«OFFICIAL STATEMENT DATED JUNE 20, 2013 NEW ISSUE NOT RATED In the opinion of Bond Counsel, interest on the Bonds will be excludable from gross income ...»
The City intends to levy Special Assessments on the Property in accordance herewith and with the Assessment Plan (as such plan is amended from time to time) at such time as PID Bonds are issued in accordance with Article IV hereof. The City’s apportionment and levy of Special Assessments shall be made in accordance with the PID Act.
Section 2.03. Collection of Assessments.
The City covenants and agrees that it shall, as authorized by the PID Act and other applicable law, continuously collect or cause to be collected Special Assessments levied pursuant to the Assessment Plan during the term of this Agreement in the manner and to the maximum extent permitted by applicable law. The City covenants and agrees that to the extent permitted by applicable law, it will not permit a reduction, abatement, or exemption in the Special Assessments due on any portion of the Property until the PID Bonds related to that particular portion of the Property are no longer outstanding, whether as a result of payment in full, defeasance or otherwise and the Owner has been reimbursed for all of the unreimbursed Actual Costs eligible to be paid from Special Assessments. The City shall use good and sound practices to collect the Special Assessments consistent with the City’s policies and standard practices applicable to the collection of City taxes and assessments.
Notwithstanding anything to the contrary contained herein or in the Assessment Plan, the Special Assessment Revenues collected annually from Improvement Area # 1 will be (a) first deposited to the Bond Pledged Revenue Account of the Pledged Revenue Fund in an amount sufficient to pay debt service on the PID Bonds next coming due, (b) second, deposited to the Reserve Account of the Reserve Fund in an amount necessary to cause the amount on deposit therein to equal the Reserve Fund Requirement, (c) third, deposited to the Landowner Pledged Revenue Account of the Pledged Revenue Fund to reimburse the Owner for costs of Public Improvements that have been paid from the cash deposit made by the Owner at closing, (d) fourth, used to pay Actual Costs, and (e) fifth, used to pay any costs permitted by the PID Act.
Approval and Recordation of Special Assessments through Landowner Agreement.
Concurrently with the levy of the Special Assessments for any portion of the Property, the Owner shall execute (and shall cause any other owner of any of the Property that will be subject to the future special assessments to execute) a Landowner Agreement (herein so called) in which the Landowner shall approve and accept the apportionment of assessments in the Assessment Plan and the levy of the Special Assessments by the City. The Landowner Agreement further shall (a) evidence the Owner’s intent that the Special Assessments be covenants running with the land that (i) will bind any and all current and successor owners of the Property to the Special Assessments, including applicable interest thereon, as and when due and payable thereunder and (ii) provide that subsequent purchasers of such land take their title subject to and expressly assume the terms and provisions of the Special Assessments; and (b) provide that the liens created by the levy of the Special Assessments are a first and prior lien on the Property, subject only to liens for ad valorem taxes of the State or municipality (if any), county, school district, special district or other political subdivision.
F-6 Section 2.05 Initial Owner Contribution; Reimbursement Agreement
(a) Notwithstanding anything to the contrary contained herein, the City and Owner hereby agree that the Actual Costs expended by Owner, but not reimbursed from the initial PID Bonds, are payable solely from (i) the Landowner Pledged Revenue Account within the Pledged Revenue Fund as more particularly described herein and (ii) from the Improvement Area #1 Parity Bonds, if ever issued. The City and Owner hereby acknowledge and agree that the provisions of this Section 2.05 shall hereby constitute a “reimbursement” under Chapter 372 of the Texas Local Government Code.
(b) It is contemplated that Improvement Area #1 Parity Bonds may be issued in the future for Improvement Area #1. The purpose of the Parity Bond issuance would be to expedite the reimbursement to the Owner of the unreimbursed Actual Costs eligible to be paid from Special Assessments by allowing the net proceeds of the Improvement Area #1 Parity Bonds to be used to reimburse Owner for the unreimbursed Actual Costs eligible to be paid from Special Assessments. If the net proceeds of the Improvement Area # 1 Parity Bonds have reimbursed the Owner for the unreimbursed Actual Costs, eligible to be paid from Special Assessments then Owner’s right to receive any portion of the Special Assessments for Improvement Area # 1 shall automatically terminate and thereafter all Special Assessments for Improvement Area # 1 received by the City would be used to pay debt service of the initial PID Bonds and Parity Bonds for Improvement Area # 1. However, if the net proceeds of such Improvement Area #1 Parity Bonds are not sufficient to reimburse Owner for the unreimbursed Actual Costs, eligible to be paid from Special Assessment then Owner shall continue to receive a portion of the Special Assessment Revenue from Improvement Area # 1 (as more particularly described in Section 2.03) until the earlier of (i) the date the Owner is fully repaid for the unreimbursed Actual Costs eligible to be paid from Special Assessments or (ii) the date the PID Bonds for Improvement Area # 1 and Parity Bonds for Improvement Area # 1 are no longer outstanding, whether as a result of payment in full, defeasance or otherwise.
(c) The Owner reimbursement provisions contained in this Section 2.05 shall not, under any circumstances, give rise to or create a charge against the general credit or taxing power of the City or a debt or other obligation of the City payable from any source other than net proceeds from the PID Bonds for Improvement Area # 1, the Improvement Area # 1 Parity Bonds, and Special Assessment Revenues.
(d) Owner’s right, title and interest into the payments of unreimbursed Actual Costs, as described herein, shall be the sole and exclusive property of Owner (or its Transferee) and no other third party shall have any claim or right to such funds unless Owner transfers its rights to its unreimbursed Actual Costs to a Transferee in writing and otherwise in accordance with the requirements set forth herein. Owner has the right to convey, transfer, assign, mortgage, pledge, or otherwise encumber, in whole or in part without the consent of (but with notice to) the City, all or any portion of Owner’s right, title, or interest under this Agreement including, but not limited to, any right, title or interest of Owner in and to payment of its unreimbursed Actual Costs (a “Transfer,” and the person or entity to whom the transfer is made, a “Transferee”).
Notwithstanding the foregoing, no Transfer shall be effective until written notice of the Transfer,
(e) The City acknowledges and agrees that until Improvement Area #1 Parity Bonds are issued, the obligation of the City to use the Landowner Pledged Revenue Account to pay any unreimbursed Actual Costs to Owner is absolute and unconditional and that the City does not have, and will not assert, any defenses to such obligation.
(f) Provided (i) the issuance of Improvement Area #1 Parity Bonds is considered financially feasible by the City and an underwriter experienced in the issuance of such bonds and (ii) all appropriate tests have been met, including the additional bond test set forth in the Indenture, the City hereby agrees to use reasonable efforts to issue Improvement Area #1 Parity Bonds to pay the unreimbursed Actual Costs to Owner when requested by Owner in writing. If the net proceeds from the Improvement Area #1 Parity Bonds plus the balance in the Project Fund will be insufficient to pay the unreimbursed Actual Costs, Owner shall continue to receive money from the Landowner Pledged Revenue Account until the unreimbursed Actual Costs eligible to be paid from Special Assessments have been reimbursed to the Owner.
Acquisition of Public Improvements The Public Improvements are intended to be acquired by the City and/or the County, although some Public Improvements may be dedicated to the City and/or the County by easement and maintained by an Owner’s Association. The Public Improvements to be acquired by the City shall be determined through mutual agreement of the Parties; provided, however it is hereby acknowledged and agreed to by the City and Owner that some of the Public Improvements may have been previously approved or constructed as more particularly described in Section 4.02 (e). Except as set forth in Section 4.02 (e.g. Public Improvements funded by PID Bond Draws), each acquisition of Public Improvements not paid for simultaneously with conveyance of said Public Improvements (e.g., a portion of the price is being paid over time) shall be evidenced by an Acquisition Agreement, if required by applicable law.
Section 3.02. Designation of Construction Manager, Construction Engineers
The City hereby designates the Owner as the Construction Manager with full (a) responsibility for the design, the designation of easement locations, facilities site designations and acquisitions, supervision of construction, and the bidding and letting of construction contracts for the construction of the Public Improvements in accordance with the provisions of this Article III.
Inspection of the construction of all Public Improvements shall be by City (b) inspectors. If the PID Bonds have not been issued, the Owner shall pay the inspection fee which shall be included in the Actual Cost and may later be reimbursed to Owner when PID Bonds are
The Owner shall be entitled to a separate Construction Management Fee for the (c) construction of each Segment.
The City shall cooperate with the Owner in connection with its services as (d) Construction Manager.
The Owner shall designate the consulting engineers for the Public Improvements (e) for the compensation specified by the Owner.
Designation of Construction Manager Subcontractor (a) The City acknowledges and agrees that (i) Owner may subcontract out all or some of the duties of Construction Manager to a third party and (ii) the hiring of a subcontractor to serve as the Construction Manager shall not be deemed a change in the Construction Manager pursuant to the terms and conditions of Section 3.03. Owner may designate an individual, company, or partnership or other entity as a subcontractor for construction management services for one or more Public Improvements or distinct Segments thereof.
(b) Owner may designate an individual, company, or partnership or other entity to serve as the Construction Manager for one or more Public Improvements or Segments thereof upon written notification to and approval by the City, which approval shall not be unreasonably withheld; provided, however the Owner may not change its designated Construction Manager during the first six (6) months of this Agreement, except for cause. Thereafter, Owner may remove a designated “Construction Manger” at any time. Owner will not be responsible as the Construction Manager when a third party is designated as the Construction Manager.
(c) Only the designated Construction Manager may receive a construction management fee, but only for the period of time during that designation and the performance of the Construction Manager duties. Further, the total construction management fee shall not exceed the amount provided for in the definition of “Actual Costs” in this Agreement.
Section 3.04. Performance Bonds
If at the time of release of the site development permit (or other applicable permit), there are funds within the Project Fund of the Indenture sufficient both to pay for completion of a Public Improvement and to meet all other obligations of the Public Improvement, it is intended that the Owner not be required to post fiscal security for the applicable Public Improvement. The City acknowledges that it will accept fiscal security, if required, for the Public Improvements in the form of an irrevocable letter of credit, surety bond, cash deposit, or other security acceptable to the City. If no such account exists or such account is not appropriately funded, then the Owner shall be required to post fiscal security for Public Improvements in accordance with Section 3.08 below.
F-9 Section 3.05. Maintenance of Project, Warranties
Unless otherwise provided for, the Owner shall maintain each Public Improvement (or Segment thereof) in good and safe condition until such Public Improvement (or Segment thereof) is accepted by the City or County. The City’s acceptance of Public Improvements shall be in accordance with the City standard rules and procedures for the type of improvements being constructed. Prior to such acceptance, the Owner shall be responsible for performing any required maintenance on such Public Improvement. On or before the acceptance by the City or County of a Public Improvement (or Segment thereof), the Owner shall assign to the City or County (as applicable) all of the Owner’s rights in any warranties, guarantees, maintenance obligations or other evidences of contingent obligations of third persons with respect to such Public Improvement (or Segment thereof).
Section 3.06. Sales and Use Tax Exemptions.
The parties agree that, as municipally and publicly owned and acquired (a) properties, all costs of materials, other properties and services used in constructing the Public Improvements to be acquired by the City are exempt under the Tax Code from sales and use taxes levied by the State of Texas, or by any city, county, special district, or other political subdivision of the State, as set forth in 34 Tex. Admin. Code, sec. 3.291.
The City will provide such certifications to the Owner and/or to suppliers and (b) contractors as may be required to assure the exemptions claimed herein.
The City and the Owner shall cooperate in structuring the construction contracts (c) for the Public Improvements to comply with requirements (including those set forth in 34. Tex.
Admin. Code, sec. 3.291) for exemption from sales and use taxes.