R-2015-122 2015-08-10RESOLUTION NO. R2015-122
A resolution granting the consent of the City Council of the City of Pearland,
Texas, consenting to the annexation of property, generally located at the
intersection of Barry Rose Road at Pearland Parkway, into Harris County
Municipal Utility District No. 509.
WHEREAS, Harris County Municipal Utility District No. 509 was created by House
Bill No. 4080, 80th Legislature, Regular Session, of the State of Texas (the "Legislation") and
is located wholly in the City's corporate boundaries; 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 RESOLVED 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 annexation of 26.522 acres, as more accurately described in Exhibit "A" attached hereto, into
the boundaries of Harris County Municipal Utility District No. 509, subject to the conditions attached
hereto as Exhibit "B," which conditions apply to all land in the District.
PASSED, APPROVED and ADOPTED this the 2151 day of September, A.D., 2015.
ATTEST:
NG LOR
IT SECR
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
)ovvr?
TOM REID
MAYOR
```..a 11 u St.,,�.
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Resolution No. R2015-122
Exhibit "A"
May 11,2015
Job No. 1727-7002
DESCRIPTION OF
26.522 ACRES
PROPOSED ZONE BOUNDARY
Being 26.522 acres of land located in the Thomas J. Green Survey, Abstract No. 198,
Brazoria County, Texas, out of the 140.6899 acre tract conveyed to Martha Alexander Crouch
by instrument of record In Volume 1595, Page 422 of the Deed Records of Brazoria County,
Texas, and the 172.0566 acre tract conveyed to Robert L. Alexander by Instrument of record in
Volume 1725, Page 120 of the Deed Records of Brazoria County, Texas and being more
particularly described by metes and bounds as follows (all bearings referenced to the Texas
Coordinate System, South Central Zone, NAD 83, 2001 adjustment);
BEGINNING at a 1/2" Iron rod found for the northwest comer of BANBURY CROSS SECTION
IV, a subdivision of record in Volume 19, Page 487-488 of the Plat Records of Brazoria County,
Texas, common to the northwest corner of Lot 13, Block 11 of said BANBURY CROSS
SECTION IV, in the southeast line of said 172.0566 acre tract;
THENCE South 41° 41' 44" West — 605.22', along the southeast fine of said 172.0566 acre
tract, common to the northwest line of said BANBURY CROSS SECTION IV, to the north corner
of Lot 4, of said Block 11, common to the west corner of Lot 5, or said Block 11, from which a
5/8" iron rod bears North 15° 34' 21" West — 0.89';
THENCE North 46° 57' 51" West — 768.49' to point for corner. in the south line of the 3.644 acre
tract described as Parcel 3, conveyed to City of Pearland recorded under Document Number
20050118363 of the Official Records of Brazoria County, Texas, from which a found 5/8 -inch
Iron rod with cap stamped 'RPLS 1718" bears North 45° 06' 48" West -- 0.20';
THENCE North 41° 40' 34" East — 1169.42', along the southeast line of said 3.644 acre tract,
and the southeast line of the 4.137 acre tract described as Parcel 5, conveyed to City of
Pearland recorded under File Number 04-003782, of the Official Records of Brazoria County,
Texas, to a 1/2' iron rod found for the east corner of said 4.137 acre tract, common to the south
comer of the 0.149 acre tract described as Tract 1 conveyed to City of Pearland recorded under
Fite Number 01-032032, of the Official Records of Brazoria County, Texas:
Page 1 of 3
1 Wroldski\SURVEY1172717002'M&B\Zone Boundary Revised 5.11.15 doc
26.522 acre May 11, 2015
Job No. 1727-7002
THENCE North 41° 30' 50" East — 92.95', along the southeast tine of said 0.149 acre tract, to a
1/2" iron rod found for an angle corner of said 0.149 acre tract;
THENCE South 860 05' 58" East — 44.24', along the south line of said 0.149 acre tract, to a
found 5/8" iron rod with cap stamped 'Wilson" for the found for the east corner of said 0.149
acre tract, in the southwest line of the 2.739 acre tract conveyed to City of Pearland, recorded in
File Number 98-054852, of the Official Recrods of Brazoria County, Texas, common to the
southwest right-of-way line of Pearland Parkway (130 Leet wide);
THENCE South 48° 23' 55" East — 365.36', along the southwest line of said 2.739 acre tract,
common to the southwest right-of-way line of said Pearland Parkway, to a 1/2" iron rod found for
the beginning of a curve to the right;
THENCE 532.98', continuing along the southwest line of said 2.739 acre tract, common to the
southwest right-of-way line of said Pearland Parkway, and the 1.164 acre tract conveyed to City
of Pearland, recorded under Flle Number 98-054881 of the Official Records of Brazoria County,
Texas, along the arc of a tangent curve to the right, having a radius of 1805.00', a central angle
of 16° 55' 07", and a chord which bears South 39° 56' 22" East - 531.05' to a 1/2" iron rod lound
for the end of curve;
THENCE South 31' 28' 49' East — 210.23 feet to a 1/2" iron rod found for the west corner of that
certain called 0.299 acre tract conveyed to City of Pearland, recorded under File Number 99-
013566, of the Official Records of Brazoria County, Texas, in the northwest Zine of a 100 foot
wide Drainage Easement conveyed to Brazoria County Drainage District Number 4 recorded
under Volume 1736, Page 884, of the Deed Records of Brazoria County, Texas and under
Volume 1760, Page 655, of the Deed Records of Brazoria County, Texas;
THENCE South 55° 59' 45" West — 360.12', along said northwest easement line, to a 1/2" iron
rod found for a point for comer in said easement;
Page 2 of 3
1 taroidsk1l5URVEY1172717002M&82one Boundary Revised 511.15 doc
26.522 acre
May 11, 2015
Job No. 1727-7002
THENCE South 18° 01' 00" East — 29.19', continuing along a west line of said easement, to a
found 5/8" iron rod for the northeast corner of Lot 88, Block 8, of aforesaid BANBURY CROSS
SECTION IV;
THENCE North 82° 38' 55" West — 356.36', along a northeast line of said BANBURY CROSS
SECTION IV, to the POINT OF BEGINNING of the herein described tract and containing 26.522
acres of land.
/,
that L. 'R• , FedS
Regi red Professional Land Surveyor
Tex Registration No. 5997
Page 3 of 3
11Proidsk11SURVEY11727\7D022Ma81Zone Boundary Rovisod 5-11.15 doe
LJA Engineering, Inc
RESOLUTION NO. R2015-122
Exhibit "B"
EXHIBIT "B"
(a) The City of Pearland, Texas (the "City"), by execution of its City Manager,
and the developer on behalf of the District have entered into and executed a utility
agreement that specifies the terms and conditions for providing water and sewage
treatment services (and other services) to the District (the "Utility Agreement"). The
District shall assume all the rights, obligations, and interests of the developer under the
Utility Agreement, as set forth therein
(b) The District may issue bonds, including refunding bonds, for any
purposes authorized by law, including but not limited to, purchasing, refinancing,
designing and constructing, or otherwise acquiring waterworks systems, sanitary sewer
systems, storm sewer systems, drainage facilities, or recreational facilities, or parts of
such systems or facilities, and to make any and all necessary purchases, constructions,
improvements, extensions, additions, and repairs thereto, and to purchase or acquire all
necessary land, right-of-way, easements, sites, equipment, buildings, plants, structures,
and facilities therefor, and to operate and maintain same, and to sell water, sanitary
sewer, and other services within or without the boundaries of the District. Such bonds
must provide that the District reserves the right to redeem said bonds on any date
subsequent to the fifteenth (15th) anniversary of the date of issuance (or any earlier date
at the discretion of the District) without premium, and none of such bonds, other than
refunding bonds, will be sold for less than 95% of par; provided that the net effective
interest rate on bonds so sold, taking into account any discount or premium as well as
the interest rate borne by such bonds, will not exceed two percent (200) above the
highest average interest rate reported by the (Daily Bond Buyer in its weekly "20 Bond
Index' during the one month period next preceding the date of the sale of such bonds.
The resolution authorizing the issuance of the District s bonds will contain a provision
that the pledge of any revenues from the operation of the District's water and sewer
and/or drainage system to the payment of the District's bonds will terminate when and
if the City annexes the District, takes over the assets of the District, and assumes all of
the obligations of the District.
(c) Before the commencement of any construction within the District, its
directors, officers, or developers and landowners will submit to the City, or to its
designated representative, all plans and specifications for the construction of water,
sanitary sewer, and drainage facilities to serve the District and obtain the approval of
such plans and specifications therefrom. All water wells, water meters, flushing valves,
valves, pipes, and appurtenances thereto, installed or used within the District, will
conform to the specifications of the City. All water service lines and sewer service lines,
lift stations, and appurtenances thereto, installed or used within the District will comply
with the City's standard plans and specifications as amended from time to time. Prior
to the construction of such facilities within or by the District, the District or its engineer
will give written notice by registered or certified mail to the City, stating the date that
ws
Cortwni cuntlotott.
such construction will be commenced. The construction of the District's water, sanitary
sewer, and drainage facilities will be in accordance with the approved plans and
specifications and with applicable standards and specifications of the City; and during
the progress of the construction and installation of such facilities, the City may make
periodic on -the -ground inspections.
(d) Before the District commences construction of any recreational facilities
which will be financed with bond proceeds, the District will submit to the Director of
the City's Parks and Recreation Department, or to his designated representative, all
plans and specifications for the construction of such facilities and obtain the approval of
such plans and specifications.
(e) Prior to the sale of any tot or parcel of land, the owner or the developer of
the land included within the limits of the District will obtain the approval of the
Planning and Zoning Commission of the City of a plat which will be duly recorded in
the Official Records of Harris or Brazoria County, Texas, and otherwise comply with
the rules and regulations of the Engineering Department and the Department of Public
Works of the City of Pearland.
4 Lahibit ll-Conxent Comb
LJA Engineering, Inc.
IA
2929 Bnarpark Drive Phone 713.953.5200
Suite 600 .Fax 713.953.5026.
Houston,Texas 77042 : wvth.taengineering.con
TBPE h2 F-1386 TBPL5Ns 10110501
Memorandum . ..
To: Mr. Patrick Barry, President—The Milestone Companies .
From: : -Mr. Gary W: Mensik: PE, LJA Engineering, Inc.
Copy: Mr.Greg Patch, PE, LJA Engineering, Inc. -
Mr. Chance Vinkl.arek, PE, LJA Engineering, Inc.
Mr. Ryan Harper-Allen Boone Humphries Robinson
Date: July 22;2.015
Re: Harris County Municipal Utility District No.509 Annexation Request .
Milestone,Barry Rose Tract-.Public Improvements:
Attached is an exhibit for the Milestone Barry Rose Tract showing the_Public Improvements.
The following is a Preliminary Summary of Cost for these Improvements.
Water Distribution - $149,00.0 .
Sanitary Sewer- $62,000 .
Storm Sewer- $322,000
.
Detention- $1875,000
Impact:Fees. $258,000
- Engineering- $158,000
Total- $2,824,000
Please feel free to call me at 713.953.5249 should you have questions or require any additional
information.
GWM
:GAR_Y W.MENSIK
.. . 84738
Cp.,.z/ s012�kt
AI
7
O:\LAND\1326\1 326-0 0 061MILESTONE MEMO ABHR 072115:13OC
City of Pearland
In-City MUD Data Form
MUD#Harris County 509
August 3,2015
Existing Proposed
General Information MUD Tract(s)
1 Proposed Zoning Classification(also show on map) R-1 Cluster PD
2 Projected Date of Completion of All Homes/Businesses 2017 , 2017
Existing Proposed
Area MUD Tract(s) Total
3 Total Acreage 502.778 26.522 529.300
4 Currently Platted Residential Acreage(including road rights of way) 124.923 0.000 124.923
5 Currently Platted Commercial Acreage(including road rights of way) 0.000 0.000 0.000
6 Currently Undeveloped Acreage 377.855 26.522 404.377
7 Projected Undeveloped Acreage to be Platted Residential 377.855 0.000 377.855
8 Projected Undeveloped Acreage to be Platted Commercial 0.000 26.522 26.522
9 Current and Projected Detention&Transmission Utility Easements(acres) 0.000 0.000, 0.000
10 All Other Acreage(Landscaping Reserves,Parks,etc) 0.000 0.000 0.000
Note:Lines 7 and 8 should total to Line 6.
Lines 4,5,6,9,and 10 should total to Line 3. Line 3 should equal the total acreage in the MUD or the Proposed Tracts.
Existing Proposed
Residential Lots MUD Tract(s) Total
11 Total Existing and Planned Residential Lots 1164 4 1168
12 Number of Currently Completed/Occupied Homes . 67 0 67
13 Number of Currently Completed Lots 291_ 0 291
14 Number of Lots Under Construction 0 0 0
15 Number of Future Lots 806 4 810
Note:Lines 12,13,14,and 15 should total to Line 11
Existing Proposed
Property Values MUD Tract(s) Total
16 Most Recent HCAD/BCAD Valuation(Estimated Date:January 1,2015) $ 22,596,596.00 $ 3,190.00 $ 22,599,786.00
17 Projected Total Valuation at Build Out Date $ 291,000,000.00 $ 40,000,000.00 $ 331,000,000.00
18 Projected Residential Valuation at Build Out $ 291,000,000.00 $ - $ 291,000,000.00
19 Projected Commercial Valuation at Build Out $ - $ 40,000,000.00 $ 40,000,000.00
20 Estimated Average Home Value(Date:January 1,2015) $ - $ - $ -
21 Estimated Average Home Value-at Build Out $ 250,000.00 $ - ,$ 250,000.00
Note:Lines 18 and 19 should total to Line 17
Existing Proposed
Property Tax Revenues MUD Tract(s) Total
22 Pre-Development General Fund Taxes @ Annexation $ 4,186.70 $ 7.08 $ 4,193.79
23 Most Recent Year City Property Taxes @$.7121/$100 $ 160,910.36 $ 22.72 $ 160,933.08
24 Projected City Property Taxes @$.7121/$100 at Build Out $ 2,072,211.00 $ 284,840.00 $ 2,357,051.00
25 Most Recent Year MUD Rebate Amount $ 33,894.89 $ 3.19 $ 33,898.08
26 Projected MUD Rebate Amount at Build Out $ 436,500.00 $ 40,000.00 $ 476,500.00
Existing Proposed
Calculations MUD Tract(s) Total
27 Approx.Net Density at Build Out-Homes/Acre{Line 11/(3-9)) $ 2.32 $ 0.15 $ . 2.21
28 Net Annual Revenue to City-Current Estimate(Line 23-25-22) $ 122,828.76 $ 12.44 $ 122,841.20
29 Net Annual Revenue to City-Build Out Estimate(Line 24-26-22) $ 1,631,524.30 $ 244,832.92 $ 1,876,357.21
W:\Land11326\Annexations\1326-0006 Milestone Annexation\Milestone mudform 080315.xlsx
City of Pearland
In-City MUD Data Form
MUD#Harris County 509
August 3,2015
Existing Subdivisions Within Existing MUD
Projected Percent
Subdivision Name Area(Acres) Lots Complete
Riverstone Ranch at Clear Creek Section 1 34.055 59 100%
Riverstone Ranch at Clear Creek Section 2 25.997 100 100%
Riverstone Ranch at Clear Creek Section 3 19.979 77 100%
Riverstone Ranch at Clear Creek Section 4 34.113 55 100%
Massey Lake Estates 40.285 86 0%
154.429 377
W:\Land\1326\Annexations\1326-0006 Milestone Annexation'Milestone mudfomi 080315.xlsx
City of Pearland
In-City MUD Data Form
MUD#Harris County 509
August 3,2015
Proposed Subdivisions Within Annexation Request
Projected Percent
Subdivision Name Area(Acres) Lots Complete
Milestone Development 26.522 4 0
26.522 4
•
W:\Land\1326Wnnexations\1326-0006 Milestone Annexation\Milestone mudform 080315.xlsx
City of Pearland
In-City MUD Data Form
MUD#Harris County 509
August 3,2015
Existing Non-Residential Businesses Within Existing MUD
Business Name Type of Business
W:\Land\1326\Annexations\1326-0006 Milestone Annexation\Milestone mudform 060315.xlsx
City of Pearland
In-City MUD Data Form
MUD#Harris County 509
August 3,2015
Proposed Non-Residential Businesses Within Annexation Request
Business Name Type of Business
Milestone Development General Commercial
•
W:\Land\1326\Annexations\1326-0006 Milestone Annexation\Milestone mudform 080315.xIsx
City of Pearland
In-City MUD Data Form
MUD#Harris County 509
August 3,2015
Anticipated Future Annexation Requests
Projected
General Tract Description Area(Acres) Lots
•
•
W:\Land\1326\Annexations\1326-0006 Milestone Annexation\Milestone mudform 080315.xlsx
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HARMS COUNTY MUNICIPAL
UTILITY DISTRICT NO.509
JUNE 2015 1326-0006-202
LJA Engineering,Inc. IA
2929 Briarpark Drive Phone 713.953.5200
Suite 600 Fax 713.953.5026
Houston,Texas 77042 T.B.P.L.S.Firm No.10110501
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Exhibit Proposed Barry Rose --.1..$:,. •..__'"------.
F;F-.7.M.:7..7.....a
Pubic Infrastructure Pearland Parkway Developnaen PURL1C ST'oRM Coco..4+4
Fr,-.7.'.77:7•,7,:
City of Pearland,Texas
4!) Inni
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On-site Utilities
Site MUD Annexed into MUD? Water* Sewer Storm Notes
Kroger at Shadow Creek Yes; 26 Public Public Private Water is Fire Line
HEB at SH288 Yes; 35 Public Public Public Water is Fire Line
HEB at Pearland Pkwy No Public Private Private Water is Fire Line
Kroger at Cullen No Private Private Private
Kroger at Barry Rose No Private Private Private
Sam's Club No Public Private Private Water is Fire Line
COSCO Yes; 34 Private Private Public
Pearland Town Center No Public Private Private Water is Fire Line
*The waterlines in these instances are public because they are fire lines. Prior to 2014 all fire lines were put in a
public easement to be owned and maintained by the City. This practice was based on the desire have the City
inspect those lines and hydrants on a regular basis to ensure that the were functional when needed by the Fire
Department. In changing to the new practice of private fire lines,the lines are now subject to the annual Fire
Marshall inspection,which is a more frequent inspection than those conducted by City personnel on the public
hydrants. This new practice is more consistent with how most other communities handle fire lines and reduces the
public burden required to maintain and inspect lines that only serve private businesses.
Tax Reimbursement Agreement
This Tax Reimbursement Agreement ("Agreement") is made and entered into
effective as of April 9.7 , 2016 ("Effective Date"), by and between the City of Pearland,
Texas, a municipal corporation and home-rule city of the State of Texas ("City"), KSTX
PEARLAND PKWY, LLC, a Texas limited liability company ("KSTX"), and KROGER
TEXAS, L.P. an Ohio limited partnership ("Kroger").
Recitals
Whereas, KSTX owns several tracts of land of approximately 2.583 acres, 2.0520
acres, 1.083 acres, 0.992 acres, and 4.221 acres ("KSTX Property") located within the
boundaries of the City and more accurately described in Exhibit "A-1" attached hereto;
and
Whereas, Kroger owns two tracts of land of approximately 12.96 acres and 1.50 acres
("Kroger Property") located within the boundaries of the City and more accurately
described in Exhibit "A-2" attached hereto; and
Whereas, the KSTX Property and the Kroger Property may be collectively referred to
herein as the "Property".
Whereas, KSTX and Kroger may be collectively referred to herein as the "Owners" and
singularly as an "Owner" herein.
Whereas, the City has conditionally approved the annexation of the Property into the
boundaries of Harris-Brazoria County Municipal Utility District No. 509 ("District"); and
Whereas, the City, as consideration for its agreement to consent to the annexation of
the Property into the boundaries of the District, desires to negotiate an annual "Tax
Reimbursement Agreement" for the Property to offset the Annual Payment of ad
valorem taxes made by City to the District in accordance with the First Amended Utility
Agreement ("Amended Utility Agreement") attached hereto as Exhibit "B."
Now, therefore, the City, KSTX and Kroger hereby agree as follows:
Section 1. Pursuant to City Resolution R2015-122, City consented to the conditional
annexation of the Property into the District, and this Agreement shall serve as
consideration that condition No. 3 of the Resolution has been fulfilled.
Section 2. Each year, for the life of the District and following the date of execution of
this Agreement, the Owners agree to make a "Reimbursement of Taxes" ("Annual
Reimbursement Amount") to the City equal to the Annual Payment made by City to
the District in accordance with the Amended Utility Agreement. The Annual
Reimbursement Amount shall not exceed the amount of $0.10 per $100 of assessed
valuation of the Property as determined by the Brazoria County Tax Assessor-
Collector.
Section 3. The Annual Reimbursement Amount shall be due on or before January
31st each year. If any Owner fails to make payment to the City, in accordance with this
Agreement, the amounts due to the City shall accrue interest at a rate of 10% per
annum, however, interest shall not accrue until after the City has provided the Owner
with written notice of the late payment and provided the Owner ten (10) days to cure.
Section 4. Before any failure of any party to perform its obligations under this
Agreement shall be deemed to be a breach of this Agreement, the party claiming such
failure shall notify, in writing, the party alleged to have failed to perform of the alleged
failure and shall demand performance. No breach of this Agreement may be found to
have occurred if the breach is cured to the reasonable satisfaction of the complaining
party within 30 days of the receipt of such notice. Upon a breach of this Agreement, the
non-defaulting Party, in any court of competent jurisdiction, by an action or proceeding
at law or in equity, may secure the specific performance of the covenants and
agreements herein contained, may be awarded damages for failure of performance, or
both. Except as otherwise set forth herein, no action taken by a party pursuant to the
provisions of this Section or pursuant to the provisions of any other Section of this
Agreement shall be deemed to constitute an election of remedies and all remedies set
forth in this Agreement shall be cumulative and nonexclusive of any other remedy either
set forth herein or available to any party at law or in equity. Each of the parties shall
have the affirmative obligation to mitigate its damages in the event of a default by the
other Party.
Section 5. All conditions and covenants of this Agreement are hereby declared to be
covenants running with the land and shall be fully binding upon all persons acquiring
any interest in all, or a portion of the Property described herein, whether by descent,
demise, purchase, gift or otherwise. This Agreement and the benefits and obligations
created hereby shall inure to the benefit of and be binding upon the parties hereto and
their successors, transferees and assigns; provided, however, that if any Owner sells
any portion or all of its interest in the Property, then the selling Owner shall thereupon
be released and discharged from any and all future obligations under this Agreement as
such Owner in connection with the portion of the Property sold by it. Any purchaser of
all or any portion of the Property assumes and agrees to be bound by the covenants
and agreements of this Agreement that apply to an Owner, as same may be amended
from time to time, by its acceptance of its deed of same.
Section 6. This Agreement constitutes the entire understanding and agreement of the
parties as to the matters set forth herein. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by all of the parties
hereto.
Section 7. No assignment by a party hereto of any rights under or interests in the
Agreement will be binding on another party hereto without the written consent of the
other party.
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Section 8. Whenever possible, each provision of the Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any provision of
this Agreement is prohibitive or invalid under applicable law, such provision shall be
ineffective to the extent of such provision or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 7. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas, and all obligations of the parties created hereunder are
performable in Brazoria County, Texas. Venue for any action arising under this
Agreement shall lie in the state district courts of Brazoria County, Texas.
Section 8. All notices required to be given under this Development Agreement shall
be given in writing and shall be effective when actually delivered or when deposited in
the United States mail, first class, postage prepaid, addressed to the party to whom the
notice is to be given at the addresses shown below. Any party may change its address
for notices under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address. Upon the
sale of any portion of the Property, the new Owner shall send written notice of its notice
address to the other Owners of the Property and the City. For notice purposes, each
party agrees to keep the other informed at all times of its current address:
If to City: City of Pearland
Attn: City Manager
3519 Liberty Drive
Pearland, TX 77581
If to KSTX: do Gulf Coast Commercial Group, Inc
Attention: B. Patrick Egan
3120 Rogerdale, Suite 150
Houston, TX 77042
With a copy to: Moody Law Group, PLLC
Attn: John S. Moody, Jr.
3003 W. Alabama
Houston, Texas 77098
If to Kroger: Kroger Food Stores
do Real Estate Department
19245 David Memorial Dr.
Shenandoah, Texas 77385
and to:
The Kroger Co.
do Law Department
1014 Vine Street
Cincinnati, OH 45202-1100
3
Section 9. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same
document.
[Signatures to Follow on the Next Page]
4
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be executed by their duly authorized officers and their corporate seals to be hereunto
affixed and attested as of the date first above written.
EXECUTED as of the date first written above.
CITY OF P ARLAND TEXAS
By:
City M ager
ATTEST:
By: i,- % a. ..._
/ SefarTy / J
5
KSTX PEARLAND PKWY, LLC
a Texas limited liability company
By: --TLI6-
Name: 1ilom if jj. L ,cr'
Title: pices N T
ATTEST:
By:
�a NIA✓ S. ✓4 O ob
Title: A 772Ph L 6`Z
6
KROGER:
KROGER TEXAS L.P.,
an Ohio limited partnership
By: K'
Ohio corplati. , i s general partner
By:
Rick J. andrum, Vice President
ATTEST:
By: O p• k-}117-)
Title: Dorot . Roberts
Assistant Secretary
7
MAINTENANCE AGREEMENT
This Maintenance Agreement (this "Maintenance Agreement") is made and
entered into as of April /4, 2016 but to be effective as of the "Effective Date" defined
below, by and between The City of Pearland (the "City"), a political subdivision of the
State of Texas, and PEARLAND PKWY PROPERTY OWNERS ORGANIZATION, INC
(the "Association").
RECITALS
WHEREAS, the City was created and organized, among other purposes, for
the purpose of controlling, storing, preserving and distributing the storm and
flood waters of the City, and the reclamation and drainage of the land located
within its boundaries. In order to carry out these purposes, the City has
acquired certain property within the City, together with all detention and drainage
facilities located thereon (the "Facilities"), such Facilities are described in Exhibit A;
and
WHEREAS, the City Council of the City has determined that it is in the City's
best interest to contract with the Association to maintain the Facilities;and
WHEREAS, the Association hereby agrees to maintain the Facilities that
serve in accordance with the terms and conditions of this Maintenance Agreement;
and
WHEREAS, Harris-Brazoria County Municipal Utility District 509 (the
"District") owns or will own the Facilities and has contracted with the Association to
maintain the Facilities pursuant to a separate maintenance agreement between the
District and the Association; and
WHEREAS, upon the dissolution of the District, the City will own and operate
the Facilities and the City desires to enter into this Maintenance Agreement so that the
Association is responsible for maintenance of the Facilities in accordance with this
Maintenance Agreement.
AGREEMENT
Now therefore, for and in consideration of the mutual promises, covenants,
benefits, and obligations herein set forth, the City and the Association hereby agree
and contract as follows:
Section 1: The City has established a routine maintenance schedule for the
Facilities, as outlined in Exhibit B attached hereto (the "Maintenance Schedule").
1
The Association agrees to contract with an unrelated qualified party (the
"Provider") at its sole cost and expense for the provision of services described in the
Maintenance Schedule.
Section 2: The City, in its sole discretion, shall have the right, but not the
obligation, to perform any improvements, maintenance, repairs or modifications to
the Facilities (including, without limitation, those listed in Section 1 or 3 hereof).
The City may perform same any time without notice to the Association. The
Association may not limit the City's ability to exercise its rights with respect to the
Facilities.
Section 3: The Association may, at its sole cost and expense, perform
additional maintenance of the Facilities that are not otherwise part of the
Maintenance Schedule. Additional maintenance may include, but is not limited to,
the following:
a. any additional erosion prevention around the Facilities required
to prevent the unnecessary erosion of silt and dirt into the
Facilities;
b. maintaining and repairing bulkheads, if any, that surround some
or all of the Facilities and lake amenity items within the Facilities;
c. mowing, cleaning, and other work needed to control
vegetation and/or landscaping in and around the Facilities;
d. operating and maintaining any ramps, access structures,
benches and recreational areas surrounding the Facilities, but
under no circumstances may the Association charge a fee to
users or restrict access;
e. installing and maintaining any landscaping on the Facilities;
f. maintaining all irrigation systems located on the Facilities in
proper working order, and utilizing a state licensed irrigator to
perform all maintenance and repair work; and
g• any other maintenance related to the use of the Facilities for
detention or drainage conveyance.
Section 4: The Association shall not construct or install any structures,
benches, trees, landscaping or other improvements on the Facilities without first
obtaining the written consent of the City. In performing any functions related to the
2
detention and drainage features of the Facilities, the City may remove, displace,
damage or otherwise disrupt structures, benches, trees, landscaping or other
improvements constructed or installed by the Association on the Facilities. The
Association acknowledges and agrees that the City shall have no obligation to repair
or restore such improvements to their original condition.
Section 5: The Association shall secure, and keep current, comprehensive
general liability insurance coverage relating to the Association's use of the
Facilities pursuant to this Agreement in the minimum amount of $1,000,000 per
occurrence and shall annually provide a copy of the policy to the City. Such policy
shall name the City as an additional insured party. In addition, the insurance
required hereunder shall be endorsed to provide a waiver of subrogation in favor
of the City and the City's agents and employees and to provide that such insurance
is primary coverage and not in excess of any other insurance available to the City,
and without rights of contribution or recovery against the City or from any such
other insurance available to the City. The Association, and not the City, shall be
responsible for paying the premiums and deductibles, if any, that may from time to
time be due under all of the insurance policies required of the Association.
Section 6: TO THE FULLEST EXTENT PERMITTED BY LAW, THE
ASSOCIATION, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS,
AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY
AND ITS OFFICERS, DIRECTORS, REPRESENTATIVES, AND AGENTS,
FROM EVERY LOSS, DAMAGE, INJURY, COST, EXPENSE, CLAIM,
JUDGMENT, OR LIABILITY OF EVERY KIND OR CHARACTER (INCLUDING
SPECIFICALLY ATTORNEYS' FEES, COURT COSTS AND OTHER EXPENSES
INCURRED IN ENFORCING THIS INDEMNITY PROVISION), WHETHER IN
CONTRACT, TORT, OR OTHERWISE, WHICH ARISES DIRECTLY OR
INDIRECTLY FROM THE ASSOCIATION'S WILLFUL, INTENTIONAL,
RECKLESS OR NEGLIGENT (WHETHER ACTIVE, PASSIVE, OR GROSS)
ACTS OR OMISSIONS RELATED TO OR ARISING FROM THIS AGREEMENT.
THIS INDEMNITY AND HOLD HARMLESS PROVISION WILL APPLY
WHETHER SUCH ACTS OR OMISSIONS ARE CONDUCTED BY THE
ASSOCIATION, ITS AGENTS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES,OR CONTRACTORS.
THIS INDEMNITY AGREEMENT IS INTENDED TO MEET THE TEXAS
"EXPRESS NEGLIGENCE RULE" BECAUSE THE ASSOCIATION AGREES
THAT IT APPLIES AND IS ENFORCEABLE EVEN AS TO LOSSES, DAMAGES,
INJURIES, EXPENSES, CLAIMS, CAUSES OF ACTION, JUDGMENTS OR
LIABILITIES JOINTLY OR CONCURRENTLY CAUSED BY THE NEGLIGENCE
OR OTHER FAULT OF THE CITY. THE TERM "FAULT" IN THE PREVIOUS
SENTENCE INCLUDES THE VIOLATION OR BREACH BY THE CITY OF
ANY COMMON LAW DUTY, ANY TERM OF THIS AGREEMENT, OR ANY
3
STATUTE OR REGULATION.
THIS INDEMNIFICATION OBLIGATION IS IN ADDITION TO ALL
OTHER LEGAL, EQUITABLE, OR INDEMNIFICATION REMEDIES
AVAILABLE TO THE CITY. THIS INDEMNIFICATION OBLIGATION
SURVIVES THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Section 7: This Maintenance Agreement shall be for the sole and exclusive
benefit of the City and the Association and shall not be construed to confer any
benefit or right upon any customers, residents, or members of the City or the
Association, or on any other party.
Section 8: The Association may not prohibit access by the general public to
the Facilities, or charge a fee for the use thereof, except the Association may charge
assessments and other fees to the property owners who use the Facilities for detention
and drainage purposes per the terms of the other documents of the Association.
Section 9: This Maintenance Agreement is not assignable by any party hereto
except with the prior written consent of the other party.
Section 10: This Maintenance Agreement constitutes the entire agreement
between the parties relative to the subject matter hereof. There have been and are
no agreements, covenants, representations, or warranties between the parties other
than those expressly stated or provided for herein.
Section 11: The term of this Maintenance Agreement shall commence on the
date the District is dissolved and the City owns the Facilities (the "Effective Date")
and shall continue for as long as the Facilities are used for detention purposes.
Notwithstanding any provision hereof, the City may terminate the Maintenance
Agreement for any reason by giving the Association at least sixty (60) days advance
written notice.
Section 12: The failure of either party hereto to insist, in any one or more
instances, upon performance of any terms, covenants or conditions of this
Maintenance Agreement, shall not be construed as a waiver or relinquishment of
the future performance of any such term, covenant or condition by the other party
hereto, but the obligation of such other party with respect to such future performance
shall continue in full force and effect.
Section 13: In addition to any other available remedies, the parties hereto shall
have the right to injunctive relief in the event a party hereto violates any term of
this Maintenance Agreement.
Section 14: This Maintenance Agreement shall be subject to amendment,
4
change or modification only by a written instrument signed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Maintenance
Agreement in multiple copies, each of which shall be deemed an original as of the
date first written above.
[EXECUTION PAGES FOLLOW]
5
CITY OF PEARLAND
By: 17,../
Name: d Jc�
Title:
ATTEST:
By:
N Yo&' G l deege/A1 '
Title: t2/7-. 5 e -r4,$e
(SEAL)
'
6
ASSOCIATION
PEARLAND PKWY PROPERTY OWNERS
ORGANIZATION,INC.
A Texas non-profit corporation
By:
Name: Mick c.Liri�
Title: Vice_ Q(esjc�e.`n+
7
EXHIBIT A-FACILITIES
8
EXHIBIT B
City Maintenance Schedule
The following minimum maintenance of the Facilities shall be provided to maintain
the Facilities'primary use for retention, detention and drainage:
a. mowing (at least 12 times per year), overseeding (at least once per year)
and fertilizing(at least twice per year);
b. excavating or otherwise maintaining the Facilities to prevent excess silting
that would minimize the use of the Facilities for retention, detention or
drainage;and
c. erosion prevention around the Facilities to prevent the unnecessary erosion
of silt and dirt into a detention or drainage feature of the Facilities.
9