HomeMy WebLinkAboutResolution - 2006-R0075 - Amended/Restated Master Development& PID Reimbursement Agreement-Vintage Land Co - 02/24/2006Resolution No. 2006-R0075
February 24, 2006
Item No. 5.4
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock an Amended and
Restated Master Development and PID Reimbursement Agreement between the
City of Lubbock and Vintage Land Company, Ltd. and associated documents.
Said Agreement is attached hereto and incorporated in this Resolution as if fully
set forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 24th day of February , 2006.
WZRC Mc AL, MAYOR
ATTEST:
Rebecca Garza, Ci y Secret
APPRO AS TO CONTENT:
Ro6 Alliso irector
Developffi&At Services
APPROVED AS TO FORM:
Linda L. Chamales, Senior Attorney/
Office Practice Section
City Att/Linda/RES Stellar amend
February 13, 2006
Resolution No. 2006-R0075
AMENDED AND RESTATED
MASTER DEVELOPMENT AND PID REIMBURSEMENT AGREEMENT
Between
CITY OF LUBBOCK, TEXAS
And
VINTAGE LAND COMPANY, Ltd., DEVELOPER
Dated:
The Date Executed by the Last Party to Sign
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section1.01. Recitals................................................................................................................2
Section1.02. Definitions...........................................................................................................2
ARTICLE II
COMMENCEMENT OF DEVELOPMENT COSTS AND TOTAL ASSESSMENTS
Section 2.01. General Agreements of Parties............................................................................6
Section 2.02. Allocation of Costs; Acceptance and Approval of Assessments ........................7
Section 2.03. Land Needed for Amenities................................................................................8
ARTICLE III
THE NOTE
Section 3.01. Delivery of the Note............................................................................................8
Section 3.02. Reimbursement Prior to Execution of the Note..................................................8
ARTICLE IV
PURCHASE AND/OR SALE OF BONDS
Section 4.01. Denomination, Maturity, Interest, and Security for Bonds.................................9
Section 4.02. Uses of Bond Proceeds......................................................................................10
Section 4.03. Bond Proceeds to Fund the Amenities..............................................................10
ARTICLE V
OWNERSHIP AND CONSTRUCTION OF AMENITIES
Section 5.01. Ownership and Transfer of Improvements........................................................I I
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices and Record Retention...........................................................................11
Section 6.02. Payment of City's Costs and Expenses.............................................................12
Section 6.03. Parties in Interest...............................................................................................12
Section 6.04. Term of Agreement...........................................................................................12
Section6.05. Amendments......................................................................................................12
Section 6.06. Effective Date....................................................................................................13
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(i)
AMENDED AND RESTATED MASTER DEVELOPMENT
AND PID REIMBURSEMENT AGREEMENT
This AMENDED AND RESTATED MASTER DEVELOPMENT AND PID
REIMBURSEMENT AGREEMENT (the or this "Agreement"), between CITY OF
LUBBOCE, TEXAS (the "City"), a duly incorporated municipality and city of the State of
Texas, and VINTAGE LAND COMPANY, LTD., a Texas —limited partnership (the
"Developer");
WITNESSETH:
WHEREAS, the Developer intends to construct certain public "Amenities," as herein
defined, for a new mixed -use development located upon the "Development Land," as herein
defined, within the corporate limits of the City, to be known as "Vintage Township"; and
WHEREAS, the Amenities will be constructed in accordance with the terms, conditions
and requirements of certain codes, ordinances, and agreements (collectively, the "City
Ordinances and Agreements") that are required by the City and relate to the construction of
public and private infrastructure within this development, and to which reference is hereby made
for all purposes; and
WHEREAS, the City has agreed to exercise its powers under Chapter 372, Local
Government Code (the "PID Act"), and to provide alternative financing arrangements that will
enable the Developer to be reimbursed for the costs of the Amenities from assessments levied on
property within the Development Land, that are payable solely and exclusively from the receipts
collected from assessments levied against the Development Land by the City or Bonds or
Refunding Bonds secured by such assessments, all in accordance with the procedures and
requirements of the PID Act; and
WHEREAS, in furtherance and fulfillment of such plan, the City Council, as herein
defined, at the request of the Developer, and with the consent, approval and agreement of the
owners of 100% of the Development Land affected thereby, has created the "District," as herein
defined, in accordance with the "PID Act", and intends to consider and act upon the "Assessment
Ordinance," as herein defined, regarding the levy of the assessments and has created a PFC, as
herein defined, to issue Bonds and/or Refunding Bonds, as herein defined, secured by the Bond
Security (as herein defined); and
WHEREAS, in order to permit the Developer to proceed immediately with the
commencement of the construction and development of the Amenities in accordance with the
City Ordinances and Agreements and to further evidence the City's intent, subject to the public
hearings required by the Act, (i) to adopt the Assessment Ordinance and to levy the assessments
therein required, (ii) solely and exclusively from the receipts collected from assessments levied
against the Development Land by the City, to reimburse the Developer for all or a portion of the
out-of-pocket costs of the Amenities, with the remainder, if any, of such costs to be paid from
other funds of the Developer, the City agrees to the terms and provisions of this Agreement
pursuant to its authority under the PID Act and other applicable law; and
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WHEREAS, on December 15, 2005, the City and the Developer executed a "Master
Development and the PID Reimbursement Agreement" (herein called the "Initial Agreement")
which memoralized the agreement between the City and the Developer pertaining to the
development of the Vintage Township; and
WHEREAS, the City and the Developer hereby agree that amendments to the Initial
Agreement are necessary in order to further the development of Vintage Township and to
facilitate the effective operation of the Vintage Township Public Improvement District, and that
such amendments include: (i) the provision for a Note from the City or the PFC to the
Developer, obligating the City to reimburse the Developer from assessments levied on the
Development Land for certain improvement costs within the District and; (ii) provision for the
issuance of Refunding Bonds at a future time to refinance the City's or the PFC's obligation
under the Note; and
WHEREAS, the Developer and the City have agreed to such amendments and to adopt
and restate the Initial Agreement, as amended in the form and substance contained in this
Amended and Restated Master Development and PID Reimbursement Agreement; and
NOW, THEREFORE, for and in consideration of the mutual covenants hereinafter set
forth, the City and the Developer hereby contract, covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Recitals.
The parties hereto contract, covenant and agree that all matters set forth in the recitals of
this Agreement are accurate and true.
Section 1.02. Definitions.
Unless the context requires otherwise, the following terms shall have the meanings
hereinafter set forth:
Administrative Expenses — means the administrative, organization, maintenance
and operation costs and expenses associated with, or incident to, the administration,
organization, maintenance and operation of the District and the Amenities (including
reasonable reserves for contingencies maintained by the City in any administrative
expense reimbursement fund authorized or created under a Bond Resolution), including,
but not limited to, the costs of (i) legal counsel, engineers, accountants, financial
advisors, investment bankers or other consultants and advisors, (ii) creating and
organizing the District and the PFC, and preparing the assessment roll, (iii) computing,
levying, collecting and transmitting the Total Assessments or the installments thereof,
(iv) maintaining the record of installments, payments and reallocations and/or
cancellations of the Total Assessments, (v) issuing, paying and redeeming the Bonds, (vi)
investing or depositing the Total Assessments, (vii) complying with the Code with
respect to the Bonds, (viii) paying any Trustee's fees and expenses (including the fees
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and expenses of its legal counsel) pursuant to a Bond Resolution, if bonds are issued, and
(ix) administering the construction, operation and maintenance of the Amenities, in
accordance with the terms of this Agreement.
Agreement — means this Amended and Restated Master Development and PID
Reimbursement Agreement.
Amenities — shall not be such public improvements that are considered the
standard subdivision improvements in Lubbock as measured by the character, feature,
caliber, grade, standard, model, specification or function of the improvement. Rather,
Amenities are defined as public improvements that have an appreciably higher, improved
or added character, feature, caliber, grade, standard, model, specification or function than
improvements in standard City of Lubbock subdivisions.
Specifically, Amenities may include but are not limited to, the design,
construction and maintenance of parks and greens together with any ancillary structures,
features or amenities such as playgrounds, athletic facilities, pavilions, community
facilities, bridges, walkways, lighting, benches, trash receptacles and similar items
located therein along with all necessary grading, drainage and similar infrastructure
involved in the construction of such parks and greens; landscaping, hardscaping and
irrigation; the design, construction and maintenance of water features such as lakes,
ponds and fountains; distinctive lighting and signs; construction and improvement of
pedestrian malls, passages or pathways including pedestrian bridges; design, construction
and improvement of vehicular bridges and low water crossings; design, construction and
improvement of community meeting halls or similar buildings; design, construction and
improvement of community monuments, towers, and other amenity -type structures;
acquisition and installation of art work; design, acquisition, installation and improvement
of telecommunication and similar technology systems; along with any special
supplemental services for improvement and promotion of the District, together with
related permits and licenses.
Assessment Ordinance — means an ordinance adopted by the City Council
approving the Assessment Plan and levying the Total Assessments, together with any
ordinances adopted by the City Council approving any amendments to the Assessment
Plan, as required by Article II of this Agreement.
Assessment Plan — means the Vintage Township Public Improvement District
Service and Assessment Plan, as it may be amended from time to time by the City
Council, to be adopted by the City Council in the Assessment Ordinance for the purpose
of assessing allocated costs against property located within the boundaries of District,
having terms, provisions and findings approved and agreed to by the Developer and the
City, as required by Section 2.02 of this Agreement.
Authorized Developer Expenditures — means expenditures made by the Developer
on and after the date that is sixty days prior to the date the Initial Agreement was
executed, for the purposes of paying the costs and expenses of the Amenities that can be
lawfully paid by the City, which shall include, without limiting or restricting any proper
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definition of cost under the PID Act, or other applicable provision of law, the cost of (a)
designing, planning, financing, constructing, acquiring, installing and implementing the
Amenities, including the cost of all of the structures and improvements, which
themselves constitute the Amenities or which are necessary or convenient to acquire,
construct or implement the Amenities, (b) all labor, bonds and materials, including
equipment and fixtures, by contractors, builders and materialmen in connection with the
acquisition, construction or implementation of the Amenities, (c) all related permitting,
zoning and public approval expenses, architectural, engineering, and consulting fees,
financing charges, taxes, governmental fees and charges, insurance premiums, and
miscellaneous expenses, (d) all advances and payments for Administrative Expenses
incurred by Developer prior to the collection of the Construction Assessments, and (e)
any and all costs and expenses of the City that are paid for by the Developer and that
relate to or are required by this Agreement or the City Ordinances and Agreements.
Bonds — means any bonds, in one or more series, to be issued by the PFC on
behalf of the City issued pursuant to Section 4.03 and secured solely by a pledge of the
Bond Security pursuant to the authority granted in the PID Act, to reimburse the
Developer for Authorized Developer Expenditures or to fund the construction of the
Amenities.
Bond Resolution — means and refers to one or more resolutions of the PFC that
will authorize and approve the issuance and sale of Bonds or Refunding Bonds and
provide for their security and payment, either under the terms of the Bond Resolution or a
trust indenture approved therewith.
Bond Security — means the funds that are to be pledged in or pursuant to the Bond.
Resolution to the payment of, or reserves for, the debt service requirements on said
Bonds or Refunding Bonds, consisting solely of the Construction Assessments and any
amounts required to be transferred to a Trustee for the benefit of the holders of the Bonds
pursuant to a Sponsor Obligation, including earnings and income derived from the
investment or deposit of Construction Assessments in the special funds or accounts
created and established for the payment and security of the Bonds or the Refunding
Bonds, unless such earnings are required to be deposited into a rebate fund for payment
to the federal government.
City — means the City of Lubbock, Texas.
City Council — means the duly elected governing body of the City.
City Manager - means the City Manager of the City or her designee(s).
City Ordinances and Agreements — means the applicable codes, ordinances and
agreements relating to the Amenities, as required by the City, concerning the construction
of the Amenities.
Code — means the Internal Revenue Code of 1986, as amended.
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Construction Assessments — means the Total Assessments, other than the O & M
Assessments.
Construction Assessment Revenues — means the monies collected from the
Construction Assessments, including supplemental assessments and reallocations of
assessments, interest, expenses or penalties on Construction Assessments, prepayments,
foreclosure proceeds, and proceeds from a guarantor, if any, of the Construction
Assessments.
Developer — means, Vintage Land Company, Ltd., a Texas limited partnership.
Development Land — means all of the land inside the boundaries of the District
that is to be acquired and owned by the Developer.
District — means Vintage Township Public Improvement District created by the
City pursuant to the PID Act and containing the Development Land to be described in the
Assessment Plan.
Issue Date — means the date from which interest on the Bonds or Refunding
Bonds, or a series of Bonds or Refunding Bonds, accrues.
Maximum Reimbursement Amount — means a maximum principal amount equal
to $9,000,000 of Authorized Developer Expenditures for which the Developer may be
reimbursed for the costs of the Amenities.
Note - means the non-negotiable note of the City or the PFC payable to the order
of the Developer, as Payee, the same to have terms and to be delivered in accordance
with and for the purposes stated in Article III of this Agreement.
O & M Assessment — means the annual operation and maintenance assessment,
and all penalties and interest thereon, imposed as provided in the Assessment Ordinance.
Outstanding Reimbursement Amounts — shall mean those amounts shown as such
on Exhibit 1 from time to time.
PFC — means a public facilities corporation created by the City, pursuant to
Chapter 303, Local Government Code, as amended, to issue the Bonds or Refunding
Bonds on behalf of the City and to administer the operation and maintenance of the
District and the Amenities.
PFC Act — means Chapter 303 of the Texas Local Government Code, as amended,
the "Public Facilities Corporation Act".
PID Act — means Chapter 372, Local Government Code, as amended, entitled
"Improvement Districts in Municipalities and Counties."
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Project Fund — means a fund established under a Bond Resolution into which any
proceeds from the issuance of the Bonds remaining after the application of such proceeds
in accordance with Section 4.03 shall be deposited.
Refunding, Bonds — means bonds issued, in one or more series, and secured solely
by a pledge of Bond Security pursuant to the authority granted in the PID Act for the
purpose of refunding all or a part of the Note, as provided in Section 4.01 and 4.02
herein.
Re ug_latory Requirements — mean the requirements and provisions of, any state or
federal law, and any permits, rules, orders or regulations issued or adopted from time to
time, by any regulatory authority, state, federal or other, having jurisdiction over the
Amenities.
Reimbursement Obligation — means the special, limited and conditional
obligations of the City or the PFC to reimburse the Developer for Authorized Developer
Expenditures in the amounts, from the sources and subject to the terms, conditions and
limitations provided in this Agreement and in the Note.
Sponsor Obligation — means the obligations of the City to transfer the Total
Assessment Revenues to the Trustee for the benefit and security of the holders of the
Bonds.
Total Assessment Revenues — means the monies collected from Total
Assessments, including supplemental assessments and reallocations of assessments,
interest, expenses or penalties on Total Assessments, prepayments, foreclosure proceeds,
and proceeds from a guarantor, if any, of the Total Assessments.
Total Assessments — means the assessments levied against properties in the
District, as provided in the Assessment Ordinance and in the Assessment Plan, including
any supplemental assessments or reassessments levied in accordance with Sections
372.019 and 372.020 of the PID Act.
Trustee — means the trustee for the Bonds or Refunding Bonds, as specified and
named in the proceedings authorizing and prescribing the terms of the Bonds or
Refunding Bonds.
ARTICLE II
COMMENCEMENT OF DEVELOPMENT COSTS AND TOTAL ASSESSMENTS
Section 2.01. General Agreements of Parties.
(a) Upon the City's issuance of applicable permits and approvals, the Developer
agrees to proceed diligently with the construction and development of the Amenities under and
in accordance with the terms, provisions, and conditions stated in the applicable City Ordinances
and Agreements. None of the terms and provisions of this Agreement shall be construed or
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applied to limit, revise, or modify any of the obligations of the Developer under the City
Ordinances and Agreements.
(b) The City has duly created the Vintage Township Public Improvement District by
Resolution No. 2005-RO590 and hereby agrees to proceed as expeditiously as possible in
accordance with the PID Act and other applicable law to adopt the Assessment Plan and the
Assessment Ordinance, having such terms as are approved and accepted by the Developer, as
required by Section 4.01(c) of this Agreement.
(c) The City has duly created the Vintage Township Public Facilities Corporation and
has provided in its Articles of Incorporation that at all times a majority of the PFC Board
members shall be members of the Board of Directors of Vintage Township Homeowners
Association when such homeowners association is created.
(d) The City hereby agrees that the City and/or the PFC shall contract with the
Vintage Township Homeowners Association for the operation and maintenance of the Amenities
within Vintage Township as set forth in this agreement.
Section 2.02. Allocation of Costs; Acceptance and Approval of Assessments.
(a) The City and the Developer have determined and hereby agree that the total
aggregate estimated costs of the Amenities to be reimbursed to the Developer from Assessments
levied on property within the District will be approximately $9,000,000.
(b) The Developer and the City hereby agree that the Developer will be reimbursed
for Authorized Developer Expenditures in an amount not to exceed $9,000,000. The City or the
PFC will issue a Note payable to the Developer from Construction Assessments, all as provided
in Article III herein. The City hereby agrees to reimburse the Developer directly from the
Construction Assessments or from the proceeds of Refunding Bonds that are payable solely from
the Bond Security and that are issued to refund the Note.
(c) If the Developer approves the final findings, determinations, and allocations to be
made by the City Council in the Assessment Ordinance and the Assessment Plan, then,
concurrently with such approvals, the Developer will expressly approve and accept the levy of
the Total Assessments that are to be levied and made in the final Assessment Ordinance.
(d) The final version of the Assessment Plan, the Assessment Ordinance and the
Bond Resolution (and all documents incorporated or approved therein) shall have and contain
such terms and provisions as are mutually approved by the City, the PFC, and the Developer, and
the same shall not be adopted, amended or modified in any respect without the written approval
of the Developer.
(e) The Developer covenants and agrees that it will include in all conveyances and
transfers of any property located within the District appropriate covenants and agreements that
will bind successor owners to pay the Total Assessments, as applicable, to be levied by the
Assessment Ordinance, with applicable interest thereon, as covenants running with the land and
when due and payable thereunder and that the purchasers of such land take their title subject to
and expressly assume the terms and provisions of such assessments and the liens created thereby.
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(f) The Developer covenants and agrees that it will file, in the real property records
of Lubbock County, an instrument, in such form as is reasonably acceptable to the City, that
contains appropriate covenants and agreements that will bind successor owners to pay the Total
Assessments when, as, and in the amounts that are due and payable from time to time.
Section 2.03. Land Needed for Amenities.
The Developer agrees and represents that (i) it either owns presently or will acquire, hold,
and use all land, easements, and rights -of -way that are necessary and appropriate for the
construction and ownership of the Amenities, as shown on proper plats, and (ii) it will execute
such other instruments as may be reasonably required to confirm title thereto in the Developer.
ARTICLE III
THE NOTE
Section 3.01. Delivery of the Note.
(a) Pursuant to the authority granted to it in the PID Act or the PFC Act, the City or
the PFC agree to issue a Note to be executed at a future time for the purpose of recording the
City's or the PFC's obligation to pay, solely from Construction Assessments or, in the case of the
PFC, from the City's agreement with the PFC to pay the Total Assessment Revenues to the PFC,
all Reimbursement Obligations to the Developer, except those that are excluded by the terms of
this Agreement.
(b) On the date of delivery of the Note, the principal amount of the beginning
"Outstanding Balance" of the Note that is outstanding will be the "Outstanding Reimbursement
Amount" reflected on the certified entry on the "Schedule of Authorized Developer Expenditures
and Outstanding Reimbursement Amounts" (the "Reimbursement Schedule") attached as
Exhibit 1 to this Agreement. The entry entitled "Outstanding Reimbursement Amount," being
the amount of Authorized Developer Expenditures made by the Developer prior to the date
hereof and which constitutes a portion of the Reimbursement Obligation under this Agreement.
Section 3.02. Reimbursement Prior to Execution of the Note
(a) The Developer shall pay the costs of the Amenities by paying the Authorized
Development Expenditures from private and personal funds. Each month unless a different
interval is agreed to by the Developer and the City Manager, the Developer shall present to the
City Manager invoices or other evidences of payment of Authorized Developer Expenditures
made by the Developer for which the City is obligated to make payment under this Agreement.
Upon satisfaction of the validity of such claims, such Authorized Developer Expenditures shall
constitute Outstanding Reimbursement Amounts and the City Manager shall enter the amounts
under "Amount of Approved Authorized Developer Expenditure" on the Reimbursement
Schedule, attached as Exhibit 1 to this Agreement and shall enter the cumulative total of the
Approved Authorized Developer Expenditures under "Outstanding Reimbursement Amount"
and shall certify the entry where indicated. The Outstanding Reimbursement Amounts shall
accrue interest at the rate of 6% per annum, computed monthly on the 1st day of each month
compounded on the basis of a 360-day year of twelve 30-day months, calculated from the date
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such expenditure was entered on the Reimbursement Schedule until paid or cancelled. The
Outstanding Reimbursement Amounts shall be payable solely from the Construction
Assessments or from the proceeds of Bonds or Refunding Bonds that are payable solely from the
Bond Security, when, as and only if issued.
(b) At the time the Note is executed by the City or the PFC, the aggregate amount of
the Approved Authorized Developer Expenditures, reflected as the last "Outstanding
Reimbursement Amount," entered, shall be transferred to the "Schedule of Advances and
Payment" attached to the Note and shall represent and be the principal amount of the Note, and
shall represent the amount, plus interest, that is payable on the Note. Once the Note is executed,
all Authorized Developer Expenditures incurred after the date of execution shall be recorded on
the "Schedule of Advances and Payment" attached to the Note.
ARTICLE IV
PURCHASE AND/OR SALE OF BONDS
Section 4.01. Denomination, Maturity, Interest, and Security for Bonds.
(a) The City, and the Developer agree that as development of the Vintage Township
occurs, it may be appropriate and desirable to refinance the Note by issuing Refunding Bonds. If
requested to do so by the Developer, the City Council may cause the issuance of one or more
series of Refunding Bonds to refinance all or a part of the City's or the PFC's obligation under
the Note.
(b) If requested by the Developer, the City agrees to cause the PFC to authorize and
issue, the Refunding Bonds in one or more series, having the provisions, in the amounts and at
the times, as are requested by the Developer. The Refunding Bonds shall be issued in an
aggregate principal amount sufficient to refund the Outstanding Balance of the Note up to the
Maximum Reimbursement Amount.
(c) The Refunding Bonds shall be finally authorized by the board of directors of the
PFC and shall be issued in the denominations, shall mature and be prepaid, and shall bear interest
from the date of their issuance to their maturity or prepayment, and shall be secured by and
payable solely from the Bond Security, all to be as described and provided in the Bond
Resolution.
(d) The City, the PFC and the Developer agree to sell the Refunding Bonds (or each
series thereof), if issued, in a limited private offering in the securities market through the use of
an underwriter and agree that the Bond Resolution will state that the PFC shall sell and award the
Refunding Bonds to an underwriter acceptable to the City and to the Developer pursuant to a
Bond Purchase Agreement between the PFC and such underwriter relating to the Refunding
Bonds. Such Bond Resolution will approve the Bond Purchase Agreement and authorize its
execution and delivery.
(e) The City has created the PFC as a Public Facilities Corporation under Chapter
303 of the Texas Local Government Code, as amended, with the authority to oversee the
operation and maintenance of the District and the Amenities and to issue the Bonds. The PFC
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shall assume the obligations and succeed to the rights of the City under this Agreement, except
that the Total Assessments shall be levied only by the City Council in accordance with the Act.
Such assumption by the PFC shall be in writing, with a copy to Developer, and the rights of the
City and the PFC to enforce such assumption shall be assigned to the Trustee. The City and the
PFC shall execute an agreement, the "Sponsor Obligation," recording the City's continuing
obligation to levy the Total Assessments and to seek enforcement of the liens created in support
thereof, and the transfer of funds collected as directed in the Bond Resolution.
(f) The Developer agrees and acknowledges that the City or the PFC is obligated to
reimburse the Developer for Outstanding Reimbursement Amounts and Authorized Developer
Expenditures solely from the proceeds of Construction Assessment Revenues or from the
proceeds of Refunding Bonds issued to refund the Note. Upon payment of the Outstanding
Reimbursement Amount as listed on the Reimbursement Schedule or the Outstanding Balance of
the Note by payment of the Construction Assessment Revenues or by the issuance of Refunding
Bonds, the City's obligation to pay or reimburse the Outstanding Reimbursement Amounts or
Outstanding Balance, or reimburse Developer for Authorized Developer Expenditures shall be
satisfied, discharged and canceled and the City shall have no responsibility to reimburse the
Developer for the canceled amounts from any source whatsoever.
Section 4.02. Uses of Bond Proceeds.
The proceeds from the sale of the Refunding Bonds shall be used to refund the
Outstanding Balance of the Note:
The Bond Resolution shall contain provisions and procedures relating to and specifying
the payment of all costs and expenses of the bond offering, withdrawal, application and use of
the proceeds of the Refunding Bonds when and as issued and delivered.
Section 4.03. Bond Proceeds to Fund the Amenities.
(a) Notwithstanding any other provisions of this Agreement, the City may cause the
PFC to issue Bonds in one or more series, payable from the Bond Security, the proceeds of
which may be used to reimburse the Developer for Authorized Developer Expenditures, or to
fund the construction of the Amenities.
(b) The Bond Resolution shall contain provisions and procedures relating to and
specifying the payment of all costs and expenses of the bond offering, withdrawal, application
and use of the proceeds of the Bonds when and as issued and delivered and shall contain such
provisions as are necessary to provide that the Trustee shall reimburse the Developer for
Authorized Developer Expenditures not included as Outstanding Reimbursement Amounts on
the Note, up to the Maximum Reimbursement Amount, from amounts available therefor in the
Project Fund, if any, as provided in the Bond Resolution.
(c) The proceeds from the sale of the Bonds under this Section shall be applied in the
following order and priority:
FIRST, to the payment of costs of issuance, including all reasonable costs and
expenses of the City (including Administrative Expenses incurred prior to closing) not
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previously reimbursed by the Developer, and any fees and expenses of Trustee, bond
counsel and counsel to the Trustee that were not previously paid by the Developer and
that are payable out of Bond proceeds;
SECOND, to the cost of funding all reserves, accounts and funds required by the
Bond Resolution other than the Project Fund;
THIRD, to the payment to the Developer of the Outstanding Reimbursement
Amounts; and
FOURTH, to the Project Fund.
The City or the PFC shall include provisions and procedures in the Bond Resolution
relating to and regulating the withdrawal, application, and uses of the proceeds of the Bonds, if
any, that remain after payment to the Developer of the Outstanding Reimbursement Amounts,
for the payment of Authorized Developer Expenditures that are incurred, due and owing after
such reimbursement, up to the Maximum Reimbursement Amount. The Bond Resolution shall
provide that any amounts remaining in the Project Fund after the expiration of three years from
the date of issuance of the Bonds (or a series of Bonds) shall be used for the redemption of
Bonds.
ARTICLE V
OWNERSHIP AND CONSTRUCTION OF AMENITIES
Section 5.01. Ownership and Transfer of Improvements.
(a) The Amenities shall be constructed and inspected for the benefit of the public in
accordance with the City Ordinances and Agreements and shall comply with all Regulatory
Requirements. To the extent not owned by the City, the Amenities shall be transferred and
dedicated to the City in accordance with the City Ordinances and Agreements and Regulatory
Requirements.
(b) The Developer agrees to take such actions as may be reasonably required by the
City's Bond Counsel to confirm the transfer of the Amenities, or to otherwise dedicate or
confirm ownership or use of the Amenities, to the City or the public as may be necessary to
comply with state law, and federal income tax laws applicable to the continued tax -exemption
for interest on the Bonds when issued.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices and Record Retention.
(a) Any notice or other communication to be given to the City under this Agreement
may be given by delivering the same in writing to City of Lubbock, PO Box 2000, Lubbock,
Texas 79457 Attention: City Manager.
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(b) Any notice or other communication to be given to the Developer may be given by
delivering the same in writing to the Developer at 5214 68th Street, Suite 402, Lubbock, Texas
79424, Attention: Paul D. Stell.
Section 6.02. Payment of City's Costs and Expenses.
(a) Prior to the collection of Total Assessment Revenues, the Developer hereby
covenants and agrees that it will pay all of the City's costs and expenses (including reasonable
legal fees and financial advisory fees) related to the District, including mutually approved
amounts of City overhead costs. The City's advisors shall submit to the City, on a monthly
statement, their fees relating to the establishment and administration of the District, including
legal fees relating to the development and review of the Assessment Plan. The Developer will
pay these fees on behalf of the City on a monthly basis. All fees of legal counsel related to the
issuance of Bonds, including fees for the preparation of customary bond documents and the
obtaining of Attorney General approval for the Bonds, will be paid at closing from proceeds of
the Bonds in accordance with the City's customary arrangements with bond counsel. Such costs
and expenses shall constitute Authorized Developer Expenditures.
(b) All costs and expenses of the City and the PFC related to the District after the
issuance of the Bonds shall be paid from the O & M Assessment.
Section 6.03. Parties in Interest.
This Agreement is made solely for the benefit of the City, the PFC and the Developer,
and is not assignable except as follows: '(i) the Developer may, without further consent or
acknowledgement of the City, assign its rights hereunder to any lender or financial institution
lending funds for the purposes of funding the Developer's obligations hereunder; (ii) the
Developer may, without the consent or acknowledgement of the City, assign its interest to a
related entity so long as no other interest in this Agreement shall be created for an unrelated third
party; and (iii) the Developer may, with the prior written consent of the City (which consent shall
be considered by the City in good faith based upon financial and performance criteria, and which
shall not be unreasonably withheld, conditioned or delayed), otherwise assign its interest in this
Agreement. This Agreement may not be assigned by the City. No other person shall acquire or
have any right hereunder or by virtue hereof.
Section 6.04. Term of Agreement.
This Agreement shall be in force and effect for so long as the Total Assessments remain
outstanding; provided, however, that in no event shall the term of this Agreement exceed forty
(40) years from the date of execution hereof by the City and the Developer.
Section 6.05. Amendments.
This Agreement may be amended, modified, revised or changed by written instrument
executed by the City and the Developer.
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Section 6.06. Effective Date.
This Agreement shall become and be effective upon the date of final execution by the
City and the Developer and shall be valid and enforceable on said date and thereafter.
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EXECUTED AND ACCEPTED by the City and the Developer on the respective dates
stated below.
Date: '4-'
Date: F ` W/
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CITY
By:
ATTI
By:
City S cretary
VINTAGE LAND COMPANY, LTD.,
a Texas limited partnership
By: VINTAGE LAND GP, L.L.C., a
Texas Limited Liability Company
Its G Partner
By:
Paul D. Stell
Sole Member
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EXHIBIT 1
SCHEDULE OF AUTHORIZED DEVELOPER EXPENDITURES AND OUTSTANDING REIMBURSEMENT AMOUNTS
(Additional pages to be added if needed)
Description of Amount of Approved
Authorized Authorized Developer Outstanding Certification by
Date Expenditure Expenditure Reimbursement Amounts
S S
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