Ord. 1004 02-26-01ORDINANCE NO. 1004
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, GRANTING THE CONSENT OF THE CITY OF PEARLAND,
TEXAS, TO THE CREATION OF UP TO SIX MUNICIPAL UTILITY
DISTRICTS WITHIN THE CITY'S CORPORATE BOUNDARIES; CONTAIN-
ING ASAVINGS CLAUSE, ASEVERABILITY CLAUSE ANDA REPEALER
CLAUSE.
WHEREAS, the City of Pearland, Texas, received Petitions for Consent to the
Creation of up to six Municipal Utility Districts for 3177.711 acres located in the City's
corporate boundaries, a copy of which petition is attached hereto and incorporated
herein as Attachment "1"; and
WHEREAS, the names of the proposed Districts shall be Brazoria County,
Fort Bend County, or Brazoria-Fort Bend County Municipal Utility District No. _ (as the
case may be) and will be numbered in sequence starting with the next available
number as assigned by the Brazoria or Fort Bend County Clerk (the "Districts"); and
WHEREAS, Section 54.016 of the Texas Water Code provides that land within
a city's corporate boundaries may not be included within a district without the city's
written consent; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City Council of the City of Pearland, Texas, gives its written
consent to the creation of up to six Municipal Utility Districts on 3177.711 acres of
land, as described in the attached petition and the consent conditions attached
thereto.
Section 2. That the City Council authorizes and directs the City Manager to
execute the Utility Agreement (as defined in the consent conditions attached to the
1
ORDINANCE NO. 1004
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, GRANTING THE CONSENT OF THE CITY OF PEARLAND,
TEXAS, TO THE CREATION OF UP TO SIX MUNICIPAL UTILITY
DISTRICTS WITHIN THE CITY'S CORPORATE BOUNDARIES; CONTAIN-
ING A SAVINGS CLAUSE, A SEVERABILITY CLAUSE AND A REPEALER
CLAUSE.
WHEREAS, the City of Pearland, Texas, received Petitions for Consent to the
Creation of up to six Municipal Utility Districts for 3177.711 acres located in the City's
corporate boundaries, a copy of which petition is attached hereto and incorporated
herein as Attachment "1"; and
WHEREAS, the names of the proposed Districts shall be Brazoria County,
Fort Bend County, or Brazoria-Fort Bend County Municipal Utility District No. (as the
case may be) and will be numbered in sequence starting with the next available
number as assigned by the Brazoria or Fort Bend County Clerk (the "Districts"); and
WHEREAS, Section 54.016 of the Texas Water Code provides that land within
a city's corporate boundaries may not be included within a district without the city's
written consent; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City Council of the City of Pearland, Texas, gives its written
consent to the creation of up to six Municipal Utility Districts on 3177.711 acres of
land, as described in the attached petition and the consent conditions attached
thereto.
Section 2. That the City Council authorizes and directs the City Manager to
execute the Utility Agreement (as defined in the consent conditions attached to the
1
ORDINANCE NO. 1004
petition attached hereto) on behalf of and as the duly authorized act of the City of
Pearland, Texas.
Section 3. Savings. All rights and remedies which have accrued in favor of
the City under this Chapter and amendments thereto shall be and are preserved for
the benefit of the City.
Section 4. Severability. If any section, subsection, sentence, clause, phrase
or portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise
unenforceable by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent provision and such holding shall not affect the
validity of the remaining portions thereof.
Section 5. Repealer. All ordinances and parts of ordinances in conflict
herewith are hereby repealed, but only to the extent of such conflict.
PASSED and APPROVED on First Reading this the 12 day of
February , A.D., 2001.
ATTEST:
2
TOM REID
MAYOR
ORDINANCE NO. 1004
PASSED and APPROVED on Second and Final Reading this the 26
day of February , A. D., 2001.
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
3
TOM REID
MAYOR
PETITION FOR CONSENT TO THE CREATION
OF MUNICIPAL UTILITY DISTRICTS
TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
The undersigned (herein the "Petitioner"), acting pursuant to the provisions of Chapters 49 and
54, Texas Water Code, respectfully petitions the City Council of the City of Pearland, Texas, for its
written consent to the creation of up to six municipal utility districts and would show the following:
I.
The names of the proposed Districts shall be BRAZORIA COUNTY, FORT BEND COUNTY,
OR BRAZORIA-FORT BEND COUNTY MUNICIPAL UTILITY DISTRICT NO. (as the case may
be) and will be numbered in sequence starting with the next available number as assigned by the
Brazoria or Fort Bend County Clerk (the "Districts").
Il.
The Districts 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 Districts shall be comprised of future designated areas within the 3177.711 acres of land,
more or less, situated in Brazoria and Fort Bend Counties, Texas (the "Land"). All of the Land also 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 Districts. The Land is more particularly described by metes
and bounds in Exhibit "A", which is attached hereto and incorporated herein for all purposes.
IV.
Petitioner, Pearland Investments, L.P., a Nevada limited partnership, owns a majority in value
of the Land which is proposed to be included in the Districts, as indicated by the tax rolls of Brazoria and
Fort Bend Counties, Texas.
V.
Pearland Investments represents that there are no residents living anywhere on the Land.
VI.
The general nature of the work to be done by the Districts at the present time is the design,
construction, acquisition, maintenance and operation of a waterworks and sanitary sewer system for
residential and commercial purposes, and the construction, acquisition, improvement, extension,
maintenance and operation of works, improvements, facilities, plants, equipment and appliances helpful
or necessary to provide more adequate drainage for the Districts, and to control, abate and amend local
storm waters or other harmful excesses of waters, and such other construction, acquisition,
.ODMA\MHODMA\Houston;388617; I
improvement, maintenance and operation of such additional facilities, systems, plants and enterprises
as shall be consonant with all of the purposes for which the Districts are created.
VII.
There is, for the following reasons, a necessity for the above -described work. The area
proposed to be within the Districts 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 and Fort
Bend Counties, 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 Districts, 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.
Pearland Investments, L.P., also owns more than fifty percent (50%) of the appraised value of
taxable real property liable for assessment of the CITY OF PEARLAND PUBLIC IMPROVEMENT
DISTRICT NO. ONE (SHADOW CREEK RANCH) (the "Public Improvement District"), as determined
by the current rolls of the Brazoria and Fort Bend Counties, Texas, and are the record owners of real
property liable for assessment by the Public Improvement District who own taxable real property that
constitutes more than fifty percent (50%) of the area of all taxable real property that is liable for
assessment by the Public Improvement District. As such owner meeting the requirements of
Chapter 372.005(b) of the Local Government Code, Petitioner further petitions and requests the City
Council of Pearland, Texas to hold a public hearing, in the same manner as a hearing held under
Section 372.009 of the Local Government Code, to dissolve the Public Improvement District.
IX.
Petitioner, by submission of this Petition, requests the City's consent to the creation of up to six
Districts comprised of the Land under the same conditions set forth in Exhibit "B", which is attached
hereto and incorporated herein for all purposes.
WHEREFORE, Petitioner prays that this petition be heard and that the City Council of the City
of Pearland, Texas, duly pass and approve an ordinance or resolution granting the consent to the
creation of the Districts and authorizing the inclusion of the land described herein within the Districts.
ODMAMHODMA\Houston;388617;1
-2-
RESPECTFULLY SUBMITTED this day of u.jij� , 2001.
PETITIONER ((��
PEARLAND INVESTMENTS, L.P., a Nevada
limited partnership, by its general partner
MMLB CORP.
By: ey.4 - fr 1
M. M. Collins, President
THE STATE OF NEVADA
COUNTY OF CLARK
This instrument was acknowledged before me on the .� /6O'k- • day of
2001, by M. M. Collins, President of MMLB CORP., general partner of Pearlandvestments, C.,
Nevada limited partnership, on behalf of said limited partnership.
(SEAL)
ODMA\MHODMA\Houston .388617. I
Notary Public, State of Texae
Notary Public -State Of Nevada
County Of Clark I
MARIE ELAINE ROCK I
i a ,» My Appointment Expires
I No: 9 -ci 32-1 July 23, 2001 __
•
-3-
EXHIBIT "A"
December 5, 2000
Job No. 1545-0011-001
DESCRIPTION OF
3177.711 ACRES
SHADOW CREEK RANCH
MUNICIPAL UTILITY DISTRICT BOUNDARIES
Being 3177.711 acres of land, more or less, located in the William Morris Survey, Abstract 344, Brazoria
County; T. C. R. R. Co. Survey, Section 3, Abstract 678, Brazoria County; T.C.R.R.Co. Survey, Section 4 (John
Maxcy), Abstract 675, Brazoria County; Obediah Pitts Survey, Abstract 717, Brazoria County; James Crawley
Survey, Abstract 174, Brazoria County; H.T. & B.R.R. Co. Survey, Section 82 (J.S. Talmage), Abstract 565,
Brazoria County; H.T. & B.R.R. Co. Survey, Section 83, Abstract 305 in Brazoria County and Abstract 761 in Fort
Bend County; S.G. Haynie Survey, Abstract 212 in Brazoria County, and Abstract 620 in Fort Bend County;
Franklin Hooper Survey, Abstract 198, Fort Bend County; George W. McDonald Survey, Abstract 557, Fort Bend
County, I.C. Stafford Survey, Abstract 668, Fort Bend County and the H. Levering Survey, Abstract 279, Fort Bend
County, Texas; said 3177.711 acres, more or less, being more particularly described in two (2) parts as follows (all
bearings referenced to the Texas State Plane Coordinate System, South Central Zone):
PART ONE
BEGINNING at the common south comer of aforementioned H. T. & B. R. R. Co. Survey, Section 82 and
H. T. & B. R. R. Co. Survey, Section 83, also being the common north corner of the H. T. & B. R. R. Co. Survey,
Section 80, Abstract 564 and the H. T. & B. R. R. Co. Survey, Section 84, Abstract 538, Brazoria County, Texas,
same being on the centerline of County Road 48 (60 feet wide);
Thence, with the common line of said H. T. & B. R. R. Co. Survey, Section 83 and said H. T. & B. R. R.
Co. Survey, Section 84, South 86° 44' 14" West, at 5280.10 feet pass the common west corner of said H.T. & B.
R.R. Co. Survey, Section 83 and said H.T. & B. R.R. Co. Survey, Section 84 and continue with the westerly
extension of said common line, in all a distance of 7856.57 feet to a point for corner on the easterly right-of-way line
of F.M. 521 (115 feet wide);
Thence, with said easterly right-of-way line of F.M. 521, North 17° 28' 43" East, 5855.64 feet to a point for
comer;
Thence, continuing with said easterly right-of-way line of F.M. 521, North 17° 27' 05" East, 3642.53 feet to
a point for corner on the centerline of Clear Creek, same being the south corner of that certain called 7.0 acre tract of
land conveyed to Christian Investments of Texas, Inc. by instrument of record under File No. 9548587, Official
Public Records, Fort Bend County, Texas (F.B.C.O.P.R.);
Page 1 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
Thence, with the southeasterly line of said 7.0 acre and said centerline of Clear Creek, North 55° 29' 45"
East, 636.41 feet to a point for corner;
Thence, continuing with said southeasterly line and said centerline, North 57° 37' 24" East, 289.59 feet to a
point for corner;
Thence, leaving said centerline of Clear Creek, with the easterly line of said 7.0 acres, North 07° 11' 18"
East, 256.59 feet to a point for corner on the arc of a curve on the southerly right-of-way line of F.M. 2234 (width
varies), same being the northeast corner of said 7.0 acres;
Thence, with said southerly right-of-way line of F.M. 2234, the following thirty three (33) courses:
1) 700.00 feet along the arc of a non -tangent curve to the right, having a radius of 1829.86 feet,
central angle of 21 ° 55' 06" and a chord that bears South 71 ° 46' 10" East, 695.74 feet to a point for
comer;
2) South 60° 48' 37" East, 1226.72 feet to a point for comer , the beginning of a curve;
3) 2280.50 feet along the arc of a tangent curve to the left, having a radius of 5809.58 feet, a central
angle of 22° 29' 28" and a chord that bears South 72° 03' 21" East, 2265.89 feet to a point for
corner;
4) South 41 ° 12' 23" East, 44.61 feet to a point for comer;
5) South 83° 55' 18" East, 60.23 feet to a point for corner;
6) North 48° 20' 57" East, 40.82 feet to a point for corner, the beginning of a curve;
7) 940.10 feet along the arc of a non -tangent curve to the left, having a radius of 5809.58 feet, a
central angle of 09° 16' 18" and a chord that bears South 89° 07' 31" East, 939.07 feet to a point for
comer;
8) North 86° 14' 20" East, 624.92 feet to a point for corner;
9) South 48° 33' 00" East, 42.27 feet to a point for comer;
Page 2 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
10) North 86° 14' 20" East, 40.00 feet to a point for corner;
11) North 41 ° 27' 00" East, 42.58 feet to a point for corner;
12) North 86° 14' 20" East, 1614.00 feet to a point for corner;
13) South 48° 33' 00" East, 42.27 feet to a point for corner;
14) North 86° 14' 20" East, 40.00 feet to a point for corner;
15) North 41 ° 27' 00" East, 42.58 feet to a point for corner;
16) North 86° 14' 20" East, 434.06 feet to a point for comer, the beginning of a curve;
17) 874.44 feet along the arc of a tangent curve to the left, having a radius of 1989.86 feet, a central
angle of 25° 10' 42" and a chord that bears North 73° 38' 59" East, 867.42 feet to a point for
corner;
18) North 61 ° 03' 38" East, 371.20 feet to a point for comer;
19) South 61 ° 08' 21" East, 35.45 feet to a point for corner;
20) North 61 ° 03' 38" East, 44.35 feet to a point for corner;
21) North 28° 51' 39" East, 56.30 feet to a point for corner;
22) North 61' 03' 38" East, 392.04 feet to a point for corner, the beginning of a curve;
23) 816.66 feet along the arc of a tangent curve to the right, having a radius of 1829.86 feet, a central
angle of 25° 34' 15" and a chord that bears North 73° 50' 46" East, 809.90 feet to a point for
corner;
24) North 86° 37' 53" East, 566.56 feet to a point for corner;
25) South 48° 21' 14" East, 42.42 feet to a point for corner;
Page 3 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
26) North 86° 37' 53" East, 40.00 feet to a point for corner;
27) North 41* 38' 46" East, 42.44 feet to a point for corner;
28) North 86° 37' 53" East, 332.03 feet to a point for corner, the beginning of a curve;
29) 368.73 feet along the arc of a tangent curve to the left, having a radius of 1989.86 feet, a central
angle of 10° 37' 02" and a chord that bears North 81 ° 19' 22" East, 368.20 feet to a point for
corner;
30) North 76° 00' 51" East, 663.75 feet to a point for corner, the beginning of a curve;
31) 354.58 feet along the arc of a tangent curve to the right, having a radius of 1829.86 feet, a central
angle of 11 ° 06' 09" and a chord that bears North 81 ° 33' 56" East, 354.03 feet to a point for
corner;
32) North 87° 07' 01" East, 304.62 feet to a point for corner;
33) South 50° 37' 30" East, 74.35 feet to a point for corner, the westerly right-of-way line of State
Highway 288 (width varies);
Thence, with said westerly right-of-way line of State Highway 288, the following thirteen (13) courses;
1) 333.46 feet along the arc of a non -tangent curve to the left, having a radius of 458.37 feet, a
central angle of 41 ° 40' 57" and a chord that bears South 32° 33' 37" East, 326.16 feet to a point for
corner;
2) South 53° 36' 00" East, 149.40 feet to a point for corner, the beginning of a curve;
3) 1169.07 feet along, the arc of a non -tangent curve to the right, having a radius of 1273.24 feet, a
central angle of 52° 36' 29" and a chord that bears South 27° 03' 41" East, 1128.43 feet to a point
for corner, the beginning of a compound curve;
Page 4 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
4) 741.39 feet along the arc of a tangent curve to the right, having a radius of 11,249.16 feet, a central
angle of 03° 46' 34" and a chord that bears South 01° 07' 51" West, 741.26 feet to a point for
corner;
5) South 03° 01' 08" West, 1035.00 feet to a point for corner;
6) South 36° 20' 24" West, 83.75 feet to a point for corner;
7) South 69° 17' 58" West, 422.12 feet to a point for corner;
8) South 86° 37' 24" West, 199.72 feet to a point for comer;
9) South 03° 22' 34" East, 119.61 feet to a point for corner;
10) North 86° 39' 22" East, 200.20 feet to a point for corner;
11) South 74° 42' 53" East, 378.54 feet to a point for corner;
12) South 35° 30' 19" East, 78.29 feet to a point for corner;
13) South 03° 01' 08" West, 2179.42 feet to a point for comer, same being the southeast comer of that
certain called 202.51 acre tract of land conveyed to Pearland Investments Limited Partnership by
instrument of record under File No. 98-022936., Official Records, Brazoria County, Texas
(B.C.O.R.);
Thence, with the south line of said 202.51 acres, South 86° 45' 40" West, at 2377.46 feet pass the southwest
comer of said 202.51 acres and continue with the westerly extension of said south line, in all a distance of 2396.38
feet to a point for corner on the east line of that certain called 18.155 acre tract of land conveyed to Pearland
Investments Limited Partnership by instrument of record under File Nos. 98-041753 and 98-041754 of said
B.C.O.R.;
Thence, with the east line of said 18.155 acre tract, South 03° 15' 09" East, 700.96 feet to a point for corner,
same being the southeast comer of said 18.155 acre tract, said point also being on the west line of Block 21 of the
Allison -Richey Gulf Coast Home Co's Part of Suburban Gardens, a subdivision of record in Volume 2, Page 99, Plat
Records, Brazoria County, Texas;
Page 5 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
Thence, with the west line of Block 20 and Block 21 of said Allison -Richey Gulf Coast Home Co's Part of
Surburban Gardens, South 03° 14' 22' East, 2167.10 feet to a point for corner on the common line of aforementioned
T.C.R.R. Co. Survey, Section 4 and the H.T. & B.R.R. Co. Survey, Section 81, Abstract 300, Brazoria County,
Texas same being on the centerline of County Road 92 (40 feet wide );
Thence, with centerline of said County Road 92, South 86° 46' 15" West, at 1808.21 feet pass the common
south corner of aforementioned T.C.R.R. Co. Survey, Section 3 and the H.T. & B. R. R. Co. Survey, Section 82,
same being the common north corner of aforementioned H.T. & B. R. R. Co. Survey, Section 81 and the H.T. & B.
R. R. Co. Survey, Section 80, continuing in all a distance of 7093.31 feet to the POINT OF BEGINNING and
containing 2897.312 acres of land;
PART TWO
BEGINNING at the northwest corner of Lot 4, Block 10 of aforementioned Allison -Richey Gulf Coast
Home Co's Part of Surburban Gardens, same being the northeast corner of that certain called 7.0564 acre tract
conveyed to Pearland Investments Limited Partnership by instrument of record under File No. 98-033800 of said
B.C.O.R., same being on the common line of the Dupuy and Roberts Survey, Abstract 726, Brazoria County, Texas
and aforementioned T.C.R.R. Co. Survey, Section 4;
Thence, leaving said common survey line, with the common line of said Lot 4, Block 10 and 7.0564 acres,
South 03° 23' 28" East, 620.02 to a point for corner on the arc of a curve on the northerly right-of-way line of F.M.
2234 (width varies);
Thence, with said northerly right-of-way line of F.M. 2234, the following thirty (30) courses;
1) 122.97 feet along the arc of a non -tangent curve to the left, having a radius of 1989.86 feet, a
central angle of 03° 32' 27" and a chord that bears South 77° 47' 05" West, 122.95 feet to a point
for corner;
2) South 76° 00' 51" West, 663.75 feet to a point for corner, the beginning of a curve;
3) 339.08 feet along the arc of a tangent curve to the right, having a radius of 1829.86 feet, a central
angle of 10° 37' 02" and a chord that bears South 81° 19' 22" West, 338.60 feet to a point for
corner;
4) South 86° 37' 53" West, 331.95 feet to a point for corner;
Page 6 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
5) North 48° 21' 14" West, 42.42 feet to a point for corner;
53" toa pointr;
6) South 86° 37'West, 40.00 feet for corner;
7) South 41 ° 38' 46" West, 42.44 feet to a point for corner;
8) South 86° 37' 53" West, 566.64 feet to a point for corner, the beginning of a curve;
9) 888.07 feet along the arc of a tangent curve to the left, having a radius of 1989.86 feet, a central
angle of 25° 34' 15" and a chord that bears South 73° 50' 46" West, 880.71 feet to a point for
corner;
10) South 61 ° 03' 38" West, 315.38 feet to a point for corner;
11) North 61 ° 08' 21" West, 35.45 feet to a point for corner;
12) South 61 ° 03' 38" West, 44.35 feet to a point for corner;
13) South 28° 51' 39" West, 56.30 feet to a point for corner;
14) South 61 ° 03' 38" West, 447.86 feet to a point for corner, the beginning of a curve;
15) 804.12 feet along the arc of a curve to the right, having a radius of 1829.86 feet, a central angle of
25° 10' 42" and a chord that bears South 73° 38' 59" West, 797.67 feet to a point for corner;
16) South 86° 14' 20" West, 432.88 feet to a point for corner;
17) North 48° 33' 00" West, 42.27 feet to a point for corner;
18) South 86° 14' 20" West, 40.00 feet to a point for corner;
19) South 41 ° 27' 00" West, 42.58 feet to a point for comer;
20) South 86° 14' 20" West, 1614.00 feet to a point for comer;
Page 7 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
21) North 48° 33' 00" West, 42.27 feet to a point for corner;
22) South 86° 14' 20" West, 40.00 feet to a point for corner;
23) South 41 ° 27' 00" West, 42.58 feet to a point for corner;
24) South 86° 14' 20" West, 626.09 feet to a point for corner, the beginning of a curve;
25) 926.69 feet along the arc of a curve to the right, having a radius of 5649.58 feet, a central angle of
09° 23' 53" and a chord that bears North 89° 03' 43" West, 925.65 feet to a point for corner;
26) North 41 ° 34' 23" West, 44.30 feet to a point for corner;
27) North 83° 43' 28" West, 60.25 feet to a point for comer;
28) South 48° 53' 10" West, 40.47 feet to a point for corner, the beginning of a curve;
29) 2201.87 feet along the arc of a non -tangent curve to the right, having a radius of 5649.58 feet, a
central angle of 22° 19' 50" and a chord that bears North 71 ° 58' 32" West, 2187.96 feet to a point
for corner;
30) North 60° 48' 37" West, 129.69 feet to a point for corner on the common line of Fort Bend County
and Brazoria County, same being the southeast comer of that certain called 34.6633 acre tract
conveyed to Witco Corporation by instrument of record under File No. P656769, Official Public
Records of Real Property, Harris County, Texas (H.C.O.P.R.R.P.), same being the southwest
comer of that certain called 99.6852 acre tract of land conveyed to Pearland Investments Limited
Partnership by instruments of record under File No. T649550 of said H.C.O.P.R.R.P.; File No.
1999028625 of said F.B.C.O.P.R. and File No. 99-015973 of said B:C.O.R.;
Thence, with the common line of Fort Bend County and Brazoria County and with the common line of said
34.6633 and 99.6852 acre tracts, North 11 ° 37' 36" East, 409.30 feet to a point for corner, same being the common
comer of Fort Bend County, Harris County and Brazoria County;
Page 8 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
Thence, with the common line of Harris County and Brazoria County, North 64' 06' 05" East, 2430.42 feet
to a point for corner on the west line of Almeda School Road, also being on the centerline of Clear Creek;
Thence, continuing with the common line of Harris County and Brazoria County and with the centerline
meanders of Clear Creek, , the following thirty seven (37) courses;
1) South 68° 13' 05" East, 13.04 feet to a point for corner;
2) South 48° 21' 54" East, 49.15 feet to a point for corner;
3) South 65° 33' 26" East, 140.39 feet to a point for corner;
4) South 63° 15' 24" East, 163.95 feet to a point for corner;
5) South 84° 38' 34" East, 305.44 feet to a point for corner;
6) North 83° 23' 06" East, 213.75 feet to a point for corner;
7) North 55° 56' 12" East, 131.39 feet to a point for corner;
8) North 39° 42' 01" East, 145.04 feet to a point for corner;
9) North 88° 30' 35" East, 150.90 feet to a point for corner;
10) South 86° 48' 29" East, 215.98 feet to a point for comer;
11) South 83° 37' 51" East, 345.52 feet to a point for comer;
12) South 77° 49' 13" East, 135.11 feet to a point for comer;
13) South 83° 11' 37" East, 193.66 feet to a point for comer;
14) South 73° 03' 13" East, 270.25 feet to a point for corner;
15) South 84° 47' 21" East, 64.31 feet to a point for corner;
Page 9 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
16) South 74° 24' 23" East, 50.30 feet to a point for comer;
17) North 61 ° 57' 44" East, 116.91 feet to a point for corner;
18) North 86° 25' 07" East, 192.74 feet to a point for corner;
19) South 80° 08' 58" East, 137.51 feet to a point for comer;
20) South 61 ° 07' 06" East, 179.77 feet to a point for corner;
21) South 73° 54' 54" East, 220.86 feet to a point for corner;
22) South 83° 46' 28" East, 167.44 feet to a point for corner;
23) North 82° 50' 33" East, 205.26 feet to a point for corner;
24) South 84° 14' 08" East, 182.41 feet to a point for corner;
25) South 57° 49' 47" East, 257.92 feet to a point for corner;
26) South 85° 52' 28" East, 230.31 feet to a point for corner;
27) North 85° 28' 50" East, 175.92 feet to a point for corner;
28) North 77° 35' 53" East, 108.12 feet to a point for comer;
29) North 85° 25' 07" East, 400.22 feet to a point for corner;
30) North 88' 38' 24" East, 314.17 feet to a point for corner;
31) North 87° 59' 36" East, 181.61 feet to a point for corner;
32) North 75° 57' 23" East, 204.10 feet to a point for corner;
Page 10 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
33) South 79° 16' 24" East, 161.06 feet to a point for comer;
34) North 55° 44' 08" East, 229.30 feet to a point for corner;
35) North 85° 42' 40" East, 316.69 feet to a point for corner;
36) North 71 ° 29' 14" East, 340.34 feet to a point for comer;
37) North 80° 28'35" East, 11.29 feet to a point for corner on the common line of aforementioned
Obediah Pitts Survey and the Dupuy and Roberts Survey;
Thence, leaving said centerline and said common county line, with said common line of the Obediah Pitts
Survey and the Dupuy and Roberts Survey, South 03° 19' 33" East, 288.28 feet to a point for corner;
Thence, continuing with said common survey line, North 86° 40' 27" East, 150.00 feet to a point for comer,
same being a common corner of said Obediah Pitts Survey and aforementioned T.C.R.R. Co. Survey, Section 4;
Thence, with the common line of said T.C.R.R. Co. Survey, Section 4 and the Dupuy and Roberts Survey,
North 85° 56' 46" East, 993.57 feet to a point for comer, same being the northwest corner of that certain called
7.0564 acre tract (described as Tract 8) conveyed to Pearland Investments Limited Partnership by instrument of
record under File No. 98-033800, Official Records, Brazoria County, Texas;
Thence, with the west line of said 7.0564 acres, South 03° 20' 48" East, 26.42 feet to a point for corner on
the centerline of Clear Creek, same being the common line of Harris County and Brazoria County;
Thence, with the common line of Harris County and Brazoria County and with the centerline meanders of
Clear Creek, North 71° 49' 25" East, 108.27 feet to a point for comer on the north line of said 7.0564 acres, same
being the common line of said T.C.R.R. Co. Survey, Section 4 and said Dupuy and Roberts Survey;
Thence, with the common line of said T.C.R.R. Co. Survey, Section 4 and said Dupuy and Roberts Survey,
North 85° 56' 46" East, 394.17 feet to the POINT OF BEGINNING and containing 356.050 acres of land.
Said Part 1 and Part 2 containing a gross area of 3253.362 acres, SAVE & EXCEPT however, the
following tracts of land.
Page 11 of 13
3177.711 Acres
TRACT 1 — H.L. & P. FEE TRACT
December 5, 2000
Job No. 1545-0011-001
5.316 acres, being a portion of 14.89 acres described in Volume 196, Page 591 and all of 4.560 acres
described in Volume 516, Page 179, both Deed Records, Fort Bend County, Texas.
TRACT 2 — UNITED GAS PIPELINE CO.
5.87 acres, being 2.56 acres described in Volume 565, Page 414 and 3.31 acres described in Volume 553,
Page 315, both Deed Records, Brazoria County, Texas.
TRACT 3 — CITY OF PEARLAND
13.3 acres described under File No. 98-011492, Official Records, Brazoria County, Texas;
TRACT 4 — BOCKEL, ET AL
5.5 acres, being the west one-half of Lot 10, Block P of the Allison -Richey Gulf Coast Home Co's Part of
Suburban Gardens, a subdivision of record in Volume 2, Page 99, Plat Records, Brazoria County, Texas;
TRACT 5 — BALL
5.572 acres, being 4.00 acres described under File No. 96-040654 and 1.5720 acres described under File
No. 97-008817, both Official Records, Brazoria County, Texas;
TRACT 6 - NEW BETHLEHEM MISSIONARY BAPTIST, ET AL
8.334 acres described under File Nos. 98-002119 and 98-002120, Official Records, Brazoria County,
Texas;
TRACT 7 — PLEASANT GROVE MISSIONARY BAPTIST CHURCH, ET AL
10.2571 acres described under File No. 98-039121, Official Records, Brazoria County, Texas;
TRACT 8 — CHIEN CHUN WANG
7.1313 acres, described under File No. 98-036221, Official Records, Brazoria County, Texas;
Page 12 of 13
3177.711 Acres December 5, 2000
Job No. 1545-0011-001
TRACT 9 — BRAZORIA COUNTY DRAINAGE DISTRICT NO.4
2.255 acres, being 0.919 of one acre described in Volume (89) 707, Page 90, 0.852 of one acre described in
Volume (89) 707, Page 98 and 0.484 of one acre described in Volume (89) 707, Page 84, all Official Records,
Brazoria County, Texas;
TRACT 10 — PEARLAND INVESTMENTS LIMITED PARTNERSHIP
4.541 acres, being the east one-half of Lot 1, Block 10 of the Allison -Richey Gulf Coast Home Co's Part of
Suburban Gardens, a subdivision of record in Volume 2, Page 99, Plat Records, Brazoria County, Texas, less and
except, 0.459 of one acre described in Volume (89) 703, Page 685, Official Records, Brazoria County, Texas;
TRACT 11 — JAMES W. GUSTAFSON, TRUSTEE
0.797 of one acre, being the residue of that certain 9.746 acres described in Volume 1187, Page 205, Deed
Records, Brazoria County, Texas, less and except, 1.350 acres described in Volume (89) 716, Page 477, 0.468 of
one acre described in Volume (89) 716, Page 470 and 7.1313 acres described under File No. 98-036221, all Official
Records, Brazoria County, Texas;
TRACT 12 — RONDA COLE SEARS
6.2773 acres described under File No. 99-009671, Official Records, Brazoria County, Texas;
TRACT 13 — STATE OF TEXAS
0.500 of one acre, being 0.032 of one acres described in Volume (89) 688, Page 167 and 0.468 of one acre
described in Volume (89) 716, Page 470, both Official Records, Brazoria County, Texas;
Resulting in a net area of 3177.711 acres.
3177.711 acres eligible to be included in Municipal Utility Districts.
LJA Engineering and Surveying, Inc.
Page 13 of 13
Exhibit "A"
COUNTY MUNICIPAL UTILITY DISTRICT NO.
, 200
City Manager
City of Pearland, Texas
3519 Liberty Drive
Pearland, Texas 77581
RE: Allocation of Construction Costs of the Oversized Facilities pursuant to the Utility
Agreement with County Municipal Utility District No.
Dear Sir:
County Municipal Utility District No. (the "District") and the City
of Pearland, Texas (the "City") entered into a Utility Agreement dated
, to provide water distribution, wastewater collection, and drainage facilities to serve
development occurring within and near the District inside the City limits.
The City desires to cooperate with the District to provide water and sanitary sewer service
to the District, and at the same time, increase and improve the City's capacity to serve other
properties in the vicinity of the District. The City and the District agree that the facilities described
in the attached Exhibit "A" (the "Facilities") are needed to serve the District's requirements.
Furthermore, to serve additional tracts outside the District, the City has requested that the District
oversize such facilities (the "Oversized Facilities"). Accordingly, the District and the City have
agreed that the District will construct the Oversized Facilities as requested by the City in return for
reimbursement by the City as outlined below.
The estimated costs for the Facilities to serve the District's requirements are $
The estimated costs for Oversized Facilities are $ . Therefore, the estimated
oversizing cost is $ and the engineering allocation for the oversizing is $ . The
total estimated oversizing cost to be reimbursed by the City to the District is $ as
described in Exhibit "B".
The bid specifications shall require each bidder to reflect the difference in the cost of the
Oversized Facilities and the cost which would have been incurred had the Facilities been constructed
to the size only required by the District. [The City will reimburse the District in three equal annual
payments, the first payment of which shall be made within 30 days after acceptance of the
improvements by the City and evidence of paid invoices. Subsequent payments shall be made on the
anniversary date of the first payment.] OR [The difference in cost will be credited to the District for
the payment of capital connection charges to the City.]
This agreement was duly authorized at a meeting of the Board of Directors of the District
held on the day of
Houston:406622.1
Very truly yours,
COUNTY MUNICIPAL UTILITY
DISTRICT NO.
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
(SEAL)
AGREED TO AND ACCEPTED THIS DAY OF
ATTEST:
By:
Name:
Title:
(SEAL)
Houston:406622. I
THE CITY OF PEARLAND, TEXAS
By:
Name:
Title:
APPROVED AS TO FORM:
By:
City Attorney
ExhibitNB"
CITY OF PEARIAND
SERVICE UNIT FACTORS
akery
2 Barber Shop
3 Beauty Shop
4 Bowding Tuley
5 Car Fiepafr
8 C*nrash; Tunnel Sett Service
7 Caneash, Wand Type Self Service
8, Cruemsh, Tunnel wen Attendants
0 Church. Adminletraaon
10 Church, Auditorium
11 Church, Classroom
12 CJunyTavamitounge
13 Convenrent Sore
14 Country pub
15 Day Care Center
18 Dormitory
17 Driving flange
18 Fire Station
19 Turrets! Horn
20 Gas Station, Self -service
21 Gas Static!, Full -service
22 Grocery Star
23 Health dub
24 Health pub w/ Whtrpool a Swm, Pool
25 Hospital
25 Hotel/Motel
27 Hotel/Motel with Kitchenettes
28 Ica Cream Parrot with Seating
29 p Indaar5ntartainnient/Amusement
30 industrlif laundry
31 Manufacturing
32 Nursing Home
33 Moe Hurling
34 Photo Store, 1- Hour Processing
35 Post Mee, Occluding Dock
38 Racquetball Club
37 Recreation Vehicle Park
38 Raeldent, Apartment
39 Resident, Condominium
40 Resident, Duplex
41 Resident Mobile Home
42 Resident, Single Family
43 Resident, Town Hausa
44 fia.bnutant. Full Service, General
45 Restaurant, Fast Food v4d1 Sealing
48 Restaurant, Fast Food * MOut Seating
47 Hotel Store
4e Schod,High
49 School, Cmar
50 Skating Rink
Si Swimming Pool
52 se
53 Theater. Ortye-In
34 Theater, Indoor
55 Told (Non -Vedic)
50 Transptxtadon Terminal without Restaurant
57 Warehouse
Ss Wash:Mode
quays Foot
Chair
Chair
Lane
square Foot
Lane
Boy
Lane
Parson
Seat
Seat
Seat
Square Foot
Member
Occupant
Bed
Tee
Employee
Body
!eland
tstand
Square Foot
Member
Member
Bed
faoom
Room
Seat
Occupant
50 Its
Square Foot
Bed
Square Foot
Store
Square Foot
Court
Space
Dwelling Unit
Dwelling Unit
Dwelling Unit
[heeling unit
Cheating Unit
Dwelling Unit
Seat
Seat
Squats Foot
Stints Foot
Seat
Seat
octet
Swimmer
Seat
Space
Seat
Tdlst
Pawnor
SgUam Foot O.00DMOO
Mpohina 1.580030
Remade:
1. Dam not include radaurant.
2. DON not Maude carmen. leUnd Is Mod as one pumping etat cet.
S Pad.nt airs amen does not Include designated ortios at:
4. Average value, leach development mast Ndvfduelye aluet6d.
5. Bale SINN Unit.
1. Does not indvde rsyldes t dormitory.
7. Dose not Include nxlammOn. •
8. Al dsvilopments not matching one at the above types will b. minuted
000700
0.470000`
0.470000
asaso00 f
0.000100 2
5.350003
1220000
31.430000 7
0.047003
0.003200
0.004700
0.031000
0.030220
0.320000
0,031700
0.2116000
0.210000
0.286000
2.140000
0.800000 2
0.8E10000 2
0.000260 1
0.018000
0.032000
0.635000 3
0.251a0o
0.430000
0.047030
0.031000
0.950000
0.000180 4
0.285000
0.003335
4400000
0.000254
0.510000
0.238100
0.703000 S
0.700000
1.003000
0.700030
1.000000
1.000000
0.110000
0.047000
0.002900
0.000223
0.1347633 6
0.0017a0� 6
o.a,eoo0
O.o18000
0.010000
o.015oo0
0.016000
025goo0
0.018000
1•.••16 .,.,r..,.. _.nice_ ........,,...., .,....ost...,...
Exhibit "C"
ASSUMPTION OF AGREEMENT
County Municipal Utility District No. , a conservation and reclamation
district created under the authority of Article XVI, Section 59 of the Texas Constitution by the Texas
Natural Resource Conservation Commission to provide water supply, sanitary sewer, and drainage
facilities to serve the area within its boundaries (the "District"), has assumed, and by these presents
does assume, the terms of the Utility Agreement (the "Agreement"), dated
a copy of which is attached and incorporated into this document for all purposes.
Specifically, the District has accepted and does accept all the rights, title, interest,
obligations, liabilities, and responsibilities of the "District" as defined in the Agreement and the
Developer, as defined in the Agreement, shall have no further rights, title, interest, obligations,
liabilities, or responsibilities under the Agreement.
All notices to the District pursuant to the Contract shall be addressed to:
County Municipal Utility District No.
c/o Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: Lynne B. Humphries
EXECUTED AND DELIVERED ON
ATTEST:
By:
Secretary, Board of Directors
(SEAL)
COUNTY MUNICIPAL UTILITY
DISTRICT NO.
By:
President, Board of Directors
::ODMA\MHODMA\Houston;388506;2
page 17
Exhibit "B"
(a) The City's consent to the creation of the Districts will be binding as long as no part of
any of the Districts lies outside the metes and bounds of the Land. If any part of a District lies outside
of these parameters, the District must seek additional consent from the City. Upon the filing of a petition
for creation of any one of the Districts with the Texas Natural Resource Conservation Commission
("TNRCC"), the Petitioner shall require the Petitioners of any such District to file a copy of the Petition
for Creation with the City.
(b) If more than six Districts are created within the Land, the District petitioning for creation
must seek additional consent from the City. Furthermore, if any District is created more than 15 years
after the City's adoption of the ordinance granting consent to the creation of the Districts, that District
must seek additional consent from the City.
(c) The City, by execution of its City. Manager, and the developer on behalf of the Districts
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
Districts (the "Utility Agreement"). Upon the Districts' creation and confirmation, the Districts shall
assume all the rights, obligations, and interests of the Developer under the Utility Agreement, as set
forth therein.
(d) The Districts 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 Districts. Such bonds must provide that the Districts reserve 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 Districts) 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 Districts' bonds will contain a
provision that the pledge of any revenues from the operation of the Districts' water and sewer and/or
drainage system to the payment of the Districts' bonds will terminate when and if the City annexes the
Districts, takes over the assets of the Districts, and assumes all of the obligations of the Districts.
(e) Before the commencement of any construction within the Districts, 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 Districts
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 Districts, 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 Districts will comply with the City's standard
::ODMA\MHODMAUiouston;388617;1
-5-
plans and specifications as amended from time to time. Prior to the construction of such facilities within
or by the Districts, the Districts 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 Districts'
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.
(f) 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 Districts 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 either Brazoria or Fort Bend
Counties, Texas (whichever is appropriate), and otherwise comply with the rules and regulations of the
Engineering Department and the Department of Public Works of the City of Pearland.
::ODMA\MHODMA\Houston;388617; I
-6-
Reference Ordinance No. 1004
Adopted February 12, 2001
UTILITY AGREEMENT
This UTILITY AGREEMENT (the "Agreement), is made and entered into as of the /day
ofFEaRa4, y , 2001, by and between the CITY OF PEARLAND, TEXAS, a municipal corporation
and home -rule city of the State of Texas (the "City"), and SHADOW CREEK RANCH
DEVELOPMENT COMPANY LIMITED PARTNERSHIP, a Nevada limited partnership (the
"Developer"), on behalf of proposed BRAZORIA COUNTY MUNICIPAL UTILITY DISTRICT NO. 26,
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:
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.
::ODMA\ !IODMAU-Iouston;582280;1
"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 TNRCC; the Attorney General of Texas; the Comptroller of Public Accounts of
Texas; the United States Department of Justice; and all other federal, state, and local governmental
authorities having regulatory jurisdiction and authority over the financing of the Facilities, the
construction of the Facilities, or the subject matter of this Agreement.
"Bonds" means the District's bonds, notes, or other evidences of indebtedness issued from
time to time for the purpose of purchasing, constructing, acquiring, operating, repairing, improving,
or extending the Facilities, payment of Connection Charges, and for such other purposes permitted
or provided by state law, whether payable from ad valorem taxes, the proceeds of one or more
future bond issues, or otherwise, and including any bonds, notes, or similar obligations issued to
refund such bonds.
"City" means the City of Pearland, Texas, a municipal corporation and home -rule city of the
State of Texas.
"City Manager" means the City Manager of the City or the City Manager's designee.
"Connection Charge" means the amount to be paid to the City for water and wastewater
capacity for each improvement within the District at the time of connection of the improvement to
the Facilities, as defined in Section 5.04.
"Consent Ordinance" means the ordinance or resolution to be adopted by the City
evidencing the City's consent to the inclusion of land within the District in accordance with Texas
Local Government Code Section 42.042 and Texas Water Code Section 54.016, each as
amended.
"Construction Costs" means costs associated with any particular construction project under
the terms of this Agreement, including, but not limited to, costs of construction, acquisition, and
installation; engineering fees and expenses; costs of advertising; costs of acquiring necessary
licenses, permits, waste control orders, discharge permits or amendments thereto; fiscal, legal, and
administrative costs; material -testing costs; site, easement, and permit costs; and all other costs
and expenses directly relating to the foregoing, together with an amount for contingencies or
estimated Construction Costs of not more than fifteen percent (15%) of the foregoing, provided that
no contingency amount shall be included in "Construction Costs" regarding a particular construction
project once that project is complete.
"Developer" means SHADOW CREEK RANCH DEVELOPMENT COMPANY LIMITED
PARTNERSHIP, a Nevada limited partnership.
"District" means Brazoria County Municipal Utility District No. 26, 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
::ODMA\MHODMA\ iouston;582280;1
page 2
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 LJA Engineering & Surveying, Inc. or such other engineering firm
as the District may engage from time to time.
"District Obligations" means (i) all outstanding Bonds of the District, (ii) all other debts,
liabilities, and obligations of the District to or for the benefit of any persons 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 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.
"TNRCC" means the Texas Natural Resource Conservation Commission, or any successor
or successors exercising any of its duties and functions related to water conservation and
reclamation districts.
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
::ODMA\MHODMA\Houston;582280; I
page 3
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 District or Developer (whoever is the owner of the contract) shall file all
required documents with the TNRCC.
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 TNRCC rules and regulations so that Project
Construction Costs will be shared by the City and the District on the basis of benefits received,
which are generally the design capacities in the Project for the City and the District respectively.
::ODMANHODMA\I-Iouston;582280;1
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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 provided the City with an executed copy of the
TNRCC order approving each bond issue in which the TNRCC concludes that a District debt
service tax rate of $1.50 or less per $100 of assessed valuation is feasible in accordance with the
TNRCC's rules in effect at the time of such determination. The District's obligation to provide a
copy of the TNRCC order including such conclusion shall not be construed as a limitation on the
District's authority to levy an unlimited tax rate, it being understood and acknowledged that the
District's bonds shall be payable from and secured by a pledge of the proceeds of an ad valorem
tax, without legal limitation as to rate or amount. The District shall provide the City with copies of
the Official Statement and the District's resolution authorizing the issuance of the Bonds for each
issue prior to the delivery of the Bonds to the initial purchaser.
3.02. Distribution of Bond Proceeds. The proceeds of Bonds issued by the District shall
be used and may be invested or reinvested, from time to time, as provided in the order or orders
of the District authorizing the issuance, sale, and delivery of such Bonds and in accordance with
the federal, state, and local laws and regulations governing the proceeds of the District's sale of
its Bonds.
3.03. Bonds as Obligation of District. Unless and until the City shall dissolve the District
and assume the District Assets and District Obligations, the Bonds of the District, as to both
principal and interest, shall be and remain obligations solely of the District and shall never be
deemed or construed to be obligations or indebtedness of the City; provided, however, that nothing
herein shall limit or restrict the District's ability to pledge or assign all or any portion of the Annual
Payments or Monthly Revenue Payments, to be made by the City to the District as provided in this
Agreement, to the payment of the principal of, the redemption premium, if any, or interest on the
Bonds or other contractual obligations of the District relating to the financing, acquisition, or use
of the Facilities.
3.04. Financing by Third Parties. From time to time, the District may enter into one or
more agreements (the "Financing and Reimbursement Agreement") with 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 Reimbursement Agreement will provide for the
District's reimbursement of the person or entity advancing funds for the Facilities (i) from the
proceeds of the District's sale of its Bonds, subject to all the terms and conditions of such Financing
and Reimbursement Agreement, including, among other conditions, the approval of the TNRCC
of the sale of the Bonds and the use of sale proceeds for such purpose; (ii) from District funds
lawfully available for such purpose.
::ODMANHODMA\Houston;582280;1
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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.
(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.
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(c) The City shall provide a monthly written report to the District indicating the total
number of service connections within the District. If requested by the District, the City may provide
a City representative to attend a District meeting to discuss any operating and maintenance
information regarding the Facilities.
4.04. Rates and Conditions of Service. The connection of improvements to the Facilities
shall be made by the City, in the same manner, by the same procedures, and for the same charges
as the City makes other water and wastewater connections. Water and wastewater customers
within the District shall pay rates and charges for such services to the City, on the same basis and
conditions as the City provides such services to similar City customers who do not receive services
from the Facilities; provided, however, in addition to the rates and charges imposed by the City on
its water and wastewater customers outside the District, the City shall impose on and collect from
each customer of the Facilities within the District a monthly surcharge of five dollars ($5.00) per
equivalent single family residential connection. The equivalent number of single family residences
attributable to any particular connection shall be computed in accordance with the service unit
factors set forth in Exhibit "A" as such factors may be amended from time to time by the City in its
sole discretion, provided that the City shall always apply the same service unit factors within the
District as it applies to other areas within the City. The City shall bill and collect charges from the
customers of the Facilities, calculated in accordance with this Section 4.04, in the same manner
and under the same procedures as it bills and collects from other customers of the City that are not
served by the Facilities.
4.05. Repair of the Facilities. After its acceptance of the Facilities, the City shall provide
all personnel and equipment necessary to perform repairs on, and shall bear sole cost
responsibility for repair of, the Facilities, including, but not limited to, service line leaks, leaks at
water meters, water main breaks, repairs to valves and fire hydrants, manhole repairs, and sewer
line repair and cleaning, as needed. The City shall not, however, bear cost or responsibility for
initial repair of any equipment or facilities identified by the City as in need of correction prior to the
City's acceptance of the Facilities under Section 4.02 above. The cost of all materials and supplies
used to operate, maintain, and repair the Facilities shall be borne solely by the City.
ARTICLE V
CITY PLANT CAPACITY AND FINANCING
5.01. Water Supply and Distribution Facilities. The City shall provide the District with its
ultimate requirements for water supply and distribution capacities. The 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
::ODMA\MHODMA\Houston;582280;1
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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 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 two thousand six hundred seventy eight dollars
($2678) 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.
::ODMA\MHODMA\Houston;582280;1
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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 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 TNRCC;
(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.
::ODMA\MHODMAUiouston;582280;1
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6.02. Payment of Annual Payment. The Annual Payment shall begin on May 1 in the
calendar year following the calendar year for which the District initially receives a tax roll from the
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 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
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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.
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
::ODMA\M-IODMA\Houston;582280;1
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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 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
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otherwise, which are not within the control of the party claiming such inability, which such party
could not have avoided by the exercise of due diligence and care.
9.03. Approvals and Consents. Approvals or consents required or permitted to be given
under this Agreement shall be evidenced by an ordinance, resolution or order adopted by the
governing body of the appropriate party or by a certificate executed by a person, firm or entity
previously authorized to give such approval or consent on behalf of the party. Approvals and
consents shall be effective without regard to whether given before or after the time required for
giving such approvals or consents.
9.04. Address and Notice. Any notice to be given under this Agreement shall be given
in writing, addressed to the party to be notified as set forth below, and may be given either by
depositing the notice in the United States mail postage prepaid, registered or certified mail, with
return receipt requested; by messenger delivery; or by telefacsimile. Notice deposited by mail shall
be effective three (3) days after posting. Notice given in any other manner shall be effective upon
receipt by the party to be notified. For purposes of notice, the addresses of the parties shall be as
follows:
If to the City, to:
City of Pearland
Attn: City Manager
3519 Liberty Dr.
Pearland, Texas 77581
Telefacsimile No. 281-485-7992
If to the District, to:
Brazoria County Municipal Utility District No. 26
c/o Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: Lynne B. Humphries
Telefacsimile No. 713-615-5601
If to the Developer, to:
Shadow Creek Ranch Development Company
Attn: Gary Cook
2947 East Broadway
Suite 300
Pearland, TX 77581
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
::ODMA\MHODMA'}louston;582280;1
page 13
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 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 from the date
hereof. Further, this Agreement shall automatically terminate in the event that the TNRCC does
not adopt an order creating the District on or before August 1, 2002.
[EXECUTION PAGES FOLLOW]
::ODMA\MHODMA\Houston;582280;1
page 14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of equal dignity, as of the date first given above.
THE CITY OF PEARLAND, TEXAS
By:
ATTEST:
City Manager
APPROVED AS TO FORM:
City Attorney
:: ODMA\MHODMA\I-Iouston; 5 822 80;1
page 15
SHADOW CREEK RANCH DEVELOPMENT
COMPANY LIMITED PARTNERSHIP,
a Nevada limited partnership, by its general partner
SHADOW CREEK RANCH, INC.
a Nevada corporation, its general partner
Gary ook, President
::ODMA\MHODMAU-Iouston; 582280;1
page 16
Exhibit*/V
CITY OF PF.ARLANO
SERVICE UNIT FACTORS
1 =akary
2 Barber Shop
3 Beauty Shop
4 Bottoling Ailey
5 Cat Raper
6 Csrrrash. Tunnel Sett Service
7 Carwash, Wand Type Salt Seneca
8,Canrash, Tunnel watt Attendants
A Churctt, Adminlat►aeort
10 Church, Audkorlum
11 Church, Classroom
12 Crub/TaVom/Laungc
13 ConvsnientSora
14 Country pub
15 Day Carry Center
10 0ormttary
17 Driving Range
18 F1ra Station
19 Funeral Home
20 pas Station, Sett -service
21 Gas Mallon, full -Service
22 Grocery Stare
23 Health Cuub
24 Health Club w/ Whirpool or Swm, Pool
25 Hospital
26 Hotel/Motel
27 Hotel/Motet with Kitchenettes
28 i Ice Cream Parfoi Math Seating
29 Indaar@ntertafnmentfAmusamer t
30 Industrlir Laundry
31 Manufacturing
32 Nursing Home
33 Office Bating
34 Photo Store, 1- Hour Processing
35 Post cmce, E ludkig Dock
38 Racquetball Oub
37 Recreation Vehicle Park
38 F4aeldent, Apartment
39 Resident, Condominium
40 Resident,' Duplex
41 Resident, Mtobaie Hats
42 Resident, Sergio Family
43 Resident, Town House
44 Restaurant. Fur Seneca, General
45 Restaurant, Fast Food with Sealing
40 Restaurant, Fast Food wmput Sealing
47 Retail Store
48 School, High
49 School, Other
50 Skating Rink
51 Swimming Foci
92 -Stadium
53
S4
55
50
57
f6
Theater. Drive -In
Theater, Indoor
Toilet (Non--opecMc)
Transportation Terminal without Resmurant
Warehouse
Washaela
��-
OF
Square Foot �#
Chair I
Chair
Lane
Square Foot
Lane
Bay
Lane
Person
Seat
Seat
Seat
Square Foot
Member
Occupant
Bed
Tee
Employee
Bony
wand
Island
square Mambo: Member
Bed
Room
Room
Seat
Qccupart
501bs
Square Foot
Bed
square Foot
Store
Square Foot
Care
Space
Dwelling Unk
Dwelling Unit
Malang unit
Dwelling Unit
Orrreltng Unit
Dwelling Unit
Seat
Seat
Square Foot
Sows Foot
Seat
Seat
Occupant
Swimmer
Seat
Space
Beat
Toilet
Peaaenper
Square Foot
Aem adei:
1. Goa red include rostaura nL
2. Dose not Incude rartaasth. Nand is dernd an one pumping etsdon.
3. Mart oars area. does not include designate dads areas
4. A Mraee ‘4*.re, aids diamlopresnc must Mc*i4dualy evaluated.
5. Basic ,.klullttm! Unit.
6. Does not Include ru tdst dormitory.
7. Doi not Include radioman. -
6. Al devetapmantt not matching ono of the above types we be retreated
Indladue y based on data sutmrlttted by the developer.
000700
0.470000'
0.470000
0.635000
0.000100 2
5.3500001
10000
31.430000 7
0.047000
0.003200
0.304700
0.031000
0.000220
0.390000
0.031700
0.286000
0.210030
0286000
2.140030
0,903000 2
0.880000 2
0.000260 1
0.016000
0.032000
0,835000 3
0.251000
0.430000
0.047000
0.031000
0,950000
0.000180 4
0.208000
0.000335
4.000003
0.000254
0.510000
0-38100
0.700000 S
0.700000
1.000000
0.700000
1.000000
1.000000
0.110000
0.047000
0.002800
0.001223
aOc78o0 6
0.031700 5
0.01e000
0.016000
0.010000
°Memoo
0.018000
0254000
0.016000
0.000100
1.560000
EXHIBIT "B"
ASSUMPTION OF AGREEMENT
Brazoria County Municipal Utility District No. 26, a conservation and reclamation district
created under the authority of Article XVI, Section 59 of the Texas Constitution by the Texas
Natural Resource Conservation Commission to provide water supply, sanitary sewer, and drainage
facilities to serve the area within its boundaries (the "District"), has assumed, and by these presents
does assume, the terms of the Utility Agreement (the "Agreement"), dated , 2001,
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. 26
c/o Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: Lynne B. Humphries
EXECUTED AND DELIVERED ON
ATTEST:
By:
Secretary, Board of Directors
(SEAL)
BRAZORIA COUNTY MUNICIPAL UTILITY
DISTRICT NO. 26
By:
President, Board of Directors
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