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HomeMy WebLinkAboutWastewater Service Agreement 07/01/05 FRI 12:56 FAX 5124786498 PRUD OWENS REALTY Lj 002 WASTEWATER SERVICE AGREEMENT MEADOW CREEK SUBDIVISION This is a Wastewater Service Agreement ( "Agreement ") between Wellborn Special Utility District (WSUD) and Main Street Homes -CS, Ltd (MSH) for construction of a wastewater collection and treatment system and the provision of retail sewer service for the Meadow Creek Subdivision (Subdivision) in Brazos County, Texas. This Agreement is entered into on June `, 2005 (the "Effective Date "). WHEREAS, MSH desires to have a state- and federal- approved wastewater collection, treatment and disposal system constructed and operated within the Subdivision by a licensed retail public utility with the resources to provide continuous and adequate sewer utility service to residents within the regulatory requirements of the Texas Commission on Environmental Quality (TCEQ). WHEREAS, the Subdivision will consist of a maximum of 339 residential lots. WHEREAS, WSUD is a special utility district created under Texas Water Code Chapter 65 and Section 59, Article XVI of the Texas Constitution, and as such is a political subdivision of this state, that may provide retail public water or sewer service to any unincorporated area in or out of the district not already served by or certificated to another retail public utility of like kind as set forth in Water Code §§ 49.215 and 13.242(a). WHEREAS, while WSUD is the holder of the certificate of convenience and necessity (CCN) for water utility service to the Subdivision, there is no retail public sewer utility certificated to or serving the Subdivision. WHEREAS, WSUD desires to provide retail sewer service to the Subdivision if, in compliance with WSUD's lawful extension policies, MSH contributes the necessary capital, in cash or kind, to develop the service capacities and physical plant necessary to provide that service and met the customer demand that MSH will be creating. NOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, WSUD and MSH agree as follows: ARTICLE I Plant and System Design and Construction 1.1 Plant and System. MSH will design and construct the wastewater treatment plant (WWTP), the lift station, the wastewater collection system and lines to each lot in the Subdivision, and all related facilities and appurtenances necessary to collect, treat and discharge treated wastewater from the Subdivision (collectively, the "Plant and System "). MSH acknowledges that no wastewater service can, or will, be provided to the Subdivision until the Plant and System are constructed, approved and operational. 1 07/01/05 FRI 12:56 FAX 5124786498 PRUD OWENS REALTY a003 a. The Parties anticipate the Plant and System will be constructed in phases. No sewer service will be made available to any lot unless all necessary components of the Plant and System are complete and operational. b. Phase I of the WWTP will be designed and constructed to serve one -half of the 338 lots. Subsequent phases of the WWTP shall be designed and constructed by MSH as required by state law in anticipation of service to additional lots in the Subdivision. 1.2 Design and Compliance. MSH is responsible to ensure that the Plant and System meet all requirements of the Texas Commission on Environmental Quality ( "TCEQ ") and all municipal, county and governmental agencies having jurisdiction. The Plant and System shall be engineered (by a licensed Texas Professional Engineer), designed, and constructed to the reasonable specifications and satisfaction of WSUD. All plans and specifications for the Plant and System must be reviewed and approved by WSUD' s consulting engineer prior to the issuance of any request for bids for the construction of the Plant and System. 1.3 Service Connections. MSH shall ensure that the wastewater collection lines are tapped with the entire service connection necessary to enable a wastewater connection to be installed at each of the lots described in this Agreement, including all associated valves and fittings. However, MSH shall not connect any lot or home to any collection line. However, the parties acknowledge that it will be builders and/or subsequent lot owners who will actually be making the physical connections to the sewer system. MSH shall require these individuals to provide prior notice to WSUD before new connections are made. The taps may be made at the time the collection lines are installed and left "stubbed out" at the site of future lots and /or building sites. If service connections are left "stubbed out ", it shall be MSH's obligation to insure that each stub out is adequately capped to exclude dirt and debris. If such materials enter the collection lines for any reason, MSH shall bear the cost of clean out and/or any associated remedial work to correct the situation. 1.4 Approved Contractor. The contractors selected by MSH to undertake construction of the Plant and System shall be experienced in wastewater treatment plant and line construction and shall be approved by WSUD prior to the start of any construction. 1.5 Construction. The Plant and System shall be constructed in accordance with the approved plans and specifications. The Plant and System shall be constructed in a good and workmanlike manner and all material used in such construction will be new, not used, and shall be free from defects and fit for its intended purpose. WSUD shall have the right to inspect all phases of the construction of the Plant and System. MSH must give written notice to WSUD of the date on which construction is scheduled to begin so that WSUD may assign an inspector. WSUD may charge MSH reasonable inspection fees. MSH shall also pay the costs of laboratory samples as necessary for WSUD's inspection of the Plant and System until WSUD's acceptance of the Plant and/or System. 2 07/01/05 FRI 12:57 FAX 5124786498 PRUD OWENS REALTY 2004 1.6 Initial Reviews. Upon execution of this Agreement, MSH shall submit a payment to WSUD of Five thousand and no /100 Dollars ($5,000) for the purpose of compensating WSUD for the costs of engineering, legal and administrative reviews required to implement the terms of this Agreement. 1.7 Oversizing. WSUD may require any pipeline associated with the Plant and System to be oversized in anticipation of the needs of other customers, subject to the obligation to reimburse MSH for any such oversizing. Notification of such oversizing shall be in writing and provided to MSH not later than the date of approval of the Plant and System plans and specifications by WSUD's consulting engineer. WSUD shall reimburse MSH for the additional costs of construction attributable to the oversizing, as reasonably determined by WSUD's consulting engineer. Such reimbursement shall occur not later than the date of WSUD's acceptance of the Plant and System, as set forth in Paragraph 1.12. 1.8 Construction Warranty and Guarantee. MSH shall require each of its contractors to post a bond (naming WSUD as beneficiary) to guarantee the materials and workmanship of the Plant and System and to remain responsible for defects in materials, construction or installation which occur within one year from the date the Plant and System are accepted by WSUD (the "Warranty Period "). In case of emergency where delay in such replacement would cause serious risk of loss or damage to WSUD or its customers, or if the contractors shall be responsible to replace, or pay for the replacement by WSUD of, all materials and work involving any part of the Plant and System which is found by WSUD to be necessary for continued operation of the Plant and System. Upon receipt of written notice from WSUD within the Warranty Period of the discovery of any defect in the Plant and System, MSH shall promptly cause its contractor to replace or pay for the replacement of the necessary materials and work. If MSH, after notice, fails to cause its contractor to proceed reasonably promptly with corrective action, WSUD may have the defects corrected and the contractor shall be liable for all expenses incurred. 1.9 Cost of Plant and System to be Funded by MSH. MSH will promptly pay the costs of the Plant and System as they become due, including, without limitation, all costs of design, engineering, materials, labor, construction, inspection, and operational testing arising in connection with the construction of the Plant and System; all payments arising under any contracts entered into by MSH for the construction of the Plant and System; all costs incurred by MSH in connection with obtaining governmental approvals, certificates, permits, easements, rights -of -way, or sites required as a part of the construction of the Plant and System; and all out -of- pocket expenses incurred in connection with the construction of the Plant and System. WSUD will not 'be liable to any contractor, engineer, attorney, materialman or other party employed or contracted with in connection with the construction of the Plant and System. 1.10 Workers' Compensation Insurance Required. MSH shall ensure that all workers involved with the installation and construction of the Plant and System are covered by workers' compensation insurance as required by the laws of the State of Texas. MSH shall also procure and maintain, at its own cost, comprehensive general liability insurance insuring against the risks of bodily injury, property damage, and 3 07/01/05 FRI 12:58 FAX 5124786498 PRUD OWENS REALTY F 005 personal injury liability occurring from, or arising out of, construction of the Plant and System, with such insurance in the amount of a combined single limit of liability of at least $500,000 and a general aggregate limit of at least $1,000,000. Such insurance coverage shall be maintained in force at least until the inspection and acceptance of the Plant and System by WSUD. 1.11 Easements. MSH shall be responsible for clearly and precisely dedicating easements of at least fifteen (15) foot width on MSH's property, and acquiring and paying for necessary easements on other private property, for the locations where wastewater lines for the Plant and System are to be run. Other than for crossings, wastewater lines shall not be laid beneath any street or roadway. Any easements on private property shall be either dedicated as Public Utility Easements as part of the platting process or acquired by MSH and assigned to WSUD upon proper completion of the construction of the Plant and System. All such .dedications and easements shall be in a form reasonably acceptable to WSUD's attorney. If not immediately adjacent to an improved road with direct access thereon, MSH shall provide a permanent ingress /egress easement to the wastewater treatment plant site suitable for the construction and maintenance of an all- weather road equal in width to the state minimums for one lane of a Texas Farm -to- Market Road. 1.12 Conveyance of Plant and System to WSUD. After completion of construction of a phase of the Plant and System, MSH will provide to WSUD a concurrence letter from MSH's engineer certifying that the construction of such facilities has been completed in accordance with the plans, specifications and change orders approved by WSUD, that the facilities have been tested and approved for use in accordance with the approved contract documents and TCEQ rules, and that such facilities are properly located within easements. At the same time, MSH will provide WSUD with a copy of the final "record" drawings of the completed facilities. Upon WSUD's inspection and acceptance of the Plant and System, MSH shall grant WSUD title to the Plant and System for $10.00, free and clear of any and all construction liens or other liens related thereto. The Bill of Sale granting title shall be in a form approved by WSUD's attorney and shall include a representation by MSH that the Plant and System have all been constructed within legal easements, and MSH shall bind itself and its successors and assigns to warrant and defend the title to the Plant and System, including against any claims that such lines have been constructed illegally or not within proper easements, unless such lines were constructed in their existing location at WSUD's direction. 1.13 WSUD REPRESENTS AND COVENANTS THAT IT HAS THE ABILITY TO OBTAIN THE NECESSARY EXPERIENCE AND QUALIFICATIONS AND SHALL OPERATE THE PLANT AND SYSTEM IN FULL COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL LAWS AND REGULATIONS SUBJECT TO THE LIMITATIONS STATED HEREIN. MSH SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS WSUD, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DEBTS, SUITS, CAUSES OF ACTION, LOSSES, DAMAGES, JUDGMENTS, FINES, PENALTIES, LIABILITIES, AND COSTS, INCLUDING REASONABLE ATTORNEY FEES AND DEFENSE COSTS INCURRED BY WSUD ARISING OUT OF OR RELATING TO THE DESIGN, CONSTRUCTION 4 07/01/05 FRI 12:58 FAX 5124786498 PRUD OWENS REALTY 0006 OR INSTALLATION OF THE PLANT AND SYSTEM. MSH SHALL NOT BE LIABLE FOR OR HAVE ANY INDEMNIFICATION OBLIGATIONS TO WSUD, ITS OFFICERS, DIRECTORS, EMPLOYEES AND /OR AGENTS RELATING IN ANY WAY TO THEIR MISCONDUCT, NEGLIGENCE OR NON - COMPLIANCE WITH ANY PERMITS, RULES OR REGULATIONS RELATED TO THE OPERATION OF THE PLANT AND SYSTEM. MSH DOES AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS WSUD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DEBTS, SUITS, CAUSES OF ACTION, LOSSES, DAMAGES, JUDGMENTS, FINES, PENALTIES, LIABILITIES, AND COSTS, INCLUDING REASONABLE ATTORNEY FEES AND DEFENSE COSTS ARISING OUT OF OR RELATING IN ANY WAY TO MSH's NONCOMPLIANCE WITH APPLICABLE LAWS, ORDINANCES AND REGULATIONS AND /OR FAILURE TO OBTAIN REQUIRED PERMIT(S) AND APPROVAL(S) REGARDING THIS AGREEMENT, EXCEPTING ONLY THOSE DAMAGES, LIABILITIES, OR COSTS ATTRIBUTABLE TO THE NEGLIGENCE OR MISCONDUCT OF WSUD AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND /OR AGENTS. MSH's INDEMNIFICATION OF WSUD, ITS OFFICERS, DIRECTORS, EMPLOYEES AND /OR AGENTS SHALL TERMINATE ONE (1) CALENDAR YEAR AFTER THE PLANT AND SYSTEM ARE FULLY COMPLETED. AFTER ONE (1) CALENDAR YEAR FOLLOWING THE FULL COMPLETION OF THE PLANT AND SYSTEM, WSUD SHALL ASSUME ALL LIABILITY AND ALL .RESPONSIBILITY ASSOCIATED WITH OWNING AND OPERATING THE PLANT AND SYSTEM. ARTICLE II Real Property 2.1 MSH shall convey to WSUD, by special warranty deed, the 3.12 acre tract comprising the site for the WWTP (the "WWTP Property "), and shall grant or convey all access easements and related easements required by WSUD for operation of the WWTP, all at no cost to WSUD. These grants and conveyances shall be free of all liens and encumbrances, except for easements. Included in the conveyance shall be such easements and other rights necessary for WSUD to operate the WWTP and to obtain utilities and access to the WWTP. The WWTP Property shall shall include the necessary set backs and buffers required by TCEQ regulations as the same exist at the time of commencement of construction of the Plant and System. 2.2 MSH shall provide a 'survey of the WWTP Property and shall cause to be delivered to WSUD a commitment for title insurance from a title company acceptable to WSUD. The WWTP Property shall be a duly platted, legal lot and all zoning and deed restrictions on the property shall allow for the intended use of the site. 5 07/01/05 FRI 12:59 FAX 5124786498 PRUD OWENS REALTY U007 ARTICLE III Permits and Licenses 3.1 CCN Application. MSH shall apply to TCEQ for, prosecute and obtain the issuance of, a wastewater CCN to cover the entirety of the area of the Subdivision. The application shall name WSUD and MSH as joint applicants. WSUD shall fully and timely cooperate with MSH in obtaining the wastewater CCN. MSH shall fund the entire cost of the CCN application and shall diligently. prosecute the application to obtain approval of the CCN. MSH shall be the responsible party for directing the litigation efforts of the parties should the application become contested, including control over the incurrence of professional fees by any party. 3.2 MSH Commitment and Obligation. MSH hereby agrees that in the event it does not obtain a final CCN issued by TCEQ within 3 years from the Effective Date and WSUD has fully and timely cooperated with MSH in its efforts to obtain the CCN, then MSH shall pay to WSUD, as liquidated damages and not a penalty, the amount of $50,000. The payment shall be due to WSUD not later than 30 days after the expiration of the 3 -year period. MSH acknowledges and agrees that the costs of obtaining a sewer CCN can exceed $50,000, and such amount is a reasonable amount of liquidated damages. To secure its payment obligation herein MSH shall post, and maintain, a letter of credit in the amount of $50,000. 3.3 Letter of Credit. The letter of credit in the amount of fifty thousand dollars ($50,000.00) shall be issued by banking . institution reasonably acceptable to WSUD and substantially in the form attached hereto as Exhibit "A ". The letter of credit shall be furnished by MSH to WSUD within thirty (30) days of the Effective Date. If MSH fails to timely pay WSUD for the failure to obtain a CCN in accordance with this Agreement, then WSUD shall be entitled to draw upon the letter of credit in the full amount due to WSUD. Additionally, if MSH fails to timely pay the operating losses described in Section 4.4, then WSUD shall be entitled to draw upon the letter of credit in the amount due WSUD for reasonable operating losses actually incurred by WSUD. To remain in compliance with this Agreement MSH shall renew and maintain the letter of credit for a period of at least one (1) calendar year after commercial wastewater utility service commences to the first consuming facility and /or customer or upon obtaining a CCN in accordance with this Agreement, whichever shall occur later. The original Letter of Credit shall be delivered to, and held by, Wellborn or its legal counsel. Upon the conclusion of the Letter of Credit obligations created herein, WSUD and/or its counsel shall deliver the original letter of credit and all extensions or renewals to MSH, but subject to any draws or other reductions by WSUD which may have occurred as allowed in this Agreement. 3.4 MSH shall cause Wellborn Resources, LLC, the owner of TPDES Permit No. WQ0013850001 (the TPDES Permit), to convey the TPDES Permit to WSUD, at no cost to WSUD. In conjunction with the conveyance, MSH and Wellborn Resources, LLC shall make the necessary regulatory filings and obtain such approvals to validly transfer 6 07/01/05 FRI 12:59 FAX 5124786498 PRUD OWENS REALTY 0 008 the permit. Prior to such transfer, MSH and Wellborn Resources, LLC shall take all actions necessary to maintain the TPDES Permit in full force and effect. 3.5 Not later than 30 days after the later of: a) the completion and acceptance for operation of the WWTP, or b) the date the issuance of the wastewater CCN is fmal and non - appealable, MSH shall assign all of its rights and interest in the wastewater CCN to WSUD and any other governmental permits, licenses or certificates associated with or necessary to the operation of the Plant and System. ARTICLE IV Rates and Operations 4.1 Monthly Rates. In consideration of the contributions of MSH, WSUD agrees to provide retail wastewater service to lots within the Subdivision for the monthly fee set forth in WSUD's rules, except that for the first 18 months after the commencement of sewer service to the first residential account within the Subdivision the monthly fee for residential lots shall not exceed a base rate of $30.00 per lot for the first 3000 gallons and a gallonage charge of $3.50 per thousand for all usage above the base up to a maximum volume of 8000 gallons. The volume charge shall be capped at 8000 gallons (which amount includes the 3000 gallon base) for all residential usage during the 18 -month limitation period. These rate limitations shall not apply to any service connections located outside the Subdivision. After the end of the 18 -month limitation period, WSUD covenants to MSH that the retail sewer rates inside Subdivision shall be equitable and consistent, and not discriminatory, as compared to sewer rates charged by WSUD for the same customer classes located outside the Subdivision. 4.2 Connection Fee. In consideration of the contributions of MSH, and so long as MSH is in compliance with its obligations in this Agreement, WSUD will not charge any wastewater connection fee to MSH.. for any residential lot within the Subdivision. As used herein "connection fee" includes any impact fee, capital recovery fee, tap fee, or other similar fee to compensate WSUD for capital investments in the Plant and System. Nothing herein shall preclude WSUD from charging or collecting those customary administrative charges and fees, as set forth in WSUD rules as such rules may be adopted or amended from time to time. 4.3 Reservation of Capacity. In consideration of MSH's contributions, WSUD will reserve capacity for 338 residential connections in the WWTP, upon completion of all phases of construction of the WWTP. Nothing herein shall preclude WSUD, in its sole discretion and expense from expanding, re- rating or upgrading the Plant and System to provide services other customers of WSUD. 4.4 Funding of Initial Operations by MSH. The parties recognize that initially there will not be a large enough customer base to generate sufficient revenues to offset the fixed costs of maintaining and operating the WWTP and collection system. Therefore, MSH agrees to fund the actual operating losses, excluding depreciation, reasonably incurred by WSUD in operating the Plant and System until the date that 7 07/01/05 FRI 13:00 FAX 5124786498 PRUD OWENS REALTY Ej009 ninety (90) wastewater connections are active and paying customers. WSUD will invoice MSH monthly for any such operating losses, and payment shall be due within 14 days of the mailing of each such invoice. In the event MSH fails to timely pay for such operating losses, WSUD shall have the right to delay or prevent additional connections to the Plant and System within the Subdivision, until such time as payment is made. 4.5 Compliance. Upon MSH's completion of its obligations herein, and following inspection, testing and acceptance of the Plant and System, WSUD agrees to use its best efforts to operate the Plant and System in compliance with TCEQ discharge permit and applicable rules and regulation. 4.6 Adoption of Rules. In preparation for providing sewer service, it will be necessary for WSUD to adopt rules, rates and fees related to sewer operations and service. MSH shall support, and not oppose, WSUD's efforts to adopt such rules, rates and fees. ARTICLE V Miscellaneous Provisions In addition to the specific provisions set forth above, the following general provisions shall also govern this agreement: 5.1 Independent Contractor. MSH is engaged as an independent contractor, and MSH shall accomplish all of the services provided for herein in such capacity. WSUD shall have no control or supervisory powers as to the detailed manner or method of WSUD's performance of the subject mater of this contract. All personnel supplied or used by MSH shall be deemed employees or subcontractors of MSH and will not be considered employees, agents or subcontractors of WSUD for any purpose whatsoever. MSH shall be solely responsible for the compensation of all such personnel, for the withholding of income, social security and other payroll taxes and for the coverage of worker's compensation benefits, if any. 5.2 Modifications. No amendments or modification of this Agreement shall be made except by a writing signed by both the parties. 5.3 Notices. All notices for or permitted to be given pursuant to this Agreement must be in writing and shall be given or served by: (A) depositing the same in the United States mail properly addressed to the party to be notified, (B) by delivering such notice in person to such party, or (C) by facsimile, telex, or prepaid telegram followed by written confirmation delivered in the manner described in (a) or (b) above. 8 07/01/05 FRI 13:00 FAX 5124786498 PRUD OWENS REALTY L 010 (D) all notices are to be sent to or made at the addresses set forth below: WSUD: Wellborn Special Utility District Attn: Steven Cast, General Manager P O Box 250 Wellborn, Texas 77881 Off: 409- 690 -9799 To MSH Main Street Homes -CS, Ltd Attn: Rick Jenkins 900 Congress Ave., #L -100 Austin, TX 78701 Off: 512- 801 -8832 Fax: 512 -478 -5678 All notices given by mail shall be effective three (3) days after deposit in the United States mail; other notices given in accordance with this Agreement shall be effective upon receipt at the address of the addressee. By giving written notice thereof, each party shall have the right from time to time to change its address by giving written notice to the other party. 5.4 Terminology. Unless the context of this agreement clearly requires otherwise: (A) pronouns, wherever used herein and whatever gender, shall include natural persons and corporations and associations of every kind and character; (B) the singular shall include the plural whenever and as often as may be appropriate; (C) the word "includes" or "including" shall mean "including without limitation "; (D) the word "or" shall have the inclusive meaning represented by the phrase "and /or "; and (E) the words "hereof', "herein ", "hereunder" and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular article or section in such words appear. 5.5 Headings. The section, article and other headings in this Agreement are for reference purposes and shall not control or effect the construction of this Agreement or the interpretation hereof in any respect. All exhibits attached to this Agreement constitute a part of this Agreement and are incorporated herein. 9 07/01/05 FRI 13:01 FAX 5124786498 PRUD OWENS REALTY Boll 5.6 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 benefits or rights to any other party. There are no third -party beneficiaries and none are intended. 5.7 No Joint Venture. Nothing contained in this Agreement is intended by the parties to create a partnership or a joint venture between the parties and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, but only the manner by which MSH is to provide payment of consideration to WSUD as provided and for purposes expressly stated herein. 5.8 Governing Laws, Venue, Litigation and Attorneys' Fees. This Agreement shall be interpreted, construed and enforced in accordance with the Laws of the State of Texas. This Agreement is performable in Brazos County, Texas. All parties agree that if any party should default on any of the conditions and covenants hereunder or threaten to do so, or should it be necessary for any reason for either to hire or retain an attorney to represent them to enforce any of the terms or conditions of this Agreement, the party found to be responsible agrees to pay to the prevailing party a reasonable amount for costs, litigation expenses, and attorney's fees. Before to the commencement of litigation, the parties agree to submit any dispute arising hereunder not resolved by mutual agreement to non - binding mediation, before an impartial third party ( "Mediator "). The Mediator shall be selected by mutual agreement of the parties or by court order absent such agreement. The parties agree that this agreement may be enforceable by specific performance as well as any other remedy available at law or in equity. Venue over any civil cause of action arising from this agreement shall lie in the courts of Brazos County, Texas. Venue over any administrative cause of action is vested in the TCEQ and the courts of Travis County, Texas. 5.9 Entire Agreement. This Agreement merges the prior negotiations and understandings of the parties hereto and embodies the entire agreement of the parties, and there are no other agreements, assurances, conditions, covenants (expressed or implied) or other terms with respect to the subject matter hereof, whether written or verbal, antecedent or contemporaneous with the execution hereof, other than the existing agreement between the parties titled "Development Contract for Subdivision Proposed for Non - Standard Service by Wellborn Special Utility District." 5.10 Severability. In the event any term, covenant or condition herein contained shall be held to be invalid by any court of competent jurisdiction, such invalidity shall not affect any other term, covenant or condition herein contained, provided that such invalidity does not materially prejudice either the Developer or District in their respective rights and obligations contained in the valid terms, covenants or conditions. 5.11 Counterparts. This Agreement may be executed in executed counterparts, each of which shall be an original of this Agreement, but all of which, taken together, shall constitute the same Agreement. 10 07/01/05 FRI 13:01 FAX 5124786498 PRUD OWENS REALTY (1012 5.12. Estoppel Certificate. Each party hereto agrees at any time and from time to time upon fifteen (15) days prior request of the other party to provide a statement in writing certifying: (A) that this Agreement is unmodified and is in full force and effect (or if there have been if any modifications, listing such modifications); (B) acknowledging that there are not, to the writer's actual knowledge (without investigation or inquiry), any uncured defaults on the part of the other party hereunder, or specifying such defaults if they are claimed; and (C) such other matters as are reasonably requested. 5.13 Recording of Agreement. It is agreed that a memoranda of this Agreement may be recorded in the Deed Records of Brazos County, Texas. 5.14 Commitment to Agreement. By affixing their duly authorized signatures below, the parties do acknowledge that they are fully and committed to this agreement and the development of the utility system at issue. They each will fully support without reservation not expressly provided herein all governmental licenses, permits and certificates necessary for project. They will not take any actions to defeat the intent and purpose of the agreement including negotiate or contract with alternate utility service purveyors. Any breach of these covenants shall be deemed to be a material breach of this agreement and shall give rise to a separate and distinct cause of action for the same. 5.15 Binding Effect. All covenants, agreements, warranties, and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns. 5.16 Interpretation. This Agreement is not to be construed more or less favorably between the parties by reason of authorship or origin of language. 11 07/01/05 FRI 13:02 FAX 5124786498 PRUD OWENS REALTY Lj013 EXECUTED to be effective as of the date set forth in the opening paragraph to this Agreement. WELLBORN SPECIAL UTILITY DISTRICT B s ' y Ransom e: resident Date: June 29, 2005 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF Brazos § This instrument was acknowledged before nee on this 29 thday of June , 2005 b Jerry Ransom _, for Wellborn Special Utility District, on behalf of said District. a adAr NOTARY PUBLIC — STATE OF TEXAS � w' BET BATCHELOR i �! NNW Pudic, Stab dTen , My Commisoke Ross NOVBABER 7, 20011 12 07/01/05 FRI 13:02 FAX 5124786498 PRUD OWENS REALTY 2014 MAIN STREET HOMES -CS, LTD MSH -CS, Inc., General Partner BY: 1/,' Name : Rick Jenki I Title: Vice Preside Date: - Z v - c' 5 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF I rib/ i 5 § This instrument was acknowledged before me on this oZ $ day of 5V he_. 2005 by Rick Jenkins, Vice President of MSH -CS, Inc., a Texas corporation its, General Partner„ for Main Street Homes -CS, Ltd. on behalf of said corporation. LYNN STEED NOTARY UBLIC -STATE OF TEXAS Notary Public, state of T exas --,. r ^� 1 My Commission Exp ires -.. F EB. 24, 2407 1 3 06/29/05 WED 13:03 FAX 5124786498 PRUD OWENS REALTY 002 LAW OFFICES OF MARK H. ZEPPA, P.C. 4833 Spicewood Springs Road, Suite 202 Austin, Texas 78759 -8436 (512) 346 -4011 Fax (512) 346 -6847 mhzeanaOattglobal.net glewisl(attgIobal.net Mark H. Zeppa Glen E. Lewis 0-{512} 289 -4599 0-(512} 461 -9832 June 24, 2005 Mr. Rick Jenkins Main Street Homes - CS 900 Congress Ave., #L -100 Austin, TX 78701 Re: Rights - of-way for a Special Utility District Dear Rick: You have asked for my counsel's opinion on the legal right of a Special Utility District (SUD) to use public rights -of -way (ROW), easements and roadways for the purpose of providing retail public water and /or wastewater service to the consuming public. The following will explain why SUD's have that power through express acts of the Texas Legislature. SUD are water districts created pursuant to Texas Water Code (Code) Chapter 65. A SUD has the power to "purchase, construct, acquire, own, operate, maintain, improve or extend inside and outside of its boundaries and works, improvements, facilities, plants, equipment and appliances necessary to accomplish the purposes for which it was created ... ". [Code §65.201(b)] Foremost among the 6 approved purposes for the creation of a SUD are the provision of water or sewer utility services. [Id.] Since a SUD is a Code - created water district, it falls under the general statutes governing water districts and water supply corporations — Code Chapter 49. Code §49.220 provides in pertinent part: All districts or water supply corporations are given rights -of -wav within, along, under and across all public, state, county, city, town or village roads, highways, and all rights -of -way and other public rights -of -way without the requirement for surety bond or security, provided, however, that the entity having jurisdiction over such roads, highways and rights -of -way may require indemnification.... 06/29/05 WED 13:03 FAX 5124786498 PRUD OWENS REALTY Z003 Mr. Rick Jenkins June 24, 2005 Page 2 If you have any questions about a SUD's powers or the conditions of use of a public ROW, please contact me. If the City of College Station has any questions, I invite them to call as well. Sincerely yours, Mark I-I. Zeppa 12/20/2005 12:38 5128647629 COMPLIANCE RESOURCES PAGE 02 12/07/05 14ED 15:31 FAX 5124786498 PR1TI) OWFNS REALTY Q5002 rli Notice of Intent (NOI) for Storm Water MBA t>ma Use only Discharges Associated with Construction TPDES Permit Number. TX GI_I -I_I_I Ili Activity under the TPDF.S General Penmit IN Numnar 1 I 1 1 i 1 Foe fa0aole' No. _ . Er ORTANT: •Use the .tnrobed 1116r JCFIONS when aoanplc1ing this form. 'After completing this tins, use rise attached warm= Clicacrisr to rotate cett an all items are complete and sccmate. •Mid illegible, or inae•trate iodona May dewy :final ecknowledgte:ra ar coverage roam the general pendk. . ,Appl iestdon ]Fee: Yoh meat enbreit the SI0o NOl AppJiaatiou Fee to TCEQ cruder separate cover (see instructions) using the attached Application Pee submittal form. (DO NOT SEND A COPY OF THE NO1 WITH TEE AP21JICATIO4N FEE SS BMITTAI. FORM) Tat) as bow yon geld tar Mt tea: . Check/Money Order No.: Pla 7 Naha Printed on Cheek: id a . , . e S Lt.. • gT4;, ,r 1 F �Yi L rnr �r, t o .Y . i ° : - _ 1 -- :;oc a .. - .r,' ,.,:,: 0 1 1,1 4 .: r 4- l ..aC _ T.._ -. �,.— 7 . .._+.... .. -' , J.. iJ. i,,- � .. . ...., ;4:. .4,. -,-ti /y .,, A. OPERATOR 1. TC Q issued Cotonou Number (CN) if av alabla); . 2, Legal Name (spelled exactly as filed with the Texas Secretary of Stale, County, or legal doctanmtt Chet wax used in lbm 1ng the entity): MAIN STREET HOMES - CS, LTD, . 3, .Mailing Address: 900 CONGRESS AVENUE SrriteNoJ1314,l4o.: S UITE I-•100 . p T.IP Code: 78701 4. Phalle No.: ( 512 ) ' 80148832 . S- FAX No. Spa 1 178 - 6 1 198 ' A A. 6. Type of Operator: ii Jodividua t (3 Sole Proprietorship- 1113.A, gPartnership a torpor inn © Federal Government State Govenuneat 13 Cot zuy Government el City Government ClOther: 7. Independent Operator '' • Yes ©No (Tf gavemmentsti mew or a sabied:b y or part of a larger corpassaion, check "NO") .g. NeneborofEmployeas: pi 0-20; 021- 100; 1'D 101 -250; 0 251 -500; or 1501 or higher 9. Business Tax and Filing Nemebcra (mt applicable M /ndvfduals, GoventareK General Parbter rhkps, and 4oie Propr fooredp- AB,A): State Prxnctiiue Tex ID Number; Federal Tax ID: 1 4-' a 8543 &a TX SOS Chatter ( o) Number DUNS Number; _ Mown) wn) ._ )1, 1 ' - S� Fk ._.. .yt ... - ' rt e-..... f i I�; ;I, ,Y;'. a V i i - t + y C' . B. =MG AklrDRE88 ('Ihe Operator is responsible for paying the annual The) CZI Same As Operator (check if address is the same, then proceed With Section C.) 1. Bflling Mailing Address: Smite NoJBldg.No_: ZIP Code: 2. Billing Contact (Alta or C/O) . 3. 'Carmery Meiling Information (if outside USA) Territory! Country Code: Pinned Cade: {* 77 - 44 h r 4 ,'A 7 ^ ! .r �_ ~. , S� -•. A ^i �.1' � � a `' r n il fi ''. i � F r 51 ; 1 �, - r .c7:4 , 7. r ' ,' ''' •�Y' r.4 Sr..�- - . .. .3 4u h W ✓ I I ; 4� I C..'� .`n A 1A?�413e �_.. Y Y ' r :fie r � gJ f` TCE(}20022 (O9 /[2'1004) Pap 1 o n 1 . , 12/20/2005 12:38 5128647629 COMPLIANCE RESOURCES PAGE 03 r c APPLICATION CONTACT (If TCEQ needs additional information teganling this a plicativu, who should be coulacied? - L. Name: MISTI SHARER Tltic: MANAGER Company: COMPUANCE RESOURCES, INC, Z. Phone No.: ( 512 ) 930.7733 Extension: 231 – 3. PA N o. 512.864- 7829 94nall Ate: mists npllanceresourceefno.cOr t : : r ' a �. REBATED EMITIT (ItE)E9FORMATION ON PROJECT OR SITE 1. TGBQ lasted RE Refieta:tce Nlanber (R)) (if avalab1e): 2. Namc of Project or Sim: MEADOW CREEK, PHASE ONE 3. Physical Address of Project or Site: (ranter in spaces below) Sees Number N/A Street Nano: N/A Gip/ (wariest to the site): ZIP Code (nearest to the site): County (Caamtiea if >1): COLLEGE STATION 77845 BRAZOS 4. Viso physical address (Street Number & Street Name), provide a written location access description that can be used for looming the site: Ms.: 2 miles west from intersection of Nwy 290 & IId35 on FR'wy 290 South) SOUTHWEST OF THE INTERSECTION OF FM 2154 (WELLBORN ROAD) AND KOPPE BRIDGE ROAD _.. S. C:apnxle; 30 "3115" N Longitude: 096 6 1842" W 6. Standard Dial Clsseitcation (MC) code: 1521 — 7. Deaorrbe the activity related to the need for this authoriratia» at this vita (do not repeat the S1C and NA2'CS rode): SINGLE FAMILY RESIDENTIAL DEVELOPMENT 8. le the proJcct /site located on Indian Country Lands? D Yea CI No If Yea, you must obtain authorization tbrongb EPA, Region VL 4 Y .� r.y 4 r r ' t' J fk + y 1 � °`�� r V- ~f, r.� �. ,- ` i '.,{.�G fir` Ora r � k hr( � f{ > 'i, 4 6 "' :.7 F -"� t ". ' . - r '- r:�. ^ " ci j '�5 1r14 : ,. +u kb � ■ ; ;� ,.:�,s• t . r � �� x>•� y .. '�;••: iTi:� .�� *rt• ,r ..:w ,,.��,• E. SITE MAILING ADDRESS tsddressr receiving mail at the site) - -- El Same As Opastor (check if address is the mace, dna proceed with Section F.) Mailing Address: Suite NoJBidgNo.: City: State: ZIP Code: "1 ^:?u:=.,,i : : k i ''� r!L1<�i.: a'v -�: �i ' kx +vt t A ti i:. ga "n ,,.+ - ,74.= A" i.A74 ': Raw 'r`tk_i lar .r � � ":� �� :Y�:M J Y'. 7�j. °� : a :} x. '{� , 4,4 :, i . > - ;: ' F • ���� F. GENERAL CHARAL exkeol 1. Hai a Patten Prevention Plan been meowed se required in the general pennit? Cl Yes f No 019o, coverage may be deeded as the PPP is required at the time the NOI is submitted to TCBQ. 2. Provide the estimated area of lend disturbed (to the nearest acre) 21 Acres 3. Provide the oaten of the receiving waterbody (local stream, lake, drainage ditch), MS4 Opetamr (if applicable) and the segment number where stem water runoff will flow fao it the Construction Sato, M54 Operator: Cily 41 COIfege St Receivms — Wslor Body: PEACH CREEK m•rnMrswA.n - s ..... . , ..r 12/20/2005 12:38 5128647629 COMPLIANCE RESOURCES PAGE 04 G. CERTDICA,TD3141 z, RICK .JENKINS OWNER'S REPRESENTATIVE Typal or prima name 210 (RegedrEa9 ccrNQr under penalty of law that this docirmed and all attachments were prepared under my diroctlion or supervision in acandanoe with a ayah:m designed to assure that qualified personnel properly gather nod evaluate the information submitted. 13esed on nay inquiry of the person or proems who memage dm sytttent, or t h o s e persons directly r e s p o n s i b l e fbr g a t h e r i n g the i n f o i w e t i o n , the information submitted ie, to thobest ofmy low ledge and belief, trot. avcuaate and complete. T am aware there ate sigaiicam penalties fbr submitting false information, including the poseii ility of fine and imprisonment for lemming violations. I limiter oar* that I an auttworized under 30 Texas Administrative Code 005,44 to sign and snbntit this document, and =provide documentation in proof of such , , , ' • on upon requost. Signature: Daft: . �' / - / 1D .44:1* 12/20/2005 12:38 5128647629 COMPLIANCE RESOURCES PAGE 01 C O '1LIAN CFC :T':R E S O L ,. _R.0 E S 1 N C 0 RR A T E D PROVIDING AGGURATE, COMPLETE, AND TIMELY C'u6TOMER SERVICE THAT YOUR COMPANY CAN RELY ON. DATE; DECEMBER 19, 2005 TO: DDNNtE WILLIs COMPANY: PHONE: FAX: 979- 764 -3495 FROM: MISTI SHAFER COMPANY: COMPLIANCE RESIJURCES, INC, PHI N'E: ... • ' 512-930-77'33 . . MDBILE: • ' : ... . 5 1 2-80 1 -8 1 43 . ... . .. .. FAX: 51.2-E164-7629 EMAIL: • MIS TI @COMPLIANCERES'DURCESINC.COM' PAI ES; • ( INCL41CINQ COVER PACE) COMMENT is .. - .. . . ATTACHED 19 THE NCI FOR MEADOW CREEK. THAN.K..YOU. . ... MISTI THE !NFPRMATION TRANSMITTED HERESY /E'I PERSONAL AND CCNF/D£NYIAL INFORMATION, INTENDED =my FGR THE' LISC or THE REpIPIENTIVI NAMED ABOVE, AND I8 EXPfEBELY NOT INTENDED TO BE VOLUNTARILY DISCLOSED TO ANYONE DYNE'? THAN THOSE NAMEb ABOVE. IF THE READER OF THIS ME'SDADS IS NGY TN6 INTENDED RECIPIENT OR THE EMPLOYE£,OR ANENT RESI rag DEL/VERINQ ThC : Yp THE` INTENDED RECIPIENT(BI, PLEASE NDTE THAT ANY LI NALITM agivre, pI$TR18VTIDN, DISSEMINATIDN OR CCPYINC DF T7Y/E COMMUNICATION 13 STRICTLY PRDNISITED, IP' Ypi HAVE RECEIVER. TNIB COMMUNICATION IN ERROR, YOU SHOULD NOTIFY LIB IMMEDIATELY BY TEL28NONC AND MAIL THIS ORIDINA& MCBBAOE TO Um AT THE ARCVg ADDRCBS VIA THE LJ, 5. PDBTAL SERVICE. P.O. BOX 3004 #246 • GEORI TOWN, TEXAS 70G27 -3000 512.930.773B PHONE • 512.664.9829 FAX • WWW •¢OMP6,IAIVCERESCURGESINIS•2111114 06/29/05 WED 12:50 FAX 5124786498 • __PRE)) OWS (1002 EN JUN - 29 -2005 WED 11:23 AM WeIIborn SLID FAX No, 9796901260 P. 002 WELLBORN S PECIAL UTILITY DISTRICT Board of Directors Jerry Ransom, President Oary Spence, Vice President Charles Robertson. Treaeurer June 29, 2005 Theresa Sehehln, Secretary A,P. Boyd Kenneth Goodman Mary Norton John Mr. Rick Jenk Jack ins Winder Jack Winslow w Main Street Homes -CS, Ltd. 900 Congress Ave., #L -100 Austin, Texas 78701 Off; 512 -801 -8832 Fax: 512- 478 -5678 RE: Wastewater service to Meadow Creek Subdivision Dear Mr. Jenkins, This is to confirm that Wellborn Special Utility District has committed to provide retail wastewater service to the 339 residential lots in the Meadow Creek Subdivision that is being developed by Main Street Homes -CS, Ltd. on Koppe Bridge Road, Brazos County, Texas. • Sincerely, ir lt .ems I dent ellborn Special Utility District 3981268v.1 P.O. Box 250 • 4118 GREENS PRAIRIE RD. • WELLBORN, TX 77881 • PHONE (979) 690.9799 • FAX (979) 690 -1260