Agenda Packet TC 11/05/2007 1
Town of Trophy Club
Town Council Regular Meeting Agenda
100 Municipal Drive
Trophy Club, Texas 76262
Monday, November 5, 2007
6:00 P.M.
A.1 Call to order and announce a quorum.
A.2 Council to convene into executive session for Consultation with the its attorney,
Frank Waite, on a matter in which the duty of the attorney to the governmental
body under the Texas disciplinary rules of professional conduct of the State Bar
of Texas clearly conflicts with the Texas Open Meetings Act (Govt. Code
§551.071), and pursuant to Government Code §551.074 of the Texas Open
Meetings Act, to discuss or deliberate Personnel Matters:
A. Section 551.071 of the Texas Government Code, to consult with attorney Frank
Waite about the following legal matters:
1. Legal advice and recommendations related to recently completed work environment
report.
2. Legal advice relating to letter received from attorney Lori B. Talbot on behalf of
Patricia Adams.
B. Section 551.074 of the Texas Government Code, to deliberate Personnel Matters:
1. The grievance filed by Lisa Ramsey against Town Attorney Patricia Adams and
others.
2. The grievance filed by Adam Adams against Brandon Emmons.
3. The grievance filed by Adam Adams against Lisa Ramsey.
4. The appointment, employment, evaluation, reassignment, duties, discipline or
dismissal of a public officer or employee:
a. Brandon Emmons
b. Patricia Adams
c. Lisa Ramsey
B.1 Invocation.
B.2 Pledge of allegiance to the American Flag.
Pledge of allegiance to the Texas Flag.
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"Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God
and indivisible."
B.3 Citizen presentations: this is an opportunity for citizens to address the Council on
any matter whether or not it is posted on the agenda. The Council is not
permitted to take action on or discuss any presentations made to the Council at
this time concerning an item not listed on the agenda. The Council will hear
presentations on specific agenda items prior to the Council addressing those
items.
B.4 Discuss and take appropriate action regarding a Proclamation declaring
November 5-9, 2007 as Municipal Court Week.
B.5 Discuss the report from Frank Waite, Thompson & Knight LLP, regarding the
third party Management Review - Town of Trophy Club approved by the Council
at the October 1, 2007 meeting.
B.6 Discuss and take appropriate action relative to Executive Session Items listed
under the Executive Session.
B.7 Discuss and take appropriate action regarding the policies and procedures set
forth in the Town's Personnel Policies for Employee Complaint and Grievance
Procedures, including Section 113.00, specifically with regard to the following:
1.) Revisions to policies to extend grievance and complaint procedure and appeal
beyond the Town Manager.
2.) Adoption of a policy for complaints and grievances filed by and against employees
who report directly to the Town Council.
C.1 Public Hearing to consider an ordinance of the Town Council of the Town of
Trophy Club accepting and approving a Service and Assessment Plan and
Assessment Roll for the Town of Trophy Club Public Improvement District No. 1;
making a finding of special benefit to the property in the district; levying special
assessments against property within the district and establishing a lien on such
property; providing for payment of the assessments in accordance with Chapter
372, Texas Local Government Code, as amended; providing for the method of
assessment and the payment of the assessments, providing penalties and
interest on delinquent assessments, providing for severability, and providing an
effective date.
C.2 Public Hearing to Consider an Amendment to PD – Planned Development
District No. 27, Ordinance No. 2007-15 P&Z to allow amendments to Exhibit "B"
Development Standards, specifically including 45% Lot Coverage for Lot Type 2
in Neighborhoods 3 and 4 of The Highlands of Trophy Club. Applicants: K.
Hovnanian Homes and Standard Pacific Homes. (PD AMD-07-025)
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D.1 Discuss and take appropriate action by Resolution, casting all of the Town’s
allocated votes (13) for a candidate or candidates to serve as a member of the
Denton Central Appraisal District Board of Directors.
D.2 Centurion American to make a presentation on the Plan of Finance for the
Highlands of Trophy Club and discussion of the same.
D.3 Discuss, provide input and/or take action as appropriate regarding the following
documents and matters related to the Trophy Club Public Improvement District
No. 1 (The Highlands at Trophy Club) for infrastructure and related
improvements:
A. Discuss and take appropriate action on a Landowner Agreement between the Town
and the landowners within the Town of Trophy Club Public Improvement District
No.1, (the "District") concerning the consent to the levy of assessments on
property within District and other matters relating to the development and
construction of public improvements on land within the District.
B. Discuss and take appropriate action to authorize the Town Manager to direct the
distribution of a Preliminary Limited Offering Memorandum for the Town of
Trophy Club Public Improvement District No. 1 Special Assessment Revenue
Bonds, Series 2007 (Highlands of Trophy Club Project), with such changes as
City Staff and Bond Counsel deem appropriate to make such document complete
and accurate.
C. Discuss and take appropriate action on a Construction and Funding Agreement
between the Town and 831 Trophy, L.P. concerning the construction of certain
public improvements within the Town of Trophy Club Public Improvement District
No. 1 (The Highlands of Trophy Club project).
D.4 Discuss and take appropriate action regarding an ordinance of the Town Council
of the Town of Trophy Club accepting and approving a Service and Assessment
Plan and Assessment Roll for the Town of Trophy Club Public Improvement
District No. 1; making a finding of special benefit to the property in the district;
levying special assessments against property within the district and establishing
a lien on such property; providing for payment of the assessments in accordance
with Chapter 372, Texas Local Government Code, as amended; providing for the
method of assessment and the payment of the assessments, providing penalties
and interest on delinquent assessments, providing for severability, and providing
an effective date
D.5 Discuss and take appropriate action regarding a Request to Amend Ordinance
No. 2007-15 P&Z (PD – Planned Development District No. 27), to allow
amendments to Exhibit "B" Development Standards, specifically including 45%
Lot Coverage for Lot Type 2 in Neighborhoods 3 and 4 of The Highlands of
Trophy Club. Applicants: K. Hovnanian Homes and Standard Pacific Homes.
(PD AMD-07-025)
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D.6 Discuss and take appropriate action regarding the co-hosting of a "Stewards for
Children" seminar with the Alliance for Children and surrounding municipalities.
D.7 Discuss and take appropriate action to appoint two (2) members of Council to the
Trophy Club Park Department Master Plan Task Force.
D.8 Discuss and take appropriate action to consider and take action regarding the
EDC 4A’s motion to fund the reconstruction of Beck field #4.
D.9 Discuss and take appropriate action regarding an Ordinance repealing Ordinance
1999-15 Providing for a road easement dedication for the extension of Indian
Creek Drive and Trophy Club Drive, abandoning existing easements specifically
identified and authorizing the Mayor to execute all necessary documents.
D.10 Discuss and take appropriate action directing staff to proceed with zoning
implementation for billboards.
D.11 Discuss and take appropriate action nominating candidates to the Denton County
Appraisal District Appraisal Review Board.
D.12 Discuss and take appropriate action relative to the Interlocal Agreement between
the Town and the Trophy Club MUDs to provide water supply and wastewater
treatment and equity services to the Town.
D.13 Discuss and take appropriate action relative to the Interlocal Agreement between
the Town and the Trophy Club MUDs to provide water supply and wastewater
treatment and operational services to the Town.
D.14 Discuss and take appropriate action regarding the NISD Petition for annexation
of Byron Nelson High School site into MUD2.
D.15 Discuss and take appropriate action to approve financials and variance report
dated September 2007 (unaudited).
D.16 Discuss and take appropriate action regarding Police Chief Kniffen's update and
recommendation on the police equipment and cars.
D.17 Items for Future Agenda.
D.18 Reports. There will be no action taken regarding any individual project posted
under this item and discussion will be limited. If extensive discussion is required,
the item may be placed on a future agenda.
(a) Town Manager's Report to include a semi annually report of fence violations
and the disposition.
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(b) Report from Council member Cates on her procurement card review for the
past year and provide direction for the new fiscal year.
(c) Report from EDC 4A Liaison, Council member Moss.
E.1 Adjourn.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.A.1
Call to order and announce a quorum.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.A.2
Council to convene into executive session for Consultation with the its
attorney, Frank Waite, on a matter in which the duty of the attorney to the
governmental body under the Texas disciplinary rules of professional
conduct of the State Bar of Texas clearly conflicts with the Texas Open
Meetings Act (Govt. Code §551.071), and pursuant to Government Code
§551.074 of the Texas Open Meetings Act, to discuss or deliberate
Personnel Matters:
A. Section 551.071 of the Texas Government Code, to consult with attorney
Frank Waite about the following legal matters:
1. Legal advice and recommendations related to recently completed work
environment report.
2. Legal advice relating to letter received from attorney Lori B. Talbot on
behalf of Patricia Adams.
B. Section 551.074 of the Texas Government Code, to deliberate Personnel
Matters:
1. The grievance filed by Lisa Ramsey against Town Attorney Patricia
Adams and others.
2. The grievance filed by Adam Adams against Brandon Emmons.
3. The grievance filed by Adam Adams against Lisa Ramsey.
4. The appointment, employment, evaluation, reassignment, duties,
discipline or dismissal of a public officer or employee:
a. Brandon Emmons
b. Patricia Adams
c. Lisa Ramsey
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Attachments: 1. Email from Kathleen Wilson
2. Town Manager Emmons’ Employment Agreement
3. Charter Section - 4.05 Powers and Duties of the Town Manager
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Charter Section - 4.05 Powers and Duties
The Town Manager shall be the chief administrative officer and head of the
administrative branch of the Town. He shall be responsible to the Council for the proper
administration of all the affairs of the Town and to that end shall have the power and be
required to:
(a) Oversee the effective enforcement of all applicable laws and ordinances, implement
the directives and policies established by Council and oversee the administration of
contracts and franchises to ensure compliance with the terms approved by Council;
(b) Appoint, suspend and/or remove all or any one of the heads of departments and all
subordinate officers and employees of the Town in accordance with applicable laws and
policies. The Town Manager may authorize any administrative officer subject to the
Manager’s direction and supervision to exercise these powers with respect to
subordinates in that officer’s department, office or agency;
(c) Direct and supervise the administration of all departments;
(d) Attend all meetings of the Council, except when excused by the Council. The Town
Manager shall have the right to take part in discussion but shall not vote;
(e) Prepare a proposed budget annually and submit it to the Council; administer the
budget of the Town; provide such operational and financial reports and analyses as
directed by Council, by this Charter and as required by law;
(f) Make recommendations to the Council concerning affairs of the Town and facilitate
the work of the Council in developing policy;
(g) Provide staff support services for the Mayor and Council members;
(h) Encourage and provide staff support for regional and intergovernmental cooperation;
(i) Promote partnerships among Council, Staff and citizens in developing public policy
and building a sense of community;
(j) Perform such other duties as may be prescribed by Council, by this Charter, by
ordinance or other law; and,
(k) Be the custodian of all municipal records of the Council and recommend to the
Council rules and regulations to be adopted by ordinances to protect the safety and
security of the municipal records.
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Insert from Minutes dated, November 6, 2006
D.9 Discuss and take appropriate action establishing the process to evaluate and
administer performance reviews for Town Council appointed positions,
specifically as it relates to the Town Manager duties, goals and objectives for the
ninety (90) day evaluation.
Mayor Sanders explained it was indicated during the interview process and included in
the offer letter that Town Manager Emmons would receive a review and be
eligible for a salary increase, which was budgeted at $8,300.00. The intent is for
Council to conduct the review at the November 20th meeting, reviewing the goals
and objectives identified on June 19, 2006 at his ninety (90) day evaluation.
Sanders complimented Emmons on his skillful conduct in dealing with the MUD
Directors, which was not on his list of things to accomplish and encouraged the
Council to also look for areas to compliment Emmons on as well as improve.
Sanders asked the Council what process they wanted to use to evaluate and that
the review could be held in Executive Session.
Town Manager Emmons’ preference is for the review to be conducted in Open Session
as it holds him to a higher standard. Emmons mentioned the item tonight is to
prepare the Council for the review.
Mayor Sanders asked for review templates. Council member Sterling requested
Emmons provided another list of goal and objectives on November 20th.
Mayor Pro Tem Williams would like to see assessments from Emmons’ direct reports.
Council member Lamont disagreed and does not believe that under links should
dictate a supervisor’s performance. Council member Edstrom provided staff’s
assessment of a supervisor is normal practice with 360 Reviews and happens
frequently is big organizations.
Mayor Sanders does not see a problem requesting input from his direct reports, they
can quantify on a scale from 1 – 5 and can also remain anonymous. Sanders
strongly encouraged staff speak to Emmons about any negatives.
Insert from Minutes dated, November 6, 2006
D.12 Discuss and take appropriate action regarding the (90) day evaluation of Town
Manager Emmons duties, goals and objectives.
Mayor Sanders explained nine staff members were asked to rank the criteria Town
Manager Emmons listed as his 90 days goals and objectives and provided a summary
of responses to Council. Although there were nine responses, not all ranked each
criterion. Sanders asked the Council to rank Town Manager Emmons, focusing on the
eight items staff evaluated him on. Sanders explained that discussion like this could be
posted as an Executive Session, however both he and Emmons agreed it was best
discussed in open session.
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Sanders asked Town Manager Emmons to email Council another set of goals and
objectives along with information on his accomplishments over the last five months.
Town Manager Emmons listed the following as his accomplishments:
Administrative
o Hired new Managers for Police, Fire, and Finance Departments
o Implemented new organizational chart and reporting structure
o Evaluated current economic development efforts and Business outreach
Fiscal management:
o Identified cost savings measures in utilities (est. $10k in
telecommunications).
o Implemented new oversight procedures for expenditures
o Instituted a revised p-card reporting procedure
o Identified improvements to budget reporting
o Started discussions of cost allocation
o Separation of extraordinary expenses
Intergovernmental Relations:
o Represents the Town in a regional setting
o Attends and participates in monthly meetings for Northwest Communities
Partnership
o Attends and participates in monthly Master District meetings
o Represents Town Administration at P&Z, Parks, ZBA, and EDC meetings
o Meets with surrounding Town Managers on a regular basis to discuss
area issues
o Routinely meets with NISD
Town Manager Emmons spoke to his future goals regarding staff’s evaluation and areas
requiring improvement; team-work which will require a concerted effort from all
members in order to improve. Emmons also plans to:
Strategic Planning:
o Coordinate a series of Council planning retreats
o Develop the framework for long-term planning document
Development and Growth:
o Formulate the contract documents for utility services with the MUD
o Continue exploring alternative water sources
o Begin annexation of ETJ
o Work with Centurion on construction of infrastructure, including water tank
Administrative:
o Present a balanced budget with no proposed tax increase
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o Create a cost accounting system for budgeting
Roger Unger, 102 Carnoustie – Commented Emmons began his employment having to
hire two major positions and right at the start of development on 1,000 acres of land.
Mr. Unger enjoyed working for Emmons and feels he is very knowledgeable and is the
right chief operating Administrator for the Town.
Council ranked Emmons and provided comments on each item listed on the evaluation.
Council member Cates believes Emmons has done an outstanding job improving the
Towns image.
Mayor Pro Tem Williams is very pleased with the way Emmons took Council’s direction
regarding the budget and appreciated being presented a balanced budget.
Council member Edstrom feels Emmons has done a good job and sees a significant
change in the communication between the Chairs of the Advisory Groups, Boards and
Commissions.
Council member Sterling feels approachability is Emmons number one asset and would
appreciate being presented a balanced budget at the beginning of the next budget
process. Sterling added that an effort on behalf of the Council needs to put forth to
contact Town Manager Emmons first on issues rather than the staff members.
Council member Lamont respects Emmons attendance at meetings and his oversight in
providing the Minutes of the Boards and Commission meetings.
Mayor Sanders said Emmons accomplishment of the MUDs acceptance of the contact
from Centurion was monumental and significant; the MUD Directors respect Emmons’
knowledge. Sanders praised Emmons leadership and expense savings during the
budget. Sanders appreciates Emmons attendance at all of the meetings and his
availability when taking phone calls. Sanders finds Emmons receptive to suggestions
and strongly encouraged staff talk to him about their comments as provided in their
evaluations
Town Manager Emmons salary was budgeted for an increase of $8,300.00 upon his
completion of 90-days. With this increase his salary would be 110,300.34.
Motion made by Williams, seconded by Sterling to approve the new salary.
Motion passed unanimously without further discussion.
Town Manager Emmons thanked the Council for their comments, both praise and
recommendations for improvements.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.B.1
Invocation.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.B.2
Pledge of allegiance to the American Flag.
Pledge of allegiance to the Texas Flag.
"Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God
and indivisible."
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.B.3
Citizen presentations: this is an opportunity for citizens to address the
Council on any matter whether or not it is posted on the agenda. The
Council is not permitted to take action on or discuss any presentations
made to the Council at this time concerning an item not listed on the
agenda. The Council will hear presentations on specific agenda items prior
to the Council addressing those items.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.B.4
Discuss and take appropriate action regarding a Proclamation declaring
November 5-9, 2007 as Municipal Court Week.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(SMD)
Attachments: 1.Proclamation
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TOWN OF TROPHY CLUB
PROCLAMATION NO. 2007 -
November 5-9, 2007
“Municipal Court Week”
WHEREAS, the Municipal Court of THE TOWN OF TROPHY CLUB, a time
honored and vital part of local government, has existed since December 9, 1985,
WHEREAS more people, citizens and non-citizens alike, come in personal
contact with municipal courts than all other Texas courts combined, and
WHEREAS public impression of the entire Texas judicial system is largely
dependent upon the public’s experience in municipal court,
WHEREAS, Municipal Judges, marshals, bailiffs and court support personnel
have pledged to be ever mindful of their neutrality and impartiality, rendering equal
service to all, and conform to the standards set by the Canons of Judicial Conduct,
WHEREAS, the Municipal Courts serve as the local justice center for the
enforcement of local ordinances and fine-only state offenses that protect the peace and
dignity of our community,
WHEREAS, the Municipal Judges and Clerks continually strive to improve the
administration of justice through participation in judicial education programs, seminars,
workshops and the annual meetings of their state and local professional organizations.
THEREFORE, it is most appropriate that we recognize the accomplishments of
the 850 Texas Municipal Courts, and salute their critical role in preserving public safety,
protecting the quality of life in Texas communities, and deterring future criminal
behavior,
NOW THEREFORE, BE IT PROCLAIMED THAT THE TOWN OF TROPHY
CLUB, DECLARES THE WEEK OF NOVEMBER 5 - 9, 2007 AS Municipal Court
Week, and further extend appreciation to all Trophy Club Municipal Judges, marshals,
bailiffs and court support personnel for the vital services they perform and their
exemplary dedication to our community. I call upon all residents of Trophy Club to join
with the City Council in recognizing the vital service they perform and their exemplary
dedication to the communities they represent.
PROCLAIMED THIS THE 5th DAY OF NOVEMBER, 2007.
______________________________
Nick Sanders, Mayor
Town of Trophy Club, Texas
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ATTEST:
______________________________
Town Secretary
Town of Trophy Club, Texas
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Discuss the
re
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.B.5
Report from Frank Waite, Thompson & Knight LLP, regarding the third
party Management Review - Town of Trophy Club approved by the Council
at the October 1, 2007 meeting.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.B.6
Discuss and take appropriate action relative to all items listed under the
Executive Session.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: None
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.B.7
Discuss and take appropriate action regarding the policies and procedures
set forth in the Town's Personnel Policies for Employee Complaint and
Grievance Procedures, including Section 113.00, specifically with regard to
the following:
1.) Revisions to policies to extend grievance and complaint procedure and
appeal beyond the Town Manager.
2.) Adoption of a policy for complaints and grievances filed by and against
employees who report directly to the Town Council.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(Mayor Sanders)
Attachments: 1. Town Policy Section 113.00
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113.00 EMPLOYEE COMPLAINT AND GRIEVANCE PROCEDURE
EFFECTIVE DATE: 6/15/2006 REVISION DATE/NO: 6/15/2006-1
113.01 POLICY/PURPOSE
All employees are encouraged to bring any complaints about work-related situations to
the attention of management. Employees shall seek to first informally discuss any
issues with immediate supervisors or other members of the department’s management.
In a continuing effort to maximize harmonious relations with employees, management
should always treat each employee with respect and as an individual, encouraging
continuous open communication between all levels of employees. It is the objective of
the Town to ensure that all formal complaints (reporting of misconduct of an employee,
such as harassment or disagreement over an ordinance, resolution, policy, rule or
regulation) and grievances (an allegation that the Town has violated, misinterpreted, or
inequitably applied an existing law, ordinance, resolution, policy, rule or regulation, as it
applies to the conditions of employment, not to include questioning the substance of
policy) against employees are investigated to maintain the integrity and positive
perception of the Town. This procedure does not apply to the investigation of criminal
acts.
113.02 VERBAL COMPLAINTS
Citizens or employees of the Town are permitted to make verbal complaints concerning
the conduct of employees of the Town; however, no disciplinary action shall result
against the employee, nor is any permanent record placed in that employee’s personnel
file concerning the alleged conduct based solely upon the verbal complaint. Nothing in
this procedure is construed to prohibit further investigation of the complaint and a
Department Head in charge of such employee shall not be precluded from obtaining a
written complaint on his own initiative.
113.03 GENERAL PROVISIONS
A. Scope. The grievance procedure provides an avenue for any full-time employee to
obtain management review, through the employee’s department, of any work-
related issue that adversely impacts the employee and for which there is no other
means of response, review, appeal, or resolution as provided in this Manual.
B. Trial and Temporary Employees. Trial and temporary employees may use this
procedure, except in cases involving their performance evaluation or discharge.
However, in cases where the employee considers performance evaluation or
discharge to be improperly based upon the employee’s age, sex, race, religion,
national origin, or handicap condition, the employee shall have the right to such
relief pursuant to (D) below.
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C. Unlawful Discrimination Complaint. Any employee who feels that he or she has
been unlawfully discriminated against in matters relating to working conditions or
other conditions of employment, solely because of the employee’s race, color,
religion, sex, national origin, age, physical or mental disability, and/or sexual
orientation or reprisal for participation in prior Equal Employment Opportunity
(“EEO”) activity shall have the right to file anEEO complaint directly with the Town
Manager, as set out under the Town’s Discrimination and Harassment Procedure
(114.00).
D. Time Limits. Prompt resolution of grievances is desired. Time limits specified
may be extended or shortened by written agreement of the parties. The Human
Resources Manager may extend the time limits if the parties cannot agree, but
cannot shorten time limits.
1. A grievance not brought forward by the employee within the time limits
prescribed at each step will not be considered timely and will be void.
2. A grievance shall be responded to within the time limits prescribed by the
appropriate supervisory authority level. Failure to timely respond to a grievance
does not void the grievance, nor does it uphold the grievance or provide the
grounds for another grievance to be filed.
E. Representation. Any party to the grievance may have a representative to provide
assistance, accompany, or to provide representation at any step of the procedure.
For the purpose of this policy, parties include the grievant, the individual(s) against
whom the grievance is directed, and the appropriate department head.
F. Statement of Grievance. At each step of the process, the written grievance must
contain:
1. A detailed statement of the grievance and the facts upon which it is based;
2. Description of the specific wrongful act and harm done to the aggrieved
employee; and
3. Statement of the remedy or adjustment sought.
G. Sequential Steps. When the response to any step of the grievance procedure is
not acceptable to the employee, the next sequential step must be followed within
the time limits specified.
H. Human Resources Assistance. At any step of the grievance process the
supervisor/manager who is to respond to the grievance may seek assistance from
the Human Resources Manager or designee in resolving the grievance.
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113.04 COMPLAINT AND GRIEVANCE STEPS
A. Step One/Supervisor. The employee should first seek to resolve the issue
informally. All complaints and grievances other than EEO complaints shall be
initially presented orally to the employee’s immediate supervisor. (EEO
complaints: i.e., race, color, religion, sex, national origin, age, physical or mental
disability, and/or sexual orientation or reprisal for participation in prior EEO activity,
are to be taken directly to the Town Manager.) In this first step, the complaint or
grievance shall be thoroughly discussed by the parties in order that every effort
can be made to resolve the matter to the mutual satisfaction of employee and
supervisor. If the issue is not resolved, the employee may file a Step One
Complaint/Grievance form with the Human Resources Manager and the
employee’s immediate supervisor. The Step One Complaint/Grievance form must
be filed within fifteen (15) days of the incident or when the employee became
knowledgeable of the incident. The supervisor will attempt to resolve the matter
and will submit a written response to the employee within ten (10) days after
receipt of the Step One Complaint/Grievance form.
B. Step Two/Department Head Review. If the supervisor is unable to resolve the
matter or the employee does not find the supervisor's response acceptable, the
employee may file a Step Two Complaint/Grievance with the department head.
The Step Two Complaint/Grievance must be filed within five (5) days of receipt of
the supervisor's written response to the Step One Grievance. The department
head or designee will meet with the employee and render a written decision to the
employee within ten (10) days after the meeting. A copy of the decision shall be
given to the Human Resources Manager. If the department head is the
employee's immediate supervisor, the employee must, within the time limits
specified for presentation to the department head, present the Step Two Grievance
form to the department head's supervisor, who will act as specified in this Section
in lieu of the department head.
C. Step Three/Town Manager/District Manager Review
1. If the department head or designee is unable to resolve the grievance or the
Step Two response is unacceptable, the employee may seek further review by
filing a Step Three Grievance Form with the Town Manager, within five (5) days
of receipt of the Step Two decision. The employee must also provide a copy of
the form to the Human Resources Manager.
2. Within thirty (30) days of receipt of the Step Three Grievance Form, the Town
Manager, or his/her designee will either uphold the decision of Step Two, or
uphold the grievance and grant the employee the remedy sought, or render any
other decision consistent with good management principles, practices, and
policies. The decision of the Town Manager or designee is final in response to
a grievance or a committee recommendation and is not subject to appeal.
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EMPLOYEE COMPLAINT/GRIEVANCE FORM
NATURE OF MATTER (check one)
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__________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Attach additional page if necessary)
REMEDY SOUGHT: what action(s) do you wish the Town to take in order to resolve
the complaint: __________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
AFFIRMATION:
I swear or affirm that the above information is true to the best of my knowledge,
information, and belief:
______________________________________ _______________________
Signature Date
If you have filed this complaint with any state or federal enforcement agency, please
indicate _____________________ and ______________ in the space provided.
Please attach Step One and Two responses if escalating.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.C.1
Public Hearing to consider an ordinance of the Town Council of the Town
of Trophy Club accepting and approving a Service and Assessment Plan
and Assessment Roll for the Town of Trophy Club Public Improvement
District No. 1; making a finding of special benefit to the property in the
district; levying special assessments against property within the district
and establishing a lien on such property; providing for payment of the
assessments in accordance with Chapter 372, Texas Local Government
Code, as amended; providing for the method of assessment and the
payment of the assessments, providing penalties and interest on
delinquent assessments, providing for severability, and providing an
effective date.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
()
Attachments: 1. Affidavit of Publication
2. October 19th, 2007 Notice of Public Hearing
3. Assessment Roll
4. Ordinance
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TOWN OF TROPHY CLUB, TEXAS
ORDINANCE NO. 2007 -
AN ORDINANCE OF THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB ACCEPTING AND
APPROVING A SERVICE AND ASSESSMENT PLAN AND
ASSESSMENT ROLL FOR THE TOWN OF TROPHY
CLUB PUBLIC IMPROVEMENT DISTRICT NO. 1; MAKING
A FINDING OF SPECIAL BENEFIT TO THE PROPERTY IN
THE DISTRICT; LEVYING SPECIAL ASSESSMENTS
AGAINST PROPERTY WITHIN THE DISTRICT AND
ESTABLISHING A LIEN ON SUCH PROPERTY;
PROVIDING FOR PAYMENT OF THE ASSESSMENTS IN
ACCORDANCE WITH CHAPTER 372, TEXAS LOCAL
GOVERNMENT CODE, AS AMENDED; PROVIDING FOR
THE METHOD OF ASSESSMENT AND THE PAYMENT
OF THE ASSESSMENTS, PROVIDING PENALTIES AND
INTEREST ON DELINQUENT ASSESSMENTS,
PROVIDING FOR SEVERABILITY, AND PROVIDING AN
EFFECTIVE DATE
WHEREAS, on March 16, 2007, a petition was submitted and filed with the Town
Secretary (the “Town Secretary”) of the Town of Trophy Club, Texas (the “Town”)
pursuant to the Public Improvement District Assessment Act, Chapter 372, Texas Local
Government Code (the “PID Act”), requesting the creation of a public improvement
district over a portion of the area of the Town to be known as The Town of Trophy Club
Public Improvement District No. 1 (the “District”); and
WHEREAS, the petition contained the signatures of the owners of taxable
property representing more than fifty percent of the appraised value of taxable real
property liable for assessment within the District, as determined by the then current ad
valorem tax rolls of the Denton Central Appraisal District and the signatures of property
owners who own taxable real property that constitutes more than fifty percent of the
area of all taxable property that is liable for assessment by the District; and
WHEREAS, on May 7, 2007, after due notice, the Town Council of the Town (the
“Town Council”) held the public hearing in the manner required by law on the
advisability of the public improvements and services described in the petition as
required by Sec. 372.009 of the PID Act and made the findings required by Sec.
372.009(b) of the PID Act and, by Resolution No. 2008-08, adopted by a majority of the
members of the Town Council, authorized the District in accordance with its finding as
to the advisability of the public improvement and services; and
WHEREAS, on May 18, 2007, the Town published notice of its authorization of
the District in the Trophy Club Times, a newspaper of general circulation in the Town;
and
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WHEREAS, no written protests of the District from any owners of record of
property within the District were filed with the Town Secretary within 20 days after
May 18, 2007; and
WHEREAS, on May 21, 2007, the Council adopted a resolution (the “Cost
Resolution”) determining the total costs of the District improvements, directing the filing
of a proposed assessment roll, and directing related action; and
WHEREAS, the Town Council, pursuant to Section 372.016(b) of the PID Act,
published notice on October 19, 2007 in the Trophy Club Times of a public hearing in a
newspaper of general circulation in the Town to consider the proposed “Assessment
Roll” and the “Service and Assessment Plan” and the levy of the “Assessments” on
property in the District; and
WHEREAS, the Town Council, pursuant to Section 372.016(c) of the PID Act, by
causing the mailing of the notice of the public hearing to consider the proposed
Assessment Roll and the Service and Assessment Plan and the levy of Assessments
on property in the District to the last known address of the owners of the property liable
for the Assessments; and
WHEREAS, the Town Council convened the hearing at 7:00 p.m. on the 5th day
of November, 2007, at which all persons who appeared, or requested to appear, in
person or by their attorney, were given the opportunity to contend for or contest the
Plan, the Assessment Roll, and each proposed assessment, and to offer testimony
pertinent to any issue presented on the amount of the Assessment, the allocation of
Costs, the purposes of the Assessment, the special benefits of the Assessment, and the
penalties and interest on annual installments and on delinquent annual installments of
the Assessment; and
WHEREAS, the Town Council finds and determines that the Assessment Roll
and the Service and Assessment Plan should be approved and that the Assessments
(as defined in the Service and Assessment Plan) should be levied as provided in this
Ordinance and the Service and Assessment Plan and Assessment Roll; and
WHEREAS, the Town Council further finds that there were no written objections
or evidence submitted to the Town Secretary in opposition to the Service and
Assessment Plan, the allocation of Costs, the Assessment Roll, and the levy of
Assessments; and
WHEREAS, prior to the issuance of bonds secured by the Assessments, the
owners (the “Landowners” or the “Assessed Parties”) of 100% of the privately-owned
and taxable property located within the District, and who are the persons to be
assessed pursuant to this Ordinance, will have executed and presented to the Town
Council for approval and acceptance a Landowner Agreement (the “Landowner
Agreement”) in the form and substance acceptable to the Town, in which the Assessed
Parties approve and accept the Service and Assessment Plan, approve the Assessment
Roll, approve this Ordinance and approve the levy of the Assessments against their
property located within the District, and agree to pay the Assessments when due and
payable, subject to the credits provided for herein and in the Service and Assessment
Plan; and
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WHEREAS, the Town Council closed the hearing, and, after considering all
written and documentary evidence presented at the hearing, including all written
comments and statements filed with the Town, determined to proceed with the adoption
of this Ordinance in conformity with the requirements of the PID Act.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS:
Section 1. Terms.
Terms not otherwise defined herein are defined in the Service and Assessment Plan
attached hereto as Exhibit A. (the “Service and Assessment Plan”).
Section 2. Findings.
The findings and determinations set forth in the preambles are hereby incorporated by
reference for all purposes. The Town Council hereby finds, determines, and ordains, as
follows:
(a) The apportionment of the PID Costs, and the Annual Collection
Costs pursuant to the Service and Assessment Plan is fair and reasonable,
reflects an accurate presentation of the special benefit each property will receive
from the construction of the public improvements identified in the Service and
Assessment Plan, and is hereby approved;
(b) The Service and Assessment Plan covers a period of at least five
years and defines the annual indebtedness and projected costs for the
Improvement Project;
(c) The Service and Assessment Plan apportions the cost of a public
improvement to be assessed against property in the District and such
apportionment is made on the basis of special benefits accruing to the property
because of the improvement.
(d) All of the real property in the District which is being assessed in the
amounts shown in the Assessment Roll will be benefited by the services and
improvements proposed to be provided through the District in the Service and
Assessment Plan, and each parcel of real property will receive special benefits in
each year equal to or greater than each annual Assessment and will receive
special benefits during the term of the Assessments equal to or greater than the
total amount assessed;
(e) The method of apportionment of the PID Costs and Annual
Collection Costs set forth in the Service and Assessment Plan results in imposing
equal shares of the PID Costs and Annual Collection Costs on property similarly
benefited, and results in a reasonable classification and formula for the
apportionment of the Costs;
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(f) The Service and Assessment Plan should be approved as the
service plan and assessment plan for the District as described in Sections
372.013 and 372.014 of the PID Act;
(g) The Assessment Roll in the form attached as Exhibit D to the
Service and Assessment Plan (the “Assessment Roll”) should be approved as
the assessment roll for the District;
(h) The provisions of the Service and Assessment Plan relating to due
and delinquency dates for the Assessments, interest on Annual Installments,
interest and penalties on delinquent Assessments and delinquent Annual
Installments, and procedures in connection with the imposition and collection of
Assessments should be approved and will expedite collection of the
Assessments in a timely manner in order to provide the services and
improvements needed and required for the area within the District; and
(i) A written notice of the date, hour, place and subject of this meeting
of the Town Council was posted at a place convenient to the public for the time
required by law preceding this meeting, as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended, and that this meeting has
been open to the public as required by law at all times during which this
Ordinance and the subject matter hereof has been discussed, considered, and
formally acted upon.
Section 3. Assessment Plan.
The Service and Assessment Plan is hereby accepted and approved pursuant to the
PID Act Sections 372.013 and 372.014 as the service plan and the assessment plan for
the District.
Section 4. Assessment Roll.
The Assessment Roll is hereby accepted and approved pursuant to the PID Act
Section 372.016 as the assessment roll of the District.
Section 5. Levy and Payment of Special Assessments for Costs of
Improvement Project.
(a) The Town Council hereby levies an assessment on each tract of
property located within the District, as shown and described on the Service and
Assessment Plan and the Assessment Roll, in the respective amounts shown on
the Assessment Roll as a special assessment on the properties set forth in the
Assessment Roll.
(b) The levy of the Assessments shall be effective on the date of
execution of this Ordinance levying assessments and strictly in accordance with
the terms of the Service and Assessment Plan.
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(c) The collection of the Assessments shall be as described in the
Service and Assessment Plan.
(d) Each Assessment may be paid in a lump sum or may be paid in
Annual Installments pursuant to the terms of the Service and Assessment Plan.
(e) Each Assessment shall bear interest at the rate or rates specified in
the Service and Assessment Plan.
(f) Each Annual Installment shall be collected each year in the manner
set forth in the Service and Assessment Plan.
(g) The Annual Collection Costs for Assessed Properties shall be
calculated pursuant to the terms of the Service and Assessment Plan.
Section 6. Method of Assessment.
The method of apportioning the Costs is as set forth in the Service and
Assessment Plan.
Section 7. Penalties and Interest on Delinquent Assessments.
Delinquent Assessments shall be subject to the penalties, interest, procedures,
and foreclosure sales set forth in the Service and Assessment Plan. The Assessments
shall have lien priority as specified in the PID Act and the Service and Assessment
Plan.
Section 8. Prepayments of Assessments.
(a) As provided in subsection 372.018(b) of the PID Act and in Section VI(E)
of the Service and Assessment Plan, the owner (the “Owner”) of any Assessed Property
may prepay the the Assessments levied by this Ordinance.
Section 9. Lien Priority.
As provided in the Landowner Agreement, the Town Council and the
Landowners intend for the obligations, covenants and burdens on the Landowners of
Assessed Properties, including without limitation such Landowners’ obligations related
to payment of the Assessments and the Annual Installments, to constitute a covenant
running with the land. The Assessments and the Annual Installments levied hereby
shall be binding upon the Assessed Parties, as the Landowners of Assessed Properties,
and their respective transferees, legal representatives, heirs, devisees, successors and
assigns in the same manner and for the same period as such parties would be
personally liable for the payment of ad valorem taxes under applicable law.
Assessments shall have lien priority as specified in the Service and Assessment Plan
and the PID Act.
Section 10. Appointment of Administrator and Collector of Assessments.
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(a) Appointment of Administrator.
MuniCap, Inc., of Columbia, Maryland, is hereby appointed and designated as the
initial Administrator of the Service and Assessment Plan and of the Assessments levied
by this Ordinance. The Administrator shall perform the duties of the Administrator
described in the Service and Assessment Plan and in this Ordinance. The
Administrator’s fees, charges and expenses for providing such service shall constitute
an Annual Collection Cost.
(b) Appointment of Temporary Collector.
Sakura Dedrik, Finance Director of the Town, is hereby appointed as the temporary
collector of the Assessments (the “Collector”). The Collector shall serve in such capacity
until such time as the Town shall arrange for the Collector’s duties to be performed by
the Denton County Tax Assessor and Collector or another qualified collection agent
selected by the Town.
Section 11. Applicability Of Tax Code.
To the extent not inconsistent with this Ordinance, and not inconsistent with the PID
Act or the other laws governing public improvement districts, the provisions of the Texas
Tax Code shall be applicable to the imposition and collection of Assessments by the
Town.
Section 12. Severability.
If any provision, section, subsection, sentence, clause, or phrase of this Ordinance, or
the application of same to any person or set of circumstances is for any reason held to
be unconstitutional, void, or invalid, the validity of the remaining portions of this
Ordinance or the application to other persons or sets of circumstances shall not be
affected thereby, it being the intent of the Town Council that no portion hereof, or
provision or regulation contained herein shall become inoperative or fail by reason of
any unconstitutionality, voidness, or invalidity of any other portion hereof, and all
provisions of this Ordinance are declared to be severable for that purpose.
Section 13. Effective Date.
This Ordinance shall take effect, and the levy of the Assessments, and the provisions
and terms of the Service and Assessment Plan shall be and become effective on upon
passage and execution hereof. However, the Service and Assessment Plan and this
Ordinance shall automatically terminate if bonds secured by the Assessments are not
issued by the Town on or before September 31, 2008.
[Remainder of page left blank intentionally]
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ADOPTED, PASSED, and APPROVED by the Town Council, by a vote of ___ members
voting “for” and ___ members voting “against” and with ___ absentees, on this 5th day
of November, 2007.
Town of Trophy Club
________________________________
Nick Sanders, Mayor
Attest:
________________________________
Town Secretary
Approved as to Form:
________________________________
Patricia Adams, Town Attorney
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EXHIBIT A
SERVICE AND ASSESSMENT PLAN
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.C.2
Public Hearing to Consider an Amendment to PD – Planned Development
District No. 27, Ordinance No. 2007-15 P&Z to allow amendments to Exhibit
"B" Development Standards, specifically including 45% Lot Coverage for
Lot Type 2 in Neighborhoods 3 and 4 of The Highlands of Trophy Club.
Applicants: K. Hovnanian Homes and Standard Pacific Homes. (PD AMD-
07-025)
PURPOSE: The applicants, K. Hovnanian Homes and Standard Pacific Homes are
requesting approval of an amendment to Ordinance No. 2007-15 P&Z to allow 45% lot
coverage for Lot Type 2 in The Highlands Neighborhoods 3 & 4.
HISTORY: The Planning & Zoning Commission recommended Neighborhood 3, Phase
1A and Neighborhoods 3 & 4, Phase 1B of The Highlands of Trophy Club for final plat
on June 21, 2007. Town Council approved the Final Plats on July 9, 2007.
Neighborhoods 3 & 4 consist of 324 lots: 4 are open areas, 82 lots are Lot Type 1
which are 12,000+ square foot lots and the remainder, 238 lots, are Lot Type 2, which
are 10,000+ square foot lots. The builders request is for an increase in lot coverage for
Lot Type 2 lots only.
STAFF REVIEW: The current definition and requirements for Lot Coverage for Lot
Type 2 lots are as follows: “The combined area covered by all main buildings and
accessory structures shall not exceed thirty-five percent (35%) of the total lot area.
Swimming pools and spas shall not be included in determining maximum building
coverage.”
The applicants are requesting that the percentage change to 45%.
PUBLIC HEARING: As required by ordinance, a notice of public hearing was published
in the local newspaper on Friday, October 6, 2007, and property owners (within 200-ft.
of these neighborhoods) were notified of this request. Copies of the notices are
attached.
One telephone call from one of the property owners within 200-ft. was received. She
was not in favor of the request as she believes it will give the neighborhood a “rooftops”
look; that green space will be hard to find or see because of the large size of the homes.
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STAFF RECOMMENDATION: Staff is not opposed to the request.
PLANNING & ZONING COMMISSION ACTION: On Thursday, October 18, 2007, the
Planning & Zoning Commission recommended approval of the request with the
following stipulations:
Of the 238 Type 2 lots, not to exceed 119 lots can have up to 45%
lot coverage; of the remaining lots the combined area covered by
all main buildings and accessory structures shall not exceed forty
percent (40%) of the total lot area. Swimming pools and spas shall
not be included in determining maximum building coverage.
“Minimum Floor Area” increases to 2,700 sq. ft. minimum for all
Type 2 lots. The asterisk stays: “Those residences with more than
one (1) story shall have a minimum first floor area of 2,000 square
feet. (Including garage area)
Add the following sentence to the “Garage” section of Lot Type 2:
“Any lot that exceeds coverage in excess of 40% must have a 3-car
garage.”
Attachments: Request and Application from Applicants
Neighborhoods 3 & 4 Phasing Plan
Lot Type 2 Regulations from PD-27 Exhibit B Development Standards
Public Hearing and Property Owner Notifications
Email of Opposition from Jim Aenchbacher, 108 Fresh Meadow Dr.
Ordinance No. 2007-XX P&Z Amending 2007-15 P&Z
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TOWN OF TROPHY CLUB, TEXAS
ORDINANCE NO. 2007-_____ P&Z
AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS
AMENDING ORDINANCE NO. 2007-15 P&Z OF THE TOWN, THE
SAME BEING PD PLANNED DEVELOPMENT #27, THE SAME HAVING
AMENDED 2006-06 P&Z OF THE TOWN, THE SAME BEING THE
COMPREHENSIVE ZONING ORDINANCE, AND HAVING AMENDED
THE OFFICIAL ZONING MAP OF THE TOWN, BY ADOPTING THIS
ORDINANCE TO REFLECT CHANGES TO EXHIBIT “B”,
DEVELOPMENT STANDARDS OF PD NO. 27 AS MORE FULLY
DESCRIBED BELOW; PROVIDING THAT SUCH TRACT OF LAND
SHALL BE USED IN ACCORDANCE WITH THE REQUIREMENTS OF
THE COMPREHENSIVE ZONING ORDINANCE AND ALL OTHER
APPLICABLE ORDINANCES OF THE TOWN; PROVIDING GENERAL
PROVISIONS; PROVIDING A SAVINGS CLAUSE; PROVIDING A
PENALTY NOT TO EXCEED THE SUM OF TWO THOUSAND
DOLLARS ($2,000.00) FOR EACH OFFENSE AND A SEPARATE
OFFENSE SHALL BE DEEMED COMMITTED EACH DAY DURING OR
ON WHICH A VIOLATION OCCURS OR CONTINUES; PROVIDING A
SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Town of Trophy Club (hereinafter referred to as “Town”) is a
Home Rule Municipality acting under its Charter adopted by the electorate pursuant to
Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Texas Local
Government Code; and
WHEREAS, the Town previously approved Ordinance No. 2007-15 P&Z
amending Ordinance No. 2006-11 P&Z creating PD Planned Development No. 27,
known as The Highlands at Trophy Club (hereinafter “PD No. 27”); and
WHEREAS, the owner of the land in Neighborhoods 3 & 4 of The Highlands of
Trophy Club, zoned PD Planned Development #27 (hereinafter referred to as “Land”),
filed an application with the Town requesting an amendment to the lot coverage for Lot
Type 2 lots in these two neighborhoods; and
WHEREAS, the Land is more specifically described in Exhibit “A”, a copy of
which is attached hereto and incorporated herein, and
WHEREAS, all legal notices, requirements and conditions having been complied
with, the amendment to PD-27 came before the Planning and Zoning Commission; and
WHEREAS, after public notices were given in compliance with State law and
public hearings were conducted, and after considering the information submitted at the
said public hearings and all other relevant information and materials, the Planning and
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Zoning Commission of the Town has recommended to the Town Council the adoption of
the amendments to Ordinance No. 2007-15 P&Z as set forth in this Ordinance; and
WHEREAS, after due deliberations and consideration of the recommendation of
the Planning and Zoning Commission and the information and other materials received
at the public hearing, the Town Council has concluded that the adoption of this
Ordinance is in the best interests of the Town of Trophy Club, Texas and of the public
health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS:
SECTION 1.
INCORPORATION OF PREMISES
The above and foregoing premises are true and correct and are incorporated
herein and made a part hereof for all purposes.
SECTION 2.
AMENDING
Ordinance No. 2007-15 P&Z of the Town of Trophy Club, Texas, the same being
the Town's PD No. 27, Exhibit “B” Development Standards, is hereby amended in the
following particulars, and all other articles, chapters, sections, paragraphs, sentences,
phrases and words are not amended but are hereby ratified and affirmed:
B. Lot Type 2:
5. Area Regulations: The following minimum standards shall be
required as measured from property lines:
Lot Size: 10,000 square feet; For lots abutting the golf
course, the minimum lot size shall be
increased by 1,000 square feet.
Lot Coverage: Of the 238 Type 2 Lots, not to exceed 119
lots can have up to 45% lot coverage; of the
remaining lots the combined area covered by
all main buildings and accessory structures
shall not exceed forty percent (40%) of the
total lot area. Swimming pools and spas
shall not be included in determining
maximum building coverage.
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Minimum Floor Area: The minimum square footage of a dwelling
unit, exclusive of garages, breezeways and
porches, shall be in accordance with the
following:
Type of Structure Golf Course
Lots
All Other Lots
One story residence 2,700 2,700
One and one half
story or two story
residence
2,700* 2,700*
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*Those residences with more than one (1) story shall have a minimum first
floor area of 2,000 square feet. (Including garage area)
Front Yard: 25 feet minimum
Rear Yard: Golf Course: 35 feet minimum
Rear Yard: 25 feet minimum (No rear yard shall face any
street without approval from the Planning
and Zoning Commission; provided, however,
that this requirement shall not apply where
the rear yard of a lot abuts a street which is
contiguous to the perimeter of the Town.)
Side Yard: Golf Course: 10 feet minimum
Side Yard: 7.5 feet minimum; provided that the distance
between buildings remains a minimum of 15
feet, the width of the side yard on one side
may be reduced to not less than 5 feet
Side Yard: Adjacent to Street: 15 feet minimum
Lot Width: 80 feet minimum (measured at the front
building line)
Lot Width: Adjacent to Side Street: 90 feet minimum
(measured at the front building line)
Lot Depth: 110 feet minimum
Lot Depth: Corner or cul-de-sac lot: 100 feet minimum
Garage: May not face front street unless set back at
least 30 feet from front building line; may not
face side street unless set back 50 feet from
side street right-of-way. Any lot that exceeds
coverage in excess of 40% must have a 3-
car garage.
SECTION 3.
APPLICABLE REGULATIONS
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In all respects the Land shall be subject to the applicable regulations contained in
the Comprehensive Zoning Ordinance and all other applicable and pertinent ordinances
and regulations of the Town.
SECTION 4.
SAVINGS
This Ordinance shall be cumulative of all other ordinances of the Town affecting
the regulation of land and zoning and shall not repeal any of the provisions of those
ordinances except in those instances where the provisions of those Ordinances are in
direct conflict with the provisions of this Ordinance.
SECTION 5.
PENALTY
It shall be unlawful for any person to violate any provision of this Ordinance, and
any person violating or failing to comply with any provision hereof shall be fined, upon
conviction, in an amount not more than Two Thousand Dollars ($2,000.00), and a
separate offense shall be deemed committed each day during or on which a violation
occurs or continues.
SECTION 6.
SEVERABILITY
The sections, paragraphs, sentences, phrases, clauses and words of this
Ordinance are severable, and if any section, paragraph, sentence, phrase, clause or
word in this Ordinance or application thereof to any person or circumstance is held
invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not
affect the validity of the remaining portions of this Ordinance, and the Town Council
hereby declares that it would have passed such remaining portions of this Ordinance
despite such invalidity, which remaining portions shall remain in full force and effect.
SECTION 7.
EFFECTIVE DATE
This Ordinance shall become effective from and after its date of adoption and
publication as provided by law.
AND IT IS SO ORDAINED
PASSED AND APPROVED by the Town Council of the Town of Trophy Club,
Texas, this 5th day of November, 2007.
_____________________________________
Mayor, Nick Sanders
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Town of Trophy Club, Texas
ATTEST:
_____________________________________
Town Secretary
Town of Trophy Club, Texas
[SEAL]
APPROVED AS TO FORM:
_____________________________________
Town Attorney
Town of Trophy Club, Texas
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.1
Discuss and take appropriate action by Resolution, casting all of the
Town’s allocated votes (13) for a candidate or candidates to serve as a
member of the Denton Central Appraisal District Board of Directors.
EXPLANATION:
Ms. Pearl Ford was nominated to serve on the Denton County Appraisal District (DCAD)
Board of Directors at the October 1st, Town Council Meeting, The Town is allotted 13
votes and may cast all votes for one candidate or distribute its votes among any number
of candidates. Attached is a memorandum dated October 23, 2007 from DCAD that
provides nominated candidates by the taxing jurisdictions. Prior to December 31st, a
tabulation of the votes will be forwarded to the jurisdictions. The five candidates that
have received the most votes become the Board of Directors as of January 1st, 2006.
Ms. Ford has also expressed an interest to serve on the Denton County Appraisal
Review Board. (See Item D.11)
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. October 23rd, 2007 Memorandum and Nominations Forms
2. Resolution
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TOWN OF TROPHY CLUB, TEXAS
RESOLUTION NO. 2007-
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TROPHY
CLUB, TEXAS, CASTING ALL OF ITS ALLOCATED VOTES FOR
____________ TO SERVE AS A MEMBER OF THE DENTON CENTRAL
APPRAISAL DISTRICT BOARD OF DIRECTORS; PROVIDING FOR
SUBMITTAL OF SAME TO THE CHIEF APPRAISER; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, Section 6.03 of the Tax Code provides for the selection of members
for the Denton Central Appraisal District’s Board of Directors based on the standard
process of nominations and selection by the voting units in a taxing jurisdiction;
WHEREAS, the Town of Trophy Club, Texas, based on the tax levy for the
Town, was allocated a total of thirteen (13) votes to cast for nominated candidate(s)
named on the ballot provided by the Chief Appraiser of the Denton Central Appraisal
District,
WHEREAS, upon receiving the selections submitted by all voting units of the
taxing jurisdiction, the five nominees receiving the most votes will be appointed
members of the Board of Directors for the Denton Central Appraisal District.
WHEREAS, it is the desire of the Town Council of the Town of Trophy Club,
Texas, to cast it’s allocated votes to select ____________ for placement on the Board
of Directors for the Denton Central Appraisal District.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS:
Section 1. That the Town of Trophy Club, Texas, hereby casts all of its
allocated votes for ____________, Denton County Tax Assessor/Collector, to serve as
a member of the Board of Directors for the Denton Central Appraisal District.
Section 2. That this Resolution, indicating the votes cast and candidate
selected, shall be submitted to the Chief Appraiser of the Denton Central Appraisal
District prior to December 15, 2007.
Section 3. That this Resolution shall become effective from and after its date
of passage in accordance with law, and it is so resolved.
PASSED AND APPROVED by the Town Council of the Town of Trophy Club,
Texas, this 5th day of November, 2007.
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___________________________________
Mayor, Nick Sanders
Town of Trophy Club, Texas
ATTEST:
___________________________________
Town Secretary
Town of Trophy Club, Texas
[Seal]
APPROVED AS TO FORM:
____________________________________
Town Attorney
Town of Trophy Club, Texas
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.2
Centurion American to make a presentation on the Plan of Finance for the
Highlands of Trophy Club and discussion of the same.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Plan of Finance
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Plan of Finance
The project will be financed with the proceeds of the 2007 Bonds to the extent
such proceeds are available. Public improvements not funded with the proceeds of the
2007 Bonds and all private improvements will be financed by private funding sources
and internally generated cash flow from sales occurring within the District.
The Developer estimates the cost of improvements required to complete the
Development through 2013 at an estimated $55,248,022. This total includes all bond,
permit, inspection, engineering soft costs, administrative fees and required contingency.
City and Developer procured public improvements, which total $29,161,000 will be
funded from the 2007 Bonds. Water and Sewer capacity fees on new residential
developoments outside the District may also be used to finance public improvements to
the extent that those developments utilize pro rata sharing of facilities.
The approximately $ 26,087,022 of improvements not funded with the proceeds
of the 2007 Bonds will be funded with private financing by the Developer, High Trophy
Development in Neighborhoods 1/2/5/6 and the Developer, BDMR Development in
Neighborhoods 8 and 9. The Developer Standard Pacific and KHovnanian will develop
Neighborhoods 3 and 4. As of October 1, 2007 the developer High Trophy
Development has provided funds to cover costs of approximately $1,790,000. The
Developer will provide additional funds as needed to complete the Development.
Approximately $12M in builder deposits will be utilized to offset project costs as well.
The balance of remaining improvements will be funded over time from working capital,
and land sales.
The Developer, High Trophy Development has secured Development Loan
Funding from First National Bank Southwest for Neighborhoods 1/2/5/6 at $10,641,000.
The Developer BDMR Development has secured funding from Colonial Bank for
Neighborhoods 8 and 9 in the amount of approximately $10.5M. The Developer
Standard Pacific and KHovnanian will be developing Neighborhoods 3 and 4 at an
estimated $ 6,804,000. Neighborhood 7 is contemplated with future development at
$3,996,000 from High Trophy Development. Neighborhoods 3 and 4 be completed by
Homebuilders Khovnanian and Standard Pacific at an estimated $ 6,804,000, both
publicly traded builders. Other public improvements being funded by the 2007 Bonds
total an estimated $29,161,000. The two bank loans for High Trophy Development and
BDMR Development have been closed. The Bank loan is expected to be repaid with
the proceeds from residential building lots.
The Bank Loans are secured by a lien on real estate, including real estate with
the District. The lien securing the Bank Loans will attach to all real property in the
District which lien will be subordinate to the liens of the deeds of trust securing the
Mortgage Notes (defined below).
N3 St Pac/KHOV- Funded by Standard Pacific and KHOVNANIAN
N4 St Pac/KHOV- Funded by Standard Pacific and KHOVNANIAN
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N1 HIGH TROPHY DEVELOPMENT / First National Bank SW +/-$10.641M
N2 HIGH TROPHY DEVELOPMENT / First National Bank SW
N5 HIGH TROPHY DEVELOPMENT / First National Bank SW
N6 HIGH TROPHY DEVELOPMENT / First National Bank SW
N7 Later Phase / No current development Loan
N8 BDMR Development / Colonial Bank / +/- $10.5M
N9 BDMR Development / Colonial Bank
The Developer expects that the financial resources currently available and those
expected to be in place, together with the proceeds from the 2007 Bonds,
reimbursements, deposits, and other sources, will be sufficient to fund the completion of
the Development.
ADDITIONAL NOTES
NH-1
• 219 Lots
• Owned by High Trophy Development, LLC (an affiliate of Centurion American)
• Fee Developer is Lenart Development Company, L.L.C.
• Final Plan approval for first phase expected in October 2007
• Excavation to begin in October 2007 on first phase (155 lots)
• Land and Development loan with First National Bank Southwest with a total
loan of +/-$10.641M to cover N1/N2/N5/N6
• Development cost for first phase is $2,790,000
NH-2
• 150 Lots
• Owned by High Trophy Development, LLC (an affiliate of Centurion American)
• Fee Developer is Lenart Development Company, L.L.C.
• Final Plan approval for first phase expected in October 2007
• Excavation began in September 2007 on first phase (118 lots)
• Land and Development loan with First National Bank Southwest
• Development cost for first phase is $2,478,000
NH-3
• 140 Lots
• Owned by K. Hovnanian Homes and Standard Pacific Homes
• Fee Developer is Hillwood Residential
• Final Plan approval for first phase occurred in August 2007
• Excavation is complete and utilities are underway in first phase
• Development cost is $2,940,000
NH-4
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• 184 Lots
• Owned by K. Hovnanian Homes and Standard Pacific Homes
• Fee Developer is Hillwood Residential
• Final Plan approval for first phase occurred in August 2007
• Excavation is complete and utilities are underway in first phase
• Development cost is $3,864,000
NH-5
• 170 Lots
• Owned by High Trophy Development, LLC (an affiliate of Centurion American)
• Fee Developer is Lenart Development Company, L.L.C.
• Final Plan approval for first phase expected in October 2007
• Excavation to begin in October/Novemberr 2007 on first phase (99 lots)
• Land and Development loan with First National Bank Southwest
• Development cost for first phase is $1,782,000
NH-6
• 171 Lots
• Owned by High Trophy Development, LLC (an affiliate of Centurion American)
• Fee Developer is Lenart Development Company, L.L.C.
• This NH will be developed as needed to supply the builders in NH-2 with
replacement phases
• Land loan with First National Bank Southwest
• Development cost is $3,591,000
NH-7
• 222 Lots
• Owned by High Trophy Development, LLC (an affiliate of Centurion American)
• Fee Developer is Lenart Development Company, L.L.C.
• This NH will be developed as needed to supply the builders in NH-1 and 5 with
replacement phases
• Land loan with First National Bank Southwest
• Development cost is $3,996,000
NH-8
• Zoned for 260 townhome lots
• Owned by BDMR Development, LLC (an affiliate of Centurion American)
• Development Loan +/-$10.5M with Colonial Bank to cover NH8/NH9
• Land loan with Colonial Bank
NH-9
• 46 Lots
• Owned by BDMR Development, LLC (an affiliate of Centurion American)
• Fee Developer is Lenart Development Company, L.L.C.
• Final Plan approval expected in October 2007
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• Excavation began in September 2007
• Land and Development loan with Colonial Bank
• Development cost for first phase is $966,000
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.3
Discuss, provide input and/or take action as appropriate regarding the
following documents and matters related to the Trophy Club Public
Improvement District No. 1 (The Highlands at Trophy Club) for
infrastructure and related improvements:
A. Discuss and take appropriate action on a Landowner Agreement
between the Town and the landowners within the Town of Trophy Club
Public Improvement District No.1, (the "District") concerning the consent to
the levy of assessments on property within District and other matters
relating to the development and construction of public improvements on
land within the District.
B. Discuss and take appropriate action to authorize the Town Manager to
direct the distribution of a Preliminary Limited Offering Memorandum for
the Town of Trophy Club Public Improvement District No. 1 Special
Assessment Revenue Bonds, Series 2007 (Highlands of Trophy Club
Project), with such changes as City Staff and Bond Counsel deem
appropriate to make such document complete and accurate.
C. Discuss and take appropriate action on a Construction and Funding
Agreement between the Town and 831 Trophy, L.P. concerning the
construction of certain public improvements within the Town of Trophy
Club Public Improvement District No. 1 (The Highlands of Trophy Club
project).
Attachments:
A. The most recent draft of the Landowner Agreement.
B. The most recent draft of the Construction and Funding Agreement.
C. The most recent draft of the Preliminary Limited Offering Memorandum (PLOM)
was not received in time for inclusion in the packet but will be forwarded to
Council when received.
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LANDOWNER AGREEMENT
Among
THE TOWN OF TROPHY CLUB, TEXAS
and
the Landowner(s) (defined herein)
Dated as of:
_____________________, 2007
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LANDOWNER AGREEMENT
This LANDOWNER AGREEMENT (the, or this, “Agreement”), is entered into as
of ____________, 2007, among the TOWN OF TROPHY CLUB, TEXAS (the “Town”),
a duly incorporated municipality and Town of the State of Texas, and 831 Trophy, L.P.,
a Texas limited partnership, and High Trophy Development L.L.C., a Texas limited
liability company, Standard Pacific of Texas, L.P., a Delaware limited partnership
(“Standard Pacific”), K. Hovnanian Homes-DFW, L.L.C. (“K. Hovnanian”), Centurion
Acquisitions, L.P, a Texas limited partnership (“Centurion”), and BDMR Development,
L.L.C. a Texas limited liability company, (each, individually and severally, a
“Landowner”). Each undersigned Landowner signs this Agreement solely on behalf of
itself, and solely with respect to that portion of the Development Land currently owned
by such Landowner.
RECITALS:
WHEREAS, each Landowner owns the Assessed Parcel identified as owned by it
on Exhibit 1 attached hereto, which when combined with each other Assessed Parcel
owned by each other Landowner, comprise all of the taxable, privately-owned land
described in Exhibit 1 (the “Development Land”) which is 100% of the privately-owned
land located within Town of Trophy Club Public Improvement District No. 1 (this
“District”) in the Town; and
WHEREAS, 831 Trophy, L.P., in addition to being a Landowner, is the developer
(the “Developer”) of the Development Land; and
WHEREAS, 831 Trophy, L.P., a Texas limited partnership, and High Trophy
Development L.L.C., a Texas limited liability company, and the Town have entered into
that certain Trophy Club Development And Public Improvement District Agreement (as
such agreement may be restated and amended by the Town and the Developer from
time to time, the “Development Agreement”), providing, among other matters, for the
levy of assessments on the Development Land, the issuance of revenue bonds secured
by such assessments, and the construction of the “Public Improvements” as defined
therein; and
WHEREAS, contemporaneously with the execution of this Agreement, the Town
Council is adopting an assessment ordinance (including all exhibits and attachments
thereto, the “Assessment Ordinance”) and the Service and Assessment Plan included
as an exhibit to the Assessment Ordinance, a copy of which Service and Assessment
Plan is attached hereto as Exhibit 2 (the “Service and Assessment Plan”), and is
levying an assessment on each Assessed Parcel in the District that will be pledged as
the security for the payment of bonds to be issued for the purpose of paying the costs of
constructing the Public Improvements that will benefit the Development Land (together,
the “Assessment Revenue Bonds”); and
WHEREAS, attached to this Agreement, as a part of Exhibit 3, Covenants,
Conditions and Restrictions, is the statutory notification required by Texas Property
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Code Section 5.014, to be provided by the seller of residential property that is located in
a public improvement district established under Chapter 372, Local Government Code
to the purchaser; and
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
obligations and benefits hereinafter set forth, the Town and each of the Landowners,
individually and severally, hereby contract, covenant and agree as follows:
DEFINITIONS; APPROVAL OF AGREEMENTS
Definitions. Capitalized terms used but not defined herein (including each exhibit
hereto) shall have the meanings ascribed to them in the Service and Assessment Plan.
Affirmation of Recitals. The findings set forth in the Recitals of this Agreement are
hereby incorporated as the official findings of the Town Council.
Section 14.
AGREEMENTS OF LANDOWNERS
(a) Affirmation and Acceptance of Agreements and Findings of Benefit. Each
Landowner hereby ratifies, confirms, accepts, agrees to, and approves:
i. the creation and boundaries of the District, and the boundaries of
each Assessed Parcel contained within the Development Land, all as shown on
Exhibit 1, and the location and development of the Public Improvements on the
Development Land;
ii. the determinations and findings as to benefits by the Town Council
in the Service and Assessment Plan and the Assessment Ordinance;
iii. the Assessment Ordinance and the Service and Assessment Plan.
(b) Acceptance and Approval of Assessments and Lien on Property. Each
Landowner consents to, agrees to, acknowledges and accepts the following:
i. each Assessment levied on each Assessed Parcel within the
District, as shown on the Assessment Roll attached as Exhibit D to the Service
and Assessment Plan (the “Assessment Roll”);
ii. the Public Improvements specially benefit the Development Land in
an amount in excess of the Assessment levied on each Assessed Parcel within
the Development Land, as such Assessment is shown on the Assessment Roll;
iii. each Assessment is final, conclusive and binding upon such
Landowner, regardless of whether such Landowner may be required to prepay a
portion of such Assessment upon the occurrence of a Mandatory Prepayment
Event;
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iv. pay the Assessment levied on the Assessed Parcel(s) owned by it
when due and in the amount required by and stated in the Service and
Assessment Plan and the Assessment Ordinance;
v. each Assessment or reassessment, with interest, the expense of
collection, and reasonable attorney’s fees, if incurred, is a first and prior lien
against the Assessed Parcel assessed, superior to all other liens and monetary
claims except liens or monetary claims for state, county, school district, or
municipal ad valorem taxes, and is a personal liability of and charge against the
owners of the Assessed Parcel regardless of whether the owners are named;
vi. the Assessment lien on each Assessed Parcel is a lien and
covenant that runs with the land and is effective from the date of the Assessment
Ordinance and continues until the Assessment is paid and may be enforced by
the governing body in the same manner that an ad valorem tax lien against real
property may be enforced by the Town;
vii. delinquent installments of the Assessment shall incur and accrue
interest, penalties, and attorney’s fees as provided in the PID Act;
viii. the owner of an Assessed Parcel may pay at any time the entire
Assessment, with interest that has accrued on the Assessment, on any Assessed
Parcel; and
ix. such Landowner has received all notices required to be provided to
it under the PID Act prior to the Effective Date.
(c) Mandatory Prepayment of Assessments. Each Landowner agrees and
acknowledges that such Landowner may have an obligation to prepay an Assessment
upon the occurrence of a “Mandatory Prepayment Event”.
(d) Notice of Assessments. Each Landowner further agrees as follows:
i. the Covenants, Conditions and Restrictions attached hereto as
Exhibit 3 shall be terms, conditions and provisions running with each Assessed
Parcel comprising the Development Land and shall be recorded by the
Developer, along with the Notice of Creation of Special Assessment District and
Imposition of Special Assessment prepared by the Town, in the records of the
County Clerk of Denton County, as a lien and encumbrance against such
Assessed Parcel, and each Landowner hereby authorizes the Town to so record
such documents against each Assessed Parcel owned by such Landowner;
ii. reference to the Covenants, Conditions and Restrictions attached
hereto as Exhibit 3 shall be included on all recordable subdivision plats and such
plats shall be recorded in the Real Property Records of Denton County, Texas;
iii. in the event of any subdivision, sale, transfer or other conveyance
by a Landowner of the right, title or interest of such Landowner in such Assessed
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Parcel or any part thereof, the Assessed Parcel or any such part thereof shall
continue to be bound by all of the terms, conditions and provisions of such
Covenants, Conditions and Restrictions and any purchaser, transferee or other
subsequent owner shall take such Assessed Parcel subject to all of the terms,
conditions and provisions of such Covenants, Conditions and Restrictions;
iv. such Landowner shall comply with, and shall contractually obligate
(and promptly provide written evidence of such contractual provisions to the
Town) any party who purchases any Assessed Parcel owned by such
Landowner, or any portion thereof, for the purpose of constructing residential
properties that are eligible for “homestead” designations under Texas law, to
comply with, the Homebuyer Education Program described on Exhibit 4 to this
Agreement. Such compliance obligation shall terminate as to each Lot if, and
when, (i) a final certificate of occupancy for a residential unit on such Lot is
issued by the Town, and (ii) there is a sale of a Lot to an individual homebuyer, it
being the intent of the undersigned that the Homebuyer Education Program shall
apply only to a commercial builder who is in the business of constructing and/or
selling residences to individual home buyers (a “Builder”) but not to subsequent
sales of such residence and Lot by an individual home buyer after the initial sale
by a Builder.
Notwithstanding the provisions of this Section, upon the Developer’s request and
the Town’s consent, in the Town’s sole and absolute discretion, the Covenants,
Conditions and Restrictions may be included with other written restrictions running with
the Development Land, provided they contain all the material provisions and provide the
same material notice to prospective property owners as does the document attached as
Exhibit 3.
Section 15.
OWNERSHIP AND CONSTRUCTION OF
PUBLIC IMPROVEMENTS
(a) Ownership and Transfer of Public Improvements. Each Landowner
acknowledges that all of the Public Improvements and the land (or easements, as
applicable) needed therefor shall be owned by the Town as constructed and each
Landowner will execute such conveyances and/or dedications of public rights of way
and easements as may be reasonably required to evidence such ownership, as
generally described on the current plats of the Development Land.
(b) Grant of Easement and License, Construction of Public Improvements.
i. Each Landowner hereby agrees, upon the request of the Town, to
grant and convey to the Town and its contractors, materialmen and workmen a
temporary license and/or easement, as appropriate, to construct the Public
Improvements on the Development Land, to stage on the Development Land
construction trailers, building materials and equipment to be used in connection
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with such construction of the Public Improvements and for passage and use over
and across parts of the Development Land as shall be reasonably necessary
during the construction of the Public Improvements. Each Landowner may
require that each contractor constructing the Public Improvements cause such
Landowner to be indemnified and/or named as an additional insured under
liability insurance reasonably acceptable to such Landowner. The right to use
and enjoy any easement and license provided above shall continue until the
construction of the Public Improvements is complete; provided, however, any
such license or easement shall automatically terminate upon the recording of the
final plat for that Assessed Parcel in the real property records of Denton County,
Texas.
ii. Each Landowner hereby (a) agrees that any right or condition
imposed by any Development Agreement, or other agreement, with respect to
the Assessment has been satisfied, and that such Landowner shall not have any
rights or remedies against the Town under any Development Agreement, or
under any law or principles of equity concerning the Assessments, with respect
to the formation of the District, approval of the Service and Assessment Plan and
the Town’s levy of the Assessments; and (b) agrees that the Town has no
obligation to recognize or protect any rights that the Landowner may have to
receive any portion of the amounts received by the Developer under the terms of
the Construction Contract, or otherwise, and the Landowner’s sole recourse with
respect thereto shall be against the Developer.
Section 16.
COVENANTS AND WARRANTIES; MISCELLANEOUS
(a) Special Covenants and Warranties of each Landowner.
Each Landowner represents and warrants to the Town as follows:
i. Such Landowner is duly organized, validly existing and, as
applicable, in good standing under the laws of the state of its organization and
has the full right, power and authority to enter into this Agreement, and to
perform all the obligations required to be performed by such Landowner
hereunder.
ii. This Agreement has been duly and validly executed and delivered
by, and on behalf of, such Landowner and, assuming the due authorization,
execution and delivery thereof by and on behalf of the Town and the other
Landowners, constitutes a valid, binding and enforceable obligation of such party
enforceable in accordance with its terms. This representation and warranty is
qualified to the extent the enforceability of this Agreement may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws of general application affecting the rights of creditors in general.
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iii. Neither the execution and delivery hereof, nor the taking of any
actions contemplated hereby, will conflict with or result in a breach of any of the
provisions of, or constitute a default, event of default or event creating a right of
acceleration, termination or cancellation of any obligation under, any instrument,
note, mortgage, contract, judgment, order, award, decree or other agreement or
restriction to which such Landowner is a party, or by which such Landowner or
such Landowner’s Assessed Parcel is otherwise bound.
iv. Such Landowner is, subject to all matters of record in the Denton
County, Texas Real Property Records, the sole owner of each Assessed Parcel
shown as being owned by Landowner on Exhibit 1 to this Agreement.
v. No Assessed Parcel owned by such Landowner is subject to, or
encumbered by, any covenant, lien, encumbrance or agreement which would
prohibit (i) the creation of the District, (ii) the levy of the Assessments, or (iii) the
construction of the Public Improvements on those portions of the Development
Land which are owned, or to be owned, by the Town, as generally described on
the current plats of the Development Land (or, if subject to any such prohibition,
the approval or consent of all necessary parties thereto has been obtained).
vi. Such Landowner covenants and agrees to execute any and all
documents necessary, appropriate or incidental to the purposes of this
Agreement, as long as such documents are consistent with this Agreement and
do not create additional liability of any type to, or reduce the rights of, such
Landowner by virtue of execution thereof.
(b) Waiver of Claims Concerning Public Improvements. The Landowner, with
full knowledge of the provisions, and the rights thereof pursuant to such provisions, of
applicable law, waives any claims against the Town and the Developer, and their
successors, assigns and agents, pertaining to the installation of the Public
Improvements.
(c) Notices.
Any notice or other communication to be given to the Town under
this Agreement shall be given by delivering the same in writing to:
Developer: Centurion American Development Group
Attn: Mehrdad Moayedi
3901 W. Airport Freeway, Suite 200
Bedford, Texas 76021
with a copy to: Hughes|Luce LLP
Attn: Misty Ventura
1717 Main Street, Suite 2800
Dallas, Texas 75201
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Town: Town of Trophy Club
Town Hall
100 Municipal Drive
Trophy Club, Texas 76262
Attn: Town Manager
with a copy to: Town Attorney
Town Hall
100 Municipal Drive
Trophy Club, Texas 76262
Attn: Town Manager
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Landowners:
831 Trophy, L.P.
Attn: Mehrdad Moayedi
3901 W. Airport Freeway, Suite 200
Bedford, Texas 76021
High Trophy Development, L.P.
Attn: Brad Biber
3901 W. Airport Freeway, Suite 200
Bedford, Texas 76021
Standard Pacific of Texas, L.P.
Attn: Michael W. Brady
6333 N. Hwy 161, Suite 350
Irving, Texas 75038
K. Hovnanian Homes-DFW, L.L.C.
Attn: Jimmy Brownlee
5808 W. Plano Parkway
Plano, Texas 75093
Centurion Acquisitions, L.P.
Attn: Mehrdad Moayedi
3901 W. Airport Freeway, Suite 200
Bedford, Texas 76021
BDMR Development, L.L.C.
Attn: Brad Biber
3901 W. Airport Freeway, Suite 200
Bedford, Texas 76021
Notices under this Agreement as to less than all of the Development Land, shall be
given to only the then current Landowner of the applicable Assessed Parcel at the
address set forth next to such Landowner’s name on the signature page of this
Agreement. Notices as to all of the Development Land shall be given to each of the
Landowners. The Developer shall receive a copy of each notice delivered to any
Landowner at the above address, respectively.
Any notice sent under this Agreement (except as otherwise expressly required) shall
be written and mailed, or sent by electronic or facsimile transmission confirmed by
mailing written confirmation at substantially the same time as such electronic or
facsimile transmission, or personally delivered to an officer of the recipient at the
addresses set forth herein.
Each recipient may change its address by written notice in accordance with this
Section. Any communication addressed and mailed in accordance with this provision
shall be deemed to be given when so mailed, any notice so sent by electronic or
facsimile transmission shall be deemed to be given when receipt of such transmission is
124
acknowledged, and any communication so delivered in person shall be deemed to be
given when receipted for, or actually received by, the addressee.
(d) Parties in Interest.
This Agreement is made solely for the benefit of the Town, the Developer, each
Landowner, and is not assignable, except, in the case of Developer or a Landowner, in
connection with the sale or disposition of all or substantially all of its Assessed
Parcel(s). However, the parties expressly agree and acknowledge that the Town, the
Developer, each current owner of the Assessed Parcels, and the holders of bonds
issued by the Town to finance the costs of the Public Improvements and which are
secured by a pledge of the Assessments or any part thereof, are express beneficiaries
of this Agreement and shall be entitled to pursue any and all remedies at law or in
equity to enforce the obligations of the parties hereto. This Agreement shall not be
recorded in the Real Property Records of Denton County, Texas.
(e) Amendments.
This Agreement may be amended only by written instrument executed by the Town,
the Developer and each Landowner.
(f) Effective Date.
This Agreement shall become and be effective (the “Effective Date”) upon the date of
final execution by the last of the Town, the Developer and each Landowner and shall be
valid and enforceable on said date and thereafter.
(g) Estoppels.
Within 10 days after written request from a party hereto, the other parties shall
provide a written certification, indicating whether this Agreement remains in effect as to
an Assessed Parcel, and whether any party is then in default hereunder.
(h) Termination.
This Agreement shall terminate and be of no further force and effect upon the
payment in full of the costs of the Public Improvements.
[The remainder of this page intentionally left blank.]
125
EXECUTED by the Town and each Landowner on the respective dates stated
below.
Date: _____________________ TOWN OF TROPHY CLUB, TEXAS
DENTON COUNTY, TEXAS
By: _____________________________
Town Manager
ATTEST:
______________________________
Town Secretary
Approved as to Form:
_____________________________
Town Attorney
126
LANDOWNERS
831 Trophy, L.P.,
a Texas limited partnership,
By: MMM Ventures, L.L.C.,
its general partner
By:
Name: Mehrdad Moayedi
Title: Managing Partner
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared Mehrdad
Moayedi, Managing Partner of MMM Ventures, L.L.C., general partner of 831 Trophy,
L.P., a Texas limited partnership, and acknowledged to me that he executed the same
on behalf of said limited partnership.
Notary Public in and for the State of Texas
127
High Trophy Development, L.L.C.,
a Texas limited liability company,
By:_____________________________
Name: Brad Biber
Title: Manager
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared Brad
Biber, Manager of High Trophy Development, L.L.C., a Texas limited liability company,
and acknowledged to me that he executed the same on behalf of said limited liability
company.
Notary Public in and for the State of Texas
128
Standard Pacific of Texas, Inc.,
a Delaware corporation, successor of,
Standard Pacific of Texas, L.P.,
a Delaware limited partnership
By: ____________________________
Name: Michael W. Brady
Title: President Dallas Division
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared Michael
W. Brady, President Dallas Division of Standard Pacific of Texas, Inc., a Delaware
corporation, successor of, Standard Pacific of Texas, L.P., a Delaware limited
partnership, and acknowledged to me that he executed the same on behalf of said
limited partnership.
Notary Public in and for the State of Texas
129
K. Hovnanian Homes – DFW, L.L.C.,
a Texas limited liability company,
F.K.A. Goodman Family of Builders, L.P.
By:
Name: Jimmy Brownlee
Title: DFW Region President
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared Jimmy
Brownlee, DFW Region President of K. Hovnanian Homes – DFW, L.L.C., a Texas
limited liability company, and acknowledged to me that he executed the same on behalf
of said limited liability company.
Notary Public in and for the State of Texas
130
Centurion Acquisitions, L.P.,
a Texas limited partnership,
By: Pars Investments, Inc.,
a Texas corporation,
its general partner
By: ____________________________
Name: Mehrdad Moayedi
Title: President
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared Mehrdad
Moayedi, President of Pars Investments, Inc., a Texas corporation, general partner of
Centurion Acquisitions, L.P., a Texas limited partnership, and acknowledged to me that
he executed the same on behalf of said limited partnership.
Notary Public in and for the State of Texas
131
BDMR Development, L.L.C.,
a Texas limited liability company,
By:
Name: Brad Biber
Title: Manager
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared Brad
Biber, Manager of BDMR Development, L.L.C., a Texas limited liability company, and
acknowledged to me that he executed the same on behalf of said limited liability
company.
Notary Public in and for the State of Texas
132
EXHIBIT 1
LANDOWNERS’ ASSESSED PARCELS IN THE DEVELOPMENT LAND
133
EXHIBIT 2
SERVICE AND ASSESSMENT PLAN
134
EXHIBIT 3
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (as it
may be amended from time to time, this “Declaration”) is made as of _____, 2007 , by
_________________________________”Landowners”).
RECITALS:
A. Each of the Landowners holds record title to that portion of the real property
located in Denton County, Texas, which is described in the attached Exhibit A
(the “Assessed Parcels”).
B. The Town Council of the Town of Trophy Club, Texas (the “Town Council”) upon
a petition requesting the establishment of a public improvement district covering
a portion of the Development Land to be known as Town of Trophy Club Public
Improvement District No. 1 (the “District”) by the then current owners of more
than 50% of the appraised value of the taxable real property and more than 50%
of the area of all taxable real property within the area requested to be included in
the District created such District, in accordance with the Public Improvement
District Assessment Act, Chapter 372, Texas Local Government Code, as
amended (the “PID Act”).
C. The Town Council has adopted an assessment ordinance (including all exhibits
and attachments thereto, the “Assessment Ordinance”) and the Service and
Assessment Plan included as an Exhibit ____ to the Assessment Ordinance (the
“Service and Assessment Plan”), and has levied the assessments (the
“Assessments”) on property in the District.
D. The statutory notification required by Texas Property Code Section 5.014, to be
provided by the seller of residential property that is located in a public
improvement district established under Chapter 372, Local Government Code, to
the purchaser, is incorporated into these Covenants, Conditions, and
Restrictions.
DECLARATIONS:
NOW, THEREFORE, each Landowner, but only as to each Assessed Parcel
owned by such Landowner, hereby declares that each such Assessed Parcel is and
shall be subject to, and hereby imposes on each such Assessed Parcel, the following
covenants, conditions and restrictions:
1. Acceptance and Approval of Assessments and Lien on Property:
(a) Each Landowner accepts each Assessment levied on each Assessed
Parcel owned by such Landowner, but only to the extent of the pro rata
portion of such Assessment levied on such landowner’s property.
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(b) The Assessment (including any reassessment, the expense of collection,
and reasonable attorney’s fees, if incurred) is (a) a first and prior lien (the
“Assessment Lien”) against the property assessed, superior to all other
liens or claims except for liens or claims for State, county, school district or
municipality ad valorem property taxes whether now or hereafter payable,
and (b) a personal liability of and charge against the owners of the
property to the extent of their ownership regardless of whether the owners
are named. The Assessment Lien is effective from the date of the
Assessment Ordinance until the Assessments are paid and may be
enforced by the Town in the same manner as an ad valorem property tax
levied against real property may be enforced by the Town. The owner of
any assessed property may pay, at any time, the entire Assessment levied
against any such property. Foreclosure of an ad valorem property tax lien
on property within the District will not extinguish the Assessment or any
unpaid but not yet due annual installments of the Assessment, and will not
accelerate the due date for any unpaid and not yet due annual
installments of the Assessment.
It is the clear intention of all parties to these Declarations of Covenants,
Conditions, and Restrictions, that the Assessments, including any annual
installments of the Assessments, are covenants that run with the
Assessed Property and specifically binds the Landowners, their
successors and assigns.
In the event of delinquency in the payment of any annual installment of the
Assessment, the Town is empowered to order institution of an action in
district court to foreclose the related Assessment Lien, to enforce personal
liability against the owner of the real property for the Assessment, or both.
In such action the real property subject to the delinquent Assessment may
be sold at judicial foreclosure sale for the amount of such delinquent
property taxes and Assessment, plus penalties, interest and costs of
collection.
2. Each Landowner waives:
(a) any and all defects, irregularities, illegalities or deficiencies in the
proceedings establishing the District and levying the Assessments;
(b) any and all notices and time periods provided by the PID Act including, but
not limited to, notice of the establishment of the District and notice of the
public hearing regarding the levy of Assessments by the Town Council;
(c) any and all defects, irregularities, illegalities or deficiencies in, or in the
adoption of, the Assessment Ordinance by the Town Council;
(d) any and all actions and defenses against the adoption of the Service and
Assessment Plan, the Town’s finding of a ‘special benefit’ pursuant to the
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PID Act and the Service and Assessment Plan, and the levy of the
Assessments; and
(e) any right to object to the legality of any of the Assessments or the Service
and Assessment Plan or to any of the previous proceedings connected
therewith which occurred prior to, or upon, the Town Council’s levy of the
Assessments.
3. Amendments: This Declaration may be terminated or amended only by a
document duly executed and acknowledged by the then-current owner(s) of each
affected Assessed Parcel and the Town. No such termination or amendment
shall be effective until a written instrument setting forth the terms thereof has
been executed by the parties by whom approval is required as set forth above
and recorded in the Real Property Records of Denton County, Texas.
4. Third Party Beneficiary: The Town is a third party beneficiary to this
Declaration and may enforce the terms hereof.
5. TEXAS PROPERTY CODE SECTION 5.014
NOTICE OF OBLIGATION TO PAY PUBLIC IMPROVEMENT DISTRICT
ASSESSMENT TO THE TOWN OF TROPHY CLUB, DENTON COUNTY,
TEXAS CONCERNING THE ASSESSED PARCELS
As the purchaser of this parcel of real property, you are obligated to pay an
assessment to the Town of Trophy Club, Texas, for improvement projects
undertaken by a public improvement district under Chapter 372, Local
Government Code. The amount of the assessment against your property is
based on whether it is classified as a Type 1, Type 2, Type 3, Type 4, or Type 5
parcel.
THE ASSESSMENT AGAINST A TYPE 1 PARCEL IS $27,885.08.
THE ASSESSMENT AGAINST A TYPE 2 PARCEL IS $21,192.68.
THE ASSESSMENT AGAINST A TYPE 3 PARCEL IS $17,288.75.
THE ASSESSMENT AGAINST A TYPE 3 PARCEL IS $14,779.09.
THE ASSESSMENT AGAINST A TYPE 3 PARCEL IS $12,269.45.
The amount of the assessment against your property may be paid in full at any
time together with interest to the date of payment. If you do not pay the
assessment in full, it will be due and payable in annual installments (including
interest and collection costs).
Your failure to pay the assessment or the annual installments could result in a
lien on and the foreclosure of your property.
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Date:
Signature of Purchaser(s)
138
EXECUTED by the undersigned on the dates set forth below to be
effective as of the date first above written.
LANDOWNERS:
(to come)
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EXHIBIT 4
HOMEBUYER EDUCATION PROGRAM
As used in this Exhibit 4, the recorded Notice of Creation of Special Assessment District
and Imposition of Special Assessment prepared by the Town and the Covenants,
Conditions and Restrictions in Exhibit 3 of this Agreement are referred to as the
“Recorded Notices.”
1. Any Landowner who is a Builder shall attach the Recorded Notices and the final
Assessment Roll for such Assessed Parcel (or if the Assessment Roll is not available
for such Assessed Parcel, then a schedule showing the maximum 30 year payment for
such Assessed Parcel) as an addendum to any residential homebuyer’s contract.
2. Any Landowner who is a Builder shall provide evidence of compliance with 1
above, signed by such residential homebuyer, to the Town.
3. Any Landowner who is a Builder shall prominently display signage in its model
homes, if any, substantially in the form of the Recorded Notices.
4. If prepared and provided by the Town, any Landowner who is a Builder shall
distribute informational brochures about the existence and effect of the District in
prospective homebuyer sales packets.
5. Any Landowner who is a Builder shall include Assessments in estimated property
taxes, if such Builder estimates monthly ownership costs for prospective homebuyers.
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ACQUISITION, CONSTRUCTION AND FUNDING AGREEMENT
By and Between
TOWN OF TROPHY CLUB
and
831 TROPHY, L.P.
TOWN OF TROPHY CLUB PUBLIC IMPROVEMENT DISTRICT NO. 1, SPECIAL
ASSESSMENT REVENUE BONDS, SERIES 2007
(TROPHY CLUB, TEXAS)
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
RECITALS
Section 2.01. The District and the Improvement Projects............................................146
Section 2.02. The Developer Procured Facilities and the Town Procured Facilities....146
Section 2.03. The Bonds .............................................................................................146
Section 2.04. Agreements ...........................................................................................146
ARTICLE III
FUNDING
Section 3.01. Bonds.....................................................................................................146
Section 3.02. Reimbursements....................................................................................148
ARTICLE IV
DEDICATION OF LAND AND RIGHTS-OF-WAY; CONSTRUCTION OF DEVELOPER
PROCURED FACILITIES
Section 4.01. Dedications............................................................................................148
Section 4.02. Plans......................................................................................................148
Section 4.03. Duty of Developer to Construct..............................................................149
Section 4.04. Relationship to Subdividers Agreement.................................................149
Section 4.05. Independent Contractor.........................................................................150
Section 4.06. Remaining Funds After Completion of a Developer Procured
Facility....................................................................................................150
Section 4.07. Remaining Funds After Completion of Developer Procured
Facilities and Town Procured Facilities..................................................150
Section 4.08. Contracts and Change Orders...............................................................150
ARTICLE V
CONSTRUCTION OF TOWN PROCURED FACILITIES
Section 5.01. Plans......................................................................................................150
Section 5.02. Construction by Town............................................................................151
142
Section 5.03. Remaining Funds After Completion of a Town Procured Facility...........151
Section 5.04. Town Procured Facilities to be Secured Prior to Developer
Procured Facilities .................................................................................151
Section 5.05. Change Orders; Construction Contracts................................................151
ARTICLE VI
ACQUISITION AND PAYMENT
Section 6.01. Inspection ..............................................................................................152
Section 6.02. Priority of Payments...............................................................................152
Section 6.03. Payment Requests for Land and Rights-of-Way....................................152
Section 6.04. Payment Requests for the Developer Procured Facilities......................152
Section 6.05. Payment Requests for the Town Procured Facilities. ............................154
Section 6.06. Payment for Developer Procured Facilities and Town Procured
Facilities.................................................................................................154
ARTICLE VII
OWNERSHIP AND TRANSFER OF DEVELOPER PROCURED FACILITIES
Section 7.01. Developer Procured Facilities to Be Owned By the Town - Title
Evidence................................................................................................156
Section 7.02. Developer Procured Facilities Constructed on Town Land or
Developer Land .....................................................................................157
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 8.01. Representations, Covenants and Warranties of the Developer.............157
Section 8.02. Indemnification and Hold Harmless .......................................................159
Section 8.03. Use of Monies by Town; Changes to Indenture.....................................159
Section 8.04. No Reduction of Assessments...............................................................159
ARTICLE IX
TERMINATION
Section 9.01. Mutual Consent......................................................................................160
Section 9.02. Town’s Election for Cause.....................................................................160
Section 9.03. Termination Upon Redemption or Defeasance of Bonds.......................161
Section 9.04. Construction of Improvement Projects Upon Termination of this
Agreement.............................................................................................161
Section 9.05. Force Majeure........................................................................................161
143
ARTICLE X
MISCELLANEOUS
Section 10.01..............................................................................Limited Liability of Town 161
Section 10.02.Modification to Exhibit A and Exhibit B; Definitions of Developer Procured Facilities and
Section 10.03. ...........................................................................................................Audit 162
Section 10.04........................................................................................................ Notices 162
Section 10.05. .................................................................................................Severability 163
Section 10.06............................................................................. Successors and Assigns 163
Section 10.07.......................................................................................Other Agreements 163
Section 10.08.........................................................................................................Waiver 164
Section 10.09.........................................................................................................Merger 164
Section 10.10........................................................................................ Parties in Interest 164
Section 10.11.................................................................................................Amendment 164
Section 10.12. ...............................................................................................Counterparts 164
Section 10.13. .............................................................................................Effective Date 164
EXHIBIT A – Description of Developer Procured Facilities and Applicable Budgeted
Costs
EXHIBIT B – Description of Town Procured Facilities and Applicable Budgeted Costs
EXHIBIT C – Form of Payment Request for Developer Procured Facilities
EXHIBIT D – Form of Payment Request for Town Procured Facilities
EXHIBIT E – Forms of Secured Funds Worksheets
EXHIBIT F – Forms of Assignment of Plans and Consent
EXHIBIT G – Forms of Instruments of Conveyance of Developer Procured Facilities to
the Town
144
ACQUISITION, CONSTRUCTION AND FUNDING AGREEMENT
THIS ACQUISITION, CONSTRUCTION AND FUNDING AGREEMENT (this
“Agreement”), dated as of September 1, 2007, is by and between TOWN OF TROPHY
CLUB, a home-rule municipality of the State of Texas (the “Town”) and 831 TROPHY,
L.P., a Texas Limited Partnership (the “Developer”).
Section 17.
DEFINITIONS
The following terms shall have the meanings ascribed to them in this Article I for
purposes of this Agreement. Unless otherwise indicated, any other terms, capitalized or
not, when used herein shall have the meanings ascribed to them in the Indenture (as
hereinafter defined).
“Administrator” means, initially, MuniCap, Inc., or any other individual or entity
designated by the Town to administer the District.
“Available Moneys” means moneys in the Project Fund which are not set aside to
secure the performance of and payment for work for an Improvement Project. [This is
still an open item with the Town]
“Budgeted Cost” means the estimated cost of a Developer Procured Facility as
shown on Exhibit A hereto and the estimated cost of a Town Procured Facility as shown
in Exhibit B-1 to the Service and Assessment Plan, as each such budget may be
amended and/or supplemented by any Supplement as herein provided.
“Construction Contracts” means the contracts for the construction of the Developer
Procured Facilities or the Town Procured Facilities between the Developer or the Town,
as appropriate, and the contractor(s) thereunder. “Construction Contract” means any
one of the Construction Contracts.
“Developer Procured Facilities” means the Improvement Projects described in
Exhibit A hereto, as such exhibit may be amended and/or supplemented by any
Supplement as herein provided.
“Developer Procured Facility” means any one of the Developer Procured Facilities.
“Developer’s Payment Request” means a document, substantially in the form of
Exhibit C hereto or otherwise agreed to by the Developer, the Administrator and the
Town Representative, to be used by the Developer in requesting disbursements of
funds by the Trustee from the Project Fund to pay for the Costs of a Developer
Procured Facility, or a portion thereof.
“Development Agreement” means that certain Development And Public
Improvement District Agreement executed by and between 831 Trophy, L.P., a Texas
limited partnership, and High Trophy Development L.L.C., a Texas limited liability
company and the Town effective May 7, 2007
“Engineer’s Report” means the Engineer’s Report
___________________________.
145
“Indenture” means _________________________________.
“Inspector” means the ______________ or any other independent engineer or firm
of engineers registered and qualified to practice the profession of engineering under the
laws of the State of Texas and hired by the Town as its agent, and approved by the
Developer, to verify the construction of the Improvement Projects.
“Land and Rights of Way” means the land, easements and rights-of-way described
in Exhibit B-1 of the Service and Assessment Plan. [Need to see Exhibits to SAP, or
we can create an Exhibit to this Agreement]
“Plans” means the plans, specifications, schedules and related construction
contracts for the Developer Procured Facilities and the Town Procured Facilities,
respectively, approved pursuant to the applicable standards and directives of the Town
and any other applicable governmental entity.
“Secured Funds” means moneys in the Project Fund which are set aside to secure
the performance of and payment for work for an Improvement Project.
“Subdividers Agreement” means the form of Subdividers Agreement attached
hereto as Exhibit ___. [Item for Patricia – probably remains a “form” of]
“Substantial Completion” means the time at which the construction of a Facility (or
specified part thereof) has progressed to the point where, in the opinion of the
Inspector, such Improvement Project (or a specified part thereof) is sufficiently complete
in accordance with the Construction Contracts related thereto so that such Improvement
Project (or a specified part thereof) can be utilized for the purposes for which it is
intended.
“Supplement” means a written document agreed upon by the parties to this
Agreement amending, supplementing or otherwise modifying this Agreement and any
exhibit hereto, including any amendments to the list of Developer Procured Facilities in
Exhibit A or the list of Town Procured Facilities in Exhibit B in a manner consistent with
the Act, the Ordinance, the Indenture, and this Agreement.
“Town Procured Facilities” means the Improvement Projects described in Exhibit B
attached hereto, as such exhibit may be amended and/or supplemented by any
Supplement as herein provided.
“Town Procured Facility” means any one of the Town Procured Facilities.
“Town Representative” means the Mayor or the Town Administrator of the Town,
and their respective designees.
“Town’s Payment Request” means a document, substantially in the form of
Exhibit D hereto or otherwise agreed to by the Developer, the Administrator and the
Town Representative, to be used by the Developer in requesting disbursements of
funds by the Trustee from the Project Fund to pay for the Costs of a Town Procured
Facility, or a portion thereof.
146
Section 18.
RECITALS
(a) The District and the Improvement Projects. The Town has created the
District under the Act for the financing of, among other things, the acquisition,
construction and installation of Improvement Projects identified in the Service and
Assessment Plan, which include the Developer Procured Facilities listed in Exhibit A
hereto and the Town Procured Facilities listed in Exhibit B hereto. The Developer will
undertake the construction and development of the Developer Procured Facilities for
acquisition and acceptance by the Town as provided in one or more the Subdividers
Agreement between the Town and either the Developer or the owners of the Project as
defined in the Subdividers Agreement. The Town Procured Facilities will be constructed
as provided in the Development Agreement.
(b) The Developer Procured Facilities and the Town Procured Facilities. All
Developer Procured Facilities are eligible to be financed with proceeds of the Bonds. All
Town Procured Facilities are eligible to be financed with proceeds of the Bonds.
(c) The Bonds. The Town has authorized the issuance of the Bonds under the
Act, the Ordinance and the Indenture, the proceeds of which Bonds shall be used, in
part, to finance all or a portion of the costs of the Developer Procured Facilities and all
or a portion of the costs of the Town Procured Facilities.
(d) Agreements. In consideration of the mutual promises and covenants set
forth herein, and for other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Town and the Developer agree that the foregoing
recitals, as applicable to each, are true and correct and further make the agreements
set forth herein.
Section 19.
FUNDING
(a) Bonds.
i. The Town, in connection with this Agreement, is proceeding with the
issuance and delivery of the Bonds. Neither the Town nor the Trustee shall be obligated
to pay for the Costs of the Improvement Projects except from amounts on deposit in the
Project Fund. The Developer agrees and acknowledges that it is responsible for all cost
overruns associated with the Improvement Projects, as provided herein and in the
Development Agreement.
ii. The Town shall have no responsibility whatsoever to the Developer with
respect to any investment of funds made by the Trustee under the Indenture, including
any loss of all or a portion of the principal invested or any penalty for liquidation of an
investment. Any such loss may diminish the amounts available in the Project Fund to
pay the Costs of the Improvement Projects. The Developer further acknowledges that
147
the obligation of any owner of real property in the District, including the Developer to the
extent it owns any real property in the District, to pay Special Taxes levied in the District
is not in any way dependent on the availability of amounts in the Project Fund to pay for
all or any portion of the Costs of the Improvement Projects hereunder.
iii. The Developer acknowledges that any lack of availability of amounts in
the Project Fund to pay the Costs of the Improvement Projects shall in no way diminish
any obligation of the Developer with respect to the construction of or contributions for
the Improvement Projects required by this Agreement, the Development Agreement, the
Subdividers Agreement or any other agreement to which the Developer is a party or any
governmental approval to which the Developer or any land within the District is subject.
(b) Security for Improvement Projects. Prior to the commencement of
construction of [any Improvement Project?? How does the Town want this to
work? Should the bond initially be for the developer’s portion, and then increase
over time as contracts are let, or should the deposit occur with respect to each
construction project as the contract is let?], the Developer shall present to the Town
a payment bond meeting the requirements of Chapter 2253 of the Texas Government
Code. The payment bond shall individually guarantee and agree to pay an amount
equal to one hundred percent (100%) of the value of the costs to construct such
Improvement Project (as determined by the Town Engineer), but net of any amounts on
deposit in the Project Fund for such Improvement Project, as shown on Exhibit B-1 to
the Service and Assessment Plan. Any surety company through which a bond is written
shall be a surety company duly authorized to do business in the State of Texas,
provided that the Town, through the Town Attorney, shall retain the right to reject any
surety company as a surety for any work hereunder regardless of such Company’s
authorization to do business in Texas. Approvals by the Town shall not be unreasonably
withheld or delayed. As an alternative to providing a surety bond for payment in the
amounts and as specified above, Developer may provide financial assurances in the
form of a cash deposit, a certificate of deposit, or irrevocable letter of credit, but only if
such alternative financial assurances meet all requirements specified in Section 7.2 of
the Town of Trophy Club Subdivision Regulations. All such alternative financial
assurances must be on forms approved by the Town Attorney. Payment bonds shall
be submitted in statutory form guaranteeing payment of all labor and material costs of
the Improvement Project and shall be furnished solely for the protection of all claimants
supplying labor and material in the performance of the work with respect to which the
payment bond relates. Any guarantee of payment instrument (e.g., payment bond,
letters of credit, and/or cash deposit or the like) (individually a “Guarantee” or
collectively the “Guarantees”) submitted by or through the Developer on a form other
than the one which has been previously approved by the Town as "acceptable" shall be
submitted to the Town Attorney at the Developer’s expense, and construction of the
Improvement Project shall not commence until the Town Attorney has approved such
Guarantees. Approval by the Town (and the Town Attorney) shall not be unreasonably
withheld or delayed. All such Guarantees shall be maintained in full force and effect
until [the Improvement Project is complete?], and failure to keep same in force and
effect shall constitute a breach of this Agreement and shall result in a stop work order
being issued by the Town. Additionally, all Guarantees furnished hereunder which
148
expire prior to the completion of construction the Improvement Project [or applicable
warranty periods??] shall be renewed in amounts designated by the Town and shall
be delivered to the Town and approved by the Town on or before the tenth (10th)
banking day before the date of expiration of any then existing Guarantee. If the
Developer fails to deliver any Guarantee to the Town within the time prescribed herein,
such failure shall constitute a breach of this Agreement and shall be a basis for the
Town to draw on all or any portion of any existing Guarantee in addition to any or all
other remedies available to the Town. The Developer further agrees to release and
forever hold the Town harmless from any losses, damages and/or expenses incurred by
the Developer for any delays due to the Town’s review of any Guarantee which is in a
form other than one which has been previously approved by the Town. The Town
requires the Developer to have all Guarantee forms approved prior to the
commencement of work and construction of Improvement Projects.
Disbursements at Closing. The Town acknowledges that, in addition to the payment for
the acquisition and acceptance of the Developer Procured Facilities and the
construction of the Town Procured Facilities, it will (i) pay to the Developer, certain costs
of issuance relating to the establishment and administration of the District, and (ii)
acquire the right-of-way and any related easements necessary for construction of the
Improvement Project identified in Section II of that certain Subdividers Agreement dated
as of ____________________ between the Town an the Developer, in an amount of
50% of the costs of such right-of-way and related easements. The final 50% of the
amount of such disbursement shall be paid to Developer when the acquisition of the
Developer Procured Facilities is 75% complete. [Issue for Town]
Section 20.
DEDICATION OF LAND AND RIGHTS-OF-WAY; CONSTRUCTION OF DEVELOPER
PROCURED FACILITIES
(a) Dedications. The Developer hereby agrees to convey, sell or transfer in
fee, dedicate, or grant a public easement such that it is treated as a conveyance under
Texas law [can this all be done by plat?(which instrument, if any, shall be
substantially in the form of Exhibit G attached hereto and made a part hereof
unless otherwise agreed to by the Town and the Developer)], the Land and Rights
of Way, as provided in the Subdividers Agreements.
(b) Plans. The Developer shall cause Plans to be prepared for the Developer
Procured Facilities in accordance with the applicable Subdividers Agreement. The
Developer shall obtain the written approval of such Plans in accordance with applicable
ordinances and regulations of all applicable governmental authorities. Copies of such
Plans shall be provided by the Developer to the Inspector upon request therefor.
Need to confirm as consistent with business deal…[The Developer shall deliver
to the Town a written assignment of its interest in the Plans for the Developer
Procured Facilities substantially in the form of Exhibit F attached hereto and
made a part hereof or otherwise agreed to by the Developer, the Administrator
149
and the Town Representative after receipt of a written approval of such Plans. As-
built drawings for any Developer Procured Facility to be acquired by the Town
shall be provided to the Town prior to its acceptance of such Developer Procured
Facility. The Inspector shall confirm with the Town that the Developer assigned
the Plans for the Developer Procured Facilities to the Town in accordance with
this Agreement.]
As-built drawings for any Developer procured Facility to be acquired by the
Town shall be provided to the Town or the Inspector prior to the town’s
acceptance of such Developer Procured Facility [ An issue for Patricia at the
Town]
(c) Duty of Developer to Construct.
i. All Developer Procured Facilities to be acquired hereunder shall be
constructed by or at the direction of the Developer in accordance with the Plans and in
accordance with this Agreement, the Development Agreement and the Subdividers
Agreement. The Developer shall perform all of its obligations hereunder and shall
conduct all operations with respect to the construction of Developer Procured Facilities
in a good, workmanlike and commercially reasonable manner, with the standard of
diligence and care normally employed by duly qualified persons utilizing their
commercially reasonable efforts in the performance of comparable work and in
accordance with generally accepted practices appropriate to the activities undertaken.
The Developer shall employ at all times adequate staff or consultants with the requisite
experience necessary to administer and coordinate all work related to the design,
engineering, acquisition, construction and installation of the Developer Procured
Facilities to be acquired and accepted by the Town from the Developer as provided in
this Agreement and the Subdividers Agreement.
ii. The Developer shall not be relieved of its obligation to construct each
Developer Procured Facility and, upon completion, convey each such Developer
Procured Facility to the Town in accordance with the terms hereof, even if there are
insufficient funds in the Project Fund to pay the Costs thereof. In any event, this
Agreement shall not affect any obligation of the Developer under any other agreement
to which the Developer is a party or any governmental approval to which the Developer
or any land within the District is subject, with respect to the public improvements
required in connection with the development of the land within the District.
(d) Relationship to Subdividers Agreement. This Agreement sets forth the
obligations of the Town with respect to the funding by the Town of the Developer
Procured Facilities from moneys in the Project Fund and is not intended to be a
Subdividers Agreement. The Town and the Developer agree that the Developer shall
award all contracts for the construction of the Developer Procured Facilities as
necessary to assure the timely and satisfactory completion of the Developer Procured
Facilities. [HL comment that construction bond or LOC is only for the excess amount of
the budgeted cost in the SAP that is greater than the amount of Available Monies in the
Project Fund is a Town issue to be decided]
150
(e) Independent Contractor. In performing this Agreement, the Developer is
an independent contractor and not the agent or employee of the Town with respect to
the Developer Procured Facilities.
(f) Remaining Funds After Completion of a Developer Procured Facility.
Upon the acceptance of a Developer Procured Facility as provided in the Subdividers
Agreement and payment of all outstanding invoices for such Developer Procured
Facility, any Secured Funds remaining in the Project Fund which have been used to
secure the payment and performance of the work for such Developer Procured Facility
[retainage during warranty period?] immediately will become Available Moneys and
will be able to be used to pay for or secure the payment and performance of the work
for other Developer Procured Facilities. The Town shall promptly confirm to the
Administrator that such remaining amounts constitute Available Moneys. The
Administrator and the Developer will designate on the Secured Funds Worksheet for
Developer Procured Facilities substantially in the form of Exhibit E hereto or otherwise
agreed to by the Developer, the Administrator and the Town Representative how to use
such Available Moneys to secure the payment and performance of the work for other
Developer Procured Facilities. Any remaining Secured Funds that are transferred from
the payment of one Developer Procured Facility to another Developer Procured Facility
will be limited to the portion of the Secured Funds related to the District’s share of the
costs of that Developer Procured Facility, and those remaining Secured Funds may be
applied only to the District’s share of the costs of any other Developer Procured Facility.
(g) Remaining Funds After Completion of Developer Procured Facilities and
Town Procured Facilities. Upon completion of all Developer Procured Facilities and all
Town Procured Facilities, any amounts remaining in the Project Fund shall be applied
as provided in the Indenture.
(h) Contracts and Change Orders. The Developer shall be responsible for
entering into all contracts and any supplemental agreements (herein referred to as
“change orders”) required for the construction of the Developer Procured Facilities, as
provided in the Subdivider’s Agreement. Developer may approve and implement any
change orders, subject to Section 10.02(a) hereof, even if such change order would
increase the total cost of a Developer Procured Facility to an amount which exceeds the
then Budgeted Cost thereof. The Developer shall be responsible for payment of any
amounts where the Cost for a Developer Procured Facility exceeds the Budgeted Costs
of such Developer Procured Facility as a result of such change orders, as such
Budgeted Costs may be revised as herein provided in excess of the funds available in
the Project Fund.
Section 21.
CONSTRUCTION OF TOWN PROCURED FACILITIES
(a) Plans. The Developer shall cause Plans to be prepared for the Town
Procured Facilities in accordance with the Development Agreement. The Developer
shall obtain the written approval of such Plans in accordance with applicable ordinances
151
and regulations of all applicable governmental authorities and the Development
Agreement. Copies of such Plans shall be provided by the Developer to the Inspector
upon request therefor.
(b) Construction by Town. The Town shall construct all Town Procured
Facilities consistent with its normal policies and procedures. [If there are insufficient
funds in the Project Fund to pay the Costs thereof the Developer shall deliver a
letter of credit or other security reasonably acceptable to the Town including,
without limitation, a surety bond in an amount necessary to complete the Town
Procured Facilities.] [open item] This Agreement shall not affect any obligation of the
Developer under any other agreement to which the Developer is a party or any
governmental approval to which the Developer or any land within the District is subject,
with respect to the public improvements required in connection with the development of
the land within the District.
(c) Remaining Funds After Completion of a Town Procured Facility. Upon
Substantial Completion of a Town Procured Facility and payment of all outstanding
invoices for such Town Procured Facility, any Secured Funds remaining in the Project
Fund which have been used to secure the payment and performance of the work for
such Town Procured Facility [provide for retainage?] immediately will become Available
Moneys and will be able to be used to pay for or secure the payment and performance
of the work for another Town Procured Facility or, if all Town Procured Facilities have
been completed, a Developer Procured Facility. The Town shall promptly confirm to the
Administrator that such remaining amounts constitute Available Moneys. The
Administrator and the Developer will designate on the Secured Funds Worksheet for
Town Procured Facilities substantially in the form of Exhibit E hereto or otherwise
agreed to by the Developer, the Administrator and the Town Representative how to use
such Available Moneys to secure the payment and performance of the work for the
other Facilities. Any remaining Secured Funds that are transferred from the payment of
one Town Procured Facility to another Town Procured Facility will be limited to the
portion of the Secured Funds related to the District’s share of the costs of that Town
Procured Facility, and those remaining Secured Funds may be applied only to the
District’s share of the costs of any other Town Procured Facility.
(d) Town Procured Facilities to be Secured Prior to Developer Procured
Facilities. Notwithstanding anything to the contrary contained herein, the Town Procured
Facilities shall be fully secured or paid as herein provided before any Available Moneys
are used to secure or pay for the Developer Procured Facilities.
(e) Change Orders; Construction Contracts. Any change orders required for
the construction of the Town Procured Facilities will be executed as provided in the
applicable Construction Contract and subject to Section 10.02(b) hereof. No change
order for a Town Procured Facility will be executed if the aggregate amount of such
change order and all other executed change orders for such Town Procured Facility
exceed the Budgeted Amount, plus contingency, with respect to such Town Procured
Facility unless the change order amount that exceeds such amount is secured in whole
or in any combination of Available Moneys, a letter of credit or other security reasonably
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acceptable to the Town including, without limitation, a surety bond. Copies of such
change orders executed on behalf of the Town shall be delivered by the Town to the
Developer. The Developer shall deliver to the Inspector copies of all Construction
Contracts related to the Town Procured Facilities.
Section 22.
ACQUISITION AND PAYMENT
(a) Inspection. No payment shall be made from the Project Fund for the Costs
of an Improvement Project (other than payments for costs of issuance and
administration, and Land and Rights of Way as provided in Section 3.02) until the work
with respect to such Cost has been inspected and found to be completed in accordance
with the Plans relating thereto by the Inspector. Unless otherwise provided in a
Supplement, the Inspector shall make or cause to be made such site inspections of the
Improvement Projects as reasonably required to make such determination.
(b) Priority of Payments. Amounts on deposit in the Project Fund shall be
applied in the following order and priority, first to pay for Costs of Issuance and
administration, second to pay for the the Shared Cost Water Tower (as defined in the
Development Agreement), third, to pay for Town Procured Facilities, and fourth to pay
for Developer Procured Facilities. [Need to discuss, the Development Agreement
states that Shared Cost Water Tower is first, I’m not sure about timing of this
construction. It seems if we are assigning priorities, the Town Procured Facilities
should be next, since the Developer is responsible for all cost overruns]
(c) Payment Requests for Disbursements at Closing. In order to receive the
disbursement described in Section 3.02, the Developer shall cause to be delivered to
the Trustee a Developer’s Payment Request, substantially in the form of Exhibit C
hereto or otherwise agreed to by the Developer, the Town and the Administrator, for the
disbursements described in Section 3.02that are specified in the Service and
Assessment Plan.
(d) Payment Requests for the Developer Procured Facilities.
i. [ Need to check with Patricia] No payment hereunder shall be made from
the Project Fund to the Developer for a Developer Procured Facility the work with
respect to such Developer Procured Facility has been inspected and found by the
Inspector to be completed in accordance with the Plans related thereto and the
applicable Subdividers Agreement. Inspector. Upon receipt of such Developer’s
Payment Request (and all accompanying documentation executed by the Town) from
the Developer, the Inspector shall conduct a review in order to confirm that such request
is complete, that the work with respect to such Developer Procured Facility identified
therein for which payment is requested was completed in accordance with all applicable
governmental laws, rules and regulations and applicable Plans therefor and with the
terms of this Agreement, the Development Agreement and the applicable Subdividers
Agreement, and to verify and approve the Cost of such work specified in such
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Developer’s Payment Request (collectively, the “Developer Compliance
Requirements”). The approval of the Developer’s Payment Request by the Inspector
shall constitute a representation by the Inspector to the Town and the Trustee that the
Developer Compliance Requirements have been satisfied with respect to the Developer
Procured Facility identified therein. The Inspector shall also conduct such review as is
required in his discretion to confirm the matters certified in the Developer’s Payment
Request. The Developer agrees to cooperate with the Inspector in conducting each
such review and to provide the Inspector with such additional information and
documentation as is reasonably necessary for the Inspector to conclude each such
review.
Within 10 business days of receipt of any Developer’s Payment Request, the
Inspector shall (i) approve and execute the Developer’s Payment Request and forward
the same to the Administrator for approval and delivery to the Developer in accordance
with Section 6.04(c) hereof or (ii) in the event the Inspector disapproves the Developer’s
Payment Request, give written notification to the Developer of the Inspector’s
disapproval, in whole or in part, as applicable, of such Developer’s Payment Request,
specifying the reasons for such disapproval and the additional requirements to be
satisfied for approval of such Developer’s Payment Request. If a Developer’s Payment
Request seeking reimbursement is approved only in part, the Inspector shall specify the
extent to which the Developer’s Payment Request is approved and shall deliver such
partially approved Developer’s Payment Request to the Administrator for approval and
delivery to the Developer in accordance with Section 6.04(c) hereof, and any such work
shall be processed for payment under Section 6.06 notwithstanding such partial denial.
ii. If the Inspector fails to act with respect to a Developer’s Payment Request
for Costs of a Developer Procured Facility within the time period therein provided, the
Developer shall submit the Developer’s Payment Request directly to the Town
Representative for approval. Within 10 business days of receipt of any Developer’s
Payment Request, the Town Representative shall either approve or disapprove the
Developer’s Payment Request in accordance with the procedures set forth above for
approval or disapproval by the Inspector and forward the approved or partially approved
Developer’s Payment Request to the Administrator for approval and delivery to the
Developer in accordance with Section 6.04(c) hereof. The approval of the Developer’s
Payment Request by the Town Representative shall constitute a representation by the
Town Representative to the Trustee that the Developer Compliance Requirements have
been satisfied with respect to the Developer Procured Facility identified therein.
Pursuant to the terms of the Indenture, the Trustee shall make a payment to the
Developer, or pursuant to the Developer’s directions, of an approved Developer’s
Payment Request.
iii. Within 5 business days of receipt from the Inspector or Town
Representative of any Developer’s Payment Request, the Administrator shall (i)
approve such Developer’s Payment Request, and all accompanying documentation, as
to compliance with form requirements of this Agreement and the Indenture, and deliver
such approved Developer’s Payment Request to the Developer or (ii) in the event the
Administrator disapproves the Developer’s Payment Request, give written notification to
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the Developer of its disapproval of such Developer’s Payment Request, specifying the
reasons for such disapproval and the additional requirements to be satisfied for
approval of such Developer’s Payment Request. The Developer agrees to cooperate
with the Administrator during such approval process and to provide to the Administrator
such additional information and documentation as is reasonably necessary for the
Administrator to grant such approval.
iv. The Developer shall deliver the approved or partially approved
Developer’s Payment Request to the Trustee for payment and the Trustee shall make
such payment from the Project Fund.
(e) Payment Requests for the Town Procured Facilities.
i. In order to cause a progress payment to be made from the Project Fund
for Costs of a Town Procured Facility not attributable to costs under a Construction
Contract, the Town shall cause to be delivered to the Trustee a Town’s Payment
Request, substantially in the form of Exhibit D hereto or otherwise agreed to by the
Developer, the Administrator and the Town Representative, requesting payment for
such Costs, together with all attachments and exhibits required by Exhibit D to be
included therewith or otherwise agreed to by the Administrator and the Town
Representative (including, but not limited to, Attachments 1 and 2 to Exhibit D, and
releases by the general contractor of materialsman’s and mechanic’s liens for work
attributable to Costs under a Construction Contract covered thereby). Each Town’s
Payment Request shall be signed by the Town Representative and approved by the
Administrator pursuant to Section 6.05(b) hereof. Partial payments for Costs of a Town
Procured Facility are permitted. [Need to discuss, I think we agreed that the Town
doesn’t need an inspection]
ii. Within 5 business days of receipt from the Town Representative of any
Town’s Payment Request, the Administrator shall (i) approve such Town’s Payment
Request, and all accompanying documentation, as to compliance with form
requirements of this Agreement and the Indenture, and deliver such approved Town’s
Payment Request to the Developer or (ii) in the event the Administrator disapproves the
Town’s Payment Request, give written notification to the Developer of its disapproval of
such Town’s Payment Request, specifying the reasons for such disapproval and the
additional requirements to be satisfied for approval of such Town’s Payment Request.
The Developer agrees to cooperate with the Administrator during such approval process
and to provide to the Administrator such additional information and documentation as is
reasonably necessary for the Administrator to grant such approval.
iii. The Town Representative shall deliver the approved or partially approved
Town’s Payment Request to the Trustee for payment and the Trustee shall make such
payment from the Project Fund.
(f) Payment for Developer Procured Facilities and Town Procured Facilities.
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i. Upon receipt of a reviewed and approved Developer’s Payment Request
or a reviewed and approved Town’s Payment Request, the Trustee shall make payment
of such approved Developer’s Payment Request or such approved Town’s Payment
Request to the Developer, or pursuant to the directions in such Developer’s Payment
Request or such Town’s Payment Request, from funds on deposit in the Project Fund in
accordance with the applicable provisions of the Indenture.
ii. Notwithstanding any other provisions of this Agreement, the following
restrictions shall apply to any payments made from the Project Fund under
Section 6.06(a) hereof:
(1) If the Developer’s Payment Request is for the Cost of a Developer
Procured Facility attributable to costs under any Construction Contract, the
Trustee shall make payment for such Cost directly to the general contractor or
supplier of materials or services or jointly to the Developer (or any permitted
assignee of such Developer) and the general contractor or supplier of materials
or services, as indicated in the Developer’s Payment Request. If an unconditional
lien release is attached to such Developer’s Payment Request, the Trustee shall
make such payment to the Developer or any permitted assignee of the
Developer. In the event the Developer provides a general contractor’s or
supplier’s of materials unconditional lien release for a portion of the work covered
by a Developer’s Payment Request, the Trustee will make such payment directly
to the Developer or any permitted assignee of the Developer to the extent of
such lien release.
(2) If the Town’s Payment Request is for the Cost of a Town Procured
Facility attributable to costs under any Construction Contract, the Trustee shall
make payment for such Cost directly to the general contractor or supplier of
materials or services or jointly to the Town and the general contractor or supplier
of materials or services, as indicated in the Town’s Payment Request. Upon such
payment, the Town or the Developer shall provide to the Trustee an
unconditional lien release for the work covered by such Town’s Payment
Request relating to a Town Procured Facility for which a general contractor or
supplier of materials or services may have a mechanic’s lien on the Town
Procured Facility.
(3) If the Town’s Payment Request is for the Cost of a Town Procured
Facility not attributable to costs under any Construction Contract, the Trustee
shall make payment for such Cost directly to the contractor or supplier of
services or jointly to the Town and the contractor or supplier of services, as
indicated in the Town’s Payment Request. If the Town provides a copy of a paid
invoice evidencing the payment by the Town of the services covered by a Town’s
Payment Request, the Trustee shall pay such Cost directly to the Town.
(4) Notwithstanding anything to the contrary contained in this
Section 6.06, the Trustee shall directly reimburse the Developer for any Cost of a
Developer Procured Facility or a Town Procured Facility incurred by the
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Developer through the Closing Date if (i) with respect to a Developer Procured
Facility or a Town Procured Facility which may be subject to mechanic’s or
materialman’s liens and/or judgments, the Developer produces the general
contractor’s lien waivers, invoices marked paid by the applicable contractor,
cancelled checks or other evidence satisfactory to the Town and the Original
Purchaser that there are no mechanic’s or materialman’s liens and/or judgments
with respect to work for which such reimbursement is sought and (ii) with respect
to a Town Procured Facility not subject to mechanic’s or materialman’s liens
and/or judgments, the Developer produces cancelled checks evidencing
reimbursement by the Developer to the Town of the Costs of such Town
Procured Facility.
Notwithstanding anything to the contrary contained in this Section 6.06, in
the event the Developer enters at any time into a Construction Contract for a
Town Procured Facility with the contractor thereof and incurs any Costs in
connection with such Construction Contract, a related contract, or such Town
Procured Facility, the Trustee shall directly reimburse the Developer for any such
Cost if the Developer produces the general contractor’s lien waivers, invoices
marked paid by the applicable contractor, cancelled checks or other evidence
satisfactory to the Town that there are no mechanic’s or materialman’s liens
and/or judgments with respect to work for which such reimbursement is sought.
The Developer shall assign to the Town its rights and obligations under any
Construction Contract for a Town Procured Facility entered into by the Developer
and the contractor thereof.
iii. Withholding Payments.
Nothing in this Agreement shall be deemed to prohibit the Developer or the Town
from contesting in good faith the validity or amount of any mechanic’s or materialman’s
lien and/or judgment nor limit the remedies available to the Developer or the Town with
respect thereto so long as such delay in performance shall not subject the Developer
Procured Facilities or the Town Procured Facilities, as appropriate, to foreclosure,
forfeiture, or sale. In the event that any such lien and/or judgment with respect to the
Developer Procured Facilities is contested, the Developer shall be required to post or
cause the delivery of a bond in an amount determined by the Town.
Section 23.
OWNERSHIP AND TRANSFER OF DEVELOPER PROCURED FACILITIES
(a) Developer Procured Facilities to Be Owned By the Town - Title Evidence.
The Developer shall furnish to the Town a preliminary title report for land with respect to
Developer Procured Facilities to be acquired and accepted by the Town from the
Developer and not previously dedicated or otherwise conveyed to the Town, for review
and approval at least 30 calendar days prior to the transfer of title to a Developer
Procured Facility to the Town. The Town shall approve the preliminary title report unless
it reveals a matter which, in the reasonable judgment of the Town, could materially
affect the Town’s use and enjoyment of any part of the property or easement covered
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by the preliminary title report. In the event the Town does not approve the preliminary
title report, the Town shall not be obligated to accept title to the Developer Procured
Facility until the Developer has cured such objections to title to the satisfaction of the
Town.
(b) Developer Procured Facilities Constructed on Town Land or Developer
Land. If the Developer Procured Facilities to be acquired and accepted are on land
owned by the Town, the Town hereby grants to the Developer a license to enter upon
such land for purposes related to the construction (and maintenance pending
acquisition and acceptance) of the Developer Procured Facilities. The provisions for
inspection and acceptance of such Developer Procured Facilities otherwise provided
herein shall apply. If this Agreement is terminated pursuant to Article IX hereof and the
Town elects to complete any of the Developer Procured Facilities, if such Developer
Procured Facilities are on land owned by the Developer, the Developer hereby grants to
the Town a license to enter upon such land for purposes related to the construction and
maintenance of such Developer Procured Facilities.
Section 24.
REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Representations, Covenants and Warranties of the Developer. The
Developer represents and warrants for the benefit of the Town as follows:
i. Organization. The Developer is a limited partnership duly organized and
validly existing under the laws of the State of Texas, is in compliance with the laws of
the State of Texas, and has the power and authority to own its properties and assets
and to carry on its business in the State of Texas as now being conducted and as
hereby contemplated.
ii. Authority. The Developer has the power and authority to enter into this
Agreement, and has taken all action necessary to cause this Agreement to be executed
and delivered, and this Agreement has been duly and validly executed and delivered by
the Developer.
iii. Binding Obligation. This Agreement is a legal, valid and binding obligation
of the Developer, enforceable against the Developer in accordance with its terms,
subject to bankruptcy and other equitable principles.
iv. Compliance with Law. The Developer shall not with knowledge commit,
suffer or permit any act to be done in, upon or to the lands of the Developer in the
District or the Developer Procured Facilities in violation of any law, ordinance, rule,
regulation or order of any governmental authority or any covenant, condition or
restriction now or hereafter affecting the lands in the District or the Developer Procured
Facilities.
v. Requests for Payment. The Developer represents and warrants that (i) it
will not request payment from the Project Fund for the acquisition of any improvements
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that are not part of the Improvement Projects, and (ii) it will diligently follow all
procedures set forth in this Agreement with respect to the Developer’s Payment
Requests and the Town’s Payment Requests.
vi. Financial Records. For a period of two years after completion of the
Developer Procured Facilities, the Developer covenants to maintain proper books of
record and account for the construction of the Developer Procured Facilities and all
costs related thereto. Such accounting books shall be maintained in accordance with
generally accepted accounting principles, and shall be available for inspection by the
Town or its agent at any reasonable time during regular business hours on reasonable
notice.
vii. Plans. The Developer represents that it has obtained or will obtain
approval of the Plans from all appropriate departments of the Town and from any other
public entity or public utility from which such approval must be obtained. The Developer
further agrees that, subject to the terms hereof, the Developer Procured Facilities have
been or will be constructed in full compliance with such Plans and any change orders
thereto consistent with the Act, and the Ordinance, as approved in the same manner.
viii. Additional Information. The Developer agrees to cooperate with all
reasonable written requests for nonproprietary information by the Original Purchaser of
the Bonds or the Town Representative related to the status of construction of
improvements within the District, the anticipated completion dates for future
improvements and any other matter material to the investment quality of the Bonds.
ix. Continuing Disclosure Agreement. The Developer agrees to provide the
information required pursuant to the Continuing Disclosure Agreement executed by the
Developer in connection with the Bonds.
x. Tax Certificate. The Town expects to deliver on each date of issuance of
each series of Bonds a certificate (such certificate, as it may be amended and
supplemented from time to time, being referred to herein as the “Tax Certificate”)
containing covenants and agreements designed to satisfy the requirements of Sections
103 and 141 through 150, inclusive, of the Code and the income tax regulations issued
thereunder and that states the Town’s reasonable expectations as to relevant facts,
estimates and circumstances relating to the use of the proceeds of such Bonds or of
any monies, securities or other obligations on deposit to the credit of any of the funds
and accounts created by the Indenture or this Agreement or otherwise that may be
deemed to be proceeds of the Bonds within the meaning of Section 148 of the Code
(collectively, “Bond Proceeds”).
The Developer covenants to provide, or cause to be provided, such facts and
estimates as the Town reasonably considers necessary to enable it to execute and
deliver its Tax Certificate. The Developer further covenants that (i) such facts and
estimates will be based on its reasonable expectations on the date of issuance of the
Bonds and will be, to the best of the knowledge of the officers of the Developer
providing such facts and estimates, true, correct and complete as of that date, and (ii)
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the Developer will make reasonable inquiries to ensure such truth, correctness and
completeness. The Developer covenants that it will not make, or (to the extent that it
exercises control or direction) permit to be made, any use or investment of the Bond
Proceeds (including, but not limited to, the use of the Developer Procured Facilities or
the Town Procured Facilities) that would cause any of the covenants or agreements of
the Town contained in the Tax Certificate to be violated or that would otherwise have an
adverse effect on the tax-exempt status of the interest payable on the Bonds for federal
income tax purposes.
xi. Financial Resources. The Developer represents and warrants that it has
the financial resources, or the ability to obtain sufficient financial resources, to meet its
obligations under the this Agreement, the Development Agreement and the Subdividers
Agreements.
(b) Indemnification and Hold Harmless. The Developer shall assume the
defense of, indemnify and save harmless the Inspector, the Town, officers, employees
and agents of the Town, and each of them (each an “Indemnified Party”), from and
against all actions, damages, claims, losses or expense of every type and description to
which they may be subjected or put, by reason of, or resulting from the breach of any
provision of this Agreement by the Developer, the negligent design, engineering and/or
construction by the Developer or any architect, engineer or contractor hired by the
Developer of any of the Developer Procured Facilities acquired from the Developer
hereunder, the Developer’s nonpayment under contracts between the Developer and its
consultants, engineers, advisors, contractors, subcontractors and suppliers in the
provision of the Developer Procured Facilities, or any claims of persons employed by
the Developer or its agents to construct the Developer Procured Facilities.
Notwithstanding the foregoing, no indemnification is given hereunder for any action,
damage, claim, loss or expense directly attributable to the gross negligence or willful
misconduct of any Indemnified Party.
(c) Use of Monies by Town; Changes to Indenture. The Town agrees not to
take any action or direct the Trustee to take any action to expend, disburse or encumber
the monies held in the Project Fund and any monies to be transferred thereto for any
purpose other than the purposes permitted by the Indenture. Prior to the acceptance of
all the Improvement Projects, the Town agrees not to modify or supplement the
Indenture without the approval of the Developer if as a result or as a consequence of
such modification or supplement (a) the amount of monies that would otherwise have
been available under the Indenture for disbursement for the Costs of the Improvement
Projects is reduced, delayed or deferred, (b) the obligations or liabilities of the
Developer is or may be increased or otherwise adversely affected in any manner, or (c)
the rights of the Developer is or may be modified, limited, restricted or otherwise
adversely affected in any manner.
(d) No Reduction of Assessments. The Developer agrees not to take any
action or actions to reduce the total amount of Assessments to be levied with respect to
property owned by the Developer in the District from the total amount of such
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Assessments to be levied as of the effective date of this Agreement unless the
Administrator determines that such reduction is not material.
Section 25.
TERMINATION
(a) Mutual Consent. This Agreement may be terminated by the mutual, written
consent of the Town and the Developer, in which event the Town may either execute
contracts for or perform any remaining work related to the Developer Procured Facilities
not accepted by the Town or other appropriate entity and use all or any portion of funds
on deposit in the Project Fund or other amounts transferred to the Project Fund under
the terms of the Indenture to pay for same, and the Developer shall have no claim or
right to any further payments for the Costs of Developer Procured Facilities hereunder,
except as otherwise may be provided in such written consent.
(b) Town’s Election for Cause. [VE not willing to delete]
i. The Town, at its option, may terminate this Agreement, without the
consent of the Developer if the Developer shall breach any material covenant or default
in the performance of any material obligation hereunder.
ii. If any such event occurs, the Town shall give written notice of its
knowledge thereof to the Developer, and the Developer agrees to meet and confer with
the Inspector and other appropriate Town staff and consultants as to options available
to assure timely completion, subject to the terms of this Agreement, of the Developer
Procured Facilities. Such options may include, but not be limited to, the termination of
this Agreement by the Town. If the Town elects to terminate this Agreement, the Town
shall first notify the Developer (and any mortgagee or trust deed beneficiary specified in
writing by the Developer to the Town to receive such notice) of the grounds for such
termination and allow the Developer a minimum of 45 days to eliminate or mitigate to
the satisfaction of the Town the grounds for such termination. Such period may be
extended, at the reasonable discretion of the Town, if the Developer, to the reasonable
satisfaction of the Town, is proceeding with diligence to eliminate or mitigate such
grounds for termination. If at the end of such period (and any extension thereof), as
determined reasonably by the Town, the Developer has not eliminated or completely
mitigated such grounds to the satisfaction of the Town, the Town may then terminate
this Agreement. In the event of the termination of this Agreement, the Developer is
entitled to reimbursement for work accepted by the Town related to the Developer
Procured Facilities undertaken prior to the termination date of this Agreement solely
from the Project Fund according to the terms and conditions set forth in this Agreement.
Notwithstanding the foregoing, so long as the Developer has breached any material
covenant or defaulted in the performance of any material obligation hereunder, notice of
which has been given by the Town to the Developer, and such event has not been
cured or otherwise eliminated by the Developer, the Town may in its discretion cause
the Trustee to cease making payments for the Costs of Developer Procured Facilities,
provided that the Developer shall receive payment of the Costs of any Developer
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Procured Facility that was accepted by the Town at the time of the occurrence of such
breach or default by the Developer upon submission of the documents and compliance
with the other applicable requirements of this Agreement.
iii. If this Agreement is terminated by the Town for cause, the Town may
either execute contracts for or perform any remaining work related to the Developer
Procured Facilities not accepted by the Town and use all or any portion of the funds on
deposit in the Project Fund or other amounts transferred to the Project Fund and the
Developer shall have no claim or right to any further payments for the Developer
Procured Facilities hereunder, except as otherwise may be provided upon the mutual
written consent of the Town and the Developer.
(c) Termination Upon Redemption or Defeasance of Bonds. This Agreement
will terminate automatically and with no further action by the Town or the Developer
upon the redemption or defeasance of all Outstanding Bonds issued under the
Indenture or any Supplemental Indenture.
(d) Construction of Improvement Projects Upon Termination of this
Agreement. Notwithstanding anything to the contrary contained herein, upon the
termination of this Agreement pursuant to this Article IX, the Developer shall perform its
obligations with respect to the Improvement Projects in accordance with the terms of the
this Agreement, the Subdividers Agreements and the Development Agreement.
(e) Force Majeure. Whenever performance is required of a party hereunder,
that party shall use all due diligence and take all necessary measures in good faith to
perform, but if completion of performance is delayed by reasons of floods, earthquakes
or other acts of God, war, civil commotion, riots, strikes, picketing or other labor
disputes, damage to work in progress by casualty or by other cause beyond the
reasonable control of the party (financial inability excepted), then the specified time for
performance shall be extended by the amount of the delay actually so caused.
Section 26.
MISCELLANEOUS
(a) Limited Liability of Town. The Developer agrees that any and all
obligations of the Town arising out of or related to this Agreement are special
obligations of the Town, and the Town’s obligations to make any payments hereunder
are restricted entirely to the moneys, if any, in the Project Fund and from no other
source. Neither the Town, the Inspector nor any Town employee or agent shall incur
any liability hereunder to the Developer or any other party in their individual capacities
by reason of their actions hereunder or execution hereof.
(b) Modification to Exhibit A and Exhibit B; Definitions of Developer Procured
Facilities and Town Procured Facilities.
i. Upon request of the Developer, the Town shall consider any other
modifications of any Developer Procured Facility on Exhibit A attached hereto. Any such
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modification shall be approved by the Town unless such modification would, in the
opinion of Bond Counsel, adversely affect the tax-exemption of the interest on any Tax-
Exempt Bonds.
ii. Exhibit B attached hereto may be modified by the Town, with the prior
written consent of the Developer, if, in the opinion of Bond Counsel, such modification
would not adversely affect the tax-exemption of the interest on any Tax-Exempt Bonds.
iii. The Town will not approve, and the Developer will not propose, any
modifications to Exhibits A or modify Exhibit B if such modifications would materially
impair the development of the Project.
(c) Audit. The Inspector or a finance officer of the Town shall have the right,
during normal business hours and upon the giving of three business days’ prior written
notice to a Developer, to review all books and records of the Developer pertaining to
costs and expenses incurred by the Developer with respect to any of the Developer
Procured Facilities and any bids taken or received for the construction thereof or
materials therefor.
(d) Notices. Any notice, payment or instrument required or permitted by this
Agreement to be given or delivered to any party shall be deemed to have been received
when personally delivered or transmitted by telecopy or facsimile transmission (which
shall be immediately confirmed by telephone and shall be followed by mailing an
original of the same within 24 hours after such transmission) or 72 hours following
deposit of the same in any United States Post Office, registered or certified mail,
postage prepaid, addressed as follows:
Town: Town of Trophy Club
Attn: Town Manager
100 Municipal Drive
Trophy Club, Texas 76262
FAX: 817-491-9232
EMAIL: bemmons@ci.trophyclub.tx.us
With a copy to: Town of Trophy Club
Attn: Town Attorney
100 Municipal Drive
Trophy Club, Texas 76262
FAX: 817-491-9312
EMAIL: padams@ci.trophyclub.tx.us
With a copy to: Vinson & Elkins LLP
Attn: Ben Brooks
2001 Ross Ave, Suite 3800
Dallas, Texas 75201
FAX: 817-491-9312
EMAIL: bbrooks@velaw.com
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Developer: 831 Trophy L.P.
c/o Centurion American Development Group
Attn: Mehrdad Moayedi
3901 W. Airport Freeway, Suite 200
Bedford, Texas 76021
FAX: 817-391-2501
EMAIL: laura@centurionamerican.com
With a copy to: Misty Ventura
Hughes & Luce LLP
1717 Main Street, Suite 2800
Email: misty. ventura@hughesluce.com
Any party may change its address or addresses for delivery of notice by delivering
written notice of such change of address to the other party.
The Town shall advise the Developer of the name and address of any Inspector who
is to receive any notice or other communication pursuant to this Agreement.
(e) Severability. If any part of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement
shall be given effect to the fullest extent possible.
(f) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto. This Agreement shall
not be assigned by the Developer without the prior written consent of the Town, which
consent shall not be unreasonably withheld or delayed, except pursuant to a collateral
assignment to any person providing construction financing to the Developer for the
Developer Procured Facilities provided such person expressly agrees to assume all
obligations of the Developer hereunder if there is a default under such financing and
such person elects to complete the Developer Procured Facilities. In connection with
any consent of the Town, the Town may condition its consent upon the acceptability of
the financial condition of the proposed assignee, upon the assignee’s express
assumption of all obligations of the Developer hereunder and/or upon any other
reasonable factor which the Town deems relevant in the circumstances. In any event,
any such assignment shall be in writing, shall clearly identify the scope of the rights
and/or obligations assigned and shall not be effective until approved by the Town. The
Town may assign by a separate writing its rights hereunder to the Trustee and the
Developer hereby consents to such assignment.
(g) Other Agreements. The obligations of the Developer hereunder shall be
those of a party hereto and not as an owner of property in the District. Nothing herein
shall be construed as affecting the Town’s or the Developer’s rights or duties to perform
their respective obligations under other agreements, use regulations or subdivision
requirements relating to the development of the lands in the District, including the
164
applicable Construction Contracts and Subdividers Agreements, and the Development
Agreement.
(h) Waiver. Failure by a party to insist upon the strict performance of any of
the provisions of this Agreement by any other party, or the failure by a party to exercise
its rights upon the default of any other party, shall not constitute a waiver of such party’s
right to insist and demand strict compliance by such other party with the terms of this
Agreement thereafter.
(i) Merger. No other agreement, statement or promise made by any party or
any employee, officer or agent of any party with respect to any matters covered hereby
that is not in writing and signed by all the parties to this Agreement shall be binding.
(j) Parties in Interest. Nothing in this Agreement, expressed or implied, is
intended to or shall be construed to confer upon or to give to any person or entity other
than the Town and the Developer any rights, remedies or claims under or by reason of
this Agreement or any covenants, conditions or stipulations hereof, and all covenants,
conditions, promises and agreements in this Agreement contained by or on behalf of the
Town or the Developer shall be for the sole and exclusive benefit of the Town and the
Developer.
(k) Amendment. Except as otherwise provided in Section 10.02, this
Development Agreement may be amended, from time to time in a manner consistent
with the Act and the Ordinance, by written Supplement hereto and executed by both the
Town and the Developer.
(l) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
(m) Effective Date. This Agreement has been dated as of the date first above
written solely for the purpose of convenience of reference and shall become effective
upon its execution and delivery, on the Closing Date, by the parties hereto. All
representations and warranties set forth herein shall be deemed to have been made on
the Closing Date.
[Signatures Appear on Following Page]
165
IN WITNESS WHEREOF, the parties have executed this Development Agreement as
of the day and year first above written.
EXHIBIT A
TO CONSTRUCTION
AND FUNDING AGREEMENT
DESCRIPTION OF DEVELOPER PROCURED FACILITIES AND
APPLICABLE BUDGETED COSTS
DEVELOPER PROCURED FACILITIES BUDGETED COSTS*
________________
* As shown in the Service and Assessment Plan
166
EXHIBIT B
TO CONSTRUCTION
AND FUNDING AGREEMENT
DESCRIPTION OF TOWN PROCURED FACILITIES
AND APPLICABLE BUDGETED COSTS
TOWN PROCURED FACILITIES BUDGETED COSTS*
TOWN PROCURED FACILITIES BUDGETED COSTS*
________________
* As shown in the Service and Assessment Plan
167
EXHIBIT C
TO CONSTRUCTION
AND FUNDING AGREEMENT
FORM OF PAYMENT REQUEST FOR DEVELOPER PROCURED FACILITIES
PAYMENT REQUEST NO. _____
(DEVELOPER PROCURED FACILITIES)
The undersigned (the “Developer”) hereby requests from the Trustee a payment from
the Project Fund (as defined in the Acquisition, Construction and Funding Agreement
dated as of ____________________________, 2007 (the “Funding Agreement”)
between the Town of Trophy Club (the “Town”) and ________________________ in
the total amount of $________________ with respect to the Developer Procured
Facilities (as defined in the Funding Agreement), all as more fully described in
Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby
represents and warrants to the Town as follows:
1. He (she) is a duly authorized officer of the Developer qualified to execute
this Payment Request for payment on behalf of the Developer and is
knowledgeable as to the matters set forth herein.
2. All costs of the Developer Procured Facilities thereof for which payment is
requested hereby are Costs (as defined in the Funding Agreement). The
items for which payment is requested have not been the subject of any
prior payment request submitted to the Trustee or, if previously requested,
no disbursement was made with respect thereto.
3. The Costs for which funding is requested by this Payment Request and
amounts of payments by categories corresponding to the categories of
Developer Procured Facilities, as such term may be amended from time to
time in accordance with the Funding Agreement, set forth in the Funding
Agreement are listed in Attachment 1 hereto.
4. The Developer is in compliance with the terms and provisions of the
Funding Agreement, and no portion of the amount being requested to be
paid was previously paid.
5. The Cost for each Developer Procured Facility (a detailed calculation of
which is shown in Attachment 2 hereto for each such Developer Procured
Facility) has been calculated in conformance with the terms of
Section 6.04 of the Funding Agreement. Supporting documentation (such
as third-party invoices) for each Cost to be funded pursuant to this
Payment Request is attached to Attachment 2 hereto.
6. The Developer certifies that the disbursement being requested herein is a
proper expenditure from the Project Fund.
168
7. All conditions set forth in the Funding Agreement and in the Indenture (as
defined in the Funding Agreement) for the payment hereby requested
have been satisfied.
8. Payments requested hereunder shall be made as directed in Attachment 2
hereto.
9. If this Payment Request is for Costs of a Developer Procured Facility
attributable to costs under a Construction Contract, attached hereto are
the required releases by the general contractor of materialsman’s and
mechanic’s liens for work for which payment is hereby requested.
I hereby declare that the above representations and warranties are true and correct.
[CENTURION AMERICAN DEVELOPMENT GROUP]
By: ___________________________
Authorized Officer
Date: ______________
[Signatures Continue on Following Page]
169
APPROVAL OF INSPECTOR:
The undersigned hereby approves this Payment Request pursuant to the provisions
of Section 6.04(a) of the Funding Agreement. With respect to Costs of a Developer
Procured Facility arising under a Construction Contract (as defined in the Funding
Agreement) related to such Developer Procured Facility, the undersigned hereby
certifies that the Inspector has made a site inspection of the Developer Procured Facility
for which a payment is requested hereby and confirmed that the work with respect to
such Developer Procured Facility was completed or proportionately completed in
accordance with the Plans related thereto (as defined in the Funding Agreement), with
the terms of the Funding Agreement and with all applicable governmental permits
provided to the Inspector by the Developer. The undersigned further certifies that (i) the
payment requested hereby is for Costs (as defined in the Funding Agreement) of a
Developer Procured Facility and the Inspector verified such Costs of the Developer
Procured Facility specified herein, (ii) the Developer Procured Facility with respect to
which payment is requested hereby is correctly described in Attachment 1 hereto, (iii)
the payee(s) of amounts requested to be paid hereby is(are) correctly listed in
Attachment 2 hereto.
___________________________, Inspector
By: ________________________
Date: ______________
170
APPROVAL OF TOWN REPRESENTATIVE:
The undersigned hereby approves this Payment Request pursuant to the provisions
of Section 6.04(b) of the Funding Agreement. The undersigned certifies that (i) the
payment requested hereby is for Costs (as defined in the Funding Agreement) of a
Developer Procured Facility not attributable to costs under a Construction Contract (as
defined in the Funding Agreement) and the undersigned verified such Costs of the
Developer Procured Facility specified herein, (ii) the Developer Procured Facility with
respect to which payment is requested hereby is correctly described in Attachment 1
hereto, (iii) the payee(s) of amounts requested to be paid hereby is( are) correctly listed
in Attachment 2 hereto.
____________________________, Town Representative
[Mayor] [Town Administrator]
Date: ______________
171
[TO BE SIGNED ONLY IF INSPECTOR FAILS TO ACT PURSUANT TO
SECTION 6.04(b)]
APPROVAL OF TOWN REPRESENTATIVE:
The undersigned hereby approves this Payment Request pursuant to the provisions
of Section 6.04(b) of the Funding Agreement. With respect to Costs of a Developer
Procured Facility arising under a Construction Contract (as defined in the Funding
Agreement) related to such Developer Procured Facility, the undersigned hereby
certifies that s/he has made a site inspection of the Developer Procured Facility for
which a payment is requested hereby and confirmed that the work with respect to such
Developer Procured Facility was completed or proportionately completed in accordance
with the Plans related thereto (as defined in the Funding Agreement), with the terms of
the Funding Agreement and with all applicable governmental permits provided to the
Inspector by the Developer. The undersigned further certifies that (i) the payment
requested hereby is for Costs (as defined in the Funding Agreement) of a Developer
Procured Facility and the undersigned verified such Costs of the Developer Procured
Facility specified herein, (ii) the Developer Procured Facility with respect to which
payment is requested hereby is correctly described in Attachment 1 hereto, (iii) the
payee(s) of amounts requested to be paid hereby is(are) correctly listed in Attachment 2
hereto.
___________________________
________________________, Town Representative
[Mayor] [Town Administrator]
Date: ______________
172
APPROVAL OF ADMINISTRATOR:
The undersigned hereby certifies that s/he reviewed this Payment Request, including
all attachments and exhibits hereto, and found it to be in the appropriate form required
by the Funding Agreement and the Indenture (as defined in the Funding Agreement).
This Payment Request is hereby approved by the undersigned with respect to such
form requirements in satisfaction of Section 6.04(c) of the Funding Agreement. The
Administrator has not undertaken an independent review of the Developer Procured
Facilities relating to this Payment Request.
MUNICAP, INC., Administrator
By: ________________________
Date: ______________
173ATTACHMENT 1
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174
ATTACHMENT 2
PAYMENT REQUEST NO. _____
(DEVELOPER PROCURED FACILITIES)
CALCULATION OF COSTS TO BE PAID
1. Total amount of disbursement pursuant to this Payment Request:
$_______________
2. Reimbursement to the Developer:
Categories of
Developer Procured
Facilities Contractor/Supplier
Invoice
No.
Date of
Payment Amount
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
Sub-total $
Inspector’s Fee $
Sub-total $
TOTAL $
3.
175
Payment to Third-Party Payees or Jointly to the Developer and Third-Party
Payees:
Categories of
Developer Procured
Facilities Contractor/Supplier
Invoice
No.
Payee(s)
Name(s) and
Address(es) Amount
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
TOTAL $
The items listed for reimbursement to the Developer or payment to third-party
payees are
supported by attached copies of invoices or statements.
176
EXHIBIT D
TO CONSTRUCTION
AND FUNDING AGREEMENT
FORM OF PAYMENT REQUEST FOR TOWN PROCURED FACILITIES
PAYMENT REQUEST NO. _____
(TOWN PROCURED FACILITIES)
The undersigned Town Representative hereby requests from the Trustee a payment
from the Project Fund (as defined in the Acquisition, Construction and Funding
Agreement dated as of ____________________________, 2007 (the “Funding
Agreement”) between Town of Trophy Club (the “Town”) and [Centurion American
Development Group] in the total amount of $________________ with respect to the
Town Procured Facilities (as defined in the Funding Agreement), all as more fully
described in Attachment 1 hereto. In connection with this Payment Request, the
undersigned hereby represents and warrants to the Town as follows:
1. He (she) is qualified to execute this Payment Request for payment on
behalf of the Town and is knowledgeable as to the matters set forth
herein.
2. All costs of the Town Procured Facilities thereof for which payment is
requested hereby are Costs (as defined in the Funding Agreement). The
items for which payment is requested have not been the subject of any
prior payment request submitted to the Trustee or, if previously requested,
no disbursement was made with respect thereto.
3. The Costs for which funding is requested by this Payment Request and
amounts of payments by categories corresponding to the categories of
Town Procured Facilities, as such term may be amended from time to time
in accordance with the Funding Agreement, set forth in the Funding
Agreement are listed in Attachment 1 hereto.
4. The Town is in compliance with the terms and provisions of the Funding
Agreement, and no portion of the amount being requested to be paid was
previously paid.
5. The Cost for each Town Procured Facility (a detailed calculation of which
is shown in Attachment 2 hereto for each such Town Procured Facility)
has been calculated in conformance with the terms of Section 6.05 of the
Funding Agreement. Supporting documentation (such as third-party
invoices) for each Cost to be funded pursuant to this Payment Request is
attached to Attachment 2 hereto.
[The project has been inspected consistent with Town procedures]
177
6. The Town certifies that the disbursement being requested herein is a
proper expenditure from the Project Fund.
7. All conditions set forth in the Funding Agreement and in the Indenture (as
defined in the Funding Agreement) for the payment hereby requested
have been satisfied.
8. Payments requested hereunder shall be made as directed in Attachment 2
hereto.
9. If this Payment Request is for Costs of a Town Procured Facility
attributable to costs under a Construction Contract, attached hereto are
the required releases by the general contractor of materialsman’s and
mechanic’s liens for work for which payment is requested hereby.
10. To the Town’s best knowledge, information and belief, the work covered
hereby has been completed in accordance with the Construction
Contracts with respect to the Town Procured Facilities, all amounts have
been paid by or on behalf of the Town for work for which previous
Payment Requests were issued and payments received from the Trustee,
and the current payment shown herein is now due.
I hereby declare that the above representations and warranties are true and correct.
TOWN OF TROPHY CLUB
By: ___________________________
Town Representative
Date: ______________
[Signatures Continue on Following Page]
178
APPROVAL OF ADMINISTRATOR:
The undersigned hereby certifies that s/he reviewed this Payment Request, including
all attachments and exhibits hereto, and found it to be in the appropriate form required
by the Funding Agreement and the Indenture (as defined in the Funding Agreement).
This Payment Request is hereby approved by the undersigned with respect to such
form requirements in satisfaction of Section 6.05(b) of the Funding Agreement. The
Administrator has not undertaken an independent review of the Town Procured
Facilities relating to this Payment Request.
MUNICAP, INC., Administrator
By: ________________________
Date: ______________
179ATTACHMENT 1
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180
ATTACHMENT 2
PAYMENT REQUEST NO. _____
(TOWN PROCURED FACILITIES)
CALCULATION OF COSTS TO BE PAID
1. Total amount of disbursement pursuant to this Payment Request:
$_______________
2. Reimbursement to the Town:
Categories of Town
Procured Facilities Contractor/Supplier
Invoice
No.
Date of
Payment Amount
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
Sub-total $
TOTAL: $
181
3. Payment to Third-Party Payees or Jointly to the Developer and Third-Party
Payees:
Categories of Town
Procured Facilities Contractor/Supplier
Invoice
No.
Date of
Payment Amount
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
TOTAL $
The items listed for reimbursement to the Town or payment to third-party payees
are
supported by attached copies of invoices or statements.
182EXHIBIT E
TO
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EXHIBIT F
TO CONSTRUCTION
AND FUNDING AGREEMENT
FORM OF
ASSIGNMENT OF PLANS AND CONSENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby acknowledged, and as an inducement for TOWN ON TROPHY CLUB, a
home-rule municipality of the State of Texas (the “Town”) to enter into that certain
Acquisition, Construction and Funding Agreement dated as of ________________,
2007 (the “Funding Agreement”) with CENTURION AMERICAN DEVELOMENT
GROUP, a _________ (the “Developer”), the Developer hereby assigns and transfers to
the Town, its successors and assigns, all of the Developer’s right, title and interest in
and to all Plans (as defined in the Funding Agreement) now existing or as may be
prepared by __________________ (the “Plans Engineer”). The Plans shall not be used
by the Town for any purpose other than the construction of the [Developer Procured
Facilities] [Town Procured Facilities] or other purposes related thereto. [For Plans
related to Developer Procured Facilities: The Developer reserves its right to title and
interest in and to all Plans for each Developer Procured Facility until the earlier of (1)
the conveyance of such Developer Procured Facility by the Developer to the Town or
(2) the termination of the Funding Agreement pursuant to Article IX thereof.] [For Plans
related to Town Procured Facilities which have been prepared pursuant to an
agreement between the Developer and the Plans Engineer: the Developer reserves its
right to use all such Plans in connection with its obligations under the Funding
Agreement until the earlier of (1) the completion of such Town Procured Facility or (2)
the termination of the Funding Agreement pursuant to Article IX of the Funding
Agreement.]
If the Plans Engineer delivers to the Developer any Plans for any [Developer Procured
Facility] [Town Procured Facility] after the date hereof, such Plans shall become
automatically subject to the terms of this assignment without any further action by the
Developer or the Plans Engineer.
The Developer hereby represents and warrants unto the Town that: (i) the list of Plans
attached hereto and made a part hereof as Exhibit A is a complete and accurate list of
all Plans for the [Town Procured Facilities] [Developer Procured Facilities] prepared by
the Plans Engineer through the date hereof; (ii) all Plans for the [Town Procured
Facilities] [Developer Procured Facilities] were and will be prepared by the Plans
Engineer; and (iii) the Developer is and, with respect to any Plans for the Developer
Procured Facilities delivered after the date hereof, shall be, the sole and exclusive
owner of the Plans for the Developer Procured Facilities (subject only to the interest, if
any, of the Plans Engineer, therein) and has the right and authority to make this
assignment.
This agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, the Developer and the Plans Engineer have caused this
Assignment of Plans and Consent to be executed, under seal, by their duly authorized
officers as of the day and year first above written.
WITNESS/ATTEST: DEVELOPER:
[CENTURION AMERICAN DEVELOPMENT
GROUP]
_______________________ By: __________________________
Dated: __________, 20__
CONSENT:
The undersigned, as Plans Engineer, hereby consents to the assignment to the Town
of the Plans referred to above and further agrees that the Town, their successors and
assigns, shall be authorized to use such Plans, without additional cost or expense, for
the construction of the [Developer Procured Facilities] [Town Procured Facilities] and
other purposes related thereto, free of any claims of proprietary interest by the
undersigned.
WITNESS/ATTEST: PLANS ENGINEER:
_____________________________________
_____________________________ By: ___________________________(SEAL)
Name: ________________________________
Title: _________________________________
Dated: __________________, 20__
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EXHIBIT A
TO ASSIGNMENT OF PLANS ENGINEER’S PLANS AND CONSENT
(List of Plans)
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EXHIBIT G
TO CONSTRUCTION
AND FUNDING AGREEMENT
FORMS OF
INSTRUMENTS OF CONVEYANCE OF DEVELOPER PROCURED FACILITIES
TO THE TOWN
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.4
Discuss and take appropriate action regarding an ordinance of the Town
Council of the Town of Trophy Club accepting and approving a Service and
Assessment Plan and Assessment Roll for the Town of Trophy Club Public
Improvement District No. 1; making a finding of special benefit to the
property in the district; levying special assessments against property
within the district and establishing a lien on such property; providing for
payment of the assessments in accordance with Chapter 372, Texas Local
Government Code, as amended; providing for the method of assessment
and the payment of the assessments, providing penalties and interest on
delinquent assessments, providing for severability, and providing an
effective date
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. SAP
2. Assessment Roll
3. Ordinance
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Section II
PROPERTY INCLUDED IN THE PID
The Highlands of Trophy Club is located in the Town of Trophy Club, Texas, within
Denton County, Texas. This planned development contains approximately 697 acres,
of which approximately 610 acres is within the PID. The acreage within the planned
development but not within the PID consist of approximately 49 acres of the
development within Trophy Club Municipal District No.1 (MUD 1) and Trophy Club
Municipal District No. 2 (MUD 2), approximately 14 acres of commercial uses, 21 acres
used for gas well operations, and two acres within rights of way. A map of the property
within the PID is shown on Exhibit A to this Service and Assessment Plan.
At completion, the PID is expected to consist of approximately 1,474 residential units,
two parks, entry monuments, and associated rights-of-way, landscaping, and
infrastructure necessary to provide roadways, drainage, and utilities to the PID.
For purposes of allocating the Assessments, the Assessed Property has been classified
in one of five lot types. The following table shows the proposed residential lot types:
Table II-A
Proposed Residential Lot Types
The estimated
number of lots and
the classification of each lot are based upon the Planned Development Ordinance and
the Developer’s estimated highest and best use of the property within the PID.
Lot Type Minimum Lot Area Number of Units
Lot Type 1 12,000 SF 163
Lot Type 2 10,000 SF 508
Lot Type 3 8,400 SF 377
Lot Type 4 7,200 SF 177
Lot Type 5 3,000 SF 249
Total 1,474
253
Section III
DESCRIPTION OF THE AUTHORIZED IMPROVEMENTS
Section 372.003 of the PID Act defines the Authorized Improvements that may be
undertaken by a municipality or county through the establishment of a public
improvement district, as follows:
372.003. Authorized Improvements
(a) If the governing body of a municipality or county finds that it promotes
the interests of the municipality or county, the governing body may
undertake an improvement project that confers a special benefit on a
definable part of the municipality or county or the municipality’s
extraterritorial jurisdiction. A project may be undertaken in the
municipality or county or the municipality’s extraterritorial jurisdiction.
(b) A public improvement may include:
(i) landscaping;
(ii) erection of fountains, distinctive lighting, and signs;
(iii) acquiring, constructing, improving, widening, narrowing, closing,
or rerouting of sidewalks or of streets, any other roadways, or
their rights-of way;
(iv) construction or improvement of pedestrian malls;
(v) acquisition and installation of pieces of art;
(vi) acquisition, construction, or improvement of libraries;
(vii) acquisition, construction, or improvement of off-street parking
facilities;
(viii) acquisition, construction, improvement, or rerouting of mass
transportation facilities;
(ix) acquisition, construction, or improvement of water, wastewater, or
drainage facilities or improvements;
(x) the establishment or improvement of parks;
(xi) projects similar to those listed in Subdivisions (i)-(x);
(xii) acquisition, by purchase or otherwise, of real property in connection
with an authorized improvement;
(xiii) special supplemental services for improvement and promotion of
the district, including services relating to advertising, promotion,
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health and sanitation, water and wastewater, public safety,
security, business recruitment, development, recreation, and
cultural enhancement; and
(xiv) payment of expenses incurred in the establishment,
administration and operation of the district.
After analyzing the public improvement projects authorized by the PID Act, the Town
has determined that the Authorized Improvements should be undertaken by the Town.
The estimated total Costs to construct the Authorized Improvements are shown by
Table III-A (and more fully shown in Appendix B-1).
Table III-A
Estimated Costs to Construct
the Authorized Improvements
Authorized Improvements Estimated Cost
Northwest Parkway improvements, intersection
improvements, and Trophy Club Drive improvements
south of Northwest Parkway
$3,808,516.41
Trophy Club Drive improvements other than south of
Northwest Parkway
$3,794,483.59
Water distribution system (not including elevated
water tank)
$
1,290,000
Elevated water tank $1,200,000
Wastewater collection system $915,000
Trail system and open space $1,064,540
Thoroughfare streetscape, median landscaping,
sidewalks, irrigation and irrigation well. $2,280,000
Screening walls and neighborhood entry features $700,000
Northeast and Northwest parks
$5,175,000
Park drainage improvements $974,000
Construction administration and management $50,000
Contingency $1,187,437
Total estimated cost of Authorized Improvements $22,438,977
The Authorized Improvements benefit property inside and outside the PID. Accordingly,
the Costs of these improvements must be allocated between property inside the PID
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and the Town. This allocation is described in Section V of this Service and Assessment
Plan.
Table III-B shows the portion of the PID Costs, being the actual or budgeted costs, as
applicable, of all or any portion of the Authorized Improvements that provide a special
benefit to the Assessed Property and are allocated to the PID, as shown in Table III-B.
The Developer has agreed to pay the amount by which the total Costs shown in Table
III-A exceed the total PID Costs shown in Table III-B (i.e., the Costs allocated to the
Town).
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Table III-B
PID Costs
Authorized Improvements PID Costs
Northwest Parkway improvements, intersection
improvements, and Trophy Club Drive improvements
south of Northwest Parkway
$3,046,144
Trophy Club Drive improvements other than south of
Northwest Parkway
$3,794,484
Water distribution system (not including elevated
water tank)
$1,148,100
Elevated water tank $960,000
Wastewater collection system $796,050
Trail system and open space $1,011,039
Thoroughfare streetscape, median landscaping,
sidewalks, irrigation and irrigation well. $1,916,746
Screening walls and neighborhood entry features $700,000
Northeast and Northwest parks
$4,914,916
Park drainage improvements $925,049
Construction administration and management $50,000
Contingency $1,187,437
Estimated PID Costs $20,449,965
A discussion of the bonded indebtedness expected to be incurred to fund the PID Costs
set forth in Table III-B is included in Section IV of this Service and Assessment Plan.
The costs shown in Table III-B are estimates and may be revised in Annual Service
Plan Updates. Savings from one line item may be applied to a cost increase in another
line item. These transfers, however, are limited to the portion of the savings related to
the PID’s share of the costs, and these savings may be applied only to the PID’s share
of the increase in the costs of another line item.
257
Section IV
SERVICE PLAN
The PID Act requires a service plan cover a period of at least five years. The service
plan is required to define the annual projected costs and indebtedness for the
improvement projects undertaken within the PID. The estimated PID Costs plus costs
related to the issuance of the Bonds and payment of expenses incurred in the
establishment, administration, and operation of the PID is $27,500,000, which PID
Costs will be expended during the first five years. The Bonds will be issued on or
before September 31, 2008, or the Service and Assessment Plan and the Assessment
Roll shall terminate. The plan shall be reviewed and updated annually for the purpose
of determining the annual budget for improvements. The annual update to this Service
and Assessment Plan is herein referred to as the “Annual Service Plan Update.”
Bonds are expected to be issued in 2007 or 2008 or 2008 for all of the PID Costs.
Table IV-A shows estimated sources and uses of the Bonds.
Table IV-A
Sources and Uses of Funds
Sources of Funds: Total
Bond proceeds
$27,500,00
0
Total sources of funds
$27,500,00
0
Uses of Funds:
Estimated PID Costs $20,449,96
5
Costs of issuance and payment of
expenses incurred in the
establishment, administration, and
operation of the PID
$2,877,501
Capitalized interest $1,463,159
Reserve fund $2,709,375
Total uses of funds
$27,500,00
0
The aggregate principal amount of the Bonds issued shall not exceed $27,500,000.
This sources and uses of funds table is subject to revision and the actual sources and
uses of funds for any line item may be different than shown above. The sources and
uses of funds shown in Table IV-A shall be updated each year in the Annual Service
Plan Update to reflect any budget revisions and actual costs.
The actual interest rate on the Bonds may require the amount of the Assessments to be
reduced, as described in Section VI. E. 2. Developer funds will be paid to complete the
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Authorized Improvements if the amounts specified above are not sufficient to complete
such improvements.
The annual projected costs and annual projected indebtedness is shown by Table IV-B.
The annual projected costs and indebtedness is subject to revision and shall be
updated each in the Annual Service Plan Update to reflect any changes in the costs or
indebtedness expected for each year.
Table IV-B
Annual Projected Costs and Indebtedness
Year Annual
Projected
Costs
Annual
Projected
Indebtednes
s
2007 $27,500,000 $27,500,000
2008 $0 $0
2009 $0 $0
2010 $0 $0
2011 $0 $0
Total $27,500,000 $27,500,000
259
Section V
ASSESSMENT PLAN
A. Introduction
The PID Act requires the Town Council to apportion the PID Costs on the basis of
special benefits conferred upon the property because of the Authorized Improvements.
The PID Act provides that the PID Costs may be assessed: (i) equally per front foot or
square foot; (ii) according to the value of the property as determined by the governing
body, with or without regard to improvements on the property; or (iii) in any other
manner that results in imposing equal shares of the cost on property similarly benefited.
The PID Act further provides that the governing body may establish by ordinance or
order reasonable classifications and formulas for the apportionment of the cost between
the municipality and the area to be assessed and the methods of assessing the special
benefits for various classes of improvements. This section of this Service and
Assessment Plan describes the special benefit received by each Parcel of the Assessed
Property as a result of the Authorized Improvements, provides the basis and justification
for the determination that this special benefit exceeds the amount of the Assessments,
and establishes the methodology by which the Town Council allocates the special
benefit of the Authorized Improvements to Parcels in a manner that results in equal
shares of the PID Costs being apportioned to Parcels similarly benefited. The
determination by the Town Council of the assessment methodology set forth below is
the result of the discretionary exercise by the Town Council of its legislative authority
and governmental powers and is conclusive and binding on the Developer and all future
owners and developers of the Assessed Property.
B. Special Benefit
The Assessed Property will receive a direct and special benefit from the Authorized
Improvements, and this benefit will be equal to or greater than the amount of the
Assessments. The Authorized Improvements are provided specifically for the benefit of
the Assessed Property. The Authorized Improvements (more particularly described in
line-item format on Exhibit B-1 and B-2 to this Service and Assessment Plan) and the
costs of issuance and payment of expenses incurred in the establishment,
administration, and operation of the PID shown in Table IV-A are authorized by the Act.
The owners of the Assessed Property have acknowledged that the Authorized
Improvements confer a special benefit on the Assessed Property and have consented
to the imposition of the Assessments to pay for the PID Costs. The owners are acting in
their interest in consenting to this imposition because the special benefit conferred upon
the Assessed Property by the Authorized Improvements exceeds the amount of the
Assessments.
The owners of the Assessed Property have represented: (i) that, based on their
evaluation of the potential development of the Assessed Property, the highest and best
use is the use described in this Service and Assessment Plan and otherwise required
by the Planned Development Ordinance; and (ii) that it is in the interest of the owners of
the Assessed Property to maximize the value of such property. Use of the Assessed
260
Property as described in this Service and Assessment Plan and as required by the
Planned Development Ordinance will require that Authorized Improvements be
acquired, constructed, installed, and improved. Funding the PID Costs through the PID
is determined to be the most beneficial means of doing so. As a result, the
Assessments result in a special benefit to the Assessed Property, and this special
benefit exceeds the amount of the Assessments. This conclusion is based on and
supported by the evidence, information, and testimony provided to the Town Council.
C. Allocation of Costs to the PID
The Authorized Improvements will provide a special benefit to the property inside and
outside the PID. Accordingly, the Costs of the Authorized Improvements must be
allocated between the property inside the PID and outside of the PID (i.e., to the Town).
The Developer has agreed to pay all costs of the Authorized Improvements allocated to
the Town.
The allocation of these costs is shown in Appendix B-2 and summarized as follows:
Thoroughfare improvements – A portion of the thoroughfare improvements provides
access to property outside the PID, therefore the costs of these improvements are
allocated on the basis of estimated trips from property inside and outside the PID. The
trips from the property in the PID are estimated to represent 80% of the total trips.
Accordingly, 80% of the costs of these improvements are allocated to the PID with the
balance allocated to the Town.
A portion of the thoroughfare improvements to Trophy Club Drive provide access only to
property in the PID; therefore, the improvements are allocated entirely to the PID.
Water distribution system – The costs of the water distribution system are allocated on
the basis of gallons per day of estimated use by property inside and outside the PID.
This allocation results in 89% of the costs of the water distribution system being
allocated to the PID with the balance being allocated to the Town (note: commercial
property in the development uses less water compared to trips generated, which results
in the higher allocation of water improvements compared to thoroughfare
improvements).
Elevated water tank – The costs of the elevated water tank are allocated on the basis of
the estimated storage requirements, including storage requirements for average daily
use and fire protection, for property inside the PID and other property not in the PID but
served by the elevated water tank. This allocation results in 80% of these costs being
allocated to the PID with the balance being allocated to the Town.
Wastewater collection system – The costs of the wastewater collection system are
allocated on the basis of the total estimated sewage generated from property inside the
PID and other property not in the PID but served by these improvements. This
allocation results in 87% of these costs being allocated to the PID with the balance
allocated to the Town.
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Thoroughfare landscaping – The costs of the thoroughfare landscaping are allocated on
the basis of the estimated linear feet of roadway inside the PID compared to the
estimated total linear footage on the roadway to be built. This allocation results in 84%
of the costs of the improvements being allocated to the PID with the balance allocated
to the Town.
Screening Walls and Neighborhood Monuments – The screening walls are along roads
that are entirely within the PID and screen property within the PID from the road.
Additionally, the road screened by the screening walls primarily provides access to
property within the PID. Accordingly, these costs are allocated entirely to the PID. The
neighborhood monuments are for neighborhoods within the PID and therefore are
allocated entirely to the PID.
Trail system, open space, and public parks – The trail system, open space, and public
parks are allocated on the basis of the estimated number of residential units inside the
PID compared to the number estimated to be within the development. This allocation
results in 95% of these costs being allocated to the PID with the balance allocated to
the Town.
Park Drainage Improvements – The park drainage improvements consists of burying
drainage improvements to the land on which the improvements are located so the
recovered land can be used for a park and commercial development. The park is within
the PID. The costs of these improvements are allocated on the basis of the property
recovered for alternative use. This allocation results in 95% of these costs being
allocated to the PID with the balance allocated to the Town.
Construction management and administration – The costs of construction management
and administration relate only to the construction of the Authorized Improvements
allocated to the PID. Construction management and administration related to the
Authorized Improvements allocated to the Town will be paid separately and not from
PID proceeds. Accordingly, construction management and administration costs are
allocated entirely to the PID.
Contingency – Contingency funded from proceeds of the Bonds will be available only to
cover the portion of the costs allocated to the PID. Accordingly, these costs are
allocated entirely to the PID.
Land acquisition – Costs of right-of-way (whether actual or based on appraised fair
market value) for an improvement are allocated to the PID in the same proportion as the
costs of an improvement are allocated to the PID.
D. Assessment Methodology
1. The PID Costs may be assessed by the Town Council against the Assessed
Property so long as the special benefit conferred upon the Assessed Property by the
Authorized Improvements equals or exceeds the Assessments. The PID Costs may be
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assessed using any methodology that results in the imposition of equal shares of the
PID Costs on Assessed Property similarly benefited.
2. For purposes of this Service and Assessment Plan, the Town Council has
determined that the PID Costs shall be allocated to the Assessed Property on the basis
of the relative value of Parcels after undertaking the Authorized Improvements and that
such method of allocation will result in the imposition of equal shares of the PID Costs
on Parcels similarly benefited. In determining the relative value of Parcels, the Town
Council has taken into consideration (i) the type of residential development (i.e., single-
family, duplex, or multi-family); (ii) single-family lot size and the size of homes likely to
be built on lots of different size; (iii) current and projected home prices; (iv) the
Authorized Improvements to be provided and the PID Costs, and (v) the ability of
different property types to utilize and benefit from the improvements. In determining the
ability of different property types to utilize and benefit from the improvements, the Town
Council has taken into consideration independent studies supporting the conclusion that
larger, more expensive homes, on average, will create more vehicle trips and greater
demands for water and wastewater consumption, and larger, more expensive homes
are likely to be built on larger lots. For example, the Arizona Department of
Transportation conducted a study (described in Development and Application of Trip
Generation Rates) on the relationship between property values and trip generation rates
of residential property. This study examined residential communities in Delaware,
Wisconsin, Ohio, and several other states. The study demonstrated a relationship
between property value and trip generation rates, with more expensive homes having
higher trip generation rates than less expensive homes.
3. Having taken into consideration the matters described above, the Town Council
has determined that allocating the PID Costs among Parcels based on value after
constructing the Authorized Improvements is best accomplished (and most easily
illustrated) by creating classifications of benefited Parcels based on the “Lot Types”
defined in Section I.B of this Service and Assessment Plan. These classifications (from
Lot Type 1 representing the highest value to Lot Type 5 representing the lowest value)
is set forth in Table V-A below. This table illustrates that the Town Council has
determined that a Lot Type 1 dwelling unit receives the greatest benefit from the
Authorized Improvements, which benefit is given an “Equivalent Unit” value of 1.0 per
dwelling unit. The Town Council has determined that a Lot Type 2 dwelling unit
receives a smaller benefit; namely, 76% of the benefit received by a Type 1 Lot dwelling
unit (hence the Equivalent Unit value of 0.76 per dwelling unit). This table illustrates
that the Town Council has determined that a Lot Type 3 dwelling unit receives an even
smaller benefit; namely, 62% of the benefit received by a Type 1 dwelling unit (hence
the Equivalent Unit value of 0.62 per dwelling unit). The table further illustrates that the
Town Council has made similar determinations with respect to all of the Lot Types.
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TABLE V-A
Equivalent Unit Factors
Lot Type
Average
Estimated Unit
Value
Equivalent Unit
Value
Lot Type 1 (single-
family residential)
$425,000
1.00 per
dwelling
Lot Type 2 (single-
family residential)
$325,000
0.76 per
dwelling unit
Lot Type 3 (single-
family residential)
$265,000
0.62 per
dwelling unit
Lot Type 4 (single-
family residential)
$225,000
0.53 per
dwelling unit
Lot Type 5
(attached
residential)
$185,000
0.44 per
dwelling unit
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4. The following table (Table V-B) shows the calculation of the Assessment per
Equivalent Unit. There are a total of 986.19 Equivalent Units in the PID. The total
Assessments are equal to $27,500,000, resulting in an Assessment per Equivalent Unit
of $27,885.08.
TABLE V-B
Assessment Per Equivalent Unit
Lot Type
Equivalent Units Total Number of
Dwelling Units
Total Equivalent
Units
Lot Type 1
1.00 per
dwelling
163 dwelling units
163.00
Lot Type 2
0.76 per
dwelling unit
508 dwelling units
386.08
Lot Type 3
0.62 per
dwelling unit
377 dwelling
units
233.74
Lot Type 4
0.53 per
dwelling unit
177 dwelling
units
93.81
Lot Type 5
0.44 per
dwelling unit
249 dwelling units
109.56
Total Equivalent
Units
986.19
Total Assessments $27,500,000
Assessment Per
Equivalent Unit
$27,885.08
5. The Assessment per dwelling unit is calculated as the product of (i) $27,885.08
multiplied by (ii) the applicable Equivalent Unit value for each Lot Type. For example,
the Assessment for a Lot Type 1 dwelling unit is $27,885.08 ($27,885.08 x 1.0). The
Assessment for a Lot Type 2 dwelling unit is $21,192.68 ($27,885.08 x 0.76). Table V-
C sets forth the Assessment per dwelling unit for each of the five Lot Types.
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TABLE V-C
Estimated Assessment Per Lot Type
Lot Type
Equivalent Units
Assessment per
Dwelling Unit
Lot Type 1
1.0 per dwelling
unit
$27,885,.08 per
dwelling unit
Lot Type 2
0.76 per dwelling
unit
$21,192.68 per
dwelling unit
Lot Type 3
0.62 per dwelling
unit
$17,288.75 per
dwelling unit
Lot Type 4
0.53 per dwelling
unit
$14,779.09 per
dwelling unit
Lot Type 5
0.44 per dwelling
unit
$12,269.45 per
dwelling unit
Section VI
TERMS OF THE ASSESSMENTS
A. Amount of Assessments
The Assessment for each Parcel is shown on the Assessment Roll, and no Assessment
shall be changed except as authorized by this Service and Assessment Plan or the PID
Act. The Assessments shall not exceed the amount required to repay the principal
amount of the Bonds and shall be collected with interest and Annual Collection Costs in
an amount to pay principal and interest on the Bonds and to cover Annual Collection
Costs of the PID.
B. Reallocation of Assessments
1. Upon Subdivision
Upon the subdivision of any Parcel, the Administrator shall reallocate the Assessment
for the Parcel prior to the subdivision among the new subdivided Parcels according to
the following formula:
A = B x (C ÷ D)
Where the terms have the following meanings:
A = the Assessment for each new subdivided Parcel.
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B = the Assessment for the Parcel prior to subdivision.
C = the Equivalent Units allocated to each newly subdivided Parcel
D = the sum of the Equivalent Units for all of the new subdivided Parcels
The calculation of the Equivalent Units as to a Parcel shall be performed by the
Administrator and confirmed by the Town Council based on the information available
regarding the use of the Parcel. The estimate as confirmed shall be conclusive. The
number of units to be built on a Parcel may be estimated by net land area and
reasonable density ratios. Lot type shall be determined by the description that is most
similar to the lots being classified.
The sum of the Assessments for all newly subdivided Parcels shall equal the
Assessment for the Parcel prior to subdivision. The calculation shall be made
separately for each newly subdivided Parcel. The reallocation of an Assessment for a
Parcel that is a homestead under Texas law may not exceed the Assessment prior to
the reallocation. Any reallocation pursuant to this section shall be reflected in an update
to this Service and Assessment Plan approved by the Town Council.
2. Upon Consolidation
Upon the consolidation of two or more Parcels, the Assessment for the consolidated
Parcel shall be the sum of the Assessments for the Parcels prior to consolidation. The
reallocation of an Assessment for a Parcel that is a homestead under Texas law may
not exceed the Assessment prior to the reallocation. Any reallocation pursuant to this
section shall be calculated by the Administrator and reflected in an update to this
Service and Assessment Plan approved by the Town Council.
C. Mandatory Prepayment of Assessments
1. If at any time the Assessment on a Parcel exceeds the Maximum Assessment
calculated for the Parcel as a result of any reallocation of an Assessment authorized by
this Service and Assessment Plan and initiated by the owner of the Parcel, then such
owner shall pay to the Town prior to the recordation of the document subdividing the
Parcel the amount calculated by the Administrator by which the Assessment for the
Parcel exceeds the Maximum Assessment for the Parcel. The Town shall not approve
the recordation of a plat or other document subdividing a Parcel without a letter from the
Administrator either (a) confirming that the Assessment for any new Parcel created by
the subdivision will not exceed the Maximum Assessment for each Parcel, or (b)
confirming the payment of the Assessments, plus all Prepayment Costs, as provided for
herein.
2. If a Parcel or portion thereof is transferred to a party that is exempt from the
payment of the Assessment under applicable law, or if an owner causes a Parcel or
portion thereof to become Non-Benefited Property, the owner of such Parcel or portion
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thereof shall pay to the Town the full amount of the Assessment, plus all Prepayment
Costs, for such Parcel or portion thereof prior to any such transfer or act.
3. The payments required above shall be treated the same as any Assessment that
is due and owing under the Act, the Assessment Ordinance, and this Service and
Assessment Plan, including the same lien priority, penalties, procedures, and
foreclosure specified by the Act.
D. Reduction of Assessments
1. If after all Authorized Improvements have been completed the actual PID Costs
is less than the PID Costs used to calculate the Assessments, resulting in excess Bond
proceeds being available to redeem Bonds, then the Assessment for each Parcel shall
be reduced by an equal percentage such that the sum of the resulting reduced
Assessments for all Parcels equals the actual reduced PID Costs and such excess
Bond proceeds shall be applied to redeem Bonds. The Assessments shall not be
reduced to an amount less than the outstanding Bonds.
2. If all the Authorized Improvements are not undertaken, resulting in excess Bond
proceeds being available to redeem Bonds, the Assessment for each Parcel shall be
appropriately reduced by the Town Council to reflect only the PID Costs that were
expended and such excess Bond proceeds shall be applied to redeem Bonds. The
Town Council may reduce the Assessments for each Parcel by an equal percentage
such that the sum of the resulting reduced Assessments equals the PID Costs with
respect to the Authorized Improvements that were undertaken. The Assessments shall
not be reduced to an amount less than the outstanding Bonds.
E. Payment of Assessments
1. Payment in Full
(a) The Assessment for any Parcel may be paid in full at any time. Payment shall
include all Prepayment Costs. If prepayment in full will result in a redemption of Bonds,
the payment amount shall be reduced by the amount, if any, of interest through the date
of redemption of Bonds and reserve funds applied to the redemption under the Bond
Indenture, net of any other costs applicable to the redemption of Bonds.
(b) If an Annual Installment has been billed prior to payment in full of an
Assessment, the Annual Installment shall be due and payable and shall be credited
against the payment-in-full amount.
(c) Upon payment in full of an Assessment and all Prepayment Costs, the Town
shall deposit the payment in accordance with the Bond Indenture; whereupon, the
Assessment shall be reduced to zero, and the owner’s obligation to pay the Assessment
and Annual Installments thereof shall automatically terminate.
(d) At the option of the owner, the Assessment on any Parcel plus Prepayment
Costs may be paid in part in an amount sufficient to allow for a convenient redemption
of Bonds as determined by the Administrator. Upon the payment of such amounts for a
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Parcel, the Assessment for the Parcel shall be reduced, the Assessment Roll shall be
updated to reflect such partial payment, and the obligation to pay the Annual Installment
for such Parcel shall be reduced to the extent the partial payment is made.
2. Payment in Annual Installments
The Act provides that an Assessment for a Parcel may be paid in full at any time. If not
paid in full, the Act authorizes the Town to collect interest and collection costs on the
outstanding Assessment. An Assessment for a Parcel that is not paid in full will be
collected in Annual Installments each year in the amounts shown in the Assessment
Roll, which include interest on the outstanding Assessments and Annual Collection
Costs. Payment of the Annual Installments shall commence with tax bills mailed in
2008, unless this Service and Assessment Plan and the Assessment Roll have
terminated.
Each Assessment shall bear interest of no more than the lesser of (i) the actual interest
rate paid on the Bonds and (ii) seven percent per annum. The Assessment Roll sets
forth for each year the Annual Installment for each Parcel based on an estimated
interest rate of 6.25%. The actual interest on the Bonds may be different than the
interest rate estimated in the Assessment Roll, but may not exceed 7.0%. Furthermore,
the Annual Installments may not exceed the amounts shown on the Assessment Roll.
The Assessment Roll shall be updated once the interest rate is known on the Bonds to
reflect the actual interest rate. Since the Annual Installments shown on the Assessment
Roll may not be exceeded, an interest rate on the Bonds higher than 6.25% will require
the Assessments to be reduced to an amount that may be repaid from the Annual
Installments shown on the Assessment Roll and the actual interest rate to be paid on
the Bonds.
The Annual Installments shall be reduced to equal the actual costs of repaying the
Bonds and actual Annual Collection Costs (as provided for in the definition of such
term), taking into consideration any other available funds for these costs, such as
interest income on account balances.
F. Collection of Annual Installments
No less frequently than annually, the Administrator shall prepare, and the Town Council
shall approve, an Annual Service Plan Update to allow for the billing and collection of
Annual Installments. Each Annual Service Plan Update shall include an updated
Assessment Roll and a calculation of the Annual Installment for each Parcel. Annual
Collection Costs shall be allocated among Parcels in proportion to the amount of the
Annual Installments for the Parcels. Each Annual Installment shall be reduced by any
credits applied under the applicable Bond Indenture, such as capitalized interest,
interest earnings on any account balances, and any other funds available to the Trustee
for such purpose, including any existing deposits for a prepayment reserve. Annual
Installments shall be collected by the Town in the same manner and at the same time
as ad valorem taxes and shall be subject to the same penalties, procedures, and
foreclosure sale in case of delinquencies as are provided for ad valorem taxes of the
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Town. The Town Council may provide for other means of collecting the Annual
Installments to the extent permitted under the PID Act. The Assessments shall have
lien priority as specified in the Act.
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Section VII
THE ASSESSMENT ROLL
Each Parcel has been evaluated by the Town Council (based on the Planned
Development Ordinance, developable area, proposed Owner Association Property and
Public Property, the Authorized Improvements, best and highest use of land, and other
development factors deemed relevant by the Town Council) to determine, by Lot Type,
the number of dwelling units that are anticipated to be developed within the Parcel.
Each dwelling unit is then multiplied by the applicable amount per dwelling unit set forth
in last column of Table V-B of this Service and Assessment Plan, and the total of such
amounts for all dwelling units within the Parcel shall constitute the “Assessment” for the
Parcel set forth on the Assessment Roll. The Assessment Roll shall be updated upon
the preparation of each Annual Service Plan Update to reflect, for each Parcel,
subdivisions, consolidations, prepayments, and reductions authorized by this Service
and Assessment Plan.
The Administrator shall prepare, and the Town Council shall review and approve,
annual updates to the Assessment Roll in conjunction with the Annual Service Plan
Update to reflect the following matters, together with any other changes helpful to the
Administrator or the Town and permitted by the Act: (i) the identification of each Parcel;
(ii) the Assessment for each Parcel, including any adjustments authorized by this
Service and Assessment Plan or in the Act; (iii) the Annual Installment for the Parcel for
the year (if the Assessment is payable in installments); and (iv) payments of the
Assessment, if any, as provided by Section VI.C of this Service and Assessment Plan.
Once Bonds are issued, the Assessment Roll shall be updated, which update may be
done in the next Annual Service Plan Update, to reflect any changes resulting from the
issuance of the Bonds. This update shall reflect the actual interest on the Bonds at
which the Annual Installments shall be paid, any reduction in the Assessments, changes
to the Maximum Assessments, and any revisions in the Costs to be funded by the
Bonds and Developer funds.
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Section VIII
MISCELLANEOUS PROVISIONS
A. Administrative Review
To the extent consistent with the Act, an owner of an Assessed Parcel claiming that a
calculation error has been made in the Assessment Roll, including the calculation of the
Annual Installment, shall send a written notice describing the error to the Town not later
than thirty (30) days after the date any amount which is alleged to be incorrect is due
prior to seeking any other remedy. The Administrator shall promptly review the notice,
and if necessary, meet with the Assessed Parcel owner, consider written and oral
evidence regarding the alleged error and decide whether, in fact, such a calculation
error occurred.
If the Administrator determines that a calculation error has been made and the
Assessment Roll should be modified or changed in favor of the Assessed Parcel owner,
such change or modification shall be presented to the Town Council for approval, to the
extent permitted by the Act. A cash refund may not be made for any amount previously
paid by the Assessed Parcel owner (except for the final year during which the Annual
Installment shall be collected), but an adjustment may be made in the amount of the
Annual Installment to be paid in the following year. The decision of the Administrator
regarding a calculation error relating to the Assessment Roll may be appealed to the
Town Council for determination. Any amendments made to the Assessment Roll
pursuant to calculations errors shall be made pursuant to the PID Act.
B. Termination of Assessments
Each Assessment shall terminate on the date the Assessment is paid in full, including
unpaid Annual Installments and Delinquent Collection Costs, if any. After the
termination of an Assessment, and the collection of any delinquent Annual Installments
and Delinquent Collection Costs, the Town shall provide the owner of the affected
Parcel a recordable “Notice of the PID Assessment Termination.”
C. Amendments
The Town Council reserves the right to the extent permitted by the Act to amend this
Service and Assessment Plan without notice under the Act and without notice to
property owners of Parcels: (i) to correct mistakes and clerical errors; (ii) to clarify
ambiguities; and (iii) to provide procedures for the collection and enforcement of
Assessments, Prepayment Costs, Collection Costs, and other charges imposed by the
Service and Assessment Plan.
D. Administration and Interpretation of Provisions
The Town Council shall administer the PID, this Service and Assessment Plan, and all
Annual Service Plan Updates consistent with the PID Act, and shall make all
interpretations and determinations related to the application of this Service and
Assessment Plan unless stated otherwise herein or in the Bond Indenture, such
determination shall be conclusive.
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E. Severability
If any provision, section, subsection, sentence, clause or phrase of this Service and
Assessment Plan, or the application of same to an Assessed Parcel or any person or
set of circumstances is for any reason held to be unconstitutional, void or invalid, the
validity of the remaining portions of this Service and Assessment Plan or the application
to other persons or sets of circumstances shall not be affected thereby, it being the
intent of the Town Council in adopting this Service and Assessment Plan that no part
hereof, or provision or regulation contained herein shall become inoperative or fail by
reason of any unconstitutionality, voidness or invalidity of any other part hereof, and all
provisions of this Service and Assessment Plan are declared to be severable for that
purpose.
If any provision of this Service and Assessment Plan is determined by a court to be
unenforceable, the unenforceable provision shall be deleted from this Service and
Assessment Plan and the unenforceable provision shall, to the extent possible, be
rewritten to be enforceable and to give effect to the intent of the Town.
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Exhibit A
PID MAP
274
Exhibit B-1
ESTIMATED PID COSTS
275
Ex
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i
b
i
t
B
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A
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T
S
T
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P
I
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Exhibit C
DIAGRAM OF THE AUTHORIZED IMPROVEMENTS
277
Exhibit D
ASSESSMENT ROLL
278
TOWN OF TROPHY CLUB, TEXAS
ORDINANCE NO. 2007- __
AN ORDINANCE OF THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB ACCEPTING AND
APPROVING A SERVICE AND ASSESSMENT PLAN AND
ASSESSMENT ROLL FOR THE TOWN OF TROPHY
CLUB PUBLIC IMPROVEMENT DISTRICT NO. 1; MAKING
A FINDING OF SPECIAL BENEFIT TO THE PROPERTY IN
THE DISTRICT; LEVYING SPECIAL ASSESSMENTS
AGAINST PROPERTY WITHIN THE DISTRICT AND
ESTABLISHING A LIEN ON SUCH PROPERTY;
PROVIDING FOR PAYMENT OF THE ASSESSMENTS IN
ACCORDANCE WITH CHAPTER 372, TEXAS LOCAL
GOVERNMENT CODE, AS AMENDED; PROVIDING FOR
THE METHOD OF ASSESSMENT AND THE PAYMENT
OF THE ASSESSMENTS, PROVIDING PENALTIES AND
INTEREST ON DELINQUENT ASSESSMENTS,
PROVIDING FOR SEVERABILITY, AND PROVIDING AN
EFFECTIVE DATE
WHEREAS, on March 16, 2007, a petition was submitted and filed with the Town
Secretary (the “Town Secretary”) of the Town of Trophy Club, Texas (the “Town”)
pursuant to the Public Improvement District Assessment Act, Chapter 372, Texas Local
Government Code (the “PID Act”), requesting the creation of a public improvement
district over a portion of the area of the Town to be known as The Town of Trophy Club
Public Improvement District No. 1 (the “District”); and
WHEREAS, the petition contained the signatures of the owners of taxable
property representing more than fifty percent of the appraised value of taxable real
property liable for assessment within the District, as determined by the then current ad
valorem tax rolls of the Denton Central Appraisal District and the signatures of property
owners who own taxable real property that constitutes more than fifty percent of the
area of all taxable property that is liable for assessment by the District; and
WHEREAS, on May 7, 2007, after due notice, the Town Council of the Town (the
“Town Council”) held the public hearing in the manner required by law on the
advisability of the public improvements and services described in the petition as
required by Sec. 372.009 of the PID Act and made the findings required by Sec.
372.009(b) of the PID Act and, by Resolution No. 2008-08, adopted by a majority of the
members of the Town Council, authorized the District in accordance with its finding as
to the advisability of the public improvement and services; and
WHEREAS, on May 18, 2007, the Town published notice of its authorization of
the District in the Trophy Club Times, a newspaper of general circulation in the Town;
and
279
WHEREAS, no written protests of the District from any owners of record of
property within the District were filed with the Town Secretary within 20 days after
May 18, 2007; and
WHEREAS, on May 21, 2007, the Council adopted a resolution (the “Cost
Resolution”) determining the total costs of the District improvements, directing the filing
of a proposed assessment roll, and directing related action; and
WHEREAS, the Town Council, pursuant to Section 372.016(b) of the PID Act,
published notice on October 19, 2007 in the Trophy Club Times of a public hearing in a
newspaper of general circulation in the Town to consider the proposed “Assessment
Roll” and the “Service and Assessment Plan” and the levy of the “Assessments” on
property in the District; and
WHEREAS, the Town Council, pursuant to Section 372.016(c) of the PID Act, by
causing the mailing of the notice of the public hearing to consider the proposed
Assessment Roll and the Service and Assessment Plan and the levy of Assessments
on property in the District to the last known address of the owners of the property liable
for the Assessments; and
WHEREAS, the Town Council convened the hearing at 7:00 p.m. on the 5th day
of November, 2007, at which all persons who appeared, or requested to appear, in
person or by their attorney, were given the opportunity to contend for or contest the
Plan, the Assessment Roll, and each proposed assessment, and to offer testimony
pertinent to any issue presented on the amount of the Assessment, the allocation of
Costs, the purposes of the Assessment, the special benefits of the Assessment, and the
penalties and interest on annual installments and on delinquent annual installments of
the Assessment; and
WHEREAS, the Town Council finds and determines that the Assessment Roll
and the Service and Assessment Plan should be approved and that the Assessments
(as defined in the Service and Assessment Plan) should be levied as provided in this
Ordinance and the Service and Assessment Plan and Assessment Roll; and
WHEREAS, the Town Council further finds that there were no written objections
or evidence submitted to the Town Secretary in opposition to the Service and
Assessment Plan, the allocation of Costs, the Assessment Roll, and the levy of
Assessments; and
WHEREAS, prior to the issuance of bonds secured by the Assessments, the
owners (the “Landowners” or the “Assessed Parties”) of 100% of the privately-owned
and taxable property located within the District, and who are the persons to be
assessed pursuant to this Ordinance, will have executed and presented to the Town
Council for approval and acceptance a Landowner Agreement (the “Landowner
Agreement”) in the form and substance acceptable to the Town, in which the Assessed
Parties approve and accept the Service and Assessment Plan, approve the Assessment
Roll, approve this Ordinance and approve the levy of the Assessments against their
property located within the District, and agree to pay the Assessments when due and
payable, subject to the credits provided for herein and in the Service and Assessment
Plan; and
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WHEREAS, the Town Council closed the hearing, and, after considering all
written and documentary evidence presented at the hearing, including all written
comments and statements filed with the Town, determined to proceed with the adoption
of this Ordinance in conformity with the requirements of the PID Act.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF TROPHY CLUB, TEXAS:
Terms.
Terms not otherwise defined herein are defined in the Service and Assessment Plan
attached hereto as Exhibit A. (the “Service and Assessment Plan”).
Findings.
The findings and determinations set forth in the preambles are hereby incorporated by
reference for all purposes. The Town Council hereby finds, determines, and ordains, as
follows:
The apportionment of the PID Costs, and the Annual Collection Costs
pursuant to the Service and Assessment Plan is fair and reasonable, reflects an
accurate presentation of the special benefit each property will receive from the
construction of the public improvements identified in the Service and Assessment
Plan, and is hereby approved;
The Service and Assessment Plan covers a period of at least five years
and defines the annual indebtedness and projected costs for the Improvement
Project;
The Service and Assessment Plan apportions the cost of a public
improvement to be assessed against property in the District and such
apportionment is made on the basis of special benefits accruing to the property
because of the improvement.
All of the real property in the District which is being assessed in the
amounts shown in the Assessment Roll will be benefited by the services and
improvements proposed to be provided through the District in the Service and
Assessment Plan, and each parcel of real property will receive special benefits in
each year equal to or greater than each annual Assessment and will receive
special benefits during the term of the Assessments equal to or greater than the
total amount assessed;
The method of apportionment of the PID Costs and Annual Collection
Costs set forth in the Service and Assessment Plan results in imposing equal
shares of the PID Costs and Annual Collection Costs on property similarly
benefited, and results in a reasonable classification and formula for the
apportionment of the Costs;
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The Service and Assessment Plan should be approved as the service plan
and assessment plan for the District as described in Sections 372.013 and
372.014 of the PID Act;
The Assessment Roll in the form attached as Exhibit D to the Service and
Assessment Plan (the “Assessment Roll”) should be approved as the
assessment roll for the District;
The provisions of the Service and Assessment Plan relating to due and
delinquency dates for the Assessments, interest on Annual Installments, interest
and penalties on delinquent Assessments and delinquent Annual Installments,
and procedures in connection with the imposition and collection of Assessments
should be approved and will expedite collection of the Assessments in a timely
manner in order to provide the services and improvements needed and required
for the area within the District; and
A written notice of the date, hour, place and subject of this meeting of the
Town Council was posted at a place convenient to the public for the time
required by law preceding this meeting, as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended, and that this meeting has
been open to the public as required by law at all times during which this
Ordinance and the subject matter hereof has been discussed, considered, and
formally acted upon.
Assessment Plan.
The Service and Assessment Plan is hereby accepted and approved pursuant to the
PID Act Sections 372.013 and 372.014 as the service plan and the assessment plan for
the District.
Assessment Roll.
The Assessment Roll is hereby accepted and approved pursuant to the PID Act
Section 372.016 as the assessment roll of the District.
Levy and Payment of Special Assessments for Costs of Improvement Project.
The Town Council hereby levies an assessment on each tract of property located
within the District, as shown and described on the Service and Assessment Plan and
the Assessment Roll, in the respective amounts shown on the Assessment Roll as a
special assessment on the properties set forth in the Assessment Roll.
The levy of the Assessments shall be effective on the date of execution of this
Ordinance levying assessments and strictly in accordance with the terms of the Service
and Assessment Plan.
The collection of the Assessments shall be as described in the Service and
Assessment Plan.
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Each Assessment may be paid in a lump sum or may be paid in Annual Installments
pursuant to the terms of the Service and Assessment Plan.
Each Assessment shall bear interest at the rate or rates specified in the Service and
Assessment Plan.
Each Annual Installment shall be collected each year in the manner set forth in the
Service and Assessment Plan.
The Annual Collection Costs for Assessed Properties shall be calculated pursuant to
the terms of the Service and Assessment Plan.
Method of Assessment.
The method of apportioning the Costs is as set forth in the Service and
Assessment Plan.
Penalties and Interest on Delinquent Assessments.
Delinquent Assessments shall be subject to the penalties, interest, procedures, and
foreclosure sales set forth in the Service and Assessment Plan. The Assessments shall
have lien priority as specified in the PID Act and the Service and Assessment Plan.
Prepayments of Assessments.
As provided in subsection 372.018(b) of the PID Act and in Section VI(E) of the
Service and Assessment Plan, the owner (the “Owner”) of any Assessed Property may
prepay the the Assessments levied by this Ordinance.
Lien Priority.
As provided in the Landowner Agreement, the Town Council and the Landowners
intend for the obligations, covenants and burdens on the Landowners of Assessed
Properties, including without limitation such Landowners’ obligations related to payment
of the Assessments and the Annual Installments, to constitute a covenant running with
the land. The Assessments and the Annual Installments levied hereby shall be binding
upon the Assessed Parties, as the Landowners of Assessed Properties, and their
respective transferees, legal representatives, heirs, devisees, successors and assigns
in the same manner and for the same period as such parties would be personally liable
for the payment of ad valorem taxes under applicable law. Assessments shall have lien
priority as specified in the Service and Assessment Plan and the PID Act.
Appointment of Administrator and Collector of Assessments.
Appointment of Administrator.
MuniCap, Inc., of Columbia, Maryland, is hereby appointed and designated as the
initial Administrator of the Service and Assessment Plan and of the Assessments levied
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by this Ordinance. The Administrator shall perform the duties of the Administrator
described in the Service and Assessment Plan and in this Ordinance. The
Administrator’s fees, charges and expenses for providing such service shall constitute
an Annual Collection Cost.
Appointment of Temporary Collector.
Sakura Dedrik, Finance Director of the Town, is hereby appointed as the temporary
collector of the Assessments (the “Collector”). The Collector shall serve in such capacity
until such time as the Town shall arrange for the Collector’s duties to be performed by
the Denton County Tax Assessor and Collector or another qualified collection agent
selected by the Town.
Applicability Of Tax Code.
To the extent not inconsistent with this Ordinance, and not inconsistent with the PID
Act or the other laws governing public improvement districts, the provisions of the Texas
Tax Code shall be applicable to the imposition and collection of Assessments by the
Town.
Severability.
If any provision, section, subsection, sentence, clause, or phrase of this Ordinance, or
the application of same to any person or set of circumstances is for any reason held to
be unconstitutional, void, or invalid, the validity of the remaining portions of this
Ordinance or the application to other persons or sets of circumstances shall not be
affected thereby, it being the intent of the Town Council that no portion hereof, or
provision or regulation contained herein shall become inoperative or fail by reason of
any unconstitutionality, voidness, or invalidity of any other portion hereof, and all
provisions of this Ordinance are declared to be severable for that purpose.
Effective Date.
This Ordinance shall take effect, and the levy of the Assessments, and the provisions
and terms of the Service and Assessment Plan shall be and become effective on upon
passage and execution hereof. However, the Service and Assessment Plan and this
Ordinance shall automatically terminate if bonds secured by the Assessments are not
issued by the Town on or before September 31, 2008.
[Remainder of page left blank intentionally]
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ADOPTED, PASSED, and APPROVED by the Town Council, by a vote of ___ members
voting “for” and ___ members voting “against” and with ___ absentees, on this 5th day
of November, 2007.
Town of Trophy Club
________________________________
Nick Sanders, Mayor
Attest:
________________________________
Lisa Ramsey, Town Secretary
Approved as to Form:
________________________________
Patricia Adams, Town Attorney
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EXHIBIT A
SERVICE AND ASSESSMENT PLAN
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.5
Discuss and take appropriate action regarding a Request to Amend
Ordinance No. 2007-15 P&Z (PD – Planned Development District No. 27), to
allow amendments to Exhibit "B" Development Standards, specifically
including 45% Lot Coverage for Lot Type 2 in Neighborhoods 3 and 4 of
The Highlands of Trophy Club. Applicants: K. Hovnanian Homes and
Standard Pacific Homes. (PD AMD-07-025)
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.6
Discuss and take appropriate action regarding the co-hosting of a
"Stewards for Children" seminar with the Alliance for Children and
surrounding municipalities.
EXPLANATION:
Alliance for Children in Hurst would like to hold a seminar for the Town of Trophy Club.
The seminar is called “Stewards of Children.” It is a 2 and half hour session with a cost
of $10 per person, covering the cost of their book and printed materials. Everyone
attending will receive a certificate of training for the seminar and it’s a great program for
teachers, parents and churches – anyone working with children. The website is
http://www.darkness2light.org/.
Sometimes a company underwrites the cost of the program. Tom Thumb, Wal Mart or
other businesses in the area could pledge sponsorship for the fee. If we are unable to
secure local sponsorship, the Advocates for Children Board in Dallas would be a
possible sponsor. I am, however, recommending that we approach local businesses or
philanthropic groups for sponsorship in order to make it a more community-based effort.
Because the Alliance for Children would like to educate as many people as possible,
and make this a highly accessible seminar, I’ve already discussed co-hosting interests
with representatives of Roanoke. Not only is Roanoke interested, but they’ve extended
the use of their community center as the site location for the seminar.
I’d like direction from the Council as to furthering plans to cohost this seminar with the
town of Roanoke and to extend invitations to other surrounding cities for possible
interest.
In light of recent press regarding child predators in Keller and Rhome, and the concerns
for child welfare security being heightened in the area, I think this would be an excellent
way for Trophy Club to participate in actively protecting our children and our neighbors’
children.
RECOMMENDATION:
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ACTION BY COUNCIL:
(Council member Wilson)
Attachments: 1. None
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.7
Discuss and take appropriate action to appoint two (2) members of Council
to the Trophy Club Park Department Master Plan Task Force.
EXPLANATION:
Task force: Carter & Burgess is moving this project along as quickly as possible for the
Town. In order to facilitate that process, we will need to hold the first public meeting on
November 13th and then have two focus groups the following night on the 14th of
November. Staff has already booked the Council chambers in anticipation of these
meetings. We need one to two Council members on the Task Force as the study will be
taken before Council upon completion, and Council participation during the
development of the plan will expedite the process greatly. Council may want to
consider as possible members, Councilmember Sterling and Councilmember Moss, if
available and willing to serve, as they are liaisons to the EDCs that could eventually
fund park financing options down the road.
The plan will examine capital projects for the $2.1 million in PID amenities and also
address a five (5) and ten (10) year action plan for parks and recreation. Carter and
Burgess requested that the individuals on the Task Force be able to attend every
meeting if possible and that the Task Force remain involved until the final plan is
brought before Council.
RECOMMENDATION:
ACTION BY COUNCIL:
(aa)
Attachments: 1. General Services Outline
2. Specific Services Outline
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.8
Discuss and take appropriate action to consider and take action regarding
the EDC 4A’s motion to fund the reconstruction of Beck field #4.
EXPLANATION:
EDC4A voted unanimously to fund the $25,984.60 required to reconstruct Beck Field #4
provided that the Town renew the lease with Beck Properties prior to the distribution of
EDC funds; failing to renew the lease EDC4A would instead transfer $6,000.00 to the
Parks and Recreation budget to be used towards a capital expense which would in-turn
allow monies to be spent out of the Parks and Recreation budget towards renting the
fields at Integrity Park in Argyle.
RECOMMENDATION:
Staff additionally requests that if Town Council authorizes the EDC funds, that it also
allows the use of parkland funds to be used on items in addition to the fencing on Beck
Field #4. There are approximately $73,000.00 currently in parkland funds.
ACTION BY COUNCIL:
(aa)
Attachments: 1. EDC4A original submittal
2. Fencing estimate
3. Leasing information from Darren Klauser about the reservation
schedule at Integrity Park.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.9
Discuss and take appropriate action regarding an Ordinance repealing
Ordinance 1999-15 Providing for a road easement dedication for the
extension of Indian Creek Drive and Trophy Club Drive, abandoning
existing easements specifically identified and authorizing the Mayor to
execute all necessary documents.
EXPLANATION:
The easements adopted via Ordinance No. 1999-15 were intended to obtain right of
way dedication for Trophy Club and Indian Creek. Signed documents from the
landowner cannot be located; however, the ordinance was filed with Denton County.
The Denton County Appraisal District has interpreted the ordinance as a right of way
dedication rather than an easement. The right of way dedication necessary for the new
development will occur during the platting process. The Appraisal District cannot
process the deeds from the recent land transactions because the deeds contain land
that they believe to be right-of-way; therefore, the Developer has requested that the
Town repeal Ordinance 1999-15 so that the deeds may be processed and so that the
land may be properly dedicated during the platting process. Town Engineer Tom
Rutledge has reviewed the documents and confirmed that the easements purportedly
obtained via the 1999 document do not fit the proposed current configuration and
alignment and that the plat that will be coming before Council covers the dedication of
the right of way for the roads contemplated by the easements identified in the 1999
ordinance.
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Ordinance No. 2007- XX repealing Ordinance No. 1999-15
2. Ordinance No. 1999-15
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TOWN OF TROPHY CLUB TEXAS
ORDINANCE NO. 2007- ___
AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS
REPEALING ORDINANCE NO. 1999-15 PROVIDING FOR A
ROADWAY EASEMENT DEDICATION FOR THE EXTENSION OF
INDIAN CREEK DRIVE AND TROPHY CLUB DRIVE; REPEALING ALL
AMENDMENTS ENACTED VIA ORDINANCE NO. 1999-15; VACATING
AND ABANDONING CERTAIN EASEMENTS DEDICATED VIA
ORDINANCE NO. 1999-15; DECLARING THE EASEMENT(S)
CONVEYED VIA ORDINANCE NO. 1999-15 INSUFFICIENT FOR USE
BY THE PUBLIC FOR ROADWAY PURPOSES AND THEREFORE
ABANDONED; AUTHORIZING THE MAYOR TO EXECUTE ALL
NECESSARY DOCUMENTS TO FACILITATE THE ABANDONMENT OF
THE EASEMENTS; PROVIDING A CUMULATIVE CLAUSE;
PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR
PUBLICATION; PROVIDING FOR ENGROSSMENT AND
ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Town of Trophy Club, Texas (the “Town”) has previously
adopted Ordinance 1999-15 amending its Subdivision Regulations to reflect a purported
dedication of road easement(s) for certain portions of Indian Creek Drive and Trophy
Club Drive more fully described in Exhibit “A”, a copy of which is attached hereto and
incorporated herein (hereinafter the “Property”); and
WHEREAS, the Town Council, after careful study and consideration, has
determined that the public’s interest would be better served if the easement over and
upon certain portions of the Property as described in Exhibit “A” were vacated and
abandoned so that a dedication of all necessary right of way may be made via the
platting process; and
WHEREAS, in order to remove any question as to the continuation of the
easement, the Town Council has determined that the public interest is served by the
repeal Ordinance of 1999-15 so that the easement on the Property is vacated and
abandoned and so that the necessary right of way may be properly dedicated in the
platting process; and
WHEREAS, the Town Council finds it necessary and appropriate to authorize the
Mayor to execute this Ordinance and all documents necessary to effect the purpose of
this Ordinance.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS:
SECTION 1
INCORPORATION OF PREMISES
All of the above premises are true and correct and are hereby incorporated in the
body of this Ordinance as if fully set forth herein.
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SECTION 2
AMENDMENT / REPEAL
The Town Council hereby repeals Ordinance 1999-15 in its entirety and
authorizes the Mayor to execute all documents necessary to abandon the easements
provided via Ordinance No. 1999-15 in order to effect the terms of this Ordinance.
SECTION 3
CUMULATIVE CLAUSE
This Ordinance shall be cumulative of all provisions of the Code of Ordinances of
the Town of Trophy Club, Texas, except where the provisions of this Ordinance are in
direct conflict with the provisions of such ordinances, in which event the conflicting
provisions of such ordinances are hereby repealed.
SECTION 4
SEVERABILITY CLAUSE
It is hereby declared to be the intent of the Town Council of the Town of Trophy
Club that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance
are severable, and if any phrase, clause, sentence, paragraph, or section of this
Ordinance shall be declared invalid or unconstitutional by the valid judgment or decree
of any court of competent jurisdiction, such unconstitutionality or invalidity shall not
affect any of the remaining phrases, clauses, sentences, paragraphs, or sections of this
Ordinance, since the same would have been enacted by the Town Council without
incorporation of any such unconstitutional phrase, clause, sentence, paragraph, or
section.
SECTION 5
PUBLICATION
The Town Secretary of the Town of Trophy Club is hereby directed to publish the
Caption and Effective Date of this Ordinance as required by Section 52.011 of the
Texas Local Government Code.
SECTION 6
ENGROSSMENT AND ENROLLMENT
The Town Secretary of the Town of Trophy Club is hereby directed to engross
and enroll this Ordinance by filing this Ordinance in the ordinance records of the Town
as required in the Town Charter and a copy shall be filed in the Denton County land
records.
SECTION 7
EFFECTIVE DATE
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This Ordinance shall become effective from and after its date of passage and
publication in accordance with law.
AND IT IS SO ORDAINED
PASSED AND APPROVED by the Town Council of the Town of Trophy Club, Texas
this 5th day of November, 2007.
________________________________
Mayor, Nick Sanders
Town of Trophy Club, Texas
ATTEST:
__________________________________
Town Secretary, Lisa Ramsey
Town of Trophy Club, Texas
[SEAL]
APPROVED AS TO FORM:
____________________________________
Town Attorney, Patricia A. Adams
Town of Trophy Club, Texas
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Exhibit “A”
[ATTACHED]
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.10
Discuss and take appropriate action directing staff to proceed with zoning
implementation for billboards.
EXPLANATION:
The Town has received a verbal request from Beck Venture to allow billboard
installation in several locations in Town. Staff is asking for Council input and direction
prior to initiating Planning and Zoning meetings in regard to this.
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. None
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.11
Discuss and take appropriate action nominating candidates to the Denton
County Appraisal District Appraisal Review Board.
EXPLANATION:
The Board of Directors of the Denton County Appraisal District (DCAD) is requesting
candidates for possible appointment to the Appraisal Review Board for possible
appointment to the Appraisal Review Board.
The Town Staff has not heard from anyone interested in serving on this board.
RECOMMENDATION:
ACTION BY COUNCIL:
(lmr)
Attachments: 1. Denton County Appraisal District Memo
2. Candidate list
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.12
Discuss and take appropriate action relative to the Interlocal Agreement
between the Town and the Trophy Club MUDs to provide water supply and
wastewater treatment and equity services to the Town.
EXPLANATION:
Water/Money Contract:
Article IV 4.1 (B) – Utility Fees – The first sentence was changed BACK to
read 5/8” meter, which is the correct size.
Article IV 4.1 (B) - Utility Fees - The second sentence is to be amended to
read (change in underline): “Upon collection of one or more Utility Fees
by the Town, such Utility Fees shall, within ten (10) working days, be
deposited……..”
And the last sentence was amended so that the final words after “…$3,260,000”
will read “…plus accrued interest, due to the MUDs, shall be paid in full.”
Article IV 4.1 (C) – Entire paragraph was deleted and replaced with last two
sentences from Article 3.1 of the Operations Contract, shown here in underline:
Town intends to construct Town Water Tower. Upon the sale of the PID bonds,
the process to design and construct the Town Water Tower will begin
immediately.
On October 25th, the following information was added as the last sentence to
Article IV 4.1 (C), to guarantee the elevated tank cannot arbitrarily be
disconnected from the system in the future and thereby create an unacceptable
drop in line pressure:
The Town agrees to provide and to maintain pressure to the entire water system
as prescribed by Rules And Regulations For Public Water Systems; Texas
Administrative Code Title 30, Chapter 290, Subchapter D, Rule §290.44. Water
Distribution (d) Minimum pressure requirement.
Additionally, the last sentence in Article I – NOTE: NEED EXHIBITS, as well as the last
paragraph under Article 5, “NOTE” were deleted.
RECOMMENDATION:
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ACTION BY COUNCIL:
(lmr)
Attachments: 1. Water – Wastewater Agreement
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.13
Discuss and take appropriate action relative to the Interlocal Agreement
between the Town and the Trophy Club MUDs to provide water supply and
wastewater treatment and operational services to the Town.
EXPLANATION:
Operations Contract
Article 5.6 – The last sentence of this paragraph was modified to read as follows:
Payments made by Town shall be made payable to MUD1 and MUD2 and
to the Trophy Club Master District jointly on or before the 20th day of each
month.
I also changed the following under Definitions for the MUD 1 Rate Order, which will
change again in November; however, this is more accurate, up-to-date information.
MUD1 Adopted Rate Order shall mean the Rate Order adopted by Trophy Club
Municipal Utility District No. 1 and numbered Order 2007-1031 effective November 1,
2007, and any amendments or revisions thereto.
Additionally, I deleted the last sentence in Article I – NOTE: NEED EXHIBITS
One additional change:
Verbiage from the Operations contract, on Page 7, under Article 3.1, states:
Town intends to construct Town Water Tower. Upon the sale of the PID bonds,
the process to design and construct the Town Water Tower will begin
immediately.
This verbiage was copied verbatim over to the Water/Money Contract, under Article IV,
Page 9, Paragraph C and the previous verbiage was deleted.
On October 25, 2007, the following was added as the last sentence to Article 3.1 to
guarantee the elevated tank cannot arbitrarily be disconnected from the system in the
future and thereby create an unacceptable drop in line pressure.
The Town agrees to provide and to maintain pressure to the entire water system as
prescribed by Rules And Regulations For Public Water Systems; Texas Administrative
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Code Title 30, Chapter 290, Subchapter D, Rule §290.44. Water Distribution (d)
Minimum pressure requirement.
RECOMMENDATION:
ACTION BY COUNCIL:
(lmr)
Attachments: 1.Operational Agreement
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CONTRACT FOR WATER AND WASTEWATER OPERATIONAL SERVICES
BETWEEN THE TOWN OF TROPHY CLUB, TEXAS, TROPHY CLUB MUNICIPAL
UTILITY DISTRICT NO. 1 AND TROPHY CLUB MUNICIPAL UTILITY DISTRICT NO.
2
This Contract for Water and Wastewater Operations Services (“Contract”) is entered
into between THE TOWN OF TROPHY CLUB, TEXAS, a home rule municipality
located in Denton and Tarrant Counties (hereinafter “Town”) and TROPHY CLUB
MUNICIPAL UTILITY DISTRICT NO. 1 (hereinafter “MUD1”), AND TROPHY CLUB
MUNICIPAL UTILITY NO. 2 (hereinafter “MUD2”), both Districts created pursuant to
Section 59, Article XVI, Texas Constitution and the Texas Water Code, Chapter 54, and
TROPHY CLUB MASTER DISTRICT, a joint venture of Trophy Club Municipal Utility
District No. 1 and Trophy Club Municipal Utility District No. 2. MUD1 and MUD2 and
TROPHY CLUB MASTER DISTRICT are hereafter referred to collectively as the
“MUDs.”
Recitals
WHEREAS, MUDs currently supply water and wastewater treatment and
distribution and collection services to those customers located within the boundaries of
MUDs; and
WHEREAS, Town is empowered under the Texas Constitution and laws of the
State of Texas to provide Water and Wastewater Service to a certain portion of property
located within the territorial boundaries of Town which property is not located within the
boundaries of MUDs nor is provided water or wastewater services therefrom,
hereinafter referred to as the “Property” and more fully described in Exhibit “A”; and
WHEREAS, as a result of the development occurring on the Property, Town and
MUDs have entered into a separate interlocal agreement for the right to access and
receive water supply and wastewater treatment from the existing water and wastewater
facilities owned by MUDs for the benefit of those residents of the Trophy Club Public
Improvement District No. 1 (hereinafter the “PID”) and under this agreement Town
desires to receive certain operational and administrative services from MUDs as more
fully described herein; and
WHEREAS, the purpose of this Agreement is to outline the terms and conditions
under which MUDs will provide operational and administrative services related to the
provision of Water Supply Transmission Services and Wastewater Services to Town for
the benefit of Town Customers (defined below); and
WHEREAS, the Interlocal Cooperation Act, Texas Government Code, Chapter
791, et seq., as amended (the “Act”) provides authority for governmental entities of the
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State of Texas to enter into Interlocal Agreements with each other regarding
governmental functions and services as set forth in the Act; and
WHEREAS, the provision of operational services necessary for and related to the
operation of a Town Water Distribution System and Town Wastewater Collection
System is a valid governmental function necessary for the public health, safety and
welfare for which an interlocal agreement is allowed pursuant to the Act; and
WHEREAS, each Party hereto paying for the performance of governmental
functions or services shall make such payments from current revenues legally available
to the paying Party and each Party hereby finds and agrees that it is fairly compensated
for the services or functions performed under the terms of this Contract.
NOW, THEREFORE, Town and MUDs, for and in consideration of the recitals set
forth above and terms and conditions below, agree as follows:
ARTICLE I.
INCORPORATION / DEFINITIONS / EXHIBITS
1.1 Incorporation of Recitals. The foregoing recitals are agreed upon and
incorporated herein as a part of this Contract.
1.2 Definitions. Unless the content indicates others, the following words used in this
Contract shall have the following meanings:
Commission means the Texas Commission on Environmental Quality and any
successor or successors exercising any of its duties and functions related to municipal
utility districts.
Commission mandated means a requirement duly passed or enacted as part of a
Commission rule, regulation, or permitting process. The term does not include a
regulation or requirement that is merely proposed or being considered for passage,
adoption or enactment by the Commission.
EPA means the Environmental Protection Agency and any successor or
successors exercising any of its duties and functions related to municipal utility districts.
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Existing Infrastructure means Water System and Wastewater System and all
components thereof existing and operational and owned and/or controlled by MUDs,
whether collectively or individually, on the date of execution of this Contract.
Fort Worth Water Contract means the Contract for Water Service Between the
City of Fort Worth, Texas, and Trophy Club Municipal Utility District NO. 1, dated
September 22, 1992, as amended.
Interconnect Line means the water line(s) constructed by Town to connect to
MUDs Water System of the size and at the location to be mutually agreed upon by
Town and MUDs.
Lift Station means any mechanical means of conveying wastewater by force.
MUD1 Adopted Rate Order shall mean the Rate Order adopted by Trophy Club
Municipal Utility District No. 1 and numbered Order 2007-1031 effective November 1,
2007, and any amendments or revisions thereto.
Operational Services means the operation, inspection, maintenance and repair of
Town Water Distribution System and Town Wastewater Collection System, Town Water
Tower and potable water wells connected to the Town Water Distribution System, and
includes without limitation Water Supply Transmission Services and Wastewater
Services, including related administrative services, as more fully set forth herein.
Parties or Party shall mean either one or more of the MUDs or Town or both, as
the context provides.
Person(s) means an individual, corporation, partnership, association, joint
venture or any other third party legal entity.
Points of Connection of Wastewater means that point or points where Town
Wastewater System connects to MUDs’ Wastewater System.
Points of Connection of Water means that point or points where Town Water
System connects to MUDs’ Water System.
Town means Town of Trophy Club, Texas, a home-rule municipality located in
Denton and Tarrant Counties, Texas, and all land included within the territorial limits
and extraterritorial jurisdiction of Town, at Town’s creation and thereafter annexed from
time to time.
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Town Customers means any Person(s) residing within the Property and who
have the right to receive, who contract to receive or otherwise receiving Water and/or
Wastewater Services from Town Water Distribution System and/or Town Wastewater
Collection System.
Town Wastewater Collection System means the Wastewater system that may be
constructed, owned and operated by Town to serve Town for the collection of
Wastewater received from Town Customers, ending at the Point of Connection of
Wastewater, and will include any sewer force mains and Lift Stations that will be
required to transport Wastewater to the Point of Connection of Wastewater.
Town Water Distribution System means the water distribution system that may
be constructed, owned and operated by Town for the distribution of potable water
received from MUDs to Town Customers, beginning at the Points of Connection of
Water.
Town Water Tower means a minimum 500,000 gallon elevated storage tank
owned and constructed by Town.
Wastewater means the water-carried wastes, exclusive of ground, surface, and
storm waters, normally discharged from the sanitary conveniences of dwellings,
including apartment houses, hotels, offices buildings and institutions, of a domestic, not
industrial, nature, meeting the requirements of the Commission and EPA set forth in and
regulated by state and federal law, as may be amended or superseded from time to
time.
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Wastewater Services means the services provided by MUDs in receiving,
treating, testing, and disposing of Wastewater from Town Wastewater System in
accordance with this Contract.
Wastewater System means the wastewater collection lines, lift stations, pipes,
valves, meters, pumps, motors, treatment plant, effluent discharge lines, and other
facilities and equipment owned or controlled by MUD1, MUD2, or Trophy Club Master
District and operated as part of the central wastewater collection and treatment system
for MUD1 and MUD2 and their customers, and also including the existing PERMIT TO
DISCHARGE WASTES, TPDES PERMIT NO. WQ0011593001, issued March 26, 2007,
by the Commission to MUD1, as amended, or any other such governmental permit
authorizing the treatment of wastewater by MUDs.
Wastewater Trunk Facilities means the trunk line facilities that may be
constructed by Town to connect Town Wastewater System to MUDs Wastewater
System as provided in Article V of this Contract.
Water or Water Supply means potable water that meets federal and state
standards for consumption by humans.
Water Supply Transmission Services means the services provided by MUDs in
treating, pumping, transporting, and delivering Water from MUDs Water System to
Town Water Distribution System for consumption by Town Customers in accordance
with this Contract.
Water System means the water wells, water transmission pipeline from the City
of Fort Worth (or other wholesale water supplier), mixing and treatment facilities, pipes,
valves, meters, ground storage tanks, elevated storage tank, pumps, motors,
distribution lines and other facilities and equipment owned or controlled by MUD1,
MUD2 or Trophy Club Master District and operated as part of the central treated water
system for MUD1 and MUD2 and their customers, and also including the existing
CONTRACT FOR WATER SERVICE BETWEEN THE CITY OF FORT WORTH,
TEXAS, AND TROPHY CLUB MUNICIPAL UTILITY DISTRICT NO. 1 (as the owner of
legal title and operator of common utility facilities in Trophy Club development at that
time) dated September 22, 1992, as amended, or any other such wholesale water
supply contract to MUDs.
Wells means any and all potable water wells that may be constructed within the
Property or for the benefit of the Property by Town or its designee and connected to the
Town Water Distribution System.
1.3 Exhibits. The following Exhibits attached to this Contract are hereby made a
part of the Contract as though fully incorporated herein:
Exhibit “A” - The Property
Exhibit “B” - Points of Connection of Water and Wastewater
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ARTICLE II.
WATER SUPPLY, WATER SUPPLY TRANSMISSION SERVICES AND
WASTEWATER SERVICES PROVIDED BY MUDS
2.1 Water Supply. MUDs agree to provide to Town Water Supply sufficient to meet
the needs of the Property, as defined herein and more fully described in Exhibit “A,”
throughout the term of this Contract. Water shall be provided to Town for the benefit of
the Property as more specifically provided herein and shall meet all quality standards
required by the Commission, the Texas Water Code, as amended, the Texas
Administrative Code, as amended, all applicable, federal, state, and local laws, rules
and regulations, and in accordance with those written standard operating procedures
utilized by MUDs for MUDs’ water customers and with those practices utilized by MUDs
in providing water supply transmission services and wastewater services to customers
of MUDs.
2.2. MUDs’ Obligation to Provide Water Supply Transmission Services and
Wastewater Services. MUDs agree to provide Water Supply Transmission Services
and Wastewater Services to Town for the benefit of the Property and in accordance with
the terms and conditions of this Contract. MUDs agree to accept Wastewater from, and
to provide Wastewater Services to, Town in accordance with the terms and conditions
of this Contract, provided that all Wastewater discharged from Town Wastewater
System and delivered to the Points of Connection of Wastewater complies at the
Points of Connection of Wastewater with the restrictions established by the
Commission. Immediately at the time of final approval of the Interconnect Line by
MUDs, which final approval shall not be unreasonably withheld by MUDs, MUDs shall
begin providing Water Supply Transmission Services to Town for the Property.
Immediately at the time of final approval of the Wastewater Trunk Facilities by MUDs,
which final approval shall not be unreasonably withheld by MUDs. MUDs shall begin
providing Wastewater Services to Town.
2.3 Standard of Service – Water Supply Transmission Services and Wastewater
Services. The Water Supply Transmission Services and Wastewater Services provided
by MUDs to Town under this Contract shall be in accordance with all standards set forth
by the Commission, the Texas Water Code, as amended, the Texas Administrative
Code, as amended, all applicable, federal, state, and local laws, rules and regulations,
and in accordance with those written standard operating procedures utilized by MUDs
for MUDs’ water customers and with those practices utilized by MUDs in providing water
supply transmission services and wastewater services to customers of MUDs.
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ARTICLE III.
OPERATIONAL SERVICES RELATED TO WATER SUPPLY DISTRIBUTION
SYSTEM, WASTEWATER COLLECTION SERVICES, AND TOWN WELLS
3.1 Town’s Obligation to Construct Town Water Distribution System and Town
Wastewater Collection System. Town shall design and construct, at its sole cost and
expense, a Town Water Distribution System and a Town Wastewater Collection System
to serve Town Customers, including without limitation Wells and Town Water Tower.
Town Water Distribution System shall include all facilities necessary to store Water and
to convey Water from the Points of Connection of Water to Town Customers. Town
Wastewater Collection System shall include all facilities necessary to transport
Wastewater from Town Customers to the Points of Connection of Wastewater. Town
intends to construct Town Water Tower. Upon the sale of the PID bonds, the process to
design and construct the Town Water Tower will begin immediately. The Town agrees
to provide and to maintain pressure to the entire water system as prescribed by Rules
And Regulations For Public Water Systems; Texas Administrative Code Title 30,
Chapter 290, Subchapter D, Rule §290.44. Water Distribution (d) Minimum pressure
requirement.
3.2 MUDs’ Obligation to Provide Operational Services. MUDs agree to provide
Operational Services related to Town Water Distribution System and Town Wastewater
Collection System in accordance with the terms and conditions of this Contract in
addition to providing Water Supply Transmission Services and Wastewater Services to
Town hereunder.
3.3 Standard of Service – Town Wastewater Collection System and Town Water
Distribution System. The Operational Services provided by MUDs to Town and Town
Customers under this Contract shall be in accordance with all standards by the
Commission, the Texas Water Code, as amended, the Texas Administrative Code, as
amended, all applicable, federal, state, and local laws, rules and regulations, and in
accordance with those written standard operating procedures utilized by MUDs for
MUDs’ water customers and with those practices utilized by MUDs in providing
Operational Services to customers of MUDs.
3.4 Wells. Town has sole discretion regarding the specifications for, number and
location of Wells that may be constructed within Town, exclusive of the MUD Districts.
Any and all Wells constructed by or at the direction of Town or dedicated to and
accepted by Town shall be owned by Town. Pursuant to this Contract MUDs shall
provide Operational Services for all such Town-owned Wells, as defined in Article I
paragraph 1.2; provided however, that Town shall notify MUDs of the number and
location of Wells that Town constructs or intends to construct. Such well specifications
shall be approved by MUDs. MUDs shall not unduly withhold their approval and must
do so only for just cause.
ARTICLE IV.
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CHARGES TO TOWN AND EFFLUENT
4.1 Method of Calculation of Water Charges to Town. MUDs’ charge to Town for
Water shall be calculated by adding the total charges for each month due from each of
Town’s Customers, in the same amount as set forth in Sections 2.01(A) and 2.02(A) of
MUD1 Adopted Rate Order; which charges shall at all times be equal to the same
charges assessed to residents of the MUDs.
4.2 Charges for Wastewater Services. MUDs’ charge to Town for Wastewater
Services shall be calculated by adding the total charges for each month due from each
of Town’s Customers, in the same amount as set forth in Sections 2.01(A) and 2.02(A)
of MUD1 Adopted Rate Order; which charges shall at all times be equal to the same
charges assessed to residents of the MUDs.
4.3 Effluent Produced. Town shall have the right to all treated effluent produced
resulting from all Wastewater delivered to the wastewater treatment facilities from Town
Customers at no additional charge for Town use within the Town and on property under
ownership or control of the Town and as prescribed by the Texas Administrative Code,
including without limitation, Section 210 of the Texas Administrative Code, as may be
amended from time to time, and as prescribed by TCEQ. Transportation of said effluent
from the Wastewater Treatment Plant to its point of storage and/or use shall be the
responsibility of and at the expense of the Town.
ARTICLE V.
RATE ORDERS AND SERVICES TO TOWN CUSTOMERS
5.1 Town Rate Order. Town reserves the right at any time to adopt its own rate
order, setting forth rates different from those of MUDs to be charged to Town
Customers and which may be amended from time to time at the discretion of Town
Council (hereinafter “Town Rate Order”). Upon adoption or amendment of a Town Rate
Order, Town shall provide MUDs with a copy of the duly adopted Town Rate Order.
Town Rate Order shall set all of the rates for utilities (i.e., water and sewer rates)
provided to Town Customers and shall provide such rates to MUDs for MUDs’ use in
sending utility bills to Town Customers. MUDs shall bill Town Customers in accordance
with Town Rate Order. Town further agrees to take all actions, including without
limitation, legislative and administrative actions, necessary to ensure that revenues and
other income to Town shall at all times be sufficient to promptly pay to MUDs all such
charges when and as the same become due and payable under this Contract.
5.2 Rate Changes - Town Rate Order. Town agrees to provide MUDs with at least
sixty (60) days written notice of its intent to change one or more rates or charges within
Town Rate Order.
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5.3 Operational Services. MUDs and Town agree that MUDs shall provide
Operational Services for Town Wastewater Collection System and Town Water
Distribution System, including without limitation the following: reading the individual
meters of Town Customers; billing, collecting from, and responding to service calls from
Town Customers; marking water lines for contractors, monitoring of telemetric
equipment, if any; dead-end water flushes; preparing and filing all operational and
compliance reports required by law or requested by Town, including without limitation
those that are Commission mandated and/or otherwise required by the EPA, or any
successor agency; provide qualified representatives to present reports at Council
meetings upon request; providing documentation of costs and expenses incurred by
MUDs in providing Operational Services, provide documentation of all transactions
made by MUDs on behalf of Town, whether directly with Town or with Town’s
Customers. In furtherance of this, MUDs will provide to Town’s Customers the identical
quality and quantity of services which it presently provides to all MUD customers.
5.4 Billing of Town Customers. MUDs shall read the individual meters of Town
Customers on a monthly basis during the term of this Contract. Based on such meter
readings, MUDs shall send statements to Town’s Customers in accordance with the
then-current Town Rate Order. MUDs shall collect payments from Town Customers
and deposit those payments in Town’s bank account on a daily basis.
5.5 Transfer of Collections to Town. Each month, MUDs shall prepare and deliver
a collections report to Town which sets forth the total amount of monies due from
Town’s Customers pursuant to Town’s Rate Order and the total amount of monies
collected from Town’s Customers pursuant to Town Rate Order. Such report shall
provide sufficient specificity for Town to track the source and amount of such income,
usage of Town Customers and the basis for the charges assessed to Town Customers.
MUDs shall not have the right to offset its charges to Town against the collections from
Town Customers, but shall turn over one hundred percent of all collections and shall
separately invoice Town for any and all charges that may be assessed against Town
under the terms of this Contract.
5.6 Invoice to Town. Charges assessed by MUDs to Town shall be limited to the
type and amount of charges set forth in Sections 2.01(A) and 2.02(A) of MUDs Adopted
Rate Order. MUDs shall prepare an invoice showing the charges to Town and shall
provide a detailed explanation of all such charges assessed by MUDs, including without
limitation, backup documentation if requested by Town so that Town can identify the
nature and type of charge and the basis upon which the charge was assessed to Town.
If Town contests a charge, Town shall notify MUDs within ten (10) business days of the
charge contested and the basis for the contest, and shall have the right to withhold
payment until the dispute is resolved by the Parties. Payments made by Town shall be
made payable to MUD1 and MUD2 and to the Trophy Club Master District jointly on or
before the 20th day of each month.
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5.7 Late Charges and Interest on Late Payments The Town will remit to the
MUDs the full amount of all charges, without deduction for unpaid and overdue bills. In
turn, the MUDs will proceed to the collection of those bills and will remit to the Town the
amounts collected, including the interest and late charges associated with those bills.
5.8 Water Emergency. Under Town’s ordinance(s), MUDs may declare a "water
emergency period" if any condition or event occurs that interrupts the production,
treatment, or transportation of Water in MUDs Water System and may impose
conditions on consumption or use of Water. If MUDs declare a "water emergency
period" and impose conditions on Water consumption for its customers in the existing
MUDs under the then-current ordinance, Town agrees, upon timely notification by
MUDs to impose and enforce restrictive conditions of consumption on Town Customers.
Such restrictive conditions shall be equivalent to those imposed upon MUDs and/or
MUDs customers pursuant to the Fort Worth Water Contract. Where it has become
necessary to adopt a drought contingency plan, MUDs shall not apply their drought
contingency plan to Town’s Customers in a manner that is more stringent than MUDs’
application of their drought contingency plan on residential customers within the MUDs.
ARTICLE VI.
TERM
6.1 Term. This Contract shall become effective upon approval by each of the
respective governing bodies of Town and MUDs and upon execution by their respective
authorized representatives, and shall remain in effect for an initial term of one (1) year
from the date of approval by the last Party subject to this Contract (hereinafter “Initial
Term”), and shall renew automatically annually for additional terms of one (1) year each
unless terminated by either Party as provided herein.
6.2 Termination for Default. Any Party to this Contract who believes that the other
Party to this Contract has defaulted in the performance of any condition, term, or
obligation owed to that Party under the Contract shall give written notice of the default to
the defaulting Party, specifying in detail the provision or provisions of the Contract that
have been breached and specifying what action must be taken to cure or correct the
default and notifying the defaulting Party that failure to correct the default within sixty
(60) days following receipt of the written notice by such Party, shall result in termination
on a date certain specified in the notice.
6.3 Termination without Default. Any Party shall have the right to terminate this
Contract without cause upon written notice to any other Party. Such notice of
termination must be provided at least 180 days in advance of such termination date, but
in no case shall termination be allowed earlier than one (1) year from the date of
execution of this Contract.
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ARTICLE VII.
MISCELLANEOUS
7.1 Remedies Cumulative. The Parties specifically agree that the remedy of specific
performance of this Contract is an appropriate and necessary remedy and agree that
any Party may employ the remedy of specific performance in the event of a breach of
this Contract. It is not intended hereby to specify (and this Contract shall not be
considered as specifying) an exclusive remedy for any default, but all remedies,
including specific performance and mandamus, may be availed of by any Party and
shall be cumulative of any other remedy herein specified.
7.2 Immunity. The fact that Town and MUDs accept certain responsibilities relating
to the provision of Operational Services under this Contract as part of their responsibility
for providing Water and Wastewater Services to their respective residents makes it
imperative that the performance of these vital services be recognized as a
governmental function and that the doctrine of governmental immunity shall be, and it is
hereby, invoked to the extent possible under the law. Neither Town nor MUDs waive
any immunity or defense against third party claims that would otherwise be available to
it against claims arising from the exercise of governmental powers and functions. The
Parties hereto agree that each respectively waives its sovereign immunity to suit for the
limited purpose of adjudication of a claim for breach of this Contract. Notwithstanding
the foregoing agreement, remedies in such action shall be limited to those provided by
Chapter 271 of the Texas Local Government Code.
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7.3 Force Majeure. If any Party is rendered unable, wholly or in part, by force majeure
to carry out any of its obligations under this Contract, except the obligation to pay
amounts owed or required to be paid pursuant to the terms of this Contract, 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 other than a Party to this Contract, insurrections, riots,
epidemics, landslides, lightning, earthquakes, fires, hurricanes, restraint of government
and people, 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 sewer systems hereunder or in
an inability of MUDs to provide Water or receive Wastewater, and any other inabilities of
any Party, whether similar to those enumerated or otherwise, which are not within the
control of the Party claiming such inability, which such Party could not have avoided by
the exercise of due diligence and care. It is understood and agreed that the settlement
of strikes and lockouts shall be entirely within the discretion of the Party having the
difficulty, and that the above requirement that any force majeure shall be remedied with
all reasonable dispatch shall not require the settlement of strikes and lockouts by
acceding to the demands of the opposing Party when such settlement is unfavorable to
it in the judgment of the Party experiencing such difficulty.
7.4 Applicable Law. This Contract shall be governed by the laws of the State of
Texas and no lawsuit shall be prosecuted on this Contract except in a court of
competent jurisdiction located in Denton County.
7.5 No Additional Waiver Implied. No waiver or waivers of any breach or default (or
any beaches or defaults) by any Party hereto of any term, covenant, condition, or
liability hereunder, or the performance by any Party of any duty or obligation hereunder,
shall be deemed or construed to be a waiver of subsequent breaches or defaults of any
kind, under any circumstances.
7.6 Addresses and Notice. Unless otherwise provided in this Contract, any notice,
communication, request, reply, or advice (herein severally and collectively, for
convenience, called "Notice") herein provided or permitted to be given, made, or
accepted by any Party to the other (except bills), must be in writing and may be given or
be serviced by depositing the same in the United States mail postpaid and registered or
certified and addressed to the Party to be notified, with return receipt requested, or by
delivering the same to such Party, addressed to the Party to be notified. Notice
deposited in the mail in the manner hereinabove described shall be conclusively
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deemed to be effective, unless otherwise stated in this Contract, from and after the
expiration of three (3) days after it is so deposited. Notice given in any such other
manner shall be effective when received by the Party to be notified. For the purpose of
notice, addresses of the Parties shall, until changed as hereinafter provided, be as
follows:
If to MUDs, to: If to Town, to:
MUD Manager Town Manager,
100 Municipal Drive 100 Municipal Drive
Trophy Club, Texas 76262 Trophy Club, Texas 76262
The Parties shall have the right from time to time and at any time to change
their respective addresses and each shall have the right to specify any other address by
at least fifteen (15) days' written notice to the other.
7.7 Merger and Modification. This Contract, including the exhibits that are attached
hereto and incorporated herein for all purposes, embodies the entire agreement
between the Parties relative to the subject matter hereof. This Contract shall be subject
to change or modification only with the written mutual consent of all Parties affected by
such change or modification.
7.8 Severability. The provisions of this Contract are severable, and if any part of this
Contract or the application thereof to any person or circumstances shall ever be held by
any court of competent jurisdiction to be invalid or unconstitutional for any reason, the
remainder of this Contract and the application of part of this Contract to other persons or
circumstances shall not be affected thereby.
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7.9 Successors and Assigns. This Contract shall be binding upon and inure to the
benefit of the Parties hereto and their successors. This Contract shall not be assigned
without the written consent of the governing bodies of the respective entities.
Notwithstanding the foregoing, this Contract is a non-exclusive Contract and all parties
hereto may, without consent or notice to the other Parties, contract with one or more
third parties for the same or similar commodities or services provided under the terms of
this Contract.
7.10 Benefits of Contract. This Contract is for the benefit of MUD1, MUD2, and
Town and their successors and assigns and shall not be construed to confer any benefit
on any other person or entity except as expressly provided for herein.
7.11 Non-Binding Mediation. The Parties agree that they shall first attempt to resolve
disputes hereunder by the use of non-binding mediation. Therefore, in the event that
any alleged default under this Contract cannot be resolved by agreement of the Parties
or in the event that the Parties cannot resolve a conflict in or disagreement regarding
interpretation of a specific provision(s) of this Contract, the dispute, conflict or
disagreement shall be submitted to non-binding mediation as a condition precedent to
(1) the filing of any lawsuit, and (2) the filing of any other type of legal or equitable
action to resolve such default or dispute or to pursue available legal or equitable
remedies. The costs of mediation shall be shared equally by all Parties participating in
the mediation.
7.12 Consent and Approvals. Whenever this Contract provides for the approval or
consent of one of the Parties, such consent or approval shall not be unreasonably
withheld or delayed.
TOWN OF TROPHY CLUB, TEXAS
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
TROPHY CLUB MUNICIPAL UTILITY
DISTRICT NO. 1
By:
403
ATTEST:
By:
Name:
Title:
TROPHY CLUB MUNICIPAL UTILITY
DISTRICT NO. 2
By:
ATTEST:
By:
Name:
Title:
404
EXHIBIT “A”
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EXHIBIT “B”
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.14
Discuss and take appropriate action regarding the NISD Petition for
annexation of Byron Nelson High School site into MUD2.
EXPLANATION:
MUD2 is expected to take on the following on November 7th, 2007:
Discuss and take appropriate action regarding request by Northwest Independent
School District for annexation into Trophy Club Municipal Utility District No. 2 of property
described as 92.655 acres of land located in the T. Calaway Survey, Abstract No. 272;
the T. Kelly Survey, Abstract No. 704; and the J. Henry Survey, Abstract No. 529 in the
Town of Trophy Club, Denton County, Texas, known as Northwest High School No. 2
and Byron Nelson High School.
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Petition
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409
410
411
412
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.15
Discuss and take appropriate action to approve financials and variance
report dated September 2007 (unaudited).
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. None
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.16
Discuss and take appropriate action regarding Police Chief Kniffen's
update and recommendation on the police equipment and cars.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(sk)
Attachments: 1. Information Memorandum
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MEMORANDUM
To: Office of the Town Manager Date: October 29, 2007
From: Chief Kniffen Re: Electronic Equipment
At the request of Council, I am submitting the following report and recommendation
regarding the Police Department Equipment.
Electronic equipment in a patrol car faces a number of hazards including vibration, heat,
humidity, and dust. Regardless of the precautions one takes, having a highly sensitive
electronic device exposed to these factors decreases the life of the unit and increases
maintenance expenses. The department spent $2,131 on equipment maintenance in FY
2005-06. We were budgeted at $2,426. In FY 2006-07, our budget remained the same.
No new video cameras or RADAR units were purchased in FY 2006-07 meaning that
the units, some in use for over seven years, continue to be operated and continue to
require maintenance.
In-car video cameras and RADAR units have an expected life span of 2 - 4 years. We
have one video and one RADAR unit that hasn’t reached or surpassed that age. The
other video and RADAR units are all past the five year mark. Their continued use
requires additional maintenance costs.
In addition to the maintenance costs there is an intangible cost involved every time we
send a video unit to the manufacturer for repair. Due to our reliance on in-car video
units for evidence and protection of the officers, if a video camera is out of service the
patrol car is out of service as well. This increases the wear on the other patrol units and
reduces the effectiveness of the Department. We cannot place a dollar value on this
loss but I assure you it is there.
In FY 2006-07, we spent $2,348.06 on repair, maintenance, or component replacement.
The average cost per charge has been over $250. The highest was $712.55 and the
lowest was $73.13. Repairs included two RADAR units, two mobile video units, one
radio unit, and additional electronic repair components or supplies.
Currently our radio units are in good repair and are not in need of replacement.
Operational or recently used equipment includes:
RADAR:
Eagle+ Dual Ka – Purchased 11/22/1999 (in use)
Talon Hand Held radar – Purchased 11/14/2000 (occasional use)
2 (two) Talon Hand Held radars – Purchased 12/04/2001 (1 in use)
HR-12 radar – Purchased 05/31/2001 (in use)
Kustom Pro 1000DS – Purchased 05/11/2004 (in use)
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Video:
Kustom Eyewitness VHS – Purchased 12/03/1999 (not in use)
2 Kustom Eyewitness VHS – Purchased 09/28/2000 (1 in use)
2 (two) Mobile Vision VHS – Purchased 10/23/2002 (both in use)
Kustom Digital Eyewitness – Purchased 11/15/2005 (in use)
The move from VHS to digital in-car video is necessary. When VHS in-car video
debuted it was state of the art. This was in the 1980’s. Today, digital in-car video
provides a more secure storage medium for evidence data and is less susceptible to
vibration, dust, and moisture. Some systems are totally enclosed in the passenger area
(as opposed to the trunk) of the patrol unit providing not only protection from dust and
moisture, but better protection from heat; all of which are enemies of the VHS system.
The digital system we purchased in 2005 is not entirely digital. The wireless
microphone on this unit is analog. It matches the analog microphones on the VHS
systems and was changed from digital to analog because the digital microphone would
not work over about 100 feet from the vehicle and would not work over about 40 feet
when an officer was inside a building. When officers make calls inside homes or
businesses they frequently turn on the wireless microphone and record conversations
and incidents to the in-car video system. This can prevent many problems.
This digital system also includes a vault for the DVD under the dash and a vault for the
hard drive and control system that is installed in the trunk, just like the VHS systems,
with the attendant problems of installing delicate electronics in a hot, dusty, sometimes
humid environment.
It is recommended that we replace four in-car video units and four RADAR units.
Capt. Delk and Officer Loftis have done exhaustive research on these units and
recommend the following:
Stalker DSR 2X RADAR. This is a dual antenna system that has four target zones
while stationary and two target zones while moving. It will simultaneously measure two
to four vehicles. The pricing includes four units, training, and 36 month warranty.
Stalker is part of Applied Concepts, Inc. and is located in Plano. Applied Concepts, Inc.
is the sole source of this unit.
RADAR replacement cost: $13,060.
Panasonic Arbitrator In-car Video System. The Panasonic in-car video systems will be
linked to the Panasonic Toughbook in-car computers. They have exceptional range for
the wireless microphone and are all digital. The unit is housed completely in the
passenger compartment of the patrol car and will not be affected by the heat, humidity,
dust, and vibration of a trunk-mounted unit. Video storage is removable for
downloading or can be downloaded in wireless mode. The video screen is the in-car
computer screen making viewing more effective.
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Since it does not record to a removable medium such as a DVD or VHS tape, there is
much less chance of any alteration or loss of data and there is limited storage
necessary for this type of media. It will free up a bank or cabinets 30” high by about 10’
long.
This system is available from a variety of sources and two quotes have been obtained
at this time. Each quote is for four units, training, and 36 months warranty.
Video replacement cost: $24,154 to $25,922. Installation will be another $325 per
vehicle.
As previously stated, the Panasonic in-car video systems will be linked to the Panasonic
Toughbook in-car computers. We currently have three Toughbooks and they are slated
for replacement this FY. Each has to be removed from the car at the end of the shift
and data entered during the shift has to be downloaded. Additionally, they are exposed
to many hazards while being transported from the car to the office and back.
Hardwiring the computers into the patrol unit would leave one car without a computer.
Thus, it is my recommendation that, in addition to the four in-car video systems, we add
and additional Toughbook so they can be left in the vehicle and, when the wireless
capability is finished, downloads of data and videos can be completed without removing
the computer from the car.
In-car computer purchase will include the laptop, air card, licenses for the various
software packages, and other associated items.
Year one total: $8,780.
Vehicle condition
This FY, our fleet will be augmented by two new Dodge Chargers. In FY 2006-07, we
opted for the V-6 Charger expecting to find that it was more fuel efficient than the Crown
Victoria. That has been the case however we are not experiencing the fuel savings that
we had hoped for. Further, the V-6 does not have the acceleration that we occasionally
need to respond to calls. This year we have decided to purchase Chargers with the
small Hemi V-8 engine.
The V-8 is designed with a Multiple Displacement System (MDS). This system starts
the car on four cylinders and remains running on four cylinders while the vehicle is idling
or under 8 MPH. From 8 – 80 MPH the vehicle runs on six cylinders and over 80 or
whenever the driver accelerates smartly the other two cylinders kick in. Police vehicles
idle a significant part of the time and we spend most of our patrol shifts driving below 25
MPH so most of the time the engines would be working on four or six cylinders. This
should increase our gas mileage and still give us the power we need to accelerate more
quickly than the V-6, if necessary.
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We will be taking Unit 500 (2005 Crown Victoria) and Unit 301 (2003 Expedition) out of
the patrol fleet. We will retain Unit 500 as a spare car. Unit 600 (2006 Crown Victoria)
has about 45,000 miles on it but the engine was replaced in June after it was damaged
in the flood so we will get 18 – 24 months use from it. Unit 700 (2007 Dodge Charger)
is still under warranty and will be retained for another 24 – 30 months.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.17
Items for Future Agenda.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
List:
1. Review of the Property Maintenance Ordinance. Council member Cates
2. Discussion about storm water discharge from pools. Staff
3. Discussion of drainage ditch that runs between Village Trail and Lakeshore Drive
and consideration of improvements for area to create a linear park. Mayor Sanders
- Council member Cates
4. Discuss and take appropriate action to repeal Ordinance 1987-07 and
approve an Ordinance establishing the Town's Emergency Management System.
Town Manager Emmons – Fire Chief Thomas
5. Research grant possibilities regarding phase two street calming/sidewalks.
Mayor Pro Tem Edstrom
7. Discuss and receive input regarding an Ordinance amending Chapter 11, Public
Works, Article I, of the Code of Ordinances establishing guidelines for residential
dumpsters.
8. Discuss and receive input regarding an Ordinance amending Section 4.05(B)(2) of
Article IV, Chapter 5 of the Code of Ordinances relating to number, size and
placement of political signs.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.D.18
Reports. There will be no action taken regarding any individual project
posted under this item and discussion will be limited. If extensive
discussion is required, the item may be placed on a future agenda.
(a) Town Manager's Report to include a semi annually report of fence
violations and the disposition.
(b) Report from Council member Cates on her procurement card review for
the past year and provide direction for the new fiscal year.
(c) Report from EDC 4A Liaison, Council member Moss.
Attachments: 1. Issues by Standard Issue Report
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423
424
425
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 11-5-2007
Subject: Agenda Item No.E.1
Adjourn.