the District regarding same, then each Monthly
Revenue Payment included in such notice shall incur interest at the rate of one per cent
(1 %) of the amount of the Monthly Revenue Payment per month, for each month or portion
thereof during which a Monthly Revenue Payment remains unpaid upon expiration of
such sixty (60) day period. The obligation of the City to make Monthly Revenue Payments
shall terminate upon the termination of this Agreement in accordance with Section 9.14
hereof. The City and the District acknowledge and agree that the District is dependent
upon the Monthly Revenue Payments in order that development within the District may be
competitive with development in surrounding areas.
6.05. Access to Records for Verifying Calculation of Annual and Monthly Revenue
Payments. The City shall maintain proper books, records, and accounts; shall provide the
District with an accounting 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 o:r 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.
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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 Obligations upon a vote of not less than two-thirds (2/3) of the entire
membership of the City Council to adopt an ordinance to such effect, if the City Council
finds: (a) that the District is no longer needed, (b) that the services and functions
performed by the District can be served and performed by the City, and (c) that it would be
in the best interests of the citizens and property within the District and the City that the
District be abolished. In order to ensure that the property owners and inhabitants of the
City and the District are afforded sufficient time and opportunity to realize the benefits and
public utility to be derived from the creation and operation of the District and the
financing, construction and implementation of the plan of improvements for the District,
and in order to contribute to the financial stability and feasibility of the District by ensuring
a sufficient longevity of the District's existence to permit the District to reach a satisfactory
level of financial maturity, the City agrees that the District shall not be abolished until such
time as the District is fully developed and has sold all Bonds necessary to finance the costs
of the Facilities and has reimbursed developer and landowners within the District in
accordance with the Financing and Reimbursement Agreements previously entered into by
the District.
7.02. Transition upon Dissolution. In the event all required findings and
procedures for the dissolution of the District have been duly, properly, and finally made
and satisfied by the City, and unless otherwise mutually agreed by the City and the District
pursuant to then existing law, the District agrees that its officers, agents, and
representatives shall be directed to cooperate with the City in any and all respects
reasonably necessary to facilitate the dissolution of the District and the transfer of the
District Assets to and the assumption of the District Obligations by the City.
ARTICLE VIII
REMEDIES IN EVENT OF DEFAULT
The parties hereto expressly recognize and acknowledge that a breach of this
Agreement by either party may cause damage to the non -breaching party for which there
will not be an adequate remedy at law. Accordingly, in addition to all the rights and
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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 and effect within its boundaries the same as to other areas within the City's corporate
limits.
9.02. Force Majeure. In the event either party is rendered unable, wholly or in part,
by force majeure to carry out any of its obligations under this Agreement, except the
obligation to pay amounts owed or required to be paid pursuant to the terms of this
Agreement, then the obligations of such party, to the extent affected by such force majeure
and to the extent that due diligence is being used to resume performance at the earliest
practicable time, shall be suspended during the continuance of any inability so caused to
the extent provided but for no longer period. As soon as reasonably possible after the
occurrence of the force majeure relied upon, the party whose contractual obligations are
affected thereby shall give notice and full particulars of such force majeure to the other
party. Such cause, as far as possible, shall be remedied with all reasonable diligence. The
term "force majeure," as used herein, shall include without limitation of the generality
thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of the public
enemy, orders of any kind of the government of the United States or the State of Texas or
any civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, drought, arrests, restraint of
government, civil disturbances,, explosions, breakage or accidents to machinery, pipelines
or canals, partial or entire failure of water supply resulting in an inability to provide water
necessary for operation of the water and wastewater systems hereunder, and any other
inabilities of any party, whether similar to those enumerated or otherwise, which are 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
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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 telefacsirnile.
Notice deposited by mail shall be effective three (3) days after posting. Notice given in any
other manner shall be effective upon receipt by the party to be notified. For purposes of
notice, the addresses of the parties shall be as follows:
If to the City, to:
City of Pearland
Attn: City Manager
3519 Liberty Dr.
Pearland, Texas 77581
Telefacsimile No. 281-485-7992
If to the District, to:
Brazoria County Municipal Utility District No. 35
c/ o Allen Boone Humphries LLP
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
Attn: Lynne B. Humphries
Telefacsimile No. 713-860-6606
If to the Developer, to:
WCF Development X, L.P.
Attn: Wayne C. Fox
1177 West Loop South, Suite 1670
Houston, Texas 77027-9086
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 be assignable by the Developer;
provided, however, that it is assigned to another developer within the District.
Furthermore, 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 "B," 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
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to the District or to another developer within the District, this Agreement shall not be
assignable by either party.
9.06. No Additional Waiver Implied. The failure of either party to insist upon
performance of any provision of this Agreement shall not be construed as a waiver of the
future performance of such provision by the other party.
9.07. Reservation of Rights. All rights, powers, privileges and authority of the
parties hereto not restricted or affected by the express terms and provisions hereof are
reserved by the parties and, from time to time, may be exercised and enforced by the
parties.
9.08. Parties in Interest. This Agreement shall be for the sole and exclusive benefit
of the parties hereto and shall not be construed to confer any rights upon any third parties.
9.09. Merger. This Agreement embodies the entire understanding between the
parties and there are no representations, warranties, or agreements between the parties
covering the subject matter of this Agreement other than the Consent Ordinance between
the City and the District. If any provisions of the Consent Ordinance appear to be
inconsistent or in conflict with the provisions of this Agreement, then the provisions
contained in this Agreement shall be interpreted in a way which is consistent with the
Consent Ordinance.
9.10. Modification; Exhibit. This Agreement shall be subject to change or
modification only with the mutual written consent of the City and the District. The exhibit
attached to this Agreement is incorporated by this reference for all purposes.
9.11. Captions. The captions of each section of this Agreement are inserted solely
for convenience and shall -never be given effect in construing the duties, obligations or
liabilities of the parties hereto or any provisions hereof, or in ascertaining the intent of
either party, with respect to the provisions hereof.
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
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from the date hereof. Further, this Agreement shall automatically terminate in the event
that the TCEQ does not adopt an order creating the District on or before July 31, 2004.
[EXECUTION PAGES FOLLOW]
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0.0
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:
By
..L-k, City Secretary
(SEAL)
,0���1111 '''
8
rrtimmov-
THE CITY OF PEARLAND, TEXAS
By:
City Manager
APPROVED AS TO FORM:
By:
City Attorney
—5548484.doc
-19-
WCF DEVELOPMENT X, L.P.,
a Texas limited partnership, by its general partner
By: WCF Development, L.L.C.
a Texas cprporation, its gener. partner
-20-
Lt
yneox, Manager
Utility Agreement
Exhibit "A"
CITY OF PEARIANO
SERVICE UNIT FACTORS
OF . . 'tAPMEPtI
1 :angry
2 Barber Shop
3 Beauty Shop
4 Bowling Alley
5 G! Ftapak
5 Carwash. Tunnel Sett Service
7 Carwash, Wand Type Self Sgrvlce
8 Carwagn, Tunnel witch Attendants
9 Church, AdminlairltCOn
10 Church, Auditorium
11 Church, Classroom
12 Clugh'Tavem)Loungc
13 Convenlent Sore
14 i Country Club
15 Day Care Center
10 Dormitory
17,pr 1ngRange
113 ! Fire Station
19 Funeral Home
20 Oaa Station, Self-service
21 Gas Makin, Full -service
22 Grocery Store
23 Health Chub
24 Health Rub w/ Whirpool a Swm, Pool
25 Hospital
28 Hotel/Morel
27 HCtot/Motel with Kitchenettes
213 ice Cream Parlor with Seating
29 IndoarEntortaln mentiAmusemerrt
30 industrial Laundry
31 Manufacturing
32 Nursing Homo
33 Office Bulking
3b Photo Store, 1- Hour Processing
35 Post Ontce, Etcludthg Dock
281Racquetball Club
37 i ReaeaUon VehkJe Park
38 Resident, Apartment
39 Resident, Condominku m
40 Resident, Duplta
41 Resident, Mobile Horne
42 Flofident, Single Family
43 Resident, Town Hain
44 F1estaurant. Ful See$ce, General
45 Restaurant, Fast Food with Sealing
49 Restaurant. Fast Foo0 wrtnout Sealing
47 Retail Store
48 Scrod, High
49 School, Dinar
50 Skating Rink
51 Swimming Pool
52 Ntartiursi
51 Theater, Drive -In
54 Theater, Indoor
55 Toles (Wm uapecilc)
50 Transportation 'terminal without Restaurant
57 Warehouse
bar
Mfastnn1arla
• PittAit)RE
Squats Foot
Chair 1
Chair
Lana
square Foot
Lane
Bay
Lane
Person
Seat
Soot
Seat
Square Foot
Member
Occupant
Bed
Tee
Employee
Body
!eland
Island
Square Foot
Member
Member
Bed
Room
Room
Seat
OcCvpar*
50 Ibe
Square Fool
Bed
Square Foot
Store
Square Foot
Cart
Spice
Oha6111ng Link
Oweltng Unit
Dwelling Unit
owelangUnit
Dwelling Unit
Dwelling Unit
Seat
Seat
Square Foot
Square Foot
Sear
Seat
Occupant
Swimmer
Seat
Space
Seat
To*
Passenger
Son Foot
Fterrr+tks:
1. Dow nct include roriauranL
2. Does not Inducts csnisk ts. island le *end u one pumping elation.
3, Patent are tints, does not Inane) ossipnaena c nca area
4. Average *Abe, each dwatopment must Yldviduaty ew>uated.
5. Basic Seneca Unit.
B. Does not Include resident dormttoryr.
7. Door not Indies reclamation. •
8. AO developments ntst Matching one of the above types wR De evaluated
Indatiluallv baud on data submitted by the deueiocer.
000700
0.470000
0,470000
0.635400
0.000100
6.350030
1 _22oaw
31.430000
0.047003
0.003200
0.004700
0-031003
0.030'?20
0.900000
0.031700
0.236000
0.210030
0256003
2,140030
0.800000
0.8 0000
0.000250
0.016000
0.032000
0,635000
0.251000
0.430000
0,047000
0,031030
0.9500 30
0.000160
o,299000
o.rm33s
4.000000
0.000r254
0.510000
0?38100
0.700000
0.703000
1.000000
0.700000
1.000000
1.030000
0.110000
0.047030
0.402300
t1000223
0.047600
0.031700
0.0113000
0.01BIn0
0.010000
0.016000
0.016000
ozoao
0.018{00
0.000100
1
1
2
7
2
2
1
3
1
4
5
6
e
EXHIBIT "B"
ASSUMPTION OF AGREEMENT
Brazoria County Municipal Utility District No. 35, a conservation and reclamation
district created under the authority of Article XVI, Section 59 of the Texas Constitution by
the Texas Commission on Environmental Quality 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 November 24, 2003, 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. 35
c/ o Allen Boone Humphries LLP
3200 Southwest Freeway
Suite 2700
Houston, Texas 77027
Attn: Lynne B. Humphries
EXECUTED AND DELIVERED ON
BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 35
By:
President, Board of Directors
ATTEST:
By:
Secretary, Board of Directors
(SEAL)
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12969
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; Brazoria County, Texas, Harris County, Texas or Fort Bend
County, Texas (as appropriate); the TCEQ; the Attorney General of Texas; the Comptroller
of Public Accounts of Texas; the United States Department of Justice; and all other federal,
state, and local governmental authorities having regulatory jurisdiction and authority over
the financing of the Facilities, the construction of the Facilities, or the subject matter of this
Agreement.
"Bonds" means the District's bonds, notes, or other evidences of indebtedness issued
from time to time for the purpose of purchasing, constructing, acquiring, operating,
repairing, improving, or extending the Facilities, payment of Connection Charges, and for
such other purposes permitted or provided by state law, whether payable from ad valorem
taxes, the proceeds of one or more future bond issues, or otherwise, and including any
bonds, notes, or similar obligations issued to refund such bonds.
"City" means the City of Pearland, Texas, a municipal corporation and home -rule
city of the State of Texas.
"City Manager" means the City Manager of the City or the City Manager's designee.
"Connection Charge" means the amount to be paid to the City for water and
wastewater capacity for each improvement within the District at the time of connection of
the improvement to the Facilities, as defined in Section 5.04.
"Consent Ordinance" means the ordinance or resolution to be adopted by the City
evidencing the City's consent to the inclusion of land within the District in accordance with
Texas Local Government Code Section 42.042 and Texas Water Code Section 54.016, each as
amended.
"Construction Costs" means costs associated with any particular construction
project under the terms of this Agreement, including, but not limited to, costs of
Execution Copy Utility Agreement_WCF Development X, L[1].P. -2-
-5633100
construction, acquisition, and installation; engineering fees and expenses; costs of
advertising; costs of acquiring necessary licenses, permits, waste control orders, discharge
permits or amendments thereto; fiscal, legal, and administrative costs; material -testing
costs; site, easement, and permit costs; and all other costs and expenses directly relating to
the foregoing, together with an amount for contingencies or estimated Construction Costs
of not more than fifteen percent (15%) of the foregoing, provided that no contingency
amount shall be included in "Construction Costs" regarding a particular construction
project once that project is complete.
"Developer" means WCF DEVELOPMENT X, L.P., a Texas limited partnership.
"District" means Brazoria County Municipal Utility District No. 35, 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 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 Dannenbaum Engineering Corporation or such other
engineering firm as the District may engage from time to time.
"District Obligations" means (i) all outstanding Bonds of the District, (ii) all other
debts, liabilities, and obligations of the District to or for the benefit of any persons or
entities relating to the financing, construction, or operation of all or any portion of the
Facilities or the operations of the District, and (iii) all functions performed and services
rendered by the District for and to the owners of property within the District and the
customers of the services provided from the Facilities.
"Financing and Reimbursement Agreement" means the District's agreement, if any,
as defined in Section 3.04.
"Facilities" means and includes the water distribution, wastewater collection, and
drainage systems constructed or acquired or to be constructed or acquired by the District to
serve lands within and near its boundaries, and all improvements, appurtenances,
additions, extensions, enlargements, or betterments thereto, including any pro rata interest
Execution Copy Utility Agreement_WCF Development X, L[1].P. -3-
-5633100
or share in such facilities, together with all contract rights, permits, licenses, properties,
rights -of -way, easements, sites, and other interests related thereto.
"Monthly Revenue Payments" means the monthly payments to be made by the City
to the District, as defined in Section 6.04 hereof.
"Oversized Facilities" means water, sewer, and/ or drainage facilities sized to serve
areas outside the District or constructed to serve areas outside the District, as defined in
Section 2.04.
"Payment Date" means the date each year when the Annual Payments are due, as
defined in Section 6.02.
"TCEQ" means the Texas Commission on Environmental Quality, or any successor
or successors exercising any of its duties and functions related to water conservation and
reclamation districts.
ARTICLE II
DESIGN AND CONSTRUCTION OF THE FACILITIES
2.01. Design. The Facilities shall be designed by the District Engineer in
accordance with sound engineering principles and in compliance with all applicable
requirements of the Approving Bodies. The plans and specifications for the Facilities shall
be subject to review and approval by the City, the District, and the Approving Bodies with
jurisdiction (the "Approved Plans"). The District shall not make any changes to the
Approved Plans without the approval of the City. The City shall not require that the
Facilities be designed to requirements more stringent than the City's requirements
applicable to the design of similar facilities outside the District but within the City's
jurisdiction. The District shall design the Facilities in such phases or stages as the District
and/ or Developer from time to time, in their sole discretion, may determine to be
necessary and economically feasible.
2.02. Construction. When the District or the Developer determines, in their sole
discretion, that it is necessary and economically feasible to construct the Facilities, the
District or the Developer shall proceed to award a construction contract for the Facilities
based upon the Approved Plans. The Facilities shall be installed, construction contracts
shall be awarded, and payment and performance bonds obtained all in accordance with the
general law for municipal utility districts and in full compliance with the applicable
requirements of the Approving Bodies. In addition to any other construction contract
provisions, any construction contract for the Facilities shall include the contractor's two (2)
year warranty of work performed under the contract. The District or Developer (whoever
is the owner of the contract) shall submit all change orders to the City for its records. The
Execution Copy Utility Agreement_WCF Development X, L[1].P. -4-
-5633100
District or Developer (whoever is the owner of the contract) shall file all required
documents with the TCEQ.
2.03. Acceptance of Facilities. Upon completion of the Facilities, the District or
Developer (whoever is the owner of the contract) shall order the District's Engineer to
certify that the Facilities have been completed in substantial compliance with the Approved
Plans; the District or Developer (whoever is the owner of the contract) shall certify that all
bills and sums of money due in connection with the construction and installation of the
Facilities have been fully paid and that the Facilities are free of any and all liens and claims,
all according to the certification of the construction contractor. The District or Developer
(whoever is the owner of the contract) shall require the District's Engineer to provide three
(3) copies of construction drawings of the Facilities to the District. The District or the
Developer (whoever is the owner of the contract) shall accept the construction of the
Facilities in writing from the construction contractor. The District or Developer (whoever
is the owner of the contract) shall then convey the Facilities to the City in accordance with
the City's procedure for acceptance of such facilities in areas outside the District and within
the City and the provisions of Article IV below.
2.04. Oversized Facilities. In conjunction with the design and construction of the
Facilities, as described in this Article II, the City may determine from time to time that
certain Facilities should be sized to serve areas outside the District, as well as areas within
the District, or the City and the District may determine that the District should construct
certain water, sewer, and/ or drainage facilities outside the District to serve areas outside
the District (in either case, facilities sized or constructed to serve areas outside the District
shall be referred to in this Agreement as the "Oversized Facilities"). Subject to the terms
and conditions of this Section 2.04, the District hereby agrees that, in conjunction with the
design and construction of the Facilities as set out in this Agreement, the District shall
cooperate with the City to include the Oversized Facilities as required by the City. The
City, in turn, hereby agrees that as between the District and the City, the City shall fund its
share of the Construction Costs of the Oversized Facilities. In order to carry out the design
and construction of Oversized Facilities, the City and the District agree to enter a
Development Agreement for the oversizing of such facilities. 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 TCEQ rules and
regulations so that Project Construction Costs will be shared by the City and the District on
the basis of benefits received, which are generally the design capacities in the Project for the
City and the District respectively.
Execution Copy Utility Agreement_WCF Development X, L[1].P. -5-
-5633100
ARTICLE III
FINANCING OF THE FACILITIES
3.01. Authority of District to Issue Bonds. The District shall have authority to
issue, sell, and deliver Bonds from time to time, as deemed necessary and appropriate by
the Board of Directors of the District, for the purposes, in such forms and manner, and as
permitted or provided by federal law, the general laws of the State of Texas, and the
Consent Ordinance. The District shall not be authorized to sell Bonds until it has provided
the City with an executed copy of the TCEQ order approving each bond issue in which. the
TCEQ concludes that a District debt service tax rate of $1.50 or less per $100 of assessed
valuation is feasible in accordance with the TCEQ's rules in effect at the time of such
determination. The District's obligation to provide a copy of the TCEQ order including
such conclusion shall not be construed as a limitation on the District's authority to levy an
unlimited tax rate, it being understood and acknowledged that the District's bonds shall be
payable from and secured by a pledge of the proceeds of an ad valorem tax, without legal
limitation as to rate or amount. The District shall provide the City with copies of the
Official Statement and the District's resolution authorizing the issuance of the Bonds for
each issue prior to the delivery of the Bonds to the initial purchaser.
3.02. Distribution of Bond Proceeds. The proceeds of Bonds issued by the District
shall be used and may be invested or reinvested, from time to time, as provided in the
order or orders of the District authorizing the issuance, sale, and delivery of such Bonds
and in accordance with the federal, state, and local laws and regulations governing the
proceeds of the District's sale of its Bonds.
3.03. Bonds as Obligation of District. Unless and until the City shall dissolve the
District and assume the District Assets and District Obligations, the Bonds of the District, as
to both principal and interest, shall be and remain obligations solely of the District and
shall never be deemed or construed to be obligations or indebtedness of the City; provided,
however, that nothing herein shall limit or restrict the District's ability to pledge or assign
all or any portion of the Annual Payments or Monthly Revenue Payments, to be made by
the City to the District as provided in this Agreement, to the payment of the principal of,
the redemption premium, if any, or interest on the Bonds or other contractual obligations
of the District relating to the financing, acquisition, or use of the Facilities.
3.04. Financing by Third Parties. From time to time, the District may enter into one
or more agreements (the "Financing and Reimbursement Agreement") with the Developer
or other landowners of property located within the District whereby the Developer or such
landowners will construct the Facilities on behalf of the District or advance funds to or on
behalf of the District for the acquisition and construction of the Facilities. The construction
of any Facilities financed under the terms of a Financing and Reimbursement Agreement
shall be subject to all the terms and conditions of this Agreement. Each Financing and
Execution Copy Utility Agreement_WCF Development X, LI11.P. -6-
-5633100
Reimbursement Agreement will provide for the District's reimbursement of the person or
entity advancing funds for the Facilities (i) from the proceeds of the District's sale of its
Bonds, subject to all the terms and conditions of such Financing and Reimbursement
Agreement, including, among other conditions, the approval of the TCEQ of the sale of the
Bonds and the use of sale proceeds for such purpose; (ii) from District funds lawfully
available for such purpose.
ARTICLE IV
OWNERSHIP, OPERATION, AND MAINTENANCE OF FACILITIES
4.01. Conveyance of Facilities. As the Facilities are constructed and accepted in
accordance with Article II and the Facilities are conveyed to the City, a security interest
shall be reserved for the purpose of securing the performance of the City under this
Agreement. At such time as the Bonds issued to acquire and construct the Facilities have
been discharged, the District shall execute a release of such security interest, and the City
shall own the Facilities free and clear of such security interest. When the Facilities are
conveyed to the City under this Article IV, the construction contractor's two (2) year
warranty of its work shall be assigned to the City, as required under Section 2.02 above.
4.02. City Acceptance. As the Facilities are constructed and completed,
representatives of the City shall inspect the same and, if the City finds that the Facilities
have been completed in substantial compliance with the approved plans and specifications,
the City will accept the conveyance of the Facilities, 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 in
what manner the Facilities do not comply so that the problems may immediately be
corrected; 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 City shall be provided with one (1) set of the construction drawings for such
Facilities.
4.03. Operation of the Facilities by the City. Upon the acceptance of the Facilities
by the City, 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.
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(a) The City shall provide competent, trained personnel, licensed or certified as
necessary by the appropriate regulatory authority, to operate, inspect, maintain, and repair
the Facilities. The City shall inventory and maintain a listing of all of the equipment
comprising the Facilities as required to provide relevant information for the scheduled
maintenance and repair or replacement of the equipment comprising the Facilities. The
City shall implement a scheduled maintenance program for the Facilities and shall ensure
that the Facilities are maintained in the same fashion and with the same frequency as
similar facilities owned and operated by the City to serve areas outside the District.
(b) The City shall maintain all customer information and records necessary to
provide monthly billings to customers served by the Facilities. The City shall coordinate
with the District's consultants, such as attorneys, engineers, auditors, tax assessors, and
financial advisors as necessary to maintain efficient operation of the Facilities. The City
shall respond to inquiries or correspondence from governmental or regulatory authorities
and the District's directors, customers, or consultants.
(c) The City shall provide a monthly written report to the District indicating the
total number of service connections within the District. If requested by the District, the
City may provide a City representative to attend a District meeting to discuss any
operating and maintenance information regarding the Facilities.
4.04. Rates and Conditions of Service. The connection of improvements to the
Facilities shall be made by the City, in the same manner, by the same procedures, and for
the same charges as the City makes other water and wastewater connections. Water and
wastewater customers within the District shall pay rates and charges for such services to
the City, on the same basis and conditions as the City provides such services to similar City
customers who do not receive services from the Facilities; provided, however, in addition
to the rates and charges imposed by the City on its water and wastewater customers
outside the District, the City shall impose on and collect from each customer of the
Facilities within the District a monthly surcharge of five dollars ($5.00) per equivalent
single family residential connection. The equivalent number of single family residences
attributable to any particular connection shall be computed in accordance with the service
unit factors set forth in Exhibit "A" as such factors may be amended from time to time by
the City in its sole discretion, provided that the City shall always apply the same service
unit factors within the District as it applies to other areas within the City. The City shall
bill and collect charges from the customers of the Facilities, calculated in accordance with
this Section 4.04, in the same manner and under the same procedures as it bills and collects
from other customers of the City that are not served by the Facilities.
4.05. Repair of the Facilities. After its acceptance of the Facilities, the City shall
provide all personnel and equipment necessary to perform repairs on, and shall bear sole
cost responsibility for repair of, the Facilities, including, but not limited to, service line
leaks, leaks at water meters, water main breaks, repairs to valves and fire hydrants,
manhole repairs, and sewer line repair and cleaning, as needed. The City shall not,
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however, bear cost or responsibility for initial repair of any equipment or facilities
identified by the City as in need of correction prior to the City's acceptance of the Facilities
under Section 4.02 above. The cost of all materials and supplies used to operate, maintain,
and repair the Facilities shall be borne solely by the City.
ARTICLE V
CITY PLANT CAPACITY AND FINANCING
5.01. Water Supply and Distribution Facilities. The City shall provide the District
with its ultimate requirements for water supply and distribution capacities. The 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 City Manager. 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 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
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necessary to have capacity available to serve new improvements within the District. To
enable the City to effectively manage its wastewater system capacities in compliance with
the City's obligation under this Section 5.02, the District shall provide the City no less than
annually a written projection of the new improvements within the District expected to be
connected to the Facilities within the coming year, and such other related information as
the City may reasonably require.
5.03. Letter of Capacity Assurance; Assignability. The City agrees that the City
Manager shall, upon reasonable request from the District, issue a letter of assurance to the
owner of platted property within the District confirming water and wastewater utility
availability for such platted property, based upon the standard City criteria published by
the City regarding the calculation of water and wastewater requirements for various types
of improvements.
5.04 Financing City Water and Wastewater Capacities. In consideration of the
City's provision of water supply and distribution capacity and wastewater collection and
treatment capacity, the District agrees to pay to the City the then effective impact or capital
recovery fee per equivalent single-family residential connection to the Facilities (the
"Connection Charge"). Equivalent single-family residential connections shall be computed
in accordance with the service unit factors as set forth in Exhibit "A," as such factors may
be amended from time to time by the City in its sole discretion, provided that the City shall
always apply the same service unit factors within the District as it applies to other areas
within the City. The Connection Charge shall be paid to the City by or on behalf of the
District before the connection of each particular improvement to the Facilities at the same
time and manner as such fees are paid for improvements in other areas of the City outside
the District. The City shall not allow connection of any improvement to the Facilities for
which the appropriate Connection Charge has not been paid. The City may amend the
Connection Charge from time to time in accordance with the requirements of state :law;
provided, however, the Connection Charge shall be the same as the connection charge
required outside the District and within the City limits. The District acknowledges and
agrees that, besides the Connection Charge, any new connection to the Facilities will be
subject to the fees, charges, and costs routinely collected by the City in regards to any new
connection to the City's utilities whether inside or outside the District.
ARTICLE VI
ANNUAL PAYMENTS, MONTHLY REVENUE PAYMENTS, AND DISTRICT TAXES
6.01. Calculation of Annual Payment.
(a) In consideration of the development of the land within the District and the
related increase in the taxable value of such land to the City through the acquisition of and
construction of the Facilities by the District and in order to enhance the economic feasibility
of the District and more equitably distribute among the taxpayers of the City and the
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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"). 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.
(b) The initial Annual Payment shall be at a rate of $0.15 per $100 of assessed
valuation.
(c) The Annual Payment shall be incrementally reduced upon the occurrence of
the following:
(i) The Developer and all developers within the District have been fully
reimbursed, with interest, in accordance with the rules of the TC:EQ;
(ii) The District has completely financed and constructed 100% of its
Facilities; and
(iii) The District levies a debt service tax at a rate that is less than $0.80 per
$100 of assessed valuation.
(d) Once all the conditions of subsection (c) have been met, the Annual Payment
shall be reduced by an amount equal to the decrease in the District debt service tax rate.
For example, if the Board of Directors of the District sets a debt service tax rate of $0.79 per
$100 of assessed valuation (a decrease of $0.01), the Annual Payment will be reduced by
$0.01 to $0.14 per $100 of assessed valuation. The Annual Payment will be recalculated
annually, and will continue to be reduced to the extent that the District debt service tax rate
is decreased. For example, if the Board of Directors of the District sets a debt service tax
rate of $0.70 per $100 of assessed valuation (an aggregate decrease of $0.10), the Annual
Payment would be $0.05 per $100 of assessed valuation. Once the Annual Payment is
reduced, it shall not thereafter be increased, and any increase in the District debt service tax
rate does not affect the calculation of the Annual Payment.
(e) If the District debt service tax rate decreases to the rate of $0.65 per $100 of
assessed valuation, the City is thereafter relieved of any obligation to make Annual
Payments pursuant to this Agreement. Any subsequent increase in the District debt service
tax rate does not obligate the City to again make Annual Payments.
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
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roll from the appropriate county Appraisal District and shall be payable each May 1
thereafter (the 'Payment Date"), with each such Annual Payment being applicable to the
calendar year preceding the calendar year of each such May 1 (e.g., if the District receives a
tax roll for the calendar year 1998, the Annual Payment for such year will be due May 1,
1999). Each Annual Payment that is not paid on or before the Payment Date shall be
delinquent and shall incur interest at the rate of one percent (1 %) of the amount of the
Annual Payment per month, for each month or portion thereof during which the Annual
Payment remains unpaid. On September 1 of each calendar year, the City shall cause to be
paid to the District those portions of the Annual Payment which reflect collections made by
the City subsequent to the Payment Date. The obligation of the City to make Annual
Payments to the District shall terminate upon the termination of this Agreement in
accordance with Section 9.14 below.
6.03. Supplemental Tax Rolls; Correction Tax Rolls; Adjustment to Annual
Payment. The parties recognize and acknowledge that, from time to time, the County
Appraisal District may submit to the District one or more supplemental tax rolls and/ or
correction tax rolls and that each such supplemental tax roll and/or correction tax roll may
affect the total value of taxable properties within the District for a particular year and
therefore the Annual Payment due and payable by the City for such year. The District
agrees that promptly upon receiving a supplemental tax roll and/ or correction tax roll., the
District shall deliver such supplemental tax roll and/ or correction tax roll to the City.
Promptly upon receiving a supplemental tax roll and/ or collection tax roll from. the
District, the City shall recalculate the amount of the Annual Payment pertaining thereto
and shall notify the District of the amount of such recalculated Annual Payment. Within
forty-five (45) days from the date on which the District receives notice of a recalculated
Annual Payment, the City shall pay to the District the amount, if any, by which the
recalculated Annual Payment exceeds the amount of the Annual Payment previously paid
by the City to the District for the year in question, or the District shall pay to the City the
amount, if any, by which the recalculated Annual Payment is less than the amount of the
Annual Payment previously paid; 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 "A," attached to this Agreement and incorporated for all
purposes, as such factors may be amended from time to time by the City in its sole
discretion, provided that the City shall always apply the same service unit factors within
the District as it applies to other areas within the City. The Monthly Revenue Payment
shall be paid by the City to the District within thirty (30) days of the last day of the month
for which the Monthly Revenue Payment applies (the "Due Date"). Each Monthly Revenue
Payment that is not paid on or before the Due Date shall be delinquent. If the City fails or
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refuses to pay a delinquent Monthly Revenue Payment for a period in excess of sixty (60)
days from the receipt of written notice from the District regarding same, then each Monthly
Revenue Payment included in such notice shall incur interest at the rate of one per cent
(1 %) of the amount of the Monthly Revenue Payment per month, for each month or portion
thereof during which a Monthly Revenue Payment remains unpaid upon expiration of
such sixty (60) day period. The obligation of the City to make Monthly Revenue Payments
shall terminate upon the termination of this Agreement in accordance with Section 9.14
hereof. The City and the District acknowledge and agree that the District is dependent
upon the Monthly Revenue Payments in order that development within the District may be
competitive with development in surrounding areas.
6.05. Access to Records for Verifying Calculation of Annual and Monthly Revenue
Payments. The City shall maintain proper books, records, and accounts; shall provide the
District with an accounting 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.
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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 Obligations upon a vote of not less than two-thirds (2/3) of the entire
membership of the City Council to adopt an ordinance to such effect, if the City Council
finds: (a) that the District is no longer needed, (b) that the services and functions
performed by the District can be served and performed by the City, and (c) that it would be
in the best interests of the citizens and property within the District and the City that the
District be abolished. In order to ensure that the property owners and inhabitants of the
City and the District are afforded sufficient time and opportunity to realize the benefits and
public utility to be derived from the creation and operation of the District and the
financing, construction and implementation of the plan of improvements for the District,
and in order to contribute to the financial stability and feasibility of the District by ensuring
a sufficient longevity of the District's existence to permit the District to reach a satisfactory
level of financial maturity, the City agrees that the District shall not be abolished until such
time as the District is fully developed and has sold all Bonds necessary to finance the costs
of the Facilities and has reimbursed developer and landowners within the District in
accordance with the Financing and Reimbursement Agreements previously entered into by
the District.
7.02. Transition upon Dissolution. In the event all required findings and
procedures for the dissolution of the District have been duly, properly, and finally made
and satisfied by the City, and unless otherwise mutually agreed by the City and the District
pursuant to then existing law, the District agrees that its officers, agents, and
representatives shall be directed to cooperate with the City in any and all respects
reasonably necessary to facilitate the dissolution of the District and the transfer of the
District Assets to and the assumption of the District Obligations by the City.
ARTICLE VIII
REMEDIES IN EVENT OF DEFAULT
The parties hereto expressly recognize and acknowledge that a breach of this
Agreement by either party may cause damage to the non -breaching party for which there
will not be an adequate remedy at law. Accordingly, in addition to all the rights and
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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 and effect within its boundaries the same as to other areas within the City's corporate
limits.
9.02. Force Majeure. In the event either party is rendered unable, wholly or in part,
by force majeure to carry out any of its obligations under this Agreement, except the
obligation to pay amounts owed or required to be paid pursuant to the terms of this
Agreement, then the obligations of such party, to the extent affected by such force majeure
and to the extent that due diligence is being used to resume performance at the earliest
practicable time, shall be suspended during the continuance of any inability so caused to
the extent provided but for no longer period. As soon as reasonably possible after the
occurrence of the force majeure relied upon, the party whose contractual obligations are
affected thereby shall give notice and full particulars of such force majeure to the other
party. Such cause, as far as possible, shall be remedied with all reasonable diligence. The
term "force majeure," as used herein, shall include without limitation of the generality
thereof, acts of God, strikes, lockouts, or other industrial disturbances, acts of the public
enemy, orders of any kind of the government of the United States or the State of Texas or
any civil or military authority, insurrections, riots, epidemics, landslides, lightning,
earthquakes, fires, hurricanes, storms, floods, washouts, drought, arrests, restraint of
government, civil disturbances, explosions, breakage or accidents to machinery, pipelines
or canals, partial or entire failure of water supply resulting in an inability to provide water
necessary for operation of the water and wastewater systems hereunder, and any other
inabilities of any party, whether similar to those enumerated or otherwise, which are 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 shallbe
given in writing, addressed to the party to be notified as set forth below, and may be given
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either by depositing the notice in the United States mail postage prepaid, registered or
certified mail, with return receipt requested; by messenger delivery; or by telefacsimile.
Notice deposited by mail shall be effective three (3) days after posting. Notice given in any
other manner shall be effective upon receipt by the party to be notified. For purposes of
notice, the addresses of the parties shall be as follows:
If to the City, to:
City of Pearland
Attn: City Manager
3519 Liberty Dr.
Pearland, Texas 77581
Telefacsimile No. 281-485-7992
If to the District, to:
Brazoria County Municipal Utility District No. 35
c/ o Allen Boone Humphries LLP
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
Attn: Lynne B. Humphries
Telefacsimile No. 713-860-6606
If to the Developer, to:
WCF Development X, L.P.
Attn: Wayne C. Fox
1177 West Loop South, Suite 1670
Houston, Texas 77027-9086
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 be assignable by the Developer;
provided, however, that it is assigned to another developer within the District.
Furthermore, 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 "B," 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
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to the District or to another developer within the District, this Agreement shall not be
assignable by either party.
9.06. No Additional Waiver Implied. The failure of either party to insist upon
performance of any provision of this Agreement shall not be construed as a waiver of the
future performance of such provision by the other party.
9.07. Reservation of Rights. All rights, powers, privileges and authority of the
parties hereto not restricted or affected by the express terms and provisions hereof are
reserved by the parties and, from time to time, may be exercised and enforced by the
parties.
9.08. Parties in Interest. This Agreement shall be for the sole and exclusive benefit
of the parties hereto and shall not be construed to confer any rights upon any third parties.
9.09. Merger. This Agreement embodies the entire understanding between the
parties and there are no representations, warranties, or agreements between the parties
covering the subject matter of this Agreement other than the Consent Ordinance between
the City and the District. If any provisions of the Consent Ordinance appear to be
inconsistent or in conflict with the provisions of this Agreement, then the provisions
contained in this Agreement shall be interpreted in a way which is consistent with the
Consent Ordinance.
9.10. Modification; Exhibit. This Agreement shall be subject to change or
modification only with the mutual written consent of the City and the District. The exhibit
attached to this Agreement is incorporated by this reference for all purposes.
9.11. Captions. The captions of each section of this Agreement are inserted solely
for convenience and shall never be given effect in construing the duties, obligations or
liabilities of the parties hereto or any provisions hereof, or in ascertaining the intent of
either party, with respect to the provisions hereof.
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
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from the date hereof. Further, this Agreement shall automatically terminate in the event
that the TCEQ does not adopt an order creating the District on or before July 31, 2004.
[EXECUTION PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
multiple copies, each of equal dignity, as of the date first given above.
THE CITY OF PEARLAND, TEXAS
By:
ATTEST: City Manager
By
City Secretary
(SEAL)
APPROVED AS TO FORM:
By:
City Attorney
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WCF DEVELOPMENT X, L.P.,
a Texas limited partnership, by its general partner
By: WCF Development, L.L.C.
a Texas corporation, its general partner
By:
Wayne C. Fox, Manager
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EXHIBIT "B"
ASSUMPTION OF AGREEMENT
Brazoria County Municipal Utility District No. 35, a conservation and reclamation
district created under the authority of Article XVI, Section 59 of the Texas Constitution by
the Texas Commission on Environmental Quality 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 , 2003, 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. 35
c/o Allen Boone Humphries LLP
3200 Southwest Freeway
Suite 2700
Houston, Texas 77027
Attn: Lynne B. Humphries
EXECUTED AND DELIVERED ON
BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 35
By:
President, Board of Directors
ATTEST:
By:
Secretary, Board of Directors
(SEAL)
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