Agenda Packet TC 10/15/20071
Town of Trophy Club
Town Council Regular Meeting Agenda
100 Municipal Drive
Trophy Club, Texas 76262
Monday, October 15, 2007
7:00 P.M.
A.1 Call to order and announce a quorum.
A.2 Discuss and take appropriate action relative to the ratification of the Engagement
Letter with Thompson and Knight for the review of Town Management and work
environment as directed by the Council with time not to exceed ten hours.
A. Discuss and take appropriate action to amend the Engagement Letter with
Thompson and Knight for the review of Town Management and work
environment as directed by Council to extend the review time from ten to
fifteen hours to allow completion of the review.
A.3 Council to convene into executive session for Consultation with the Town
Attorney 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
[1] & [2]) and pursuant to Government Code §551.074(a) of the Texas Open
Meetings Act, to discuss or deliberate the appointment, employment, evaluation,
reassignment, duties, discipline or dismissal of a public officer or employee:
1. The employment contract between the Town and Town Secretary/HR
Manager Lisa Ramsey, duties, performance, evaluation, and terms of
engagement.
A.4 Discuss and take appropriate action relative to Executive Session Item Number
A.3.
B.1 Invocation.
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."
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
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presentations on specific agenda items prior to the Council addressing those
items.
B.4 Police Chief Scott Kniffen to provide an update on impounding cars and
discussion of same.
C.1 Consent Agenda: Discuss and take appropriate action approving the ratification
of the NISD Subdivider's Agreement.
C.2 Consent Agenda: Discuss and take appropriate action to approve Minutes dated,
August 20, 2007.
C.3 Consent Agenda: Discuss and take appropriate action to approve financials and
variance report dated August 2007.
D.1 Discuss and take appropriate regarding an amendment to the Subdivider's
Agreement for the Highlands - Turnberry, Neighborhood 3 and 4 as requested by
Hillwood Development
D.2 Discuss and take appropriate action to appoint a chairman and vice-chairman of
the Planning and Zoning Commission.
D.3 Discuss and provide input relative to an amendment to Chapter 5, of the Code of
Ordinances of the Town, entitled "General Land Use", Article IV, entitled "Sign
Regulations", in response to complaints received on the signs at the Value Place
hotel.
D.4 Presentation by Davis Palmer regarding Council working relations and working
better together and discussion of same.
D.5 Discuss and take appropriate action regarding an Ordinance denying the rate
increase proposed by the ATMOS ENERGY Corporation, Mid-Tex Division;
Authorizing Participation in a Coalition of Cities known as ATMOS Texas
Municipalities ("ATM"); Authorizing the hiring of Lawyers and Rate Experts;
Requiring the Reimbursement of Municipal Rate Case Expenses: Finding that
the meeting complied with the Open Meetings Act; Making other Findings and
Provisions Related to the Subject; and Declaring an Effective Date.
D.6 Discuss and take appropriate action regarding an Ordinance amending the
Town's FY 2006-07 Budget.
D.7 Discuss and take appropriate action relative to future use, funding options,
operation of, and repairs to Beck Park.
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D.8 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.9 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.10 Discuss and provide input 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. Service and Assessment Plan for authorized public improvements
B. Discussion of Parkland Improvements for the PID and related Town
parkland improvements
C. Acquisition, Funding, and Construction Agreement
D. Indenture of Trust for the proposed bond issuance to finance public
improvements
E. Preliminary Limited Offering Memorandum
D.11 Discuss and take appropriate action relative to a Resolution accepting a Service
and Assessment Plan for the Town of Trophy Club Public Improvement District
No. 1; setting a date for a public hearing; authorizing the publication of notice;
and enacting other provisions relating thereto
D.12 Items for Future Agenda.
D.13 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.
(b) Report from EDC 4B Liaison, Council member Sterling.
E.1 Adjourn.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
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: 10-15-2007
Subject: Agenda Item No.A.2
Discuss and take appropriate action relative to the ratification of the Engagement
Letter with Thompson and Knight for the review of Town Management and work
environment as directed by the Council with time not to exceed ten hours.
A. Discuss and take appropriate action to amend the Engagement Letter with
Thompson and Knight for the review of Town Management and work environment
as directed by Council to extend the review time from ten to fifteen hours to allow
completion of the review.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(Council member Wilson)
Attachments: 1. Letter of Engagement
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.A.3
Council to convene into executive session for Consultation with the Town Attorney
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 [1] & [2]) and
pursuant to Government Code §551.074(a) of the Texas Open Meetings Act, to
discuss or deliberate the appointment, employment, evaluation, reassignment,
duties, discipline or dismissal of a public officer or employee:
1. The employment contract between the Town and Town Secretary/HR Manager
Lisa Ramsey, duties, performance, evaluation, and terms of engagement.
Attachments: 1. None
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.A.4
Discuss and take appropriate action relative to Executive Session Item Number A.3.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: None
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.B.1
Invocation.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
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: 10-15-2007
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: 10-15-2007
Subject: Agenda Item No.B.4
Police Chief Scott Kniffen to provide an update on impounding cars and discussion
of same.
EXPLANATION:
(4/16/07 TC Meeting)
RECOMMENDATION:
ACTION BY COUNCIL:
(sk)
Attachments: 1. Minutes dated April 16, 2007
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D.7 Discuss and receive input regarding the impounding of uninsured vehicles and the adoption of
either an ordinance or policy for impounding uninsured vehicles from the streets of Trophy Club.
Chief Kniffen referred to his memo and said a number of agencies and cities were contacted for copies of
their policies and Ordinances. Kniffen’s opinion is a policy is more practical and is easier to change than
an Ordinance. The City of Rockwall’s policy is a good example and gives the officer a greater amount of
discretion.
Council member Lamont agrees that it should be a departmental policy. Town Attorney Adams
suggested a Resolution for a commitment to policy this issue. Mayor Sanders confirmed there would be
no revenue associated.
Council is in favor of something simple and asked Chief Kniffen to make a report in six months. Chief
Kniffen responded anytime a policy is put into place the value of its effectiveness develops over time.
Motion made by Sterling; seconded by Lamont directing the Town Manager and Town Attorney to draft a
Resolution similar to the City of Rockwall.
Motion passed unanimously without further discussion.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.C.1
Consent Agenda: Discuss and take appropriate action approving the ratification of
the NISD Subdivider's Agreement.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Subdivider’s Agreement
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NORTHWEST ISD HIGH SCHOOL NO. 2
SUBDIVIDER'S AGREEMENT
An AGREEMENT between the Town of Trophy Club, Texas (hereinafter referred
to as the "TOWN") and Northwest Independent School District (NISD) acting by and
through its duly authorized representative (hereinafter referred to as the
"DEVELOPER"), for the installation of public improvements and facilities within the
TOWN limits of Trophy Club, Texas, for NISD High School No. 2, more particularly
described as a tract of land consisting of approximately 92.655 acres of land,
hereinafter being referred to as the "PROJECT," and such public improvements being
more particularly described in Section II of this AGREEMENT. It is understood by and
between the parties that this AGREEMENT is applicable to the lot(s) contained within
the Final Plat as presented to TOWN Staff on May 7, 2007, and to the offsite
improvements necessary to support the PROJECT, more particularly described in
Section II of this AGREEMENT. It is further agreed that this AGREEMENT, when
properly signed and executed, shall satisfy the requirements of the TOWN’S
Subdivision Regulations.
I. GENERAL REQUIREMENTS
A. It is agreed and understood by the parties hereto that the DEVELOPER has
employed a registered public surveyor licensed to practice in the State of
Texas to prepare a final plat of the PROJECT.
The Project is planned to be platted for high school and associated auxiliary
uses including but not limited to athletic fields together with allowed incidental
and accessory uses. The Project received preliminary plat approval from the
Town on April 19, 2007.
B. It is agreed and understood by the parties hereto that the DEVELOPER has
employed a civil engineer licensed to practice in the State of Texas for the design
and preparation of the plans and specifications for the construction of all public
improvements and facilities described in Section II and covered by this
AGREEMENT. Unless otherwise specified herein, such plans and specifications
shall be in accordance with the TOWN’S "Design Standards for Paving, Drainage
and Utility Improvements" and the North Central Texas Council of Governments’
(NCTCOG) Standard Specifications for Public Works Construction, as presently
adopted.
C. The DEVELOPER will award its own construction contract for the
construction of all PROJECT street, sanitary sewer, and other drainage
public improvements and facilities for the completion of the Project in
accordance with Section II.A.2) of this AGREEMENT. The DEVELOPER
agrees to employ a construction contractor(s) who is approved by the
TOWN, said contractor(s) to meet TOWN and statutory requirements for
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being insured, licensed and bonded to perform work in public rights-of-way
and to be qualified in all respects to bid on public streets and public projects
of a similar nature. The DEVELOPER agrees to submit contract documents
to the TOWN and participate in a pre-construction meeting with the TOWN
and all Developer contractors.
D. Prior to the execution of this Agreement, the commencement of construction,
the filing of the Final Plat, or the issuance of any building permits, the
DEVELOPER shall present to the TOWN a performance bond(s), payment
bond(s) and maintenance bond(s), meeting the requirements of Chapter
2253 of the Texas Government Code. Each bond shall individually
guarantee and agree to pay an amount equal to one hundred percent
(100%) of the value of the construction costs (as determined by the TOWN
Engineer) for all public improvements and facilities to be constructed by or on
behalf of the Developer for the Project. 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
under this or any other SUBDIVIDER’S AGREEMENT regardless of such
Company’s authorization to do business in Texas. Approvals by the TOWN
shall not be unreasonably withheld or delayed.
1) As an alternative to providing a surety bond for performance and a surety
bond for maintenance as specified hereinabove, Developer may provide
financial assurances for performance and maintenance in the form of a
cash deposit, a certificate of deposit, or irrevocable letter of credit.
Provided however, that such alternative financial assurances shall only be
allowed if each meets 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.
2) As an alternative to the Developer providing a performance bond,
payment bond, and maintenance bond, as specified above, Developer
may provide financial assurances for performance, payment and
maintenance from a single general contractor for the Project, provided
that such assurances meet all other requirements specified hereinabove
and the Town is named as a dual obligee on each such bond.
Additionally, such alternative financial assurances shall only be allowed if
each meets 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.
E. The performance bond(s) shall be submitted in statutory form guaranteeing
the full and faithful completion of the facilities and improvements required
under this Agreement for completion of the PROJECT to the TOWN and
provide for payment to the TOWN of such amounts up to the total remaining
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amounts required for the completion of the PROJECT if the work is not
completed as required hereunder.
F. The payment bond(s) shall be submitted in statutory form guaranteeing
payment of all labor and material costs of the Project and shall be furnished
solely for the protection of all claimants supplying labor and material in the
performance of the work provided for under this AGREEMENT. The
maintenance bond(s) shall guarantee the payment of any and all necessary
maintenance of the Project for a period of two (2) years following acceptance
of the public improvements and facilities by the TOWN, in an amount equal
to one hundred (100%) percent of the value of the construction costs of all
the public improvements and facilities to be constructed under this
Agreement in respect to the Project. Notwithstanding the foregoing, prior to
and as a condition of final acceptance of the Project, if the actual cost of the
Project exceeds the amount provided by DEVELOPER's maintenance bond
under this Agreement, TOWN reserves the right to require DEVELOPER to
provide a maintenance bond in the increased amount.
G. Any guarantee of performance, maintenance, or payment instrument (e.g.,
performance bond, payment bond, maintenance 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 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 such time as the
DEVELOPER has fully complied with the terms and conditions of this
AGREEMENT as agreed to in writing by the TOWN, and failure to keep
same in force and effect shall constitute a breach of this AGREEMENT.
Failure to maintain performance and payment Guarantees meeting the
requirements of this AGREEMENT shall result in a stop work order being
issued by the Town. Additionally, all Guarantees furnished hereunder which
expire prior to the completion of construction 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
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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 improvements.
H. It is further agreed and understood by the parties hereto that upon
acceptance thereof by the TOWN of all public improvements and facilities as
described in Section II of this Agreement, title to all such improvements and
facilities shall be vested in the TOWN, and the DEVELOPER hereby
relinquishes any right, title, or interest in and to such improvements and
facilities or any part thereof. It is further understood and agreed that until the
TOWN accepts such improvements and facilities, the TOWN shall have no
liability or responsibility with respect thereto. Acceptance of the
improvements and facilities shall occur at such time as the TOWN, through
its TOWN Engineer, provides the DEVELOPER with a written
acknowledgment that all improvements and facilities are complete, have
been inspected and approved and are being accepted by the TOWN.
I. The DEVELOPER’S Engineer has prepared detailed estimates of
$207,252.00 and the TOWN Engineer has approved an estimate of
$207,252.00 for the cost of public improvements and facilities for this Project.
The detailed cost estimates are a part of this AGREEMENT and are attached
hereto as "Attachment A" and incorporated herein. The TOWN shall not
accept any construction improvements outside of the Project and the two (2)
year warranty for such improvements shall not commence until all
construction activities are completed and accepted by the TOWN.
J. Upon TOWN’S approval and acceptance of the final plat and the engineering
plans, the final plat will be recorded with the County Clerk of Denton County.
No building permits will be issued for any lots in the Project until the final plat
is filed and the public improvements and facilities specified herein are
completed and accepted by the TOWN.
K. The DEVELOPER, DEVELOPER'S contractors (prime, general and major
subcontractors) and TOWN, as well as any other third party deemed
necessary by the Town, shall participate in a pre-construction conference
prior to the initiation of any work. At or prior to the pre-construction meeting,
Developer shall provide the TOWN with the following documents: 1) Two (2)
copies of all executed construction contracts; 2) List of all
contractors/subcontractors and their project assignments; 3) Five (5) sets
(and additional sets as necessary for any contractors) of approved
construction plans and specifications. This list of contractors/subcontractors
shall be updated within seven days of any changes. The DEVELOPER
agrees to give the TOWN at least twenty-four (24) hours prior written notice
of his/her intent to commence construction of all public improvements and
facilities, so that the TOWN, if it so desires, may have its representatives
available to inspect the beginning and continuing progress of all work.
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Developer shall submit all documentation evidencing that each of the
Guarantees required under this Agreement have been provided and all
required insurance has been obtained prior to the pre-construction meeting.
L. The DEVELOPER agrees to notify all contractors and subcontractors
working on the PROJECT that all their work is subject to inspection by a
TOWN Inspector at any time, and that such inspection may require a
certification by the contractors and subcontractors of the type, kind, and
quality of materials used on the PROJECT.
M. Should any work or construction of improvements or facilities on the
PROJECT which has not been contemplated in the current construction
documents (plans and specifications), the plat, or this AGREEMENT,
become necessary due to site conditions, then the DEVELOPER shall be
required to contact in writing (with a copy to the TOWN of Trophy Club), with
the TOWN Engineer to determine how such work or construction should
progress. The DEVELOPER further agrees to follow all reasonable
recommendations and requirements imposed by the TOWN Engineer in such
instance. (Addresses for points of contact are as follows:)
Town of Trophy Club Teague, Nall & Perkins
Mr. Brandon Emmons, Town
Manager
Mr. Tom Rutledge, Town Engineer
100 Municipal Drive 1100 Macon Street
Trophy Club, Texas 76262 Fort Worth, Texas 76102
Phone: 682/831-4600 Phone: 817.336.5773
Fax: 817.490.0705 Fax: 817.336.2813
Email:
bemmons@ci.trophyclub.tx.us
Email: trutledge@tnp-online.com
N. The DEVELOPER agrees to cause all work and construction of
improvements and facilities to be stopped upon twenty-four (24) hour
notification from the TOWN Engineer of nonconforming improvements,
including the materials used and the methods of installation. The
DEVELOPER further agrees to correct all nonconformities in accordance
with the TOWN Engineer’s instructions.
O. The DEVELOPER is encouraged not to convey title of any lots of the
PROJECT, until all construction in respect to the PROJECT required in
Section II is complete and the TOWN has approved and accepted the work
and improvements in respect thereof. The DEVELOPER understands that
the TOWN will issue no Certificate of Occupancy on any lot in the Project
until all public improvements and facilities in respect to the Project are
completed in accordance with this Agreement. Further, DEVELOPER
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agrees to inform all persons or entities purchasing the lots or any interest in
the lots that TOWN will not issue any building permits until all public
improvements and facilities are completed in accordance with this
Agreement.
P. After completion and prior to acceptance of all work, the DEVELOPER must
furnish to the TOWN an affidavit of all bills paid.
Q. MAINTENANCE RESPONSIBILITY FOR COMMON AREAS – all common
areas are private and will be maintained by NISD.
II. PUBLIC IMPROVEMENTS AND FACILITIES TO BE CONSTRUCTED
A. Phase 1. The following public improvements and facilities to be constructed
as Phase 1 of the Project shall be completed in accordance with the approved
plans and specifications as described in Attachment “B”:
1) Public 12” Water Line. The detailed estimates set forth in Section “I”,
Paragraph “I” of this Agreement are exclusively for the 12” Public
Water Line and do not include the costs of any other improvements set
forth in this Agreement.
2) Streets. Segment 4 of Northwest Parkway, as more fully described in
Attachment “B-1” is to be constructed by DEVELOPER in accordance
with the plans and specifications approved by the TOWN. A copy of
Attachment “B-1” is attached hereto and incorporated herein. In a
letter from DEVELOPER to TOWN dated 7/15/2007, DEVELOPER
provided the TOWN with a certification of DEVELOPER’s guarantee of
payment for the construction of DEVELOPER’s portion of Northwest
Parkway and related road infrastructure for the Project as required by
TOWN’s Subdivision Regulations, such letter being herein referred to
as the “Northwest Parkway Construction Guarantee Letter”, a copy of
that letter is attached hereto and incorporated herein as Attachment
“B-2”. In a letter from NISD to TOWN dated August 2, 2007,
DEVELOPER amended the second paragraph of the Northwest
Parkway Construction Guarantee Letter (Attachment “B-2”) to clarify
the location and general design of the Northwest Parkway. The letter
dated August 2, 2007 is attached hereto and incorporated herein as
Attachment “B-3”.
TOWN and DEVELOPER are currently involved in negotiations among
several parties to jointly construct and share costs of the construction
of Northwest Parkway from the intersection of Trophy Club Drive to its
intersection with Highway 377. TOWN and DEVELOPER understand
that the construction plans for Northwest Parkway may vary from those
anticipated when the Final Plat for the Project was approved by TOWN
and when onsite improvements for the Project were approved by
TOWN. DEVELOPER understands and agrees that by commencing
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construction of the Project prior to the design and construction of
Northwest Parkway, DEVELOPER assumes the risks that
requirements for those onsite improvements previously approved by
the TOWN may be changed and/or additional onsite improvements
may be required as a result of the future design and construction of
Northwest Parkway. DEVELOPER further understands and agrees that
DEVELOPER shall assume any and all costs associated with changes,
revisions, removal, replacement or addition of any onsite
improvements that may be required in order to comply with TOWN’s
Subdivision Regulations. In the event that the design of Northwest
Parkway is not commenced by February 1, 2008, DEVELOPER
understands and agrees that this Agreement shall be amended to
address the design and construction of Northwest Parkway by
DEVELOPER and to provide all required bonding and insurance as
required by the Subdivision Regulations. DEVELOPER further
understands that a certificate of occupancy will not be issued for the
Project until such time as Northwest Parkway is completed and
accepted by TOWN.
3) Sanitary Sewer. DEVELOPER has entered into a contract with a third
party to provide for the design and construction of a waste water lift
station to serve the Project and meeting all requirements of TOWN
(hereinafter “Lift Station”), a copy of the contract is attached hereto as
Attachment “B-4”. DEVELOPER warrants that the Lift Station shall be
designed to serve and accommodate the waste load of DEVELOPER
for the Project. DEVELOPER shall construct the means and methods
of delivering the waste water via private underground pipe(s) to the
main waste pipes leading up to and feeding into the Lift Station.
Through separate instrument specified by the TOWN, DEVELOPER
shall grant a utility easement to the Town for the purpose of
maintaining such line(s). DEVELOPER understands that the Lift
Station and all related improvements must be constructed in
accordance with Town design standards and applicable ordinances.
DEVELOPER further understands that a certificate of occupancy will
not be issued for the Project until such time as the Lift Station and all
related improvements are completed and accepted by TOWN.
B. Other.
1. Bench marks to be located as shown on the approved plans.
2. Upon completion, three (3) sets of as-builts/record drawings and one (1)
set of reproducible (Mylar) drawings shall be submitted to the TOWN
within two (2) months following the acceptance of the public
improvements and facilities.
3. Testing
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The Developer shall provide all geotechnical and materials tests required
by the TOWN Engineer and TOWN Inspector at the DEVELOPER’S cost
in accordance with Section 7.03 of Article 7, Chapter 12, of the Town’s
Code of Ordinances. Such tests shall be conducted by an independent
laboratory acceptable to the Town.
4. Permits
The DEVELOPER will pay a Community Facilities inspection fee in the
amount of $10,362.60 (5% of $207,252.00) to cover the cost of TOWN
inspection fees as related to the construction of the Project. The
Developers may be obligated to pay other TOWN fees as set forth in the
TOWN’S Schedule of Fees, as may be amended from time to time. The
DEVELOPER will be responsible for obtaining any other permits which
may be required by other federal, state or local authorities.
5. Planned Development District No. 28, Northwest High School No. 2.
Developer shall construct and maintain all improvements in accordance
with the TOWN approved Planned Development District No. 28 and all
TOWN approved amendments thereto.
III. GENERAL PROVISIONS
A. The DEVELOPER agrees to furnish and maintain at all times prior to the
TOWN’S final acceptance of the public improvements and community
facilities for the Project, an owners protective liability insurance policy naming
the TOWN as insured for property damage and bodily injury in the amounts.
Coverage shall be on an “occurrence” basis and shall be issued with a
combined bodily injury and property damage minimum limit of $600,000 per
occurrence and $1,000,000 aggregate.
B. Exclusive venue of any action brought hereunder shall be in Denton, Denton
County, Texas.
C. Approval by the TOWN Engineer of any plans, designs or specifications submitted
by the DEVELOPER pursuant to this AGREEMENT shall not constitute or be
deemed to be a release of the responsibility and liability of the DEVELOPER, his
engineer, employees, officers or agents with respect to the construction of any of the
PROJECT’S improvements or facilities, or for the accuracy and competency of the
PROJECT’S improvements and facilities design and specifications prepared by the
DEVELOPER'S consulting engineer, his officers, agents, servants or employees, it
being the intent of the parties that the approval by the TOWN Engineer signifies the
TOWN'S approval on only the general design concept of the improvements and
facilities to be constructed. To the extent allowed by law, the DEVELOPER shall
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release, indemnify, defend and hold harmless the TOWN, its officers, agents,
servants and employees, from any demands, actions, causes of action, obligations,
loss, damage, liability or expense, including attorneys fees and expenses, on account
of or with respect to damage to property and injuries, including death, to any and all
persons which may arise out of or result from any defect, deficiency or negligence in
the construction of the PROJECT’S public improvements and facilities or with
respect to the DEVELOPER'S Engineer’s designs and specifications incorporated
into any improvements and facilities constructed in accordance therewith, and the
DEVELOPER shall defend at his own expense any suits or other proceedings
brought against the TOWN, its officers, agents, servants or employees, or any of
them, on account thereof, and pay all expenses and satisfy all judgments which may
be incurred or rendered against them or any of them in connection herewith. All
responsibility and liability for drainage to adjacent and downstream properties from
development of this PROJECT will accrue to the DEVELOPER.
D. Liability for construction. To the extent allowed by law, the DEVELOPER, its
successors, permittees, permitted assigns, vendors, grantees and/or trustees
do hereby fully release and agree to indemnify, hold harmless and defend
the TOWN, its officers, agents, servants and employees from all losses,
damage liabilities, claims, obligations, penalties, charges, costs or expenses
of any nature whatsoever, for property damage, personal injury or death,
resulting from or in any way connected with this contract or the construction
of the improvements or facilities or the failure to safeguard construction work,
or any other act or omission of the DEVELOPER or its contractors or
subcontractors, their officers, agents, servants or employees related thereto.
E. Final Acceptance Of Infrastructure. The TOWN will not issue a Letter of
Acceptance until all public facilities and improvements are completely
constructed (Final Completion) to the satisfaction of the TOWN Engineer or
his agent. However, upon Substantial Completion, a “punch list” of
outstanding items shall be presented to the Developer’s contractor(s)
indicating those outstanding items and their deficiencies that need to be
addressed for Final Completion of the Improvements.
F. Neither this Agreement nor any part hereof or any interests, rights, or
obligations herein, shall not be assigned by the DEVELOPER without the
express written consent of the TOWN Council.
G. All work performed under this AGREEMENT shall be completed within
eighteen months from the date hereof. In the event the work is not
completed within the eighteen (18) month period, the TOWN may, at its sole
election, draw down or otherwise exercise it rights under or with respect to
any Guarantee provided by the DEVELOPER and complete such work at
DEVELOPER'S expense; provided, however, that if the construction under
this AGREEMENT shall have started within the eighteen (18) month period,
the TOWN may agree to renew the AGREEMENT with such renewed
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AGREEMENT to be in writing and in compliance with the TOWN policies in
effect at that time. Notwithstanding the foregoing, in the event that the
performance by either party of any of its’ obligations or undertakings
hereunder shall be interrupted or delayed by any occurrence and not
occasioned by the conduct of either party hereto, whether such occurrence
be an act of God or the common enemy or the result of war, riot, civil
commotion, or sovereign conduct, then upon written notice of such
occurrence, such party shall be excused from performance for a period of
time as is reasonably necessary after such occurrence to remedy the effects
thereof, and each party shall bear the cost of any expense it may incur due to
the occurrence.
H. This Subdivider's AGREEMENT shall be construed in accordance with the
Town of Trophy Club, Texas Subdivision Regulations and all other applicable
ordinances. Any conflicts between the provisions of this Subdivider’s
AGREEMENT, the TOWN'S Subdivision Regulations, Town Ordinances, and
State and Federal law, shall be construed in favor of the Town’s ordinance(s)
as allowed by law, subject to Chapter 245 of the Local Government Code.
To the extent that any such conflict exists, only that portion of the
Subdivider’s AGREEMENT which is in conflict shall be severable from the
other provisions of the AGREEMENT, and such conflict shall in no manner
affect the validity or enforceability of the remaining provisions.
I. All rights, remedies and privileges permitted or available to the TOWN under
this AGREEMENT or at law or equity shall be cumulative and not alternative,
and election of any such right, remedy or privilege shall not constitute a
waiver or exclusive election of rights, remedies or privileges with respect to
any other permitted or available right, remedy or privilege. Additionally, one
instance of forbearance by the Town in the enforcement of any such right,
remedy or privilege, shall not constitute a waiver of such right, remedy or
privilege by the Town. A default under this Agreement by the TOWN shall
not result in a forfeiture of any rights, remedies, or privileges under this
Agreement by the TOWN.
SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER:
By:
Date:
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By:
Project Manager
Date:
TOWN OF TROPHY CLUB:
By:
Mayor, TOWN of Trophy Club
ATTEST:
___________________________
Town Secretary, Town of Trophy Club
Date: ______________________
APPROVED AS TO FORM:
____________________________
Town Attorney, Town of Trophy Club
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.C.2
Consent Agenda: Discuss and take appropriate action to approve Minutes dated,
August 20, 2007.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(lmr)
Attachments: 1. Minutes dated August 20, 2007
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MINUTES OF A BUDGET WORKSHOP/REGULAR TOWN COUNCIL
MEETING FOR THE
TOWN OF TROPHY CLUB
LOCATION: 100 MUNICIPAL DRIVE, TROPHY CLUB, TEXAS
Monday, August 20, 2007
5:00 P.M.
STATE OF TEXAS §
COUNTY OF DENTON §
The Town Council of the Town of Trophy Club, Texas, met in a Budget Workshop/Regular Session on
Monday, August 20, 2007. The meeting was held within the boundaries of the Town and was open to the
public.
TOWN COUNCIL MEMBERS PRESENT:
Nick Sanders Mayor
Susan Edstrom Mayor Pro Tem
Pam Cates Council Member
Jim Moss Council Member
Philip Sterling Council Member
Kathleen Wilson Council Member
STAFF AND GUEST(S) PRESENT:
Brandon Emmons Town Manager
Lisa Ramsey Town Secretary
Patricia Adams Town Attorney
Sakura Moten-Dedrick Finance Director
Danny Thomas Fire Chief
Carolyn Huggins Planning Coordinator
Scott Kniffen Police Chief
A.1 Mayor Sanders called the Regular Session to order at 5:08 p.m. noting a quorum was present.
A.2 Budget Workshop (5:00 - 7:00 P.M.)
A. Explanation of insurance costs by Rodney Dryden from Wellspring Insurance Agency.
Mayor Sanders introduced Insurance Broker, Rodney Dryden from Wellspring Insurance Agency.
Finance Director Sakura Moten-Dedrick gave a brief history of the past years medical rates. Rodney
Dryden from Wellspring Insurance Company explained HSA which Council requested be researched for
the next fiscal year. The consensus of the Council was to stay with Aetna and reduce the dependent
coverage to 25%.
Dedrick spoke to revenues and expenses and listed the items that staff felt could be cut. Mayor Pro Tem
Edstrom is not in favor of cutting back the pool hours. Council member Wilson asked if the Town has
ever asked the MUDs to share in Park operational expenses. Town Manager Emmons and Mayor
Sanders said the MUDs were asked during the discussions regarding affluent water for park and
irrigation.
Mayor Pro Tem Edstrom and Council member Cates feel they need to meet next week in order to have a
comfortable understanding of the numbers. Council has mixed feelings about the cuts suggested to the
Parks and Recreation budget.
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Council directed staff to prepare the budget supporting no tax increase.
A.3 Fire Chief Danny Thomas gave the Invocation.
A.4 Council member Moss led the Pledges.
A.5 Citizen presentations:
No citizens addressed Council.
All matters listed as Consent Agenda are considered to be routine by the Town Council and will be
enacted by one motion. There will not be a separate discussion of these items. If discussion is desired,
that item will be removed from the consent agenda and will be considered separately.
Motion made by Council member Sterling; seconded by Council member Moss to approve the Consent
Agenda, Item B.1.
Motion passed unanimously without any discussion
B.1 Consent Agenda: Discuss and take appropriate action to approve Minutes dated, July 13, 2007.
End of Consent Agenda
TOWN COUNCIL CONVENED INTO PUBLIC HEARING.
PUBLIC HEARING
C.1 Public Hearing: Town Council to conduct a Public Hearing regarding the budget and proposed tax
rate increase for fiscal year October 1, 2007 to September 30, 2008.
Public Hearing Opened at 7:05 p.m.
Roger Williams, 215 Phoenix Drive – Spoke in favor of the 1.6% tax increase, and requests the Council
take another look at the P & R budget. Suggested all dept take a 2 to 3% budget cut.
Mayor Sanders announced the Town Council will be voting on the 2007-08 tax rate on September 24,
2007, during their Regular Session, which starts at 7:00 P.M. The meeting will be held here in the
Council Chambers.
Public Hearing Closed at 7:10 p.m.
TOWN COUNCIL RECONVENED INTO REGULAR SESSION
*REGULAR SESSION
D.1 Discuss and take appropriate action regarding a request from Carter & Burgess, Inc. on behalf of
831 Trophy, L.P./Centurion Acquisitions, L.P. to approve a Preliminary Plat and a Final Plat of
Trophy Club Drive, Phase 1 Master Improvements (2.341 acres). FP-07-022 Final Plat Approval
for Trophy Club Drive, Phase 1 Master Improvements.
A. Discuss and take appropriate action relative to a Subdivider's Agreement for Phase 1, Master
Improvements
Representatives present were Jim Wiegert from Carter & Burgess and Robert Mikloes from Hughes and
Luce.
Planning and Zoning Chairman, Gene Hill reported the applicant has subsequently split this plat out from
the Master Improvement plats because of concerns about the Public Improvement District bonds. In
order to move ahead with development of the Highlands Neighborhoods 3 & 4, the Commission
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considered a request on August 16th, by the developer to approve a Preliminary Plat and a Final Plat of
Trophy Club Drive, Phase 1 Master Improvement. Since the 2.341 acres in the plat had been previously
considered in detailed discussion by the Commission there was little discussion or review at the August
16, 2007, meeting, prior to a unanimous favorable recommendation.
Town Manager Emmons added the Town’s engineer; Tom Rutledge reported no substantial issues.
Motion made by Moss, seconded by Edstrom to approve.
Main motion passed unanimously without further discussion.
In reference to sub-section A., Town Attorney Adams spoke to the changes listed in the handout. Town
Manager Emmons said depending on Robert Mikloes’ comments, the form is acceptable for approval.
Robert Mikleos requested this item be moved under D. 6.
D.2 Discuss and take appropriate action regarding an Ordinance calling a Charter Amendment
Election for November 6, 2007 and approving the terms and conditions of a Contract for Election
Services with Denton County.
Council member Moss asked how Proposition 2, transferring the authority to appoint the Town
Secretary from the Town Council to the Town Manager with the Council being required to
approve the appointment by a majority vote originated. Town Manger Emmons responded this
amendment was suggested by the previous Charter Review Group and is consistent with other
cities. Mayor Sanders added under the current Charter, the Council would be responsible for
interviewing for this position; this amendment would give the Town Manager the authority to
interview and review the Town Secretary with Council approving the appointment.
Council agreed for the amendment to be placed on the ballot.
Motion made by Cates, seconded by Wilson to approve the Ordinance.
Mayor Pro Tem Edstrom requested the ballot language be included in the next water bill, sent on listserv,
posted on Channel 27 and the marquee.
Motion passed unanimously without further discussion.
D.3 Discuss and take appropriate action regarding an amendment to Section 5.04 (A)(1) of Article V,
Chapter 8 of the Code of Ordinances relating to providing liability insurance of PODS units and
Section 5.04 (D)(1) relating to the number of PODS unit that may be placed upon any residential
property at one time.
Town Manager Emmons said the amendments allow for two PODs to be placed upon any residential
property at one time and removes the insurance requirement from the permit submittal.
Mayor Pro Tem Edstrom asked how many residents have expressed a concern. Town Manager Emmons
said that he has heard from three personally and the permit department has taken several calls.
The item was not considered for a lack of a motion.
D.4 Discuss and take appropriate action regarding an Interlocal Agreement between the Town of
Trophy Club and the Town of Flower Mound for the lease of two police vehicles to Trophy Club.
Town Manager Emmons introduced the item and said maintenance and upkeep will be provided by the
Town. Chief Kniffen said two department vehicles will be taken out of service and auctioned off.
Motion made by Moss; seconded by Edstrom to approve.
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Council member Cates confirmed these vehicles would not be able to patrol Marshall Creek Park given its
current condition.
Motion passed unanimously without further discussion.
D.5 Discuss and take appropriate action relative to the Interlocal Agreements between the Town and
the Trophy Club MUDs to provide water supply and wastewater treatment and operational
services to the Town.
Mayor Sanders announced this item is to provide direction to Council members Wilson and Cates for the
Task Force meeting scheduled for tomorrow.
Motion made by Edstrom; seconded by Cates to go into Executive Session for legal advice regarding
these documents.
Town Council convened into Executive Session at 7:41 P.M.
Town Council reconvened into Regular Session at 8:14 P.M.
Mayor Sanders explained the two agreements. Mayor Pro Tem Edstrom feels based on Counsel’s advice
the agreement should be with a recognizable public agency. Council member Moss does not see a
reason for the Master District to be a party to the payment agreement. Council member Sterling agreed;
adding that it is more appropriated from the Master District to be party to the operational agreement.
No action taken.
D.6 Discuss and take appropriate action regarding the Service and Assessment Plan for Emergency
Services for the Trophy Club Public Improvement District No. 1 (The Highlands at Trophy Club).
Subsection A from D.1 was addressed.
A. Discuss and take appropriate action relative to a Subdivider's Agreement for Phase 1, Master
Improvements
Robert Mikleos, Hughes and Luce said he has reviewed the Subdivider’s Agreement and requested the
Council approve the agreement.
Motion made by Edstrom; seconded by Cates approving Item D.1.A, changing the name to Trophy L.P.
831, approving the revisions to section H, as provided in the handout and removing the reference to
sewer.
Council member Sterling pointed out a clerical error on page 4.
Motion passed unanimously without further discussion.
On Item D.6, Town Manager Emmons commented there have not been a lot of changes since the last
time this was presented to Council. This is the annual supplemental plan which will deal with Emergency
Services only and the intent is to have this adopted prior to October 1st, in order to have the assessment
calculated in this year’s property assessment.
Council member Cates questioned why the Emergency Service Rate is more than the Fire assessment
rate. Town Manager Emmons explained the existing emergency services are fully funded by the affluent
taxes. This portion will be paid by the advolrum taxes as the cost increases with the PID.
No action taken, update only. The Public hearing is tentatively scheduled for September 24th, 2007 with
target approval date scheduled for October 8th, 2007.
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D.7 Discuss and take appropriate action regarding various revisions to the Handbook for Elected and
Appointed Officials:
A. Discuss and take appropriate action regarding Section 3, Conduct of Town Officials.
Motion made by Edstrom, seconded by Moss to remove Section 3 in its entirety from handbook.
Council member Cates does not see the harm in leaving Section 3 as it is positively stated. Council
members Sterling and Wilson also agreed that it should stay in.
Greg Lamont, 15 Avalon Drive – Supports the Ethics Section of the Handbook.
Bob Radder, 1 Lee Court – Looks forward to the investigation by the Texas Ethics Commission as
initiated by Greg Lamont.
Council member Moss feels even stronger about his position. Mayor Pro Tem Edstrom wants to be sure
the Council protects the committee members so they still feel free to address the council. Council
member Sterling thinks the ethics pledge is a personal pledge and serves more as a reminder of how one
should conduct themselves.
Mayor Sander asked for a point of clarification on Section 3, Conduct of Town Officials , stating this
section is not in the existing handbook and is a proposed change. The motion was to remove the
proposed Section 3 in its entirety. If Council wishes to add Section 3, another motion will need to be
made. NOT SURE ABOUT THIS – SEEMS STRANGE 37.16
Motion passed to remove the proposed Section 3 in its entirety, 3:2; with Council members Wilson and
Sterling opposing.
Motion made by Sterling; seconded by Cates to insert section 3, as on page 99 of the packet, removing
the word "Add" and including the bullet of “I will keep my comments germane to the issues before the
Council.” THIS IS UNCLEAR ALSO AS TO WHAT WE WERE DOING
Motion passed 3:2; with Edstrom and Moss opposing.
B. Discuss and take appropriate action regarding Section 19, Compliance for Enforcement.
Motion made by Edstrom; seconded by Cates to remove Section 19.
Mayor Pro Tem Edstrom does not feel this section is necessary as Council has the authority to remove
members of Boards. Council member Sterling agreed.
Motion passed unanimously without further discussion.
C. Discuss and take appropriate action regarding Section 20, Procedures for Enforcement.
Motion made by Edstrom; seconded by Cates to remove.
Council member Cates feels the process as written, in section 20 has already caused too many problems
and should be removed.
Motion passed unanimously without further discussion.
D. Discuss and take appropriate action regarding any other sections of the Handbook for Elected
and Appointed Officials.
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Motion made by Council member Moss; seconded by Wilson to accept the Handbook with the previous
revisions.
E. Discuss and take appropriate action regarding an effective date.
No action taken on an effective date. Staff will make the approved changes and bring back with the
Resolution at the September 10, 2007 meeting.
D.8 Discuss and receive input relative to potential amendments to Section 4.05(B)(2) of Article IV,
Chapter 5 of the Code of Ordinances relating to number, size and placement of political signs.
Town Manager Emmons introduced the item requesting Council’s input and direction in order to formulate
the changes.
Mayor Pro Tem Edstrom would like to limit the number of signs in any given yard to the number of open
seats or candidate positions. Council discussed the right of way and Town Manager Emmons explained
section 5 has an exemption for temporary signs.
No action taken only input.
D.9 Town Manager Emmons to designate an Acting Town Manager.
Town Manager Emmons said his past practice has been to rotate this designation. Emmons designated
Police Chief Scott Kniffen, advising his intent to designate Stephen Seidel once he has settled into his
position as Assistant Town Manager.
D.10 Items for Future Agenda.
Council member Sterling would like to reduce the time limit from six months to 30 days for trash
dumpsters to be kept at construction sites.
Council member Cates requested an Item to discuss the future of Beck Park.
D.11 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) EDC 4A Liaison, Council member Moss gave his report.
b) EDC 4B Liaison, Council member Sterling gave his report.
c) Town Manager Emmons gave his Report.
E.1 Adjourn.
Motion made by Sterling, seconded by Edstrom to adjourn.
Meeting adjourned at 9:34 p.m.
__________________________________ _____________________________
Lisa Ramsey, Town Secretary Nick Sanders, Mayor
Town of Trophy Club, Texas Town of Trophy Club, Texas
36
COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.C.3
Consent Agenda: Discuss and take appropriate action to approve financials and
variance report dated August 2007.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Aug 2007 Variance Report
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.1
Discuss and take appropriate regarding an amendment to the Subdivider's
Agreement for the Highlands - Turnberry, Neighborhood 3 and 4 as requested by
Hillwood Development
EXPLANATION:
The Developer requested an amendment to the Subdivider’s Agreement to allow an
arrangement for the issuance of building permits for Phase 1B under terms similar to
the arrangement for the issuance of building permits for Phase 1A. The Agreement has
been amended to allow building permits to be issued for 20% of the 178 homes
proposed to be constructed in Phase 1(B) subsequent to the completion of Street
Improvements, Drainage and Storm Sewer Improvements, Sewer, Water Distribution
System, and Retaining Walls. This would allow for the issuance of approximately 36
homes prior to the completion of all required nfrastructure and is the same as that
previously approved by the Council for Phase 1A. Just as with Phase 1A, certificates
of occupancy will not be issued for Phase 1B until all items have been completed and
finally approved by the Town.
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Redlined Copy of SubDivider’s Agreement
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D2
Discuss and take appropriate action to appoint a chairman and vice-chairman of the
Planning and Zoning Commission.
The Chairman and Vice-Chairman will serve at the pleasure of the Town Council. The
Chairman shall preside over all meetings of the Commission. The Vice-Chairman shall
perform the duties of the Chairman in his or her absence or inability to act.
Reference Chapter 13, Section 8.04 of the Code of Ordinances:
H. Officers: The Town Council shall appoint a chairman and vice-chairman of the
Planning and Zoning Commission to serve at the pleasure of the Town Council. The
Chairman shall preside over all meetings of the Commission. The Vice-Chairman shall
perform the duties of the Chairman in his or her absence or inability to act.
Gene Hill has been Planning and Zoning Commission Chairman since 2000 and served
as the Vice-Chairman prior to 2000.
The following are the members of the Planning and Zoning Commission:
Planning and Zoning Commission
Dale Forest (2009) Robert Ashby (2008)
Gene Hill (2009) Dennis Sheridan (2008)
Clayton Reed (2009) James Stephens (2008)
Alejandro Sanchez (2009)
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.3
Discuss and provide input relative to an amendment to Chapter 5, of the Code of
Ordinances of the Town, entitled "General Land Use", Article IV, entitled "Sign
Regulations", in response to complaints received on the signs at the Value Place
hotel.
(Council member Wilson)
Value Place Hotel signs are regulated by the Town of Trophy Club Sign Regulations,
Chapter 5, Article IV. In addition, the hotel must adhere to the regulations in Planned
Development (PD) No. 25, Trophy Wood Center, Ordinance No. 2002-41 P&Z
(attached) which was approved by the Town Council on December 2, 2002. The
ordinance requires that Town approval must be obtained for the following items:
Landscape Plan & Plant List
Building Elevations
Site Line Studies
Civil Site Plan
Photometric Plan and Light Fixtures
Sign Criteria
Retaining Wall and Fence Criteria
Development Schedule
The “Development Standards” (Exhibit C) (attached) of PD-25 further clarify the
approval needed:
“Prior to the issuance of a building permit for the Land or any part
thereof, an overall sign plan, accompanying the Final Site Plan for
the land must be approved by the Town Council upon
recommendation from the Planning & Zoning Commission.
Additionally, written signage standards shall be approved by the
Town Council upon recommendation of the Planning & Zoning
Commission at a later date, in the form of an amendment to this
Ordinance.”
On October 2, 2006, the “Final Detailed Site Plan” for Value Place Hotel was presented
to the Town Council for approval. This plan included Sign Criteria.
57
Exhibit 5.6 (attached) of the Final Detailed Site Plan was the Sign Criteria for the Value
Place Hotel. Four signs were requested: one monument sign, and three wall signs. A
cabinet structure electronic message center wall sign was planned for the south side of
the building only, but in February 2007 a revision was requested to add an electronic
message center to the back (east) elevation and this was approved administratively
(attached).
Regarding the neon features of the Value Place Hotel signs,
Under Section 4.03 General Standards, Item C. Illuminated Signs:
“Neon signs shall be permitted by meritorious exception as
provided for in Section 4.11 [sic] – Meritorious Exceptions &
Appeals.”
Meritorious Exceptions are granted by the Town Council and with
the Value Place Hotel signs this request was considered granted as
part of the Final Detailed Site Plan.
The Value Place Hotel signs are in compliance with all other Town of
Trophy Club sign requirements for monument and wall signs.
Summary: Any development occurring on a “Planned Development”
zoned property gives the Town Council the ability to examine and request
changes to the sign criteria. There are certain features, such as neon,
that are at the discretion of the Town Council, as are other features that
ask for more than allowed by the Town’s sign regulations.
Attachments: 1. Email request by Council member Wilson
2. Insert of Minutes dated October 2, 2006
3. Ordinance No. 2002-41 P&Z
4. Development Standards, Trophy Wood Center
5. Sign Criteria Approved as part of Site Plan Approval for Value Place
Hotel
6. Chapter 5, Article IV, Sign Regulations, Town of Trophy Club
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Minutes dated October 2, 2006
A.3 Work Session:
Town Manager Emmons spoke about Items D.1 and D.11. Under D.1 all items were presented to the P &
Z commission on 8-21. The zoning is already in place, should not be talking about land use, only
the submittals that are in the packet.
P & Z Chairman Hill provided that the lights on the building will be downcast, the light fixtures are shielded
and the signage meets the Town Criteria. The neon tubes will not be seen in the neon lighting as
the neon tubes are set back. Hill said that the P & Z and staff feel that all Zoning requirements
have been met.
Town Manager Emmons noted that the median landscaping options will vary dependent on sequencing.
Option A is to be used at a minimum of 0% and a maximum of 33% and that median landscape
options may not vary within an individual median.
Mayor Pro Tem Williams commented that we were to save money by changing the medians to ground
cover which did not occur and voiced concern that we are too restrictive in order to try and save
costs when we have no idea of what will work. P & R Director Adams said that using effluent
water for the medians would help, as watering was a big cost this past year.
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.4
Presentation by Davis Palmer regarding Council working relations and working
better together and discussion of same.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(SLD)
Attachments: None
111
COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.5
Discuss and take appropriate action regarding an Ordinance denying the rate
increase proposed by the ATMOS ENERGY Corporation, Mid-Tex Division;
Authorizing Participation in a Coalition of Cities known as ATMOS Texas
Municipalities ("ATM"); Authorizing the hiring of Lawyers and Rate Experts;
Requiring the Reimbursement of Municipal Rate Case Expenses: Finding that the
meeting complied with the Open Meetings Act; Making other Findings and
Provisions Related to the Subject; and Declaring an Effective Date.
EXPLANATION:
A staff email, member information and Ordinance are provided below for your review
and action.
RECOMMENDATION: Approval of the Resolution denying the rate increase.
ACTION BY COUNCIL:
Attachments: 1. Email
2. Denial of ATMOS Energy Rate Increase Request
3. Ordinance
4. List of ATM Cities
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From: Jim Boyle [mailto:jboyle@herreraboylelaw.com]
Sent: Tuesday, October 02, 2007 9:06 AM
To: Brandon Emmons
Subject: ATMOS RATE CASE
BRANDON: Atmos is working hard to try and get cities to approve the rate
increase. The inducement is to offer an MFN. This is a strategy used to
weaken municipal participation. It has the effect of the city giving up municipal
jurisdiction over the rates of the local gas utility. This is something that Atmos
pushed for last session. In the next two weeks there is going to be a lot of
activity in this case. I have attached the an ordinance with an agenda
explanation. Please give me a call when you have time. Thanks.
Best regards, Jim
Jim Boyle
Herrera & Boyle, PLLC
816 Congress Ave., Ste. 1120
Austin, Texas 78701
512-474-1492 (office)
512-474-2507 (fax)
512-585-1492 (mobile)
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AGENDA INFORMATION SHEET
ITEM NO.
BACKGROUND
On September 20, 2007, Atmos Energy Corporation (“Atmos” or “Atmos Energy”) filed a
rate filing package with the City Secretary to increase rates by approximately $52
million. According to Atmos, the average residential customer will see an increase
of $1.57/month while the average small commercial customer will see an increase of
$9.21/month. Atmos has asked for a profit guarantee mechanism to be implemented
which could push rates even higher for those customers. This increase is in addition
to future GRIP increases in rates.
The current rate case was filed within five weeks after completion of the last rate
case at the Railroad Commission. In that case, Atmos requested an increase of $59
million. The Railroad Commission awarded $4.8 million of that request. Atmos
got less than 10% of what it requested.
Much of what is being requested by Atmos in the current proceeding was rejected
by the Commission in the case that concluded on August 14, 2007.
Cities are given only 35 days to act on rate requests under Texas law; failure to act
within that time period means that the requested increase goes into effect by
operation of law. Since Atmos filed the current rate case on September 20, 2007,
the City must act by October 25, 2007.
ATMOS TEXAS MUNICIPALITIES (“ATM”)
The Alliance of Atmos Texas Municipalities (“ATM”) has been an active
participant in proceedings at the Railroad Commission of Texas (“RCT”) since the
mid-90s. In 2002, ATM took the lead in filing Motions to Dismiss GUD Docket
DENIAL OF ATMOS ENERGY RATE
INCREASE REQUEST
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No. 9304 1 and GUD Docket No. 9292.2 The RCT Commissioners agreed with
ATM and dismissed both of these cases.3 The Applications dealt with statewide
surcharges sought by TXU Pipeline. The surcharges would have been imposed on
TXU Gas Distribution residential and commercial customers. ATM sought
municipal rate case expenses for both proceedings.4 The Commissioners entered
an order in GUD Docket No. 9335 granting ATM’s request.5
While many of the ATM cities are small in size, they have been extremely active
as regulators. For example, several of the ATM cities established important
precedents for what should be included in the notice of rate change. These cities
adopted “Notice” ordinances in order to have notices published which are easy to
understand and meaningful to ratepayers. TXU Gas appealed the Notice
ordinances to the Commission and the RCT properly held that the cities were the
final authority in determining what should be in the notice.6 Some of these cities
also adopted Rate Filing Package ordinances since the RCT had no rules on this
subject. These ordinances were also appealed to the Commission where they were
consolidated with the appeals of the notice ordinances. In connection with these
appeals, the Commission ruled that the cities had exclusive jurisdiction to decide
what should be provided with the Rate Filing Package.7
ATM also played a major role in the disallowance of the costs related to the
removal and replacement of Poly 1 Pipe in TXU’s most recent general rate case.
This was the largest adjustment in the last general rate case for TXU Gas. The
adjustment removed more than $130 million from rate base. TXU Gas was sold to
Atmos Energy in October 2004.
1 ATM’s Motion to Dismiss, Statement of Intent of TXU Lone Star Pipeline to Establish an Integrity and Safety
Assessment for Recovery of Pipeline Assessment and Management Expenses and Class Location Charges, GUD
Docket No. 9304 (June 24, 2002).
2 ATM’s Motion to Dismiss, Statement of Intent of TXU Lone Star Pipeline to Establish Rates, GUD Docket No.
9292 (April 17, 2002).
3 GUD Docket No. 9604, Order of Dismissal, GAS UTIL. BULL. NO. 706 at 13-14 (August 26, 2002); GUD
Docket No. 9292, Order of Dismissal, GAS UTIL. BULL. NO. 702 at 3 (June 25, 2002).
4 Petition of the Association of TXU Municipalities for Recover of Rate Case Expenses Related to GUD Docket
Nos. 9292 and 9304, GUD Docket No. 9335 (September 6, 2002).
5 GUD Docket No. 9335, Final Order, GAS UTIL. BULL. NO. 716 at 5-7 (January 27, 2003).
6 GUD Docket Nos. 9267-9270, 9278-9279, & 9284-9288, Appeals by TXU Gas Distribution of Ordinances
Adopted by the Cities of Leander, Greenville, Burnet, Corsicana, Manor, Bertram, Gatesville, Longview and
Denton, Order Granting Appeal of Interim Ruling, GAS UTIL. BULL. NO. 706 at 9 (August 26, 2003).
7 Id.
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ATM was also very active in the recently concluded general rate case of Atmos
Energy, GUD Docket No. 9670. Atmos requested an increase of $57 million, but
was awarded an increase of $4.8 million. This is less than 10% of the requested
amount. The case was about more than increasing revenues, but it was also about
who would pay for the base rate costs of Atmos. ATM led the effort to prevent
low income and fixed income customers from being unfairly charged for the base
rate costs of the Atmos system.
ATM was very active at the Capitol this last session. ATM opposed legislation
which would have made it difficult for small and medium-sized cities to participate
at the Railroad Commission. The ATM lobbying team donated all of its time and
expenses to the coalition.
In the case currently pending before the City, rate experts will be selected based
upon recommendations of Special Counsel. The City will need to designate a
person to participate with the Steering Committee.
DENIAL OF RATE INCREASE IS MOST APPROPRIATE AT THIS TIME
The requested increase in rates should be denied. There are a number of reasons
why this is appropriate. In part, it is appropriate to deny the rate request because:
Atmos is requesting an increase in rates based upon several adjustments
to its cost of service which were recently rejected by the Railroad
Commission of Texas;
The requested design of the rates puts more of the cost of gas utility
operations on low-use residential customers who often are in the worst
position to absorb such cost increases;
The request asks that a rate mechanism to be implemented which
provides a disincentive to reducing costs and becoming more productive
or efficient; and
Atmos is requesting an 11% return on equity which is excessive.8
8 In March 2007, the Railroad Commission set Atmos’ return at 10%. This was before the recent interest rate
reduction by the Federal Reserve Board.
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RECOMMENDATION
ATM recommends that the requested increase in rates and revenue requirement by Atmos
Energy be denied in all respects. Under the Gas Utility Regulatory Act,
municipalities are to be reimbursed for their reasonable rate case expenses.
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TOWN OF TROPHY CLUB
ORDINANCE NO. 2007-XX
AN ORDINANCE DENYING THE RATE INCREASE
PROPOSED BY THE ATMOS ENERGY CORPORATION,
MID-TEX DIVISION; AUTHORIZING PARTICIPATION IN A
COALITION OF CITIES KNOWN AS ATMOS TEXAS
MUNICIPALITIES (“ATM”); AUTHORIZING THE HIRING
OF LAWYERS AND RATE EXPERTS; REQUIRING THE
REIMBURSEMENT OF MUNICIPAL RATE CASE
EXPENSES; FINDING THAT THE MEETING COMPLIED
WITH THE OPEN MEETINGS ACT; MAKING OTHER
FINDINGS AND PROVISIONS RELATED TO THE
SUBJECT; AND DECLARING AN EFFECTIVE DATE
WHEREAS, Atmos Energy Corporation – Mid-Tex Division (“Atmos”) filed a
Statement of Intent with the Town of Trophy Club, Texas (“Town”) on September 20,
2007 to increase its system-wide, annual revenue requirement, by approximately $51.9
million; and
WHEREAS, the Town is a regulatory authority under the Gas Utility Regulatory
Act (“GURA”) and under § 103.001 of GURA has exclusive original jurisdiction over
Atmos’ rates, operations, and services of a gas utility within the municipality; and
WHEREAS, Atmos has provided very limited explanation for its increase in rates;
and
WHEREAS, Atmos is seeking to significantly increase rates for low-use
residential customers by raising the customer charge and by lowering the charge for the
consumption of gas; and
WHEREAS, Atmos has had five rate increases in the last three years and Atmos
just finished its last general rate case on August 14, 2007 at the Railroad Commission
of Texas; and
WHEREAS, Atmos is seeking to increase rates for many of the cost items which
were recently rejected by the Commission; and
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WHEREAS, in order to maximize the efficient use of resources and expertise in
reviewing, analyzing and investigating Atmos Energy’s request for a $51.9 million
increase in rates it makes sense to coordinate the Town’s efforts with a coalition of
similarly situated municipalities; and
WHEREAS, a coalition of municipalities, known as the Atmos Texas
Municipalities (“ATM”) has been active in gas utility ratemaking proceedings; and
WHEREAS, the Town will join with other cities participating in ATM in a steering
committee in order to coordinate the hiring and direction of legal counsel and
consultants working on behalf of ATM and the Town.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB THAT:
Section 1. That the statements set out in the preamble to this ordinance are
hereby in all things approved and adopted.
Section 2. The Town hereby denies Atmos’ request to increase rates and in
support thereof finds that:
a) Atmos is requesting an increase in rates, in part, based upon adjustments
to its cost of service which were recently rejected by the Railroad
Commission of Texas;
b) The Statement of Intent fails to provide sufficient information to justify the
requested increase in rates;
c) The requested increase in rates puts more of the cost for the base rate
increase on low-use residential customers who often are in the worst
position to absorb such cost increases; and
d) The request asks that a rate mechanism to be implemented which
provides a disincentive to reducing costs and becoming more productive
or efficient.
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Section 3. The Town is authorized to join with other cities in a coalition of
cities known as the Atmos Texas Municipalities (“ATM”) with the understanding that the
steering committee of ATM to provide direction and guidance to the lawyers who are
representing said cities.
Section 4. The Town employs Jim Boyle and Alfred Herrera as special
counsel to represent the Town with regard to the requested increase in rates by Atmos
before local and state regulatory authorities and any court of law and authorizes special
counsel to employ such rate experts as are recommended by the ATM Steering
Committee.
Section 5. The Town hereby authorizes that Special Counsel take such
actions as are appropriate, whether in court or before any regulatory authority, to
prohibit Atmos from charging for expenses which are not reasonable and necessary, or
capital expenditures which have not been prudently incurred, or rates which are not just
and reasonable.
Section 6. The Town, in coordination with the Steering Committee, shall
review the invoices of the lawyers and rate experts for reasonableness before
submitting the invoices to Atmos Energy for reimbursement.
Section 7. Atmos Energy shall reimburse the Town, through the designated
Town representative for the Steering Committee, for the reasonable costs of attorneys
and consultants and expenses related thereto, upon the presentation of invoices
reviewed by the Steering Committee.
Section 8. The Town Secretary shall notify Atmos Energy of this resolution by
sending a copy of same to Ms. Barbara Myers, Atmos Energy Corporation, 5420 LBJ
Freeway, Suite 1824, Dallas, Texas 75240 and ATM shall be notified by sending a
copy of this resolution to Mr. Jim Finley, Town Attorney for the Town of Longview by fax
to (903) 239-5539.
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Section 9. The meeting at which this ordinance was approved was in all things
conducted in strict compliance with the Texas Open Meetings Act, Texas Government
Code, Chapter 551.
Section 10. This resolution shall become effective from and after its passage.
PASSED AND APPROVED this 15TH day of October 2007.
Town of Trophy Club
________________________________
Nick Sanders, Mayor
Attest:
________________________________
Lisa Ramsey, Town Secretary
Approved as to Form:
________________________________
Patricia A. Adams, Town Attorney
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ATM CITIES
Austin
Balch Springs
Bandera
Belton
Bertram
Bryan
Burnet
Cameron
Cisco
Clifton
Coleman
Commerce
Copperas Cove
Corsicana
Denton
Dublin
Electra
Fredericksburg
Frost
Gatesville
Georgetown
Goldthwaite
Granbury
Grandview
Greenville
Groesbeck
Hamilton
Henrietta
Hillsboro
Hutto
Lampasas
Leander
Llano
Longview
Lometa
Manor
Mart
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Mexia
Olney
Pflugerville
Ranger
Riesel
Round Rock
San Saba
Somerville
Star Harbor
Taylor
Teague
Thorndale
Trinidad
Whitney
Wortham
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.6
Discuss and take appropriate action regarding an Ordinance amending the Town's
FY 2006-07 Budget.
EXPLANATION:
This is the 2nd of two (2) annual budget amendments that the Town of Trophy Club
completes. The initial budget amendment occurred in March, and the second occurs in
October after the end of the fiscal year. The purpose of this budget amendment is to
ensure that we are in compliance with budgetary guidelines.
RECOMMENDATION:
ACTION BY COUNCIL:
(SMD)
Attachments: 1. Ordinance (Exhibit A will be sent to the Town Council prior to the
meeting.)
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TOWN OF TROPHY CLUB, TEXAS
TOWN ORDINANCE NO. 2007-XX
AN ORDINANCE OF THE TOWN OF TROPHY CLUB,
TEXAS AMENDING THE BUDGET OF THE TOWN OF
TROPHY CLUB, TEXAS; PROVIDING FOR THE
INCORPORATION OF PREMISES; PROVIDING FOR AN
AMENDMENT; PROVIDING A SAVINGS AND REPEALER
CLAUSE; PROVIDING FOR SEVERABILITY;
PROVIDING FOR ENGROSSMENT AND ENROLLMENT;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Town of Trophy Club, Texas Fiscal Year 2006-2007 Budget was
adopted within the time and in the manner required by State Law; and
WHEREAS, the Town Council of the Town of Trophy Club, Texas hereby finds
and determines that it is prudent to amend the line items due to unforeseen situations
that have occurred in the Town; and
WHEREAS, the Town Council of the Town of Trophy Club, Texas further finds
that these amendments will serve in the public interest and are necessary to support
Town operations; and
WHEREAS, the Town Council of the Town of Trophy Club, Texas finds and
determines that the change in the Budget for the stated municipal purpose serves best
interests of the taxpayers, is necessary and warrants action at this time;
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS:
SECTION 1.
INCORPORATION OF PREMISES
That the above and foregoing premises are true and correct and are incorporated herein
and made a part hereof for all purposes.
SECTION 2.
AMENDMENT
The Town of Trophy Club, Texas, Fiscal Year 2006-2007 Budget is hereby amended to
fund the line items as stated in Exhibit “A.” This Amendment No. 2 to the Original
Budget of the Town of Trophy Club, Texas, for the Fiscal Year 2006-2007 shall be
attached to and made part of the Original Budget by the Town Secretary and shall be
filed in accordance with State Law. Furthermore, this Amendment No. 2 (Exhibit “A”) is
attached, incorporated into and made a permanent portion of this Ordinance. This
Ordinance is hereby adopted and shall constitute the second budget amendment that
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has occurred since the October 1, 2006 effective date of the Town’s Fiscal Year 2006-
2007 Budget.
SECTION 3.
SAVINGS AND REPEALER
That this Ordinance shall be cumulative of all other Ordinances of the Town affecting the
Fiscal Year 2006-2007 Budget of the Town and shall not repeal any of the provisions of such
Ordinances except in those instances where provisions of those Ordinances are in direct conflict
with the provisions of this Ordinance; whether such Ordinances are codified or uncodified, and
all other provisions of the Ordinances of the Town of Trophy Club, codified or uncodified, not in
conflict with the provisions of this Ordinance, shall remain in full force and effect.
SECTION 4.
SEVERABILITY
If any section, article, paragraph, sentence, clause, phrase 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 the Ordinance, and the Town
Council hereby declares it would have passed such remaining portions of the
Ordinance despite such invalidity, which remaining portions shall remain in full
force and effect.
SECTION 5.
ENGROSSMENT AND ENROLLMENT
The Town Secretary of the Town of Trophy Club is hereby directed to
engross and enroll this Ordinance in the Ordinance records of the Town and to
properly record this Ordinance in accordance with the Town Charter.
SECTION 6.
EFFECTIVE DATE
This Ordinance shall take effect from and after its date of passage in accordance
with law, and it is so ordained.
PASSED AND APPROVED by the Town Council of the Town of Trophy Club,
Texas, this the 15th day of October, 2007.
_______________________________
Mayor, Nick Sanders
Town of Trophy Club, Texas
ATTEST:
_________________________________________
Town Secretary
Town of Trophy Club, Texas
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[SEAL]
_______________________________
Town Attorney
Town of Trophy Club, Texas
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.7
Discuss and take appropriate action relative to future use, funding options,
operation of, and repairs to Beck Park.
EXPLANATION:
The Baseball Association requested funds from EDC4A for the repair of Beck Field #4.
The application is provided in the backup. EDC4A tabled this item at its September
meeting in order to receive input from the Council on the status of Beck Park. Funding
options include EDC4A funds for the reconstruction of Beck Field #4 and/or the use of
park land funds for Beck Park.
FEMA documentation has also been included.
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Project Worksheet
2. Application for Funds
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.8
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:
RECOMMENDATION:
ACTION BY COUNCIL:
(lmr)
Attachments: 1. Water – Wastewater Agreement
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CONTRACT FOR WATER SUPPLY AND WASTEWATER TREATMENT,
BETWEEN THE TOWN OF TROPHY CLUB, TEXAS, TROPHY CLUB MUNICIPAL
UTILITY DISTRICT NO. 1 AND TROPHY CLUB MUNICIPAL UTILITY DISTRICT NO.
2
This WATER SUPPLY and WASTEWATER TREATMENT CONTRACT (“Contract”) is
entered into between THE TOWN OF TROPHY CLUB, TEXAS, a home rule
municipality located in Denton and Tarrant Counties (hereinafter “Town”), 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,
hereafter referred to collectively as “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 Services 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
desires to receive access to water supply and wastewater treatment from MUDs to
serve the Property, in accordance with the terms and provisions set forth herein; and
WHEREAS, Town has created Trophy Club Public Improvement District No. 1
(hereinafter the “PID”) within the boundaries of the Property; and
WHEREAS, in the process of creating the PID and the accompanying
development agreement, the Developer(s) of the Property has agreed to make certain
payments to Town for the right to access and receive water supply and wastewater
treatment from the existing water and wastewater facilities owned by MUDs, and Town
has agreed to enter into this interlocal agreement with MUDs to secure the desired
water supply and wastewater treatment facilities for the Property and such services
specifically set forth herein; and
WHEREAS, MUDs understand and acknowledge that they are entering into this
Contract to provide Water Supply Transmission Services and/or Wastewater Services
for the purpose of allowing the Town to provide Water and Wastewater Services to
Town Customers; and
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WHEREAS, the purpose of this Agreement is to outline the terms and conditions
of payment for which MUDs will provide access to water supply and wastewater
treatment and the payments that will be made for such access; and
WHEREAS, the Interlocal Cooperation Act, Texas Government Code, Chapter
791, et seq., as amended (the “Act”) provides authority for governmental entities of the
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 water and wastewater facilities is a valid
governmental function necessary for the public health, safety and welfare as provided in
the Intergovernmental Relations Section of the Texas Government Code at Chapter
791.026 which authorizes the Parties to contract to obtain or provide all or part of water
supply and wastewater treatment facilities under a contract that extends for any period
on which the parties agree; 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.
Developer(s) means the owner and additional owners of the Property as
identified in the Highlands at Trophy Club Development and Public Improvement District
Agreement executed by and between Town and record owners of the Property and shall
also include subsequent Person(s) who purchase the Property or a portion thereof.
Development Agreement means that separate agreement between Town and the
Developer(s) of the Property, as amended from time to time, regulating the terms and
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conditions of the development of that Property and under which the Developer has
agreed to make certain payments to Town in consideration for Town’s agreement to
enter into a contract with MUDs to purchase water supply and wastewater treatment for
the benefit of the Property.
EPA means the federal Environmental Protection Agency and any successor or
successors exercising any of its duties and functions related to municipal utility districts.
Existing Infrastructure means Water System and Wastewater System and all
components thereof existing and operational and owned and/or controlled by MUDs,
whether individually or jointly, 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.
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.
Property means that certain portion of property located within the territorial
boundaries of Town of Trophy Club and to which Town is empowered under the Texas
Constitution and laws of the state of Texas to provide Water and Wastewater Services
and which property is not located within the boundaries of either of MUDs nor is
provided Water or Wastewater services from either of MUDs.
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, excluding any and all land that is part of the Town but which lies outside of
the service area as identified in the Fort Worth Water Contract.
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Town Customers means any Person(s) not in the MUD districts who has the right
to receive, who contract to receive or who otherwise receive 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 customers within Town, 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 and beginning at the Points of Connection of
Water.
Town Water Tower means a minimum 500,000 gallon elevated storage tank to
be constructed and owned by Town.
Utility Fee means a payment of $2300 charged to each applicant for a residential
building permit in need of a )5/8” meter, which payment shall be to compensate MUDs
for the right of such applicant to access and receive Water Supply Transmission
Services and Wastewater Treatment from Existing Infrastructure; provided however,
that such fee shall increase as meter size increases in accordance with applicable Town
Ordinances and MUD Orders.
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 (defined above) and
EPA, including any successor agencies, 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 the 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.
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” - Property Boundaries
Exhibit “B” - Points of Connection of Water and Wastewater
NOTE: NEED EXHIBITS.
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ARTICLE II.
POINTS OF CONNECTION - WATER
2.1 Points of Connection of Water. MUDs shall deliver Water to Town Water
Distribution System at the Points of Connection of Water. The location of the first Point
of Connection of Water shall be at the point shown on Exhibit “B.” MUDs shall not be
required to provide Water to Town, except for testing of line purposes, until the
completion by Town and final approval of the Interconnect Line by MUDs, which final
approval shall not be unreasonably withheld by MUDs. Any subsequent Points of
Connection of Water will be at a point(s) mutually agreed upon in writing by the Parties
and shall be based upon design standards and industry standard engineering practices.
ARTICLE III.
POINTS OF CONNECTION - WASTEWATER
3.1 Points of Connection of Wastewater. MUDs shall receive Wastewater from
Town Wastewater System at the Points of Connection of Wastewater. The location of
the first Point of Connection of Wastewater shall be at the point shown on Exhibit “B,”
MUDs shall not be required to commence Wastewater Service to Town until the
completion by Town and final approval of the Wastewater Trunk Facilities by MUDs,
which final approval shall not be unreasonably withheld by MUDs. Any subsequent
Points of Connection of Wastewater will be at a point(s) mutually agreed upon in writing
by the Parties and shall be based upon design standards and industry standard
engineering practices.
ARTICLE IV.
COMPENSATION TO MUDS FOR ACCESS TO EXISTING INFRASTRUCTURE
4. 1 Consideration. MUDs understand and acknowledge that Town has entered into
a separate Development Agreement for the Property and that the terms of the
Development Agreement require Town to obtain access to and provide water and
wastewater treatment services for the Property. In consideration for the right to access
and receive Water Supply Transmission Services and Wastewater Services from
Existing Infrastructure and so that Town may fulfill its obligations under the
Development Agreement, Town agrees to pass-through the following payments to
MUDs in accordance with the terms of this section:
A. Lump Sum Payment. Within fifteen (15) days of Town’s receipt of the
$540,000 lump sum payment due from Developer pursuant to the Development
Agreement for the right to access Water Supply and Wastewater Treatment, Town shall
pay such sum to MUDs. Such payment shall be in consideration for the right to access
Water Supply in the Existing Infrastructure prior to any connection to the Existing
Infrastructure.
B. Utility Fees. Town’s fee schedule provides that an Utility Fee shall be
paid to Town by the applicant for each residential building permit in need of a 1”(one
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inch) meter, which fee shall be paid by Town to MUDs in accordance with the terms of
this section in order to compensate MUDs for the right to access and receive Water
Supply Transmission Services and Wastewater Services from Existing Infrastructure.
Should applicant refuse to pay the Utility Fee, Water and Wastewater connection and
services will be denied. Upon collection of one or more Utility Fees by Town, such Utility
Fees shall be deposited by Town into an account designated by MUDs (hereinafter
“MUDs Account”). Town shall continue to collect and to deposit such Utility Fees into
MUDs Account in accordance with the existing agreement between the MUDs until such
time as the total amount paid into that account equals $3,260,000. Town shall collect
and deposit a minimum of one hundred fifty (150) Utility Fees each year, for a total of
five (5) successive years commencing on May 7, 2008 (hereinafter “Collection Period”).
In the event that more than 150 Utility Fees are collected by Town in any one or more
years of the Collection Period, such Utility Fees in excess of the 150 Utility Fees
required under this Section shall be carried over to the following year or years and shall
be a credit toward the total Utility Fees due for such subsequent year or years. In the
event that fewer than 150 Utility Fees are collected by Town during any one or more
year(s) of the Collection Period, including those Utility Fees carried over from any given
year in which more than 150 Utility Fees were collected by Town, Town shall within ten
(10) working days of collection of such Utility Fees from Developer, pay into MUDs
Account the difference between the amount that would have been paid had 150 Access
Fees been paid at $2,300 each and the amount of Utility Fees actually collected by
Town. On or about May 7, 2013, Town shall calculate the total amount of Utility Fees
paid to MUDs. Town shall provide MUDs written notice of any amount paid less than
$3,260,000 (the "Utility Fee Remainder"). The Utility Fee Remainder shall either be
paid in thirty (30) days of Town’s receipt of that payment from Developer pursuant to the
Development Agreement, or within such thirty (30) day period, a letter of credit, or other
financial security, which secures ten percent (10%) annual rate of interest of the Utility
Fee Remainder, shall be obtained from Developer by Town pursuant to the
Development Agreement. Annually thereafter, Town shall obtain from Developer
pursuant to the Development Agreement, a letter of credit or other financial security, as
approved by Town, securing the ten percent (10%) annual rate of interest of any
remaining amount of Utility Fees paid less than $3,260,000, until the full $3,260,000 is
paid. Any and all letters of credit or other financial security obtained by Town pursuant
to this Section shall be obtained for the benefit of MUDs as security to ensure that
payment of the $3,260,000 amount due to MUDs is paid in full. .
C. Town Water Tower. Town shall, as it determines in its sole discretion,
construct and put into operation Town Water Tower at such time as Town determines it
necessary and appropriate to construct such Town Water Tower.
D. Impact Fees. Town understands that MUDs have a separate agreement
for water services with the City of Fort Worth (hereinafter “Fort Worth Water Contract”
as defined above) and that pursuant to that Fort Worth Water Contract, MUDs collect
certain impact fees from their customers that are paid to Fort Worth. Town understands
and agrees that as a water supply customer of MUDs, Town will be required to pay all
impact fees due under the Fort Worth Water Contract. Therefore, Town agrees to take
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such actions necessary to collect or to allow for the collection from Town Customers an
amount equal to the impact fee assessed by the City of Fort Worth pursuant to the Fort
Worth Water Contract and to remit such sum to MUDs in the amount and in accordance
with the terms set forth in the Fort Worth Water Contract. Upon receipt of such funds
from Town, MUDs shall immediately remit that amount to the City of Fort Worth.
Notwithstanding the foregoing, no amount shall be due and owing from Town to MUDs
until such time as payment for impact fees is collected by Town from Town Customers.
ARTICLE V.
TERM
5.1 Term. This Contract shall become effective upon approval by each of the
representative governing bodies of Town, MUD1 and MUD2 and upon execution by
their respective representatives shall remain in effect until May 7th, 2013, or until the
date on which the entire sum of Utility Fees {See Article IV, Section 4.1 (B) supra} shall
reach $3,260,000, whichever shall come first, unless terminated for cause by any party
as provided herein.
5.2 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 this 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. Should the Party receiving the notice fail to correct the default within sixty
(60) days following receipt of the written notice, and if such corrective action is within
the power of the defaulting Party, the Party giving the notice of default may terminate
this Contract by giving a written termination notice to the defaulting Party specifying the
termination date.
NOTE: Last paragraph appeared to be a hold over that was inconsistent with 5.1 and
5.2. 5.2 was revised to allow 60 day notice and cure for all defaults, including non
payment of moneys. As previously written, the time frame for default for failure to pay
was not specified. This change requires 60 day notice and cure period for all types of
defaults. If separate periods are desired, the language will need to be revised to include
that detail.
ARTICLE VI.
MISCELLANEOUS
6.1 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,
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including specific performance and mandamus, may be availed of by any Party and
shall be cumulative of any other remedy herein specified.
6.2 Immunity. The fact that Town and MUDs accept certain responsibilities relating
to the access to and receipt of Water and Wastewater 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.
6.3 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.
6.4 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.
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6.5 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.
6.6 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
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.
6.7 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.
6.8 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.
6.9 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.
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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.
6.10 Benefits of Contract. This Contract shall not be construed to confer any benefit
on any other Person or entity except as expressly provided for herein.
6.11 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.
6.12 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:
ATTEST:
By:
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Name:
Title:
TROPHY CLUB MUNICIPAL UTILITY
DISTRICT NO. 2
By:
ATTEST:
By:
Name:
Title:
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EXHIBIT “A”
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EXHIBIT “B”
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.9
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:
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.
1.3 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.
MUD11 Adopted Rate Order shall mean the Rate Order adopted by Trophy Club
Municipal Utility District No. 1 and numbered Order 2005-1013 effective November 1,
2005, 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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NOTE: Need Exhibits.
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.
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.
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
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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.
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
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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.
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.
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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.
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
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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.
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.
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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
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:
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ATTEST:
By:
Name:
Title:
TROPHY CLUB MUNICIPAL UTILITY
DISTRICT NO. 2
By:
ATTEST:
By:
Name:
Title:
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EXHIBIT “A”
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EXHIBIT “B”
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.10
Discuss and provide input 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. Service and Assessment Plan for authorized public improvements
B. Discussion of Parkland Improvements for the PID and related Town parkland
improvements
C. Acquisition, Funding, and Construction Agreement
D. Indenture of Trust for the proposed bond issuance to finance public
improvements
E. Preliminary Limited Offering Memorandum
EXPLANATION:
Service and Assessment Plan. The current draft is the same as previously reviewed
and is not included.
Parkland Improvements. As previously discussed, the input received from the
Attorney General was that additional information on the proposed parkland
improvements would be required prior to the issuance of PID bonds. The park
study being conducted by Carter and Burgess is not yet complete. At the
October 1, 2007 meeting, additional information will be provided and a full
discussion regarding the parkland improvements will be on the agenda. This
item is added as a subtopic in order to allow staff to update Council.
Acquisition, Funding, and Construction Agreement. This document was drafted by
Bond Counsel, Lila Marsh and the redline comments are those of the developer.
The primary topic for which staff seeks input on this item relates to security for
the developer portion of the project and for cost overruns. The value of the
dedications total $4,004,433, and the estimated cost to be borne by the
developer for the public improvement is $2,013,876. Under the development
agreement, the developer can receive payment on day one for half of the
dedications, the remainder are drawn down pro rata until all projects are 75%
complete. So, there is no security for cost overruns, and no security for
developer portion after the project is 75% complete. This security can be
required in the Acquisition, Construction, and Funding Agreement. Staff has also
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discussed using the Subdivider’s Agreement to require the Developer to put up a
letter of credit or cash escrow account for the developer’s portions of the
improvements as the property is subdivided. Staff seeks Council direction.
Indenture. This document was previously provided.
Preliminary Limited Offering Memorandum. This document was not included in the
previous Council packet.
RECOMMENDATION:
ACTION BY COUNCIL:
Attachments: 1. Letter from Dan Almon
3. (C) Acquisition, Construction, and Funding Agreement
2. (D) Indenture of Trust for the proposed bond issuance to finance public
improvements
3. (E) The Preliminary Limited Offering Memorandum
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C. Acquisition, Funding, and Construction Agreement
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.11
Discuss and take appropriate action relative to a Resolution accepting a Service and
Assessment Plan for the Town of Trophy Club Public Improvement District No. 1;
setting a date for a public hearing; authorizing the publication of notice; and
enacting other provisions relating thereto
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(SLD)
Attachments: 1. Resolution
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TOWN OF TROPHY CLUB
RESOLUTION NO. _______________
A RESOLUTION ACCEPTING A SERVICE AND ASSESSMENT PLAN
FOR THE TOWN OF TROPHY CLUB PUBLIC IMPROVEMENT
DISTRICT NO. 1; SETTING A DATE FOR A PUBLIC HEARING;
AUTHORIZING THE PUBLICATION OF NOTICE; AND ENACTING
OTHER PROVISIONS RELATING THERETO; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, on March 16, 2007, the Town received a petition meeting the requirements
of Sec. 372.005 of the Public Improvement District Assessment Act (the “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 projects 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
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, pursuant to Sections 372.013 and 372.014 of the PID Act, the Town
Council has directed the preparation of a Service and Assessment Plan for the District (the
“Plan”), such Plan attached hereto as Exhibit B, covers a period of at least five years and defines
the annual indebtedness and the projected costs of the public improvements (as identified in the
Plan); and
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WHEREAS, the Plan also includes an assessment plan that apportions the cost of the
public improvements, identified in the Plan, 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 public improvements; and
WHEREAS, after determining the total cost of the public improvements, the Town
Council also directed the preparation of an Assessment Roll that states the assessment against
each parcel of land in the District and such Assessment Roll is attached to and a part of the Plan;
and
WHEREAS, the Town Council notes that the Plan and Assessment Roll may be
amended with such changes as the Town Council deems appropriate before such Plan and
Assessment Roll are adopted by the Town Council; and
WHEREAS, the Town has determined to call a public hearing regarding the levy of
assessments pursuant to the Plan and the Assessment Roll pursuant to Section 372.016 of the
Act; and
WHEREAS, the Town desires to publish notice of a public hearing to adopt the Plan and
Assessment Roll in order to provide notice to all interested parties of the Town’s proposed levy
of assessments against property in the District, pursuant to Section 372.016 of the Act; and
WHEREAS, the Town desires to file the Plan and Assessment Roll with the Town
Secretary such that they are available for public inspection pursuant to Section 372.016 of the
Act; and
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS, THAT:
Section 1. Findings. The findings and determinations set forth in the preambles
hereto are hereby incorporated by reference for all purposes.
Section 2. Calling Public Hearing. The Town Council hereby calls a public hearing
(the “Public Hearing”) for 7:00 p.m. on November 5, 2007 at the regular meeting place of the
Town Council of the Town of Trophy Club, Texas, Svore Municipal Building, 100 Municipal
Drive, Trophy Club, Texas, to consider approving the Plan, with such changes and amendments
as the Town Council deems necessary, and the Assessment Roll for the District with such
amendments to the assessments on any parcel as the Town Council deems necessary. After all
objections made at such hearing have been heard, the Town Council may (i) levy the assessments
as special assessments against each parcel of property in the District as set forth in the Plan and
Assessment Roll; (ii) specify the method of payment of the assessment, and (iii) provide that
assessments be paid in periodic installments. Notice of the hearing setting out the matters
required by Section 372.016 of the Act shall be given by publication at least eleven (11) days
before the date of the hearing, in a newspaper of general circulation in the Town. Notice of such
hearing shall also be given by the mailing of a copy of the notice containing the information
required by Section 372.016(b) of the Act at least eleven (11) days prior to the hearing to the
current address of each owner of property liable for an assessment in the proposed Assessment
Roll as reflected on the tax rolls of the Denton Central Appraisal District. All residents and
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property owners within the District, and all other persons, are hereby invited to appear in person,
or by their attorney, and contend for or contest the Plan and the Assessment Roll, and the
proposed assessments and offer testimony pertinent to any issue presented on the amount of the
assessments, purpose of the assessments, special benefit of the assessments, and the costs of
collection and the penalties and interest on delinquent assessments. At or on the adjournment of
the hearing conducted pursuant to Section 372.016 on the proposed assessments, the Town
Council must hear and pass on any objection to a proposed assessment. The Town Council may
amend a proposed assessment on any parcel. The failure of a property owner to receive notice
does not invalidate the proceeding.
Section 3. Publication of Notice. The Town Council hereby directs Town Staff to
cause the publication of notice of the Public Hearing substantially in the form attached as
Exhibit A; such publication to occur before the 10th day before the date of the hearing.
Section 4. Conduct of Public Hearing. The Town Council shall convene at the
location and at the time specified in the notice described above for the public hearing and shall
conduct the public hearing in connection with its approval of the Plan and the Assessment Roll
of the District and the levy of the proposed assessments, including costs of collection and
penalties and interest on delinquent assessments. At such public hearing, the Town Council will
hear and pass on any objections to the Plan and the proposed Assessment Roll and the levy of the
proposed assessments (which objections may be written or oral). At or on the adjournment of
the hearing, Council may amend a proposed assessment on any parcel. After all objections, if
any, have been heard and passed upon, the Town may (i) levy the assessments as special
assessments against each parcel of property in the District as set forth in the Plan and Assessment
Roll, (ii) specify the method of payment of the assessment, and (iii) provide that the assessments
be paid in periodic installments.
Section 5. Filing of Plan and Assessment Roll. The Plan and the proposed
Assessment Roll shall be filed in the office of the Town Secretary and be made available to any
member of the public who wishes to inspect the same.
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PASSED AND APPROVED this _____ day of ____________, 2007.
C. Nick Sanders, Mayor
ATTEST:
____________________________________
Lisa Ramsey, Town Secretary
APPROVED AS TO FORM & LEGALITY:
____________________________________
Patricia A. Adams, Town Attorney
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EXHIBIT A
TOWN OF TROPHY CLUB
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN THAT a public hearing will be conducted by the Town
Council of the Town of Trophy Club, Texas on the 29th day of October, 2007 at 7:00 p.m. at the
Svore Municipal Building at 100 Municipal Drive, Trophy Club, Denton County, Texas 76262.
The public hearing will be held to consider proposed assessments to be levied against the
assessable property within THE TOWN OF TROPHY CLUB PUBLIC IMPROVEMENT
DISTRICT NO. 1 (the “District”) pursuant to the provisions of Chapter 372 of the Texas Local
Government Code, as amended.
The general nature of the improvements include, but are not limited to, landscaping,
entryway features, a development signature monument, water, wastewater, roadway or drainage
system improvements, trails, parks and open space.
The total cost of the public improvements is approximately $30,000,000.
The boundaries of the District are described in Exhibit A attached hereto and made a part
hereof for all purposes.
All written or oral objections will be considered at the public hearing.
A copy of the Service and Assessment Plan and the proposed Assessment Roll, which
includes the assessments to be levied against each parcel in the District, is available for public
inspection at the office of the Town Secretary, Town of Trophy Club, at 100 Municipal Drive,
Trophy Club, Texas 76262.
WITNESS MY HAND AND THE OFFICIAL SEAL OF THE TOWN, this 15th day of
October 2007.
/s/ Lisa Ramsey ______________________
Town Secretary
Town of Trophy Club, Texas
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EXHIBIT A
BOUNDARIES
The District includes approximately 609.683 acres located within the corporate limits of
the Town of Trophy Club, Denton County, Texas. The District is generally located to the north
of Oakmont Drive, Oak Hill Drive and the Quorum Condominiums, east of the Lakes
Subdivision and Parkview Drive, south of the Corp of Engineers Property and west of the
Town’s eastern town limits. The District is more particularly described by metes and bounds and
such description is available for inspection at Town Hall, 100 Municipal Drive, Trophy Club,
Texas 76262. For more information call (682) 831-4600.
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EXHIBIT B
SERVICE AND ASSESSMENT PLAN
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.D.12
Items for Future Agenda.
EXPLANATION:
RECOMMENDATION:
ACTION BY COUNCIL:
(lmr)
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: 10-15-2007
Subject: Agenda Item No.D.13
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.
(b) Report from EDC 4B Liaison, Council member Sterling.
Attachments: 1. None
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COUNCIL MEMORANDUM
From: The Office of the Town Manager Date: 10-15-2007
Subject: Agenda Item No.E.1
Adjourn.