HomeMy WebLinkAboutMIN 03.22.2016 CC-RMinutes of a Maeting of the
Governing Body of the
City of Georgetown, Texas
Tuesday, March 22, 2016
The Georgetown City Council will meet on Tuesday, March 22, 2016 at 6:00 PM at the Council Chambers at 101 E.
7`h St., Georgetown, Texas
The city of Georgetown is committed to compliance with the Americans with Disabilities Act (ADA). If you
require assistance in participating at a public meeting due to a disability, as defined under the ADA, reasonable
assistance, adaptations, or accommodations will be provided upon request. Please contact the City Secretary's
Office, at least four (4) days prior to the scheduled meeting date, at (512) 930-3652 or City Hall at 113 East 8th
Street for additional information; TTY users route through Relay Texas at 711.
Mayor Ross called the meeting to order at 6:04 PM. All Councilmembers were in attendance.
Regular Session
(This Regular session may, at any time, be recessed to convene an Executive Session for any purpose authorized by
the Open Meetings Act, Texas Government Code 551.)
A. Call to Order
Invocation
Pledge of Allegiance
Comments from the Mayor
-Welcome and Meeting Procedures
- Autism Month Proclamation
City Council Regional Board Reports
Mayor Ross asked Councilmembers if they had any regional board information to report. Councilmember Gipson
said that he had nothing to report at this time.
Mayor Ross said that he had attended the CAMPO Policy meeting the previous evening, along with the City's
Transportation Services Director, Ed Polasek and the Transportation Analyst, Nat Waggoner. The Mayor
provided the highlights of the meeting which included the approval of the Williams Drive study consultant selection
process which authorizes CAMPO and the City of Georgetown staff to begin contract negotiations with Nelson
Nygaard. Ross said that the process is consistent with the Interlocal agreement that the City has with CAMPO.
Ross then explained that the CAMPO Policy Board authorized CAMPO Executive Committee and staff to begin
deliberations with Alamo Area MPO, TXDOT and the Lone Star Rail District to move forward with the most viable
method and possible implementation of passenger mobility between Georgetown and San Antonio. Ross said
that Identified issues to be discussed on June 6, 2016 included an initial $1.4 million dollars that is needed to
modify the current environmental study and to add alternative route analysis without Union Pacific relocation,
including new O & M options, capital cost projections and the viability of alternatives. Ross explained that the
date of final completion on the environmental study, if it proceeds, has been pushed back to June of 2018.
Announcements
- May 7, 2016 General Election Information
- Austin Avenue Bridges
Action from Executive Session
Motion by Brainard, second by Hesser to approve the purchase of real property from Back door Investments, LLC
(Parcel 5) and the payment of relocation benefits and actual moving expenses in connection with the Rivery Blvd.
Extension Project on the terms discussed in Executive Session.
Approved: 7-0
Motion by Brainard, second by Hesser to approve the appraised values of real property owned by W.D. Kelley
Foundation (Parcel 14) and David Wolf (Parcel 16) to be acquired in connection with the Rivery Blvd. Extension
Project, as discussed in Executive Session.
Approved: 7-0
Motion by Brainard, second by Hesser to authorize the Mayor to execute the Consent and Agreement with
Buckthorn Westex and Morgan Stanley Senior Funding, as discussed in Executive Session.
Approved: 7-0
Motion by Brainard, second by Hesser to authorize the Mayor to execute the First Amendment to the Solar Power
Purchase Agreement with Buckthorn Westex, as discussed in Executive Session.
Approved: 7-0
Motion by Brainard, second by Hesser to authorize the Mayor to execute the Assignment, Assumption, and
Consent Agreement with J.P. Morgan Ventures Energy Corporation and Mercuria Energy America, as discussed
in Executive Session.
Approved: 7-0
Motion by Brainard, second by Hesser to authorize the General Manager to execute confirmations related to the
EEI contract with Mercuria Energy America, as discussed in Executive Session.
Approved: 7-0
Statutory Consent Agenda
The Statutory Consent Agenda includes non-controversial and routine items that may be acted upon with one single
vote. An item may be pulled from the Consent Agenda in order that it be discussed and acted upon individually as
part of the Regular Agenda.
B. Consideration and possible action to approve the minutes of the Workshop and Regular Meeting held on
Tuesday, March 8, 2016 — Shelley Nowling, City Secretary
C. Consideration and possible action to approve past minutes from meetings held March 23, 2009, April 13, 2009,
April 14, 2009, May 11, 2009, May 12, 2009, June 22, 2009, September 8, 2009, November 24, 2009,
December 8, 2009, July 12, 2011, February 28, 2012, March 27, 2012 and November 27, 2012; and to approve
a Resolution authorizing Mayor Dale Ross and City Secretary, Shelley Nowling, to sign such approved minutes —
Shelley Nowling, City Secretary
D. Forwarded from the General Government and Finance Advisory Board (GGAF):
Consideration and possible action to approve the purchase of 33 Zero Clients and a Mopier for the Emergency
Operations Center (EOC), at a price not to exceed $30,879.00 funded by PSOTC project remaining funds —
John Sullivan, Fire Chief
E. Forwarded from the General Government and Finance Advisory Board (GGAF):
Consideration and possible action to approve the purchase of a Flash-Over Chamber for firefighting training
from Drager Safety, Inc., at a price not to exceed $48,000.00, funded by PSOTC project remaining funds —
John Sullivan, Fire Chief
F. Consideration and possible action to approve a Resolution authorizing the vacation and abandonment of
easements previously granted to Chisholm Trail Special Utility District ("CTSUD") and being located on
property currently owned by F-L HM Owner, LP, located on SH 29 West to be known as Orchard Ridge
Subdivision -- Terri Glasby Calhoun, Real Estate Services Coordinator and Wesley Wright, P.E., Systems
Engineering Director
G. Forwarded from the Georgetown Transportation Enhancement Corporation (GTEC):
Consideration and possible action to approve the deposit of the Award of Special Commissioners in the amount
$700,000.00 in Cause No. 15-1728-CCI; The City of Georgetown v. Inner Peace, L.L.C., Condemnation
Proceeding, County Court at Law No. 1, Williamson County, Texas, related to the acquisition of real property for
future improvements to Southeast Inner Loop — Edward G. Polasek, AICP, Transportation Services Director, and
Terri Glasby Calhoun, Real Estate Services Coordinator
H. Forwarded from the Georgetown Transportation Enhancement Corporation (GTEC):
Consideration and possible action to approve the deposit of the Award of Special Commissioners in the amount
$130,000.00 in Cause No. 15-1727-CC4; The City of Georgetown v. Inner Peace, L.L.C., Condemnation
Proceeding, County Court at Law No. 4, Williamson County, Texas, related to the acquisition of real property for
future improvements to Southeast Inner Loop — Edward G. Polasek, AICP, Transportation Services Director, and
Terri Glasby Calhoun, Real Estate Services Coordinator
I. Forwarded from the Georgetown Transportation Enhancement Corporation (GTEC):
Consideration and possible action to approve the deposit of the Award of Special Commissioners in the amount
$182,000.00 in Cause No. 15-1732-CC4; The City of Georgetown v. Horak Living Trust dated March 11, 2008,
Condemnation Proceeding, County Court at Law No. 4, Williamson County, Texas, related to the acquisition of
real property for future improvements to Southeast Inner Loop — Edward G. Polasek, AICP, Transportation
Services Director, and Terri Glasby Calhoun, Real Estate Services Coordinator
J. Forwarded from the Georgetown Transportation Enhancement Corporation (GTEC):
Consideration and possible action to approve the deposit of the Award of Special Commissioners in the amount
$90,000.00 in Cause No. 15-1729-CC2; The City of Georgetown v. Lorraine M. Lowy Trust FBO Alan G Lowy,
Condemnation Proceeding, County Court at Law No. 2, Williamson County, Texas, related to the acquisition of
real property for future improvements to Southeast Inner Loop — Edward G. Polasek, AICP, Transportation
Services Director, and Terri Glasby Calhoun, Real Estate Services Coordinator
K. Forwarded from the Georgetown Transportation Enhancement Corporation (GTEC):
Consideration and possible action to approve the deposit of the Award of Special Commissioners in the amount
$65,000.00 in Cause No. 15-1730-CC3; The City of Georgetown v. Michael Todd Novick Living Trust dated
August 22, 1990, Condemnation Proceeding, County Court at Law No. 3, Williamson County, Texas, related to
the acquisition of real property for future improvements to Southeast Inner Loop — Edward G. Polasek, AICP,
Transportation Services Director, and Terri Glasby Calhoun, Real Estate Services Coordinator
L. Forwarded from the Georgetown Transportation Advisory Board (GTAB):
Consideration and possible action to approve a Resolution to enter into an Advanced Funding Agreement (AFA)
with TxDOT for the Austin Avenue Bridges project — Nat Waggoner, Transportation Analyst and Edward G.
Polasek, AICP, Transportation Services Director
M. Forwarded from Georgetown Utility Systems Advisory Board (GUS):
Consideration and possible action to approve Task Order KPA-16-005 with Kasberg, Patrick & Associates, LP
of Georgetown, Texas, for professional services related to Edwards Aquifer Recharge Zone Rehabilitation
2015-2016 in the amount of $390,785.00 — Wesley Wright, P.E., Systems Engineering Director
N. Forwarded from Georgetown Utility Systems Advisory Board (GUS):
Consideration and possible action to authorize the General Manager to enter into standard water agreements
in the Western District -- Wesley Wright, P.E., Systems Engineering Director
O. Forwarded from Georgetown Utility Systems Advisory Board (GUS):
Consideration and possible action to renew a contract for utility billing printing and mailing services with
Dataprose and to approve funding at an annual cost of $229,680.00 — Leticia Zavala, Customer Care Director
P. Forwarded from Georgetown Utility Systems Advisory Board (GUS):
Consideration and possible action to authorize payment to Tyler Technologies for online web account
management and payment processing fees in the amount of $100,500.00 — Leticia Zavala, Customer Care
Director
Motion by Hesser, second by Gonzalez to approve the Consent Agenda in its entirety.
Approved: 7-0
Legislative Regular Agenda
Q. Consideration and possible action to approve a Resolution of the City of Georgetown, Texas Consenting to the
Annexation by Southeast Williamson County Municipal Utility District No. 1 of an Additional 207.147 Acres
(+/-) in the Addison Survey, located at 2750 CR 110, into the District; Consenting to Assignment of the Consent
Agreement and Wastewater Services Agreement; Approving the Second Amendments to the Consent
Agreement and the Wastewater Services Agreement — Sofia Nelson, Planning Director, Wesley Wright,
Systems Engineering Director and Skye Masson, Assistant City Attorney
Sofia Nelson, the Planning Director for the City, spoke on the item. Nelson explained the MUD request and the
parkland and trail improvements. She showed and explained the highlights of the request. Nelson then showed
and explained the financial request and explained the tax rate and impact of the bonds, a total bond issue of over
52 million dollars. She explained the comparison to other requests and non -mud developments. Using the
average price of homes in the development, Nelson showed the amount of extra cost to the buyer per unit to be
$112 per month. Gonzalez asked if the cost was a monthly cost or an annual amount. Nelson said it is a monthly
cost. Nelson completed the explanation of the financial request.
Nelson went on to show the wastewater improvements for the site, which would include a lift station. She showed
the extension of the line to an additional lift station. Nelson explained that the wastewater improvements will have
5 stages. She said the Kasper Development will ultimately complete the 2014 Wastewater Master Plan. Upon
completion of the wastewater construction the City will refund the developer.
Nelson then displayed where this MUD request is consistent and non -consistent with MUD policy. This chart had
been included in the agenda packet. Nelson went through each of the eleven components with detailed
explanations of how or how not the component was consistent or non -consistent with the City's MUD policy.
Nelson said that it does not appear that the request meets all of the MUD policy. She then read the caption.
Mr. David Nairne and Mr. Mark Baker signed up to speak on Item Q. Mr. Baker granted his time to Mr. Nairne,
giving Mr. Nairne six minutes to speak on the item.
Mr. Nairne, the applicant for the MUD request, spoke. He said that the intention of Saddlecreek was always to
carry down to the Kasper project. He explained that the project will be residential only and have no commercial.
He said the developer changed the impervious cover because of the smaller lots. He explained that this is why
they had asked for a 2% variance in impervious cover. He spoke on the plans for the Kasper sewer extension
and said the added lift station would be completed in another year and a half.
Motion by Gonzalez, second by Jonrowe to approve Item Q with amendments.
Hesser asked if there was a staff recommendation. Nelson said that staff had reviewed the request and decided
that there were gaps in the policies. Staff does not recommend approval.
Gipson asked if the project would work without MUD approval. Nairne said no. Gipson said approval of this item
would be opening doors for many more MUDS and that MUDs divide power. Morgan said this request has been
brought forward to the Council in prior workshops and that, from his perspective, Council needs to evaluate the
MUD policy and consider long term impacts. Morgan said that he believes the City has been moving forward with
decisions for Kasper to propose a MUD and that MUD policies can be examined later.
Brainard asked for clarification on the masonry standard. Nairne said the developer had increased the standard
to 85% masonry. Brainard asked about driveway size and parking on streets. Nairne said that the builder has
increased the size of the garage to be larger than typical and also enlarged the driveway aprons because the City
requires 2 car parking.
Eby asked Nelson about the MUD policy and said that it appears that 1/3 of the policies have not been met on this
application. Eby inquired about number 9 in the comparison of consistency chart, which requires development in
a MUD to exceed minimum UDC land use and development standards and address the land use provisions in the
consent agreement or related agreement. Nelson said those elements are included in the MUD policy and are not
included in this application. Eby asked about building styles and if it something the applicant has chosen not to
include. Nelson said it is usually looked at from a pattern book perspective. She said because all builders have
not yet been chosen, a pattern book cannot be examined.
Hesser asked if there is a way to control requirements after the developers are selected. Nelson said because
this happens in the planning phase, there will not be a chance to change it later. She said that the zoning
standards will not come up again.
Gonzalez explained that this request originally came to Council as an out of city MUD 1 '/2 years ago and Council
asked them to negotiate with the City to become an In -City MUD.
The City Attorney, Charlie McNabb, explained that there had been some changes made since the posting of the
agenda. He explained that all parties had agreed to the amendments. The changes were given to Council as
handouts at the meeting. The handout will be attached to these minutes.
Approved: 7-0
R. Second Reading of an Ordinance on a Rezoning from (AG) District to a Planned Unit Development (PUD)
District with a base zoning of Residential Single-family (RS) for 207.147 acres of land in the Addison Survey,
located at 2750 County Road 110 — Sofia Nelson, CNU-A, Planning Director (action required)
Sofia Nelson, the Planning Director for the City, spoke on the item. Nelson explained that the PUD request is for
the same subdivision as the last item and explained the spacing requirements, impervious cover, driveways,
collectors and parking enhancements. She said that the Planning & Zoning Commission had approved the PUD
request with the following 2 amendments:
1. The applicant shall, at a minimum, reserve 110 feet of ROW and improve one-half of the ultimate minor
arterial roadway section within the boundary of Kasper. Additional improvements may be required as a result
of the City's review of a traffic impact analysis for the subdivision, including contribution to construction of the
remaining one-half of the minor arterial roadway section.
2. Up to a maximum of 30 residential lots shall be allowed to face onto a residential collector street with a
driveway spacing of 50 feet measured from the center of the driveway. All other driveways must meet the
minimum spacing requirement outlined in the UDC.
Nelson read the ordinance caption.
Motion by Gonzalez, second by Brainard to approve Item R.
Brainard said that he had previously voted against this rezoning because he did not feel that the parking
parameters were sufficient. He now feels that they are.
Approved: 6-1 (Eby opposed)
S. Public Hearing and First Reading of an Ordinance to Rezone 42.5 acres of land in the C. Stubblefield and
Ruidosa Irrigation Company No. 207 Surveys located at 1100 Thousand Oaks Blvd. and 1601 Leander Rd.,
known as Pickett Elementary School and James Tippit Middle School, from the Residential Single -family (RS)
District to the Public Facilities (PF) District — Sofia Nelson, CNU-A, Planning Director (action required)
Sofia Nelson, the Planning Director for the City, spoke on the item and described the property. She said that the
Planning & Zoning Commission had approved the rezoning. Nelson read the caption.
Mayor Ross opened the Public Hearing at 6.48 PM. No persons signed up to speak on Item S.
Mayor Ross closed the Public Hearing at 6.48 PM.
Motion by Brainard, second by Eby to approve Item S.
Approved: 7-0
T. Public Hearing and First Reading of an Ordinance to Rezone 34.21 acres of land in the W. Addison Survey
located at 1700 Laurel Street, known as Annie Purl Elementary School, from the Residential Single -family (RS)
District to the Public Facilities (PF) District — Sofia Nelson, CNU-A, Planning Director (action required)
Sofia Nelson, the Planning Director for the City, spoke on the item and described the property and its zoning. She
showed the zoning map and explained that the Planning & Zoning Commissions had approved the rezoning.
Nelson read the caption.
Mayor Ross opened the Public Hearing at 6.50 PM. No persons signed up to speak on Item T.
Mayor Ross closed the Public Hearing at 6.50 PM.
Motion by Jonrowe, second by Gipson to approve Item T.
Approved: 7-0
U. Public Hearing and First Reading of an Ordinance for a Comprehensive Plan Amendment request to change
the future land use category from Moderate Density Residential to the Institutional category for 27.61 acres of the
Williamson Addison Survey located at 3189 SE Inner Loop — Sofia Nelson, CNU-A, Planning Director (action
required)
Sofia Nelson, the Planning Director for the City, spoke on the item. Nelson described the Comprehensive Master
Plan Amendment. She showed the location map, the zoning map, the future land use map and described the
property. She said the Planning Department is requesting the property be identified as institutional instead of
residential. She spoke on the criteria for approval and said that staff recommends approval and the Planning &
Zoning Commission had recommended approval. Nelson read the caption.
Mayor Ross opened the Public Hearing at 6.53 PM. No persons signed up to speak on Item U.
Mayor Ross closed the Public Hearing at 6.53 PM.
Gonzalez asked if the County has an intended use for this property. A representative from the County said that
the plan is to build an EMS training center, which would serve as a community center at night.
Motion by Brainard, second by Eby to approve Item U.
Approved: 7-0
V. Public Hearing and First Reading of an Ordinance to Rezone 1.84 acres of the L.J. Dyches Survey, from the
Agriculture District (AG) to the Residential Low Density District (RL), located at 1050 F.M. 1460 — Sofia Nelson,
CNU-A, Planning Director (action required)
Sofia Nelson, the Planning Director for the City, spoke on the item. Nelson showed a location map, explained the
current zoning and showed the future land use and thoroughfare plan. She then explained the collector road
along the property and said that the mixed use center is identified. Nelson said that the request is to rezone to
RL, residential with minimum lot size. She spoke on the driveway requirements. Nelson said that staff needed to
review the request because of the shift in purpose and the area. Nelson said one concern is the high traffic
roadway. At this time, Nelson explained, staff does not recommend approval of the request. She said that the
Planning and Zoning Commission has recommended denial of the request with a vote of 3-3. Nelson went on to
say that a super majority vote is not necessary on this item, because of the denial. Nelson added that the
applicant was present for questions. She said that he wants to put one more home on the property, because of
the minimum size of the lot, but because the future land use has not been updated, and still identifies as a mixed
use neighborhood, it could result in up to between 6 and 8 single family units. It could result in higher density with
residential as well as commercial use. Nelson read the caption.
Mayor Ross opened the Public Hearing at 7.00 PM. Speakers signed up to speak on Item Z included Gene
Stebeno, Patsy Chambers and Yuval Adi, the owner of property.
Concerns voiced included:
Builder does not care about maintenance
More building would not fit here
Traffic would be greatly increased
Water drainage is a problem
City code won' allow that this many driveways
P&Z says only one additional house, why asking for this zoning
Well planned neighborhood. Do not ruin now.
Wants to continue to work with neighbors
Both for office purpose
Working with planning department
Wants to subdivide to 2 properties with one driveway
Lot sizes styled to original neighborhood
Too many small houses in small area will become rental property
Crime would increase
Wants to keep quiet neighborhood
Gonzalez asked if 2 homes could be added. The owner said he would add only 1 home. Gonzalez asked why the
request allowed for 8 homes. Nelson answered that the rezone allows for the maximum and would require that a
street be constructed if the 8 homes became the choice. Gonzalez asked Nelson what the maximum number of
units would be allowed. Nelson said somewhere between 6 and 8 homes could be built. Nelson said that this
would, however, be highly unlikely because of the 10,000 square foot minimum requirement.
Gonzalez asked if the request could be Council approved with amendments. Nelson said it is not possible to add
amendments to a zoning condition.
Nelson said, after meeting with the applicant, this is the best zoning recommendation available.
Fought asked if it could be done if the applicant adds the stipulation. Charlie McNabb, the City Attorney, said the
City cannot condition approval by law. He said that the Council cannot require that the applicant make a certain
request.
Ross asked for the Planning & Zoning Commissions reasons for denial. Nelson said it was because of the mixed
use future land use and the level of classifications of roadways.
Gipson said he agreed with Fought and that everyone is on the same page. He said things are limited by the
zoning.
Brainard asked McNabb what would happen if the rezoning request is not approved by Council. McNabb
answered that the applicant could reapply after one year.
Motion by Fought, second by Brainard to postpone a vote until the 2nd meeting in April.
Failed 3-4 (Gonzalez, Eby, Jonrowe, Hesser opposed)
Gonzalez said that this is already the least restrictive of zoning options.
Ross asked if this is just a zoning vote. Nelson answered yes.
Morgan said the parties could make a covenant that is not an agreement with the City. McNabb said the applicant
cannot be told or given legal advice, but that the property owner might agree to have neighbors to withdraw
opposition and instead have a private covenant.
Eby asked Nelson about the least dense zoning and if there is a better zoning choice for this particular property.
Nelson said mixed use center is generally more density than the request today. Nelson said that these
neighborhoods have begun to shift. Nelson said that the density requested is the best the builder can request for
the type of building he wants to do. Nelson added that this is a critical area and the City needs to look at these
key corridors. She added that the condition of guidance has changed.
Motion by Gonzalez, second by Hesser to approve Item V.
Failed: 3-4 (Gipson, Fought, Brainard, Eby opposed)
The property owner spoke again. Adi said that he would speak to the planning department on how to compromise
and work with the neighbors. Adi said he would like to come to a viable agreement.
Motion by Eby, second by Fought to reconsider the prior postponement vote and to vote on postponement of the
item until the 2nd meeting in April.
Approved: 5-2 (Jonrowe, Gonzalez opposed)
Motion by Fought, second by Brainard to postpone any vote on this item to the second meeting in April.
Approved: 4-3 (Hesser, Jonrowe, Gonzalez opposed)
Mayor Ross reminded everyone that this is only a first reading and that the second reading could be brought to
Council at any time.
Mayor Ross closed the Public Hearing at 7.31 PM.
W. Public Hearing and First Reading of an Ordinance to Rezone 46.225 acres of the Antonio Flores Survey
located along NE Inner Loop and Sudduth Drive from the Agriculture (AG), Industrial (IN), General Commercial
(C-3) and Local Commercial (C-1) Districts to Low Density Multifamily (MF -1), High Density Multifamily (MF -2) and
General Commercial (C-3) Districts — Matt Synatschk, Historic Planner (action required)
Sofia Nelson, the Planning Director for the City, spoke on the item. She showed the location map, the zoning
map and described the property. Nelson explained the proposed zoning and the comprehensive plan for the area.
She said that staff and the Planning & Zoning Commission recommend approval. Nelson read the caption.
Mayor Ross opened the Public Hearing at 7.33 PM. No persons signed up to speak on Item W.
Mayor Ross closed the Public Hearing at 7.33 PM.
Motion by Brainard, second by Gipson to approve Item W.
Jonrowe asked about properties to the north of this property. She asked if the neighbors had received notification
of the request. Jonrowe said she thinks the neighbors should have been notified. She said that she knows that
the City follows state law regarding notifications but she would like the City to be more responsible than just the
law in these matters.
Approved: 7-0
X. Consideration and possible action on a Resolution for the Voluntary Annexation of 11.17 acres in the John
Sutherland Survey and various portions of adjacent public right-of-way, located at the intersection of Williams
Drive and Jim Hogg Road — Sofia Nelson, CNU-A, Planning Director
Sofia Nelson, the Planning Director for the City, spoke on the voluntary annexation. She explained the proposal
and showed the proposed annexation site. Nelson said that staff is recommending approval and explained the
action schedule.
Motion by Brainard, second by Gipson to approve Item X.
Approved: 7-0
Project Updates
Y. Project updates and status reports regarding current and future transportation and traffic project; street, sidewalk,
and other infrastructure projects; police, fire and other public safety projects; economic development projects; city
facility projects; and downtown projects including parking enhancements and possible direction to city staff --
David Morgan, City Manager
Mayor Ross asked the City Manager, David Morgan, if he had any project updates to discuss. Morgan updated
the Council on the rejuvenator problems in Sun City. He said that tracking occurred and explained that, with the
warmer days, the pavement had warmed up and the product had been reactivated. Morgan said that the City is
still investigating the problem and working on testing solutions. Morgan explained that the City is planning to use
a blotter sand process and that the City will stand ready to apply this new method. Morgan said that the City has
been removing the tracking marks from the driveways. It is a careful process, said Morgan, in an effort to not
damage any driveways. Morgan explained that communication regarding this will be out the following morning.
Morgan said that this is the third time using this process and the only time that there were problems with it.
Jonrowe asked if other cities have had this problem. Mark Miller, the Transportation Services Manager, spoke.
He said that the City of Austin used the product and it is working well. Miller said he will be going to examine this
the following day. He believes it is a manufacturing problem and will be visiting with the manufacturer.
Public Wishing to Address Council
On a subject that is posted on this agenda: Please fill out a speaker registration form which can be found on the
table at the entrance to the Council Chamber. Clearly print your name and the letter of the item on which you wish
to speak and present it to the City Secretary on the dais, preferably prior to the start of the meeting. You will be
called forward to speak when the Council considers that item.
On a subject not posted on the agenda: Persons may add an item to a future City Council agenda by contacting the
City Secretary no later than noon on the Wednesday prior to the Tuesday meeting, with the subject matter of the
topic they would like to address and their name. The City Secretary can be reached at 512/930-3651.
Z. - At the time of posting, no persons had signed up to address the City Council
Executive Session
In compliance with the Open Meetings Act, Chapter 551, Government Code, Vernon's Texas Codes, Annotated, the
items listed below will be discussed in closed session and are subject to action in the regular session.
A.A. Sec. 551.071: Consultation with Attorney
- Advice from attorney about pending or contemplated litigation and other matters on which the attorney has a duty to advise the
City Council, including agenda items
- Discussion regarding amendments to the purchase power agreement between the City and Buckthorn Westex
- Discussion regarding various recent condemnation proceedings
Sec. 551.072: Deliberation Regarding Real Property
- Forwarded from the Georgetown Transportation Enhancement Corporation (GTEC):
Consideration and possible action to approve the purchase of real property from Back Door Investments, LLC (Parcel 5, 306
Shannon Lane; Tenant: Charles & Teresa Howard), the payment of relocation benefits, and the subsequent payment of actual
reasonable and customary moving expenses in compliance with the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, in connection with the Rivery Blvd. Extension Project
- Forwarded from the Georgetown Transportation Enhancement Corporation (GTEC):
Consideration and possible to approve the appraised values of real property to be acquired from the W.D. Kelley Foundation
(Parcel 14) and David Wolf (Parcel 16) in connection with the Rivery Blvd. Extension Project
Sec. 551.074: Personnel Matters
- City Manager, City Attorney, City Secretary and Municipal Judge: Consideration of the appointment, employment, evaluation,
reassignment, duties, discipline, or dismissal
Sec. 551.086: Competitive Matters
- Consideration and possible action regarding contract novation from JP Morgan to Mercuria
- Sun Edison, PPA
Adjournment
Motion by Gipson, second by Fought to adjourn the meeting.
Mayor Ross adjourned the meeting at 7.44 PM.
Approved by the Georgetown City Council on I_� I I o��, Q
Date
Dale Ross, Mayor
J �
Attest: Ci Se etary
SECOND AMENDED
CONSENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This Second Amended Consent Agreement ( "Second Amendment") is entered into
by and among the City of Georgetown, Texas ("Cita"), a home -rule city located in
Williamson County, Texas, Woodhull Family Partners, a Texas general partnership
("Woodhull Family" or "OiN ner"), Kasper Family Limited Partnership, a Texas Limited
Partnership ("Kasper"), Woodhull Ventures 2015, L.P., a Delaware limited partnership
("Woodhull Ventures" or the "Developer'), Sentinel Land Company, LLC, a Texas limited
liability company ("Sentinel Land") and the Southeast Williamson County Municipal
Utility District No. 1, a district created under Chapters 49 and 54 of the Texas Water Code
(the "District").
RECITALS
WHEREAS, the City, Woodhull Family, Sentinel Land, and the District entered
into that certain Consent Agreement approved by the City Council of the City on October
21, 2014, recorded in the Official Records of Williamson County as Document No.
2015002545, and joined by the District on August 20, 2015 (the "Original Consent
Agreement"), setting forth the terms and conditions of the City's consent to creation of the
District and addressing the development of a 301.507 acre tract of land located in the city
limits, and that certain Wastewater Service Agreement recorded in the Official records of
Williamson County as Document No. 2015002546 ("Original Wastezoater Agreement")
regarding the provision of retail wastewater service to land within the District; and
WHEREAS, on December 8, 2015, the City Council approved Resolution No.
120815-I consenting to the assignment of the Original Consent Agreement from Sentinel
Land to Woodhull Ventures 2015, L.P., a Delaware limited partnership, and the
annexation into the District of approximately 0.131 acres (+/-) of additional land which
was inadvertently omitted from the District boundaries in the Original Consent
Agreement; and approving the First Amendment (herein so called) and the First Amended
Wastezoater Agreement (herein so called) reflecting such assignment and annexation; and
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WHEREAS, the Original Consent Agreement as amended by the First
Amendment, and the Original Wastewater Agreement as amended by the First Amended
Wastewater Agreement are in full force and effect;
WHEREAS, by application to the City dated December 10, 2015, Kasper requested
voluntary annexation into the corporate boundaries of the City of approximately 207.147
acres of land described by metes and bounds and surveyor's sketch on Exhibit A-2,
attached hereto, which land is referred to herein as the "Kasper Tract;" and
WHEREAS, pursuant to Ordinance No. 2016-13 the City Council annexed the
Kasper Tract into the corporate limits of the City; and
WHEREAS, pursuant to that certain "Petition for City Consent to Annex 207.147
Acres of Land into the Boundaries of Southeast Williamson County Municipal Utility
District No. 1" dated January 19, 2016, Kasper requested the City Council's consent to
annexation by the District of the Kasper Tract; and
WHEREAS, pursuant to the Resolution adopted on even date herewith, the City
Council consented to annexation by the District of the Kasper Tract into the boundaries
of the District; and
WHEREAS, the Parties now desire to amend the Original Consent Agreement, as
amended by the First Amendment, and the Original Wastewater Services Agreement, as
amended by the First Amended Wastewater Services Agreement, to make conforming
changes consistent with annexation of the Kasper Tract into the District; and
WHEREAS, Sentinel Land, the City and the District further desire to provide for
execution of a Kasper Wastewater Service Agreement (herein so called) setting forth the
terms and conditions pursuant to which the City shall provide retail wastewater services
to the Kasper Tract.
NOW, THEREFORE, in consideration of the forgoing recitals and mutual
agreements set forth herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are all hereby acknowledged, the City, Woodhull
Family, Kasper, Woodhull Ventures, Sentinel Land and the District hereby agree to
amend the Original Consent Agreement, as amended by the First Amendment, as
follows:
1. Subsections 2.01(a), (b), (y) and (z) of the Original Consent Agreement relating to
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"Definitions" are hereby repealed in their entirety and new Subsections 2.01(a), (b), (y)
and (z) relating to "Definitions' are hereby added to provide as follows:
(a) Agreement: means this Consent Agreement between the City,
Owner, Developer, Kasper, Kasper Developer and the District.
(b) Assignee: means a successor -in -interest to Owner, Developer,
Kasper, or Kasper Developer, as permitted by SeEtion , 2 02(b)bv Article XIII of
this Agreement.
(q) Finance Plan: means the First Amended Finance Plan attached hereto
as Exhibit B-2.
(y) Parties: means, collectively, the City, the Owner, the Developer,
Kasper, Sentinel Land, and their successors and Assignees as permitted by this
Agreement.
(z) Party: means, individually, the City, the Owner, the Developer, the
District, Kasper or Sentinel Land, and their successors and Assigns as permitted
by this Agreement.
2. Section 2.01 of the Consent Agreement, as amended by the First Amendment,
relating to "Definitions' is hereby amended to include the following additional
subsections:
(11) Kasper Developer: means Sentinel Land, and its permitted
assignees under this Agreement.
(nn) Kasper Governing Regulations: has the same meaning as set
the defined term "Governing Regulations' set forth in Section 1.01(s)
above except that the Kasper Land Plan shall be applicable to the Kasper
Tract in lieu of the Land Plan in subsection 1.01(s)(2).
(oo) Kasper Land Plan: means the proposed development on the
Kasper Tract generally in conformance with Exhibit C-2, as the same
may be amended with the consent of the City from time to time.
(pp) Kasper: means the Kasper Family Limited Partnership, a
Texas limited partnership, and its permitted assignees under this
Agreement.
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(qq) Kasper Public Infrastructure: means the water, wastewater,
drainage, detention, stormwater and vehicular and pedestrian
transportation improvements installed or constructed to serve the
Kasper Tract including, without limitation, the Kasper Transportation
Improvements and the Kasper Wastewater Improvements.
(rr) Kasper PUD Ordinance: means City of Georgetown
Ordinance No. 2016-24 pertaining to the Kasper Land, attached hereto as
Exhibit D-2 -Kasper PUD Ordinance 2016-24.
(ss) Kasper TIA: means the traffic impact analysis for the
Kasper Tract prepared by Kasper or Kasper Developer in accordance
with the requirements of Chapter 12.05 of the UDC and approved by the
City.
(tt) Kasper Transportation Improvements: means the vehicular
and pedestrian transportation improvements necessary to serve the
Kasper Tract and/or required by this Agreement with respect to the
Kasper Tract including, without limitation, all of the traffic
improvements identified in the Kasper TIA.
(uu) Kasper Tract: means 207.147 acres of land attached more
specifically described by metes and bounds and surveyor's sketch on
Exhibit A-2 attached hereto, which Exhibit A-2 is incorporated herein by
reference for all purposes.
(vv) Kasper Wastewater Improvements: means the "Major
Wastewater Facilities" as that term is defined and further described in
the Kasper Wastewater Services Agreement attached hereto as Exhibit
E-2, and the other on-site improvement and equipment necessary to
provide wastewater service to the Kasper Tract.
(ww) Kasper Wastewater- Service Agreement: means the agreement
for the provision of retail wastewater services to the Kasper Land
attached hereto as Exhibit E-2.
3. Section 3.06 of the Original Consent Agreement relating to "Withdrawal of
Consent" is hereby repealed and replaced in its entirety with the following new Section
3.06, which shall provide as follows:
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(a) The City's consent to the creation of the District shall be
deemed withdrawn if:
(1) An order approving creation of the District is not issued
by the TCEQ within twenty-four (24) months after the date
the Consent Resolution is approved by the City Council;
or
(2) Owner or Developer fail to commence actual construction
of the Major Wastewater Infrastructure required to be
completed in Phase 1 or Phase 2 on before the date that is
one (1) year before the Completion Date applicable to said
Phase (as those capitalized terms are defined in the Second
Amended Wastewater Services Agreement); or
(3) Kasper or Kasper Developer fail to commence actual
construction of the Kasper Major Wastewater
Infrastructure required to be completed in Phase 1 or
Phase 2 (if not completed by Owner or Developer)), or
Phase 3, Phase 4, or Phase 5 or before the date that is one
(1) year before the Completion Date applicable to said
Phase (as those capitalized terms are defined in the Kasper
Wastewater Services Agreement); or
(3) Owner or Developer fail to complete construction of the
Major Wastewater Infrastructure on or before the
Completion Date applicable to said Phase (as those
capitalized terms are defined in the Second Amended
Wastewater Services Agreement); or
(4) Kasper or Kasper Developer fails to complete construction
of the Major Wastewater Infrastructure on or before the
Completion Date applicable to said Phase (as those
capitalized terms are defined in the Kasper Wastewater
Services Agreement); or
(5) Owner or Developer fails to post the Initial or Final Fiscal
Security (as those terms are defined in the Second
Amended Wastewater Services Agreement) when and as
required by the Wastewater Services Agreement; or
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(6) Kasper or Kasper Developer fails to post the Fiscal Security
(as that term is defined in the Kasper Wastewater Services
Agreement) when and as required by the Kasper
Wastewater Services Agreement; or
(7) Owner or Developer fails to commence actual construction
of the Transportation Improvements within three (3) years
after the Effective Date of this Agreement; or
(8) Kasper or Kasper Developer fails to commence actual
construction of the Kasper Transportation Improvements
within three (3) years after the Effective Date of this
Agreement.
(b) The City's consent to the creation of the District shall be
deemed withdrawn and the District shall be dissolved if:
(1) The District has not held a confirmation election within
two (2) years after the District Creation Date; or
(2) Upon the expiration of ten (10) years after the District
Creation Date if the District has not performed any of the
functions for which it was created and the District has no
outstanding bonded indebtedness for five (5) consecutive
years.
4. Statement of Intent Regarding Applicability.
(a) The provisions of Article V, Article VI, Article VII, Article VIII and Article
XIII of the Original Consent Agreement, as modified by the First Amendment and the
Second Amendment, shall apply only to those certain 301.507 and 0.131 acre tracts of real
property more particularly described therein (constituting the Land), shall not apply to
the Kasper Tract, and the Kasper Developer shall not have any obligations under said
provisions.
(b) The provisions of Article VA, Article VIA, Article VIIA, Article VIIIA and
Article XIIIA of the Original Consent Agreement, as modified by the First Amendment
and Second Amendment, shall apply only to that certain 207.147 -acre tract of real
property more particularly described in Exhibit A-2 (constituting the Kasper Tract), shall
Second Amended Consent Agreement SEWCMUDI
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not apply to the Land, and neither the Owner nor the Developer shall have any
obligations under said provisions.
(c) The remaining sections of the Original Consent Agreement, as modified by
the First Amendment and Second Amendment, shall apply to each Party according to the
terms of each such section.
5. Modification of Woodhull Land Plan. Owner and Developer hereby agree that
the following provisions shall apply to Phases 4 through 11 of the Land: (a) at least 85%
of the exterior surface area of all elevations visible from a public street or open
space/parkland shall consist of brick, stone or stucco; (b) at least 85% of the exterior
surface area of all elevations which are not visible from a public street or open space/
parkland shall consist of brick, stone, stucco, or cement based siding; and (c) no more
than 50% of any such nonvisible surface area shall consist of cement based siding.
6. Kasper Land Development. The Original Consent Agreement, as amended by
the First Amendment, is hereby amended to include a new Article V-A to provide in its
entirety as follows:
ARTICLE V-A
KASPER LAND DEVELOPMENT
5.01A Kasper Land Plan. The City Council hereby approves the
Kasper Land Plan attached as Exhibit B-2, and the following uses of the
Kasper Tract: Residential, Amenity Center, Open Space and Right of Way.
All development of the Kasper Tract shall comply with the Kasper
Governing Regulations and the applicable terms of this Agreement.
5.02A Modifications to the Kasper Land Plan.
(a) Because the Kasper Tract comprises a significant area and its
development will occur in phases over a number of years, modifications to
the Kasper Land Plan may become desirable due to changes in market
conditions or other factors. Kasper or Kasper Developer may request
modifications to the Kasper Land Plan. Minor Modifications of the Kasper
Land Plan pertaining to (1) roadway and trail alignments; (2) changes in the
density of the specific sections or between phases as shown on the Kasper
Land Plan, and (3) changes of less than 20% in the size of any section or
phase shown on the Kasper Land Plan, shall be considered Minor
Modifications over which the Planning Director will have final review and
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decision-making authority. All other changes to the Kasper Land Plan that
are not Minor Modifications shall be considered Major Modifications.
Major Modifications to the Kasper Land Plan must be approved an
amendment to this Agreement by the City Council. After approval by the
City in accordance with this Section, all Minor Modifications and Major
Modifications to the Kasper Land Plan shall be recorded by the City at
Kasper's or Kasper Developer's expense in the Official Records of
Williamson County and thereafter, all references in this Agreement to the
Kasper Land Plan shall mean and refer to the then most current approved
and recorded Kasper Land Plan.
(b) Minor Modifications to the Kasper Land Plan allowed by
Section 5.02A of this Agreement shall not be deemed to be changes to the
project under Chapter 245 of the Texas Local Government Code. All Major
Modifications to the Kasper Land Plan shall be deemed to be changes to the
project under Chapter 245 of the Texas Local Government Code, and the
provisions of the UDC and all other applicable laws and regulations in
effect at the time of such Major Modifications shall apply unless the City
Council expressly agrees otherwise.
5.03A Kasper PUD Zoning Application. Development on the
Kasper Tract shall conform in all respects to the requirements of the Kasper
PUD Ordinance (defined herein). In addition, the following provisions
shall also apply to the Kasper Tract: (a) at least 85% of the exterior surface
area of all elevations visible from a public street or open space/parkland
shall consist of brick, stone or stucco; (b) at least 85% of the exterior surface
area of all elevations which are not visible from a public street or open
space/ parkland shall consist of brick, stone, stucco, or cement based siding;
and (c) no more than 50% of any such nonvisible surface area shall consist
of cement based siding.
5.04A Kasper Plat Approval. Subdivision of the Kasper Tract shall
require approval of preliminary and final plats by the City in accordance
with the UDC. IT SHALL BE A CONDITION TO ACCEPTANCE BY
THE CITY, AS WELL AS A REQUIREMENT FOR COMPLETENESS, OF
ANY APPLICATION FOR A PRELIMINARY PLAT OR FINAL PLAT OF
ANY PORTION OF THE KASPER TRACT THAT NO EVENT OF
MATERIAL DEFAULT SHALL EXIST WITH REGARD TO THE
PROVISIONS OF THIS AGREEMENT APPLICABLE TO THE KASPER
TRACT, KASPER, AND KASPER DEVELOPER; THE KASPER PUD
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ZONING ORDINANCE; OR THE KASPER WASTEWATER SERVICES
AGREEMENT AS OF THE FILING DATES FOR SUCH
APPLICATIONS.
5.05A Kasper Public Infrastructure. All Kasper Public
Infrastructure shall be designed in compliance with the Kasper Governing
Regulations, and no construction or installation of the Kasper Public
Infrastructure shall begin until plans and specifications have been
approved by the City. All Kasper Public Infrastructure shall be constructed
and installed in compliance with the Kasper Governing Regulations and
shall be inspected to determine compliance.
7. Kasper Transportation Improvements. The Original Consent Agreement, as
amended by the First Amendment, is hereby amended to include a new Article VI -A to
provide in its entirety as follows:
ARTICLE VI -A
KASPER TRANSPORTATION IMPROVEMENTS
6.01A Kasper TIA. Prior to the submittal of any development
applications related to the Kasper Tract, Kasper or Developer shall
prepare, or cause to be prepared, a Traffic Impact Analysis for the
Kasper Tract (Kasper TIA) prepared in compliance with Chapter 12.05
of the UDC and this Agreement. After approval of the Kasper TIA by
the City, the City shall have the option to determine whether (a) Kasper
Developer or District shall construct the traffic -related improvements as
required by the Kasper TIA, or (b) Kasper Developer or District shall pay
to the City a sum equal to the traffic -related improvement costs
identified in the TIA (the "Kasper TIA Improvement Costs").
Notwithstanding the generality of the foregoing, and in addition to but
not in lieu of the findings and conclusions in the Kasper TIA and
payment (if applicable) of the Kasper TIA Improvement Costs, Kasper
Developer or District shall dedicate or convey to the City one hundred
ten feet (110') of right-of-way for and construct two lanes of the Minor
Arterial Street traversing the Kasper Tract (shown on Exhibit C -2t)
(including construction of the paved roadway, landscaping, and a
sidewalk on one side of the street and trail on the other side of the street
meeting the standards of this Agreement and as more fully set forth in
the Kasper PUD Ordinance) in accordance with Section 6.02-A, belo,,y.
Kasper, Kasper Developer and District understand and agree that
Second Amended Consent Agreement SEWCMUDI
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additional transportation improvements may be required as a result of
the City's review of the Kasper TIA, including, for example, payments
for construction of the remaining one-half of the Minor Arterial Street.
6.02A Design; Transfer to City. Except as otherwise specifically
provided in Article VI -A of this Agreement, Kasper Developer and the
District shall design and construct all Kasper Transportation
Improvements that are necessary to serve the Kasper Tract in
conformance with the Kasper Governing Regulations. Upon completion
of construction, the Kasper Transportation Improvements shall be
dedicated or transferred to the City for ownership, maintenance and
repair as and when any portion of the Kasper Tract adjacent to such
Kasper Transportation Improvements is platted or when otherwise
required under the Kasper Governing Regulations or the applicable
terms of this Agreement.
8. Kasper Public Infrastructure. The Original Consent Agreement, as amended by
the First Amendment, is hereby amended to include a new Article VII -A to provide in its
entirety as follows:
ARTICLE VII -A
KASPER PUBLIC INFRASTRUCTURE
7.01A Kasper Water and Wastewater Infrastructure. Kasper,
Kasper Developer or the District shall construct all water and
wastewater Kasper Public Infrastructure that are necessary to serve the
Kasper Tract, including (i) the water system, including all piping, valves,
and hydrants within designated easements or rights of way up to the
customer side of the meter; and (ii) the wastewater system, including all
piping, manholes, and lift stations located within designated easements
or rights of way up to the point of service entry by a single customer.
All water and wastewater Kasper Public Infrastructure shall be designed
and constructed in accordance with the Kasper Governing Regulations
and the requirements of any other entity with jurisdiction.
7.02A Kasper Drainage Public Infrastructure. Kasper, Kasper
Developer or the District shall construct all drainage Kasper Public
Infrastructure serving the Kasper Tract as an integrated storm water
system and enhanced regional water quality system that complies with
the Kasper Governing Regulations.
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7.03A Transfer of Ownership, Operation and Maintenance for
Kasper Public Infrastructure.
(a) General. Within ninety (90) days after completion of
construction, Kasper or Kasper Developer agree to request the
applicable utility service provider to accept the Kasper Public
Infrastructure for ownership, operation and maintenance. For any
Kasper Public Infrastructure to be conveyed to the City for ownership,
operation and maintenance, Kasper or Kasper Developer shall provide
the following information to the City: (a) one complete set of as -built
plans in the format requested by the City; (b) copies of all documents
evidencing transfer or assignment of all contractual rights, warranties,
guarantees, assurances of performance, and bonds related to the On -Site
Public Infrastructure, and (c) lien waivers and releases acceptable to the
City Attorney. The City's acceptance of such improvements shall be
documented in a letter from the City to Kasper and Kasper Developer.
Additional requirements applicable to the Kasper Wastewater
Improvements are set forth in the Kasper Wastewater Services
Agreement attached hereto as Exhibit E-2.
(b) Water. The water Kasper Public Infrastructure shall be
conveyed to Jonah for operation and maintenance upon completion of
construction and compliance with any other requirements of the retail
water service provider. Kasper and Kasper Developer agree to comply
with all applicable requirements of Jonah.
(c) Drainage and Stormwater.
(1) Upon completion of construction of the associated street
improvements, the drainage and stormwater curbs, inlets, and piping
improvements (but specifically excluding holding, detention, retention,
or water quality ponds, ditches, swales and the like) shall be dedicated
or transferred to the City for ownership, maintenance and repair when
any portion of the Land adjacent to such improvements is platted or
when otherwise required under the Kasper Governing Regulations.
(2) Upon completion of construction, all drainage and
stormwater holding, detention, retention, and water quality ponds,
ditches, swales and the like shall be dedicated or transferred to the
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District for ownership, maintenance and repair as and when any portion
of the Land adjacent to such improvements is platted or when otherwise
required by the Kasper Governing Regulations. The drainage and
stormwater Kasper Public Infrastructure addressed in this subsection
shall be maintained in good condition and working order, ordinary wear
and tear excepted. The City shall have no responsibility for the owning,
maintaining, operating, or repairing of the Kasper Public Infrastructure
addressed in this subsection.
9. Kasper Water, Wastewater, and Other Services. The Original Consent
Agreement, as amended by the First Amendment, is hereby amended to include a new
Article VIII -A to provide in its entirety as follows:
ARTICLE VIII -A
KASPER WATER, WASTEWATER, AND OTHER SERVICES
8.01A Kasper Water Services. Retail water service to the Kasper
Tract within the District shall be provided by Jonah in accordance with an
agreement between Jonah and Kasper or Kasper Developer, a copy of
which must be provided to the City's Planning Director and the City's
Utility Director no later than the time of submittal of a final plat application
for any portion of the Kasper Tract. The City shall have no obligation to
provide water service to the Kasper Tract, and approval of any preliminary
plat related to the Kasper Tract shall be conditioned upon the provision of
a safe and adequate water supply to the Kasper Tract by Jonah.
8.02A Kasper Wastewater Services. Upon construction by Kasper
or Kasper Developer and acceptance by the City of the Kasper Wastewater
Improvements, retail wastewater service for the Kasper Tract shall be
provided by the City in accordance with the "Kasper Wastewater Service
Agreement" attached hereto as Exhibit E-2. The City Council of the City of
Georgetown, Texas hereby approves Kasper Wastewater Wastewater
Services Agreement attached hereto as Exhibit E-2.
8.03A Kasper Garbage Services. Garbage pick-up services shall be
provided by the City's solid waste services provider, and customers located
in the Kasper Tract shall be Tier II Customers, as set forth in the City's Code
of Ordinances Section 13.04.180.
8.04A Kasper Police, Fire and Emergency Medical Services.
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(a) Police, fire and emergency medical services to serve the
Kasper Tract will be provided by the City.
(b) The City shall collect a fire service improvements program
(SIP) fee of $630.00 per residential lot, which SIP fee is due and must be paid
at the time of application for a plumbing permit for any residential unit on
the Kasper Tract. The SIP Fee shall be paid by the person or entity that
seeks the building permit.
10. Section 9.04 of the Original Consent Agreement, as amended by the First
Amendment, relating to "Amount of Bonds" is hereby repealed and replaced in its
entirety with the following new Section 9.04, which shall provide as follows:
9.04 Amount of Bonds. In consideration of the City's consent
to the creation of the District, the District agrees that the total amount of
Bonds issued by the District for all purposes shall not exceed FIFTY
TWO MILLION NINE HUNDRED SEVENTY FIVE THOUSAND
DOLLARS ($52,975,000) (the "Bond Limit Amount") for all purposes.
The Parties acknowledge and agree that the Bond Limit Amount is
sufficient to accomplish the purposes of the District, and that the
District, Owner, Developer, Kasper, and Kasper Developer have
voluntarily agreed to the Bond Limit Amount. District improvements
or facilities, if any, the cost of which exceeds the Bond Limit Amount,
shall be dedicated to the District without reimbursement unless
otherwise approved by the City Council. The District must issue its
Bonds for the purpose of financing reimbursable expenses under Section
49.155 of the Texas Water Code and for the purposes authorized in
Section 9.02 of this Agreement prior to or simultaneously with issuance
of Bonds for any other purpose.
11. Section 9.12 of the Original Consent Agreement, as amended by the First
Amendment, relating to "Dissolution of Districts; Reimbursement Agreements" is
hereby repealed and replaced in its entirety with the following new Section 9.12, which
shall provide as follows:
9.12 Dissolution of District; Reimbursement Agreements.
(a) The District agrees not to issue Bonds for purposes of reimbursing
Owner, Developer, Kasper, or Kasper Developer for any costs or expenses after
the tenth (10'11) anniversary of the date of the first issuance of Bonds by the District,
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which costs and expenses would otherwise be eligible to be reimbursed by District
pursuant to the rules and regulations of the TCEQ or other applicable law, and
Owner, Developer, Kasper, and Kasper Developer hereby expressly and
irrevocably waive any claims against the City for repayment of such indebtedness.
The District agrees that all reimbursement agreements that it enters into with
Owner, Developer, Kasper, or Kasper Developer shall include the following
provision relating to any sums payable by the City upon dissolution of the District:
"If, at the time of dissolution of the District, [Owner,
Developer, Kasper or Kasper Developer, as applicable] has
completed the construction of or financed any facilities or undivided
interests in facilities on behalf of the District in accordance with the
terms of this agreement, but the District has not issued Bonds to
reimburse [Owner, Developer, Kasper or Kasper Developer, as
applicable] for the cost of the facilities or undivided interests in
facilities, [Owner, Developer, Kasper or Kasper Developer, as
applicable] agrees that it will convey the facilities or undivided
interests in question to the City, free and clear of any liens, claims, or
encumbrances, and [Owner, Developer, Kasper and/or Kasper
Developer, as applicable] has waived any payment by the City to
which it otherwise would haves e been eligible for reimbursement
from Bond proceeds or any other source.
(b) The City agrees that it will not seek to dissolve the District, including
pursuant to the authority set forth in Section 43.074 of the Texas Local Government
Code, until after the tenth (101h) anniversary of the date of the first issuance of
Bonds by the District.
12. Tax Rate Limitation. Kasper and Kasper Developer hereby agree to the Tax Rate
Limit set forth in Section 10.01 of the Original Consent Agreement and voluntarily agree
to the Tax Rate Limit.
13. Impact Fees. New Section 10.5, relating to "Impact Fees," is hereby added and
provides as follows:
10.05 Impact Fees.
(a) If Owner or Developer cause completion of construction of the Major
Wastewater Facilities to occur on or before the Completion Date pursuant
to the Wastewater Services Agreement, then the City shall refund to Owner
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or Developer (according to which Party funded the costs of the Major
Wastewater Facilities), those portions of the impact fees collected by the
City from wastewater connections on the Land that are applicable to
construction of the Major Wastewater Facilities. Any such refunds shall be
paid by the City on or before March 31 beginning in the calendar year
following acceptance by the City of the Major Wastewater Facilities for
operation and maintenance, and ending on the date that is ten (10) years
after the City's first payment to Owner or Developer of a refund under this
subsection, after which time the City shall have no obligation to refund any
impact fees for the Major Wastewater Facilities. Each reimbursement
payment shall be for the number of connections within the Land for which
wastewater impact fees were collected by the City during the preceding
calendar year.
(b) If Kasper or Kasper Developer cause completion of construction of
the Kasper Major Wastewater Facilities to occur on or before the
Completion Date pursuant to the Kasper Wastewater Services Agreement,
then the City shall refund to Kasper or Kasper Developer (according to
which Party funded the costs of the Major Wastewater Facilities) those
portions of the impact fees collected by the City from wastewater
connections on the Kasper Tract that are applicable to a completed Kasper
Major Wastewater Facility. Any such refunds shall be paid by the City on
or before March 31 beginning in the calendar year following acceptance by
the City of the Kasper Major Wastewater Facilities required to be completed
by the Phase 3 Completion Date, and ending on the date that is ten (10)
years after the City's first payment to Kasper or Kasper Developer under
this subsection, after which time the City shall have no obligation to refund
any impact fees for any Kasper Major Wastewater Facility. Each
reimbursement payment shall be for the number of connections within the
Kasper Tract for which wastewater impact fees were collected by the City
during the preceding calendar year.
14. Authority. Section 11.01 of the Original Consent Agreement, as amended by the
First Amendment, relating to "Authority" is hereby repealed and replaced in its entirety
with the following Section 11.01, which shall provide as follows:
11.01 Authority. This Agreement is entered into under the
statutory authority of Section 54.016 of the Texas Water Code and other
laws of the State of Texas. The Parties intend that this Agreement authorize
certain general uses and development of the Land and the Kasper Tract;
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provide for infrastructure for the Land and the Kasper Tract; specification
the uses and development of the Land and the Kasper Tract; and provide
other lawful terms and conditions relating to the Land and the Kasper Tract.
15. Section 13.02(b) of the Original Consent Agreement, as amended by the First
Amendment relating; to "Assignment," is hereby repealed and replaced in its entirety
with the following new Section 13.02(b) which shall provide as follows:
(b) Owner Developer Kasper and Kasper Developer each shall
have the right from time to time to assign their interests in this Agreement,
in whole or in part including any obligation right title or interest under this
Agreement to the District (after the District Creation Date) and to any
person or entity (an "Assignee„) without the consent of the City, provided
that the following conditions are satisfied: (1) Assignee is also an assignee
of the Wastewater Services Agreement with respect to any assignment
pertaining to the Land or is an assignee of the Kasper Wastewater Services
Agreement with respect to any assignment pertaining to the Kasper Tract;
(2) Assignee if not Developer or the District is a successor owner of all or
any part of the Land; (3) Assignee if not the Kasper Developer or the
District is a successor owner of all or any part of the Kasper Tract; (4) if not
the District Assignee has a contractual right to be reimbursed for water,
sewer or drainage improvements from Bonds (or has a lien or other security
interest in such reimbursements)- (5) the assignment is in writing executed
by the assignor and Assignee in the form of assignment attached as Exhibit
"H” in which Assignee expressly assumes in the assignment any assigned
obligations and expresslyagrees in the assignment to observe perform, and
be bound by the applicable terns of this Agreement, and the Wastewater
Services Agreement or Kasper Wastewater Services Agreement (as
applicable) to the extent this Agreement the Wastewater Services
Agreement or the Kasper Wastewater Services Agreement relates to the
obligations rights titles or interests assigned; (6) assignor is not then in
default Lander this Agreement the Wastewater Services Agreement or
Kasper Wastewater Services Agreement (as applicable);and (7) a copy of the
executed assignment is provided to all Parties within fifteen (15) days after
execution Provided the foregoing conditions are each satisfied from and
after the date the assignment is executed the City agrees to look solely, to
Assignee for the performance of all obligations assigned to Assignee and
agrees that the assignor shall be released from performing the assigned
obligations and from any liability that results from the Assignee's failure to
perfornn the assigned obligations. No assignment by such assigning party
Second Amended Consent Agreement SEWCMUDI
Page 16 of 39
steal] release the assi-
gning party from any liability that resulted from and act
or omission by such assigning party that occurred prior to the effective date
of the assignment. The assigning party shall maintain written records of all
assignments made by it (including, for each Assignee, the notice information
e. t.
required by this Agreement and including a copy of each executed
assignment) and upon written request from any Party or Assignee, shall
provide a copy of such records to the requesting; person or entity. It is
specifically intended that this Agreement, and all terms, conditions and
covenants herein, shall survive a transfer, conveyance, or assignment
occasioned by the exercise of foreclosure of lien rights by a creditor or a
Party, whether judicial or non judicial. This Agreement shall be bindin6,
upon and inure to the benefit of the Parties and their respective successors
and Assignees. Notwithstanding the foregoing, however, (i) neither Owner
nor Developer shall have the right to assign their interests in this Agreement
or the Wastewater Services Agreement until Owner transfers all or a portion
of its right title and interest in the Land to Developer; and (ii) neither Kasper
Owner -nor Kasper Developer shall have the right to assign their interests ill
this Agreement or the Kasper Wastewater Services Agreement until Kasper
9w4tei�-transfers all or a portion of its right title and interest in the Kasper
Tract to Kasper Developer.
i Tc. n,bele Y111.
r 1
of the lfiginal
Consent
Agreement,
^.Tamended
by Phe
First �
„T
n
+
a 17 �.di
„
-rr=a�=�
1, �i• "�.•,
_ _
algid and
C�t�ri-teirt�
�
��eiirc��.�i�'a=r'r'r'rcPrc;
s
crPrcrzcczrccr'r":�
r-eb,
fel
b new
Article X111,
wl:iieh
sl=iall
provide as
13.01
2014 and
T.
shall
eentin:ue
T
' n b
in effect
+ shall
iintil the
b ff ,ti
Pistr-iet is
f --off
disselved
C)ErE)ber
and
7T17
its
ebligations
aFe Full,
assumedby
the Cit ,ter
, ntA teFminated
in Nvr-iting
by
mutual agFeement
of
all
Par -ties.
13.02
Teleran,,
Teleran,,
and Assignment.
Pelegation
of rer-fvizi'r'irircObligation(s).
"
Subject to
b
the
,
Peveleper-
and
the
City may
delegateOwner-,
not
ef
their-
b atiens
to
per-fei-m
under- this
b
,exEept
upon
delivery to
the
others of
,
least
tNventy
(20)
bausiiness
days
before
the delegatien,
E)f a ivr-Atefi
delegateat
and the
h
the specific
pertoy-mai4Ee
obligations
delegated
and
Second Amended Consent Agreement SEWCMUDI
Page 17 of 39
delegated.
(b) Assignment f TJ'ghts to Perforri anc . (1,.,,,, r 1-1,,ye4oper and
+h , QtN, r iziat +h,,;r , „h+.- to r ,-form^nce 1^,- ^ z„th,,,- of +h,,,,n
under this A ,+ (; •-1,,.-l; but ,t limited to its - h+r +camany c4aim
damages nen s.rrb ciao
this —Agr-2e'r'r nt), voll'c'rrntaFi e--inyelunt•,r-ily, h'hetheF b''c=�iT„cT zr
j
perter-mance assigned exeaitecl by +1, assigning -ty and t1wie
Subjeet te the ter -ms and eaj�Elitiens of Seetieii 43.03 of this b ,
.
i
Second Amended Consent Agreement SEWCMUDI
Page 18 of 39
bations
as allwved
lay
- y
`rebate
to Felease
ef: di --,Eh
f:ge the delegating
,-,+;FJ _ef
the
u”
obligations,
and
the ccTi„y'ting
entity
ntees peFfo,-ma
ee of the
obligations.delegated
(2
-kssignzrre
t of
Y-ights
to per-far-manceas
allewed
19+—ri'rr,
r-
y
eenwnt
shall
extinguisl�
the assigning
entity'L
fqe-y�ar-manEe
of the
assigned
r-ights, exeept to
the extent ucuc
u«
a`+..,ih'"-`�17
entity
Y-etains,
a
lien en del=taroc
or- an
-th-er-eef eeeoi:
p @
ty}n)
Second Amended Consent Agreement SEWCMUDI
Page 18 of 39
/fll Effect .,f
Delegation
or- Assignment in
Violation of this
Vr[ VACS [SJ
Section-.
Sectio
or Ili\ are ;,a
13.83 —(inn,.
Limitations
on Pe-legat-e
Developer- sliall
nat liave
4ie- ir1`l1tto ash
5
�-
` b `
recerded in the
Off
RecoTC�I—�3� i4��rra�Tricriz—
r
-
- -
-----------------------------
i�E� ail -;,'assignments
dele-
gations
fer-ce er-.,ff.,..f
Second Amended Consent Agreement SEWCMUDI
Page 19 of 39
�-
-
-
-
- -
-----------------------------
---=-=--=----------------------
- -
- - -
-
-
Second Amended Consent Agreement SEWCMUDI
Page 19 of 39
------------------=-------------=---------------=-=-=---=------------------------=--
- - -lam
---�- =
_-------------
--------- --------_--
--------
---_--
---- - --
--------- -
_--- ---- _- -
----------------=---
--�
-------
-----=--
-
-
=---—_—__-------------
------------------=-------------=---------------=-=-=---=------------------------=--
- - -lam
---�- =
_-------------
--------- --------_--
--------
---_--
---- - --
--------- -
_--- ---- _- -
•
-
-
-
-
------------
•
- - -lam
Second Amended Consent Agreement SEWCMUDI
Page 20 of 39
21, 2944
12 . 01 n
TJ
and shall
e .,,, l-,_
TThis
C-epti—pl—le J -4q-
Agreement
111
,-,-,
bf tiye } •.�
e ofe -
n,-tal��r
ccvv�a
its,
ebli,batiens
are fully
s.
inuttial
br
'
13.02 n
r-ra
Delegation
b
and n
ss:n„Y,
en-
.
Pkgreernent,
(a.) Pelegation
terffis
Ka-sper,
of Performance
and eanditions
Kasper Developer
set
forth
and
Obligation(s).
ii-,
the
Subject
Seetion 13.03 A
Citv may net delegate
k)
of this
any
4 their
eb4igatians
to perform
under this
Agreement,
except upon
delivery
to tl=ie
ether, at least
twerity (20)
business,
days
I)efere trie
,
. the
erfermanee
`
delegated
'133d containing
the
delegate's
express
.
•
_.
OWN
.. .
.
.
21, 2944
12 . 01 n
TJ
and shall
e .,,, l-,_
TThis
C-epti—pl—le J -4q-
Agreement
111
,-,-,
bf tiye } •.�
e ofe -
n,-tal��r
ccvv�a
its,
ebli,batiens
are fully
s.
inuttial
br
'
13.02 n
r-ra
Delegation
b
and n
ss:n„Y,
en-
.
Pkgreernent,
(a.) Pelegation
terffis
Ka-sper,
of Performance
and eanditions
Kasper Developer
set
forth
and
Obligation(s).
ii-,
the
Subject
Seetion 13.03 A
Citv may net delegate
k)
of this
any
4 their
eb4igatians
to perform
under this
Agreement,
except upon
delivery
to tl=ie
ether, at least
twerity (20)
business,
days
I)efere trie
,
. the
erfermanee
`
delegated
'133d containing
the
delegate's
express
Second Amended Consent Agreement SEWCMUDI
Page 21 of 39
a hl' t' t f tl th;,' , , t with rrl _to O
E�-E'�-E'�t3 b _ -_.� y'" w
,�atiens delegated.
nn) Assignment
Pevelopey- and the City may net assign tlieii: Aghts to per-fer-mance
another- E,f the ander- thisA, ,} (;, el.tdin� 1 } of limited to :ts
`'�zrc'.'ri iirll �. . •
i4ghts to any claim fai- bassigning b
entity's h,- -1, of th; Agreement), ,}) ,l. ,t_-, ;1, -whether- by
Ieenselidation, dissolution, ation of I
etlmannei:except, ' Elel; to the ethers of them, at least +. e,+.
(20) busines days before the the
assignment, b
5peeifie rights to per-for-Fnanee assigned , xe t .11 the, .a
� r c assigning N^rt?� n
- - SVSG 1C„iC1 V1L- C 1a
}� C
assignment. Subject e
t to �1 ���
d tionnm
l tees and nd t;,,ns of
4-2.031A Tof this 7116i:eemCnt, K.
LTpep: Developer- Tna . • .rig s to
b .
('1) a Lender- t the tentnecessiar-y to obtainfi. ,cll,•, ;
b
development of the Kasper- I
eT-
r - se a.a t,eiiial ..
assiT
asteivater-
bnee of the Serviee I
or -
(3) to tl4e Pistr-ietz
Any J lassignment shall be s„h;,,t to the t .,,,I- of this Ag llLient
.
..,nment by Y, spei: or- Kasper- Developer- to any othei: persons er- entities
is net permitted
(9) Delegation
.,
t hl;.,atiens
,
allewed by
-
44,,_A-r-eemen+
b
shall n.,t
b
the
delegating
entity of
tlw
deleg
obligatiens,
and the
delegating,e
b uar-antees
per-ten:nanc-e
el- the
delegated
b
_.
() Assignment
of
to
per -for -mance
as allowed
by
Agreement
shallI
exting
b
right
en:t't r-etaiizis
J
a l;
an tl, , Kasper-
T,-
pzt
et an),
r tl
f ,
,
,nr �„ ,„ ,b
Second Amended Consent Agreement SEWCMUDI
Page 22 of 39
this Section. Any pui-par-ted g
Section 43.0-2 A /a1 , /b,\ a mid
Second Amended Consent Agreement SEWCMUDI
Page 23 of 39
16 Section 13.03 of the Original Consent Agreement as amended by the First
Amendment relating to "Remedies," is hereby repealed and replaced in its entirety with
the following new Sections 13.03 through 13.06 which shall provide as follows:
13.043 Default and Rights and Remedies for Default.
(a) Notification of Default Any material breach of this Agreement or of the
Wastewater Service Agreement shall be a default of this Agreement_ If Cite
Owner or Developer commits a default of this Agreement, one of them that
i5 not in default shall give Notice to the defaulting entity that describes the
default in reasonable detail.
(b) Cure of Default For any default that can be cured by the payment of
money or the posting of the Fiscal Security (each a "Monetary Default") the
defaulting entity shall be allowed thirty (30) days after the date of the Notice
to cure the Monetary Default (the "Monetary Default Cure Period"). For
any default that is not a Monetary Default (a "Non -Monetary Default"), the
defaulting entity must commence the cure of any Non -Monetary Default
specified in the Notice within thirty (30) days after the date of the Notice,
and thereafter diligently Pursue Such cure to completion but in no event
longer than ninety (90) days after the date of the Notice (the "Non -
Monetary Default Cure Period")j,
1 City's Remedies During Owner's Developer's or District's Cure
Periods No Bonds shall be issued by District to reimburse DeyeloWr or
Owner or any other purpose relating to the Land and the City shall have
all rig=hts to enjoin the issuance of Bonds for such purposes during the
applicable Cure Period for an Owner Developer or District default relating
to the Land In addition the City shall be relieved of all of its obligations
under this Agreement pertaining to the Land and the Wastewater Service
Agreement, including without limitation obligations to process or
appr�pplications permits plats plans acceptance for maintenance and
operation utility connections utility taps, or any other development or
Second Amended Consent Agreement SEWCMUDI
Page 24 of 39
Alf
"M
........... .
... . .. ........ 0
RMWO
16 Section 13.03 of the Original Consent Agreement as amended by the First
Amendment relating to "Remedies," is hereby repealed and replaced in its entirety with
the following new Sections 13.03 through 13.06 which shall provide as follows:
13.043 Default and Rights and Remedies for Default.
(a) Notification of Default Any material breach of this Agreement or of the
Wastewater Service Agreement shall be a default of this Agreement_ If Cite
Owner or Developer commits a default of this Agreement, one of them that
i5 not in default shall give Notice to the defaulting entity that describes the
default in reasonable detail.
(b) Cure of Default For any default that can be cured by the payment of
money or the posting of the Fiscal Security (each a "Monetary Default") the
defaulting entity shall be allowed thirty (30) days after the date of the Notice
to cure the Monetary Default (the "Monetary Default Cure Period"). For
any default that is not a Monetary Default (a "Non -Monetary Default"), the
defaulting entity must commence the cure of any Non -Monetary Default
specified in the Notice within thirty (30) days after the date of the Notice,
and thereafter diligently Pursue Such cure to completion but in no event
longer than ninety (90) days after the date of the Notice (the "Non -
Monetary Default Cure Period")j,
1 City's Remedies During Owner's Developer's or District's Cure
Periods No Bonds shall be issued by District to reimburse DeyeloWr or
Owner or any other purpose relating to the Land and the City shall have
all rig=hts to enjoin the issuance of Bonds for such purposes during the
applicable Cure Period for an Owner Developer or District default relating
to the Land In addition the City shall be relieved of all of its obligations
under this Agreement pertaining to the Land and the Wastewater Service
Agreement, including without limitation obligations to process or
appr�pplications permits plats plans acceptance for maintenance and
operation utility connections utility taps, or any other development or
Second Amended Consent Agreement SEWCMUDI
Page 24 of 39
utility -related applications or requests pertaining to the Land during the
applicable Cure Period for an Owner, Developer or District default
pertaining to the Land. During the Cure Period, the actions authorized by
this Section are the City's exclusive remedies for delay. If the Owner's_ or
Developer's or District's default remains uncured after the applicable Cure
Period the City shall also be entitled to all rights and remedies available to
it under this Agreement by law or in equity br by statute or otherwise.
13.065 Rights and Remedies for Default.
(a) If the defaulting entity does not cure the default within the applicable
Cure Period and if a non -defaulting entity has not waived the default in
waiting then after the expiration of the applicable Cure Period the non -
defaulting tv ma in its sole discretion, and A-vift- reiudice to any
other right or remedy allowed under this Agreement seek any other relief
available at law or in equity, all of which are cumulative and are in addition
to any other right or remedy given under this Agreement or the bVastewater
Service Agreement which may now or subsequently exist in law or in
equity by statute or otherwiseand the exercise of any one remedv does not
preclude the exercise of another.
(b) Damages if any, to which any non -defaulting entity may be entitled
shall be limited to actual damages and shall not include special incidental,
or consequential damages.
(c) To the extent that any course of dealing act omission failure or delay
in exercisirip, any right or remedy under this Agreement constitutes the
election of an inconsistent right or remedy, that election does not constitute
a waiver of any right or remedy or limit or prevent the subsequent
enforcement of any provision of this Agreement No singlepartial
exercise of any right or remedy under this Agreement precludes the
simultaneous or subsequent exercise of any other right or remedy.
13.076 City's Right to Terminate After the expiration of the applicable Cure
Period without regard to Owner's or Developer's or District'san rtial
performance if any, the City is entitled to terminate this Agreement as it
relates to the Land upon written notice to Owner and Developer and
District with the effect Set forth in this Section 13.07-6 if Owner or
Developer or District has failed to cure a default under this Agreement or
the Wastewater Services Agreement within the a}?plica A _lure Period, and
the City has not waived the default in writing or Owner or Developer or
District has failed to satisf�� a condition precedent and the Cit�T has not
waived performance of the condition precedent in writing Termination of
Second Amended Consent Agreement SEWCMUDI
Page 25 of 39
this Agreement as it relates to the Land pursuant to this Section does not
terminate limit or restrict the rights and remedies of the City and is without
prejudice to the City's claim for damages IN ADDITION TO THE CITY'S
RIGHT UNDER COMMON LAW TO REDRESS FOR ANY BREACH OR
UNCURED DEFAULT OWNER DEVELOPER AND DISTRICT SHALL
EACH INDEMNIFY AND DEFEND THE CITY AGAINST ALL LOSSES
DAMAGES (INCLUDING WITHOUT LIMITATION CONSEQUENTIAL
DAMAGES) COSTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION INTEREST (INCLUDING PREJUDGMENT INTEREST IN
ANY LITIGATED 'MATTER), PENALTIES COURT COSTS, AND
ATTORNEY'S FEES AND EXPENSES) ASSERTED AGAINST, IMPOSED
UPON OR INCURRED BY THE CITY, DIRECTLY OR INDIRECTLY.
MUSING OUT OFF OR RE_LTIN_G_FROM THE BREACH OR UNCURED
DEFAULT AND TERMINATION OF THE AGREEMENT AND
ENFORCEMENT OF THIS SECTION.
17. Section 13.04 of the Original Consent Agreement as amended by the First
Amendment relating to "Cooperation," is hereby renumbered as Section 13.07:
M New Sections 13.03-A through 13.06-A relating to "Kasper Default and Rights and
Remedies for Default" are hereby added and shall provide as follows:
13.04, 03-A Default and Rights and Remedies for Default.
(a) Notification of Default. Any material breach of this Agreement
or of the Kasper Wastewater Service Agreement shall be a default of this
Agreement. If City, Kasper or Kasper Developer commits a default of this
Agreement, one of them that is not in default shall give Notice to the
defaulting entity that describes the default in reasonable detail.
(b) Cure of Default.. For any default that can be cured by the
payment of money or the posting of the Kasper Fiscal Security (each a
"Monetary Default"), the defaulting entity shall be allowed thirty (30) days
after the date of the Notice to cure the Monetary Default (the "Monetary
Default Cure Period"). For any default that is not a Monetary Default (a
"Non -Monetary Default'), the defaulting entity must commence the cure
of any Non -Monetary Default specified in the Notice within thirty (30) days
after the date of the Notice, and thereafter diligently pursue such cure to
completion but in no event longer than ninety (90) days after the date of the
Notice (the "Non -Monetary Default Cure Period").
Second Amended Consent Agreement SEWCMUDI
Page 26 of 39
13.0504-A City's Remedies During Owner's, Developer's or
District's Cure Periods. No Bonds shall be issued by District for
reimbursement of Kasper or Kasper Developer or for any other purpose
relating to the Kasper Tract, and the City shall have all rights to enjoin the
issuance of Bonds for such purposes, during the applicable Cure Period for
a Kasper or Kasper Developer or District default pertaining to the Kasper
Tract. In addition, the City shall be relieved of all of its obligations under
this Agreement pertaining to the Kasper Tract and the Kasper Wastewater
Service Agreement, including, without limitation, obligations to process or
approve applications, permits, plats, plans, acceptance for maintenance and
operation, utility connections, utility taps, or any other development or
utility -related applications or requests pertaining to the Kasper Tract;
during the applicable Cure Period for a Kasper or Kasper Developer or
District default relating to the Kasper Tract. During the Cure Period, the
actions authorized by this Section are the City's exclusive remedies for
delay. If Kasper's or Kasper Developer's or District's default remains
uncured after the applicable Cure Period, the City shall also be entitled to
all rights and remedies available to it under this Agreement, by law or in
equity, or by statute or otherwise.
13.0605-A Rights and Remedies for Default.
(a) If the defaulting entity does not cure the default within the
applicable Cure Period, and if a non -defaulting entity has not waived the
default in writing, then after the expiration of the applicable Cure Period,
the non -defaulting entity may, in its sole discretion, and without prejudice
to any other right or remedy allowed under this Agreement, seek any other
relief available at law or in equity, all of which are cumulative and are in
addition to any other right or remedy given under this Agreement or the
Kasper Wastewater Service Agreement which may now or subsequently
exist in law or in equity by statute or otherwise, and the exercise of any one
remedy does not preclude the exercise of another.
(b) Damages, if any, to which any non -defaulting entity may be
entitled shall be limited to -actual damages and shall not include special,
incidental, or consequential damages.
(c) To the extent that any course of dealing, act, omission, failure, or
delay in exercising any right or remedy under this Agreement constitutes
Second Amended Consent Agreement SEWCMUDI
Page 27 of 39
the election of an inconsistent right or remedy,. that election does not
constitute a waiver of any right or remedy, or limit or prevent the
subsequent enforcement of any provision of this Agreement. No single or
partial exercise of any right or remedy under this Agreement precludes the
simultaneous or subsequent exercise of any other right or remedy.
13.9'06-A City's Right to Terminate. After the expiration of the
applicable Cure Period, without regard to Kasper's, Kasper Developer's or
District's partial performance, if any, the City is entitled to terminate this
Agreement as it relates to the Kasper Tract upon written notice to Kasper,
Kasper Developer and District, with the effect set forth in this Section
13.9706-A, if Kasper, Kasper Developer or District has failed to cure a
default under this Agreement or the Kasper Wastewater Services
Agreement within the applicable Cure Period, and the City has not waived
the default in writing; or Kasper, Kasper Developer or District has failed to
satisfy a condition precedent and the City has not waived performance of
the condition precedent in writing. Termination of this Agreement as it
relates to the Kasper Tract pursuant to this Section does not terminate, limit
or restrict the rights and remedies of the City and is without prejudice to
the City's claim for damages. IN ADDITION TO THE CITY'S RIGHT
UNDER COMMON LAW TO REDRESS FOR ANY BREACH OR
UNCURED DEFAULT, KASPER, KASPER DEVELOPER AND DISTRICT
SHALL EACH INDEMNIFY AND DEFEND THE CITY AGAINST ALL
LOSSES, DAMAGES (INCLUDING, WITHOUT LIMITATION,
CONSEQUENTIAL DAMAGES) COSTS AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, INTEREST (INCLUDING PREJUDGMENT
INTEREST IN ANY LITIGATED MATTER), PENALTIES, COURT COSTS,
AND ATTORNEY'S FEES AND EXPENSES) ASSERTED AGAINST,
IMPOSED UPON OR INCURRED BY THE CITY, DIRECTLY OR
INDIRECTLY, ARISING OUT OF OR RESULTING FROM THE BREACH
OR UNCURED DEFAULT AND TERMINATION OF THE AGREEMENT
AND ENFORCEMENT OF THIS SECTION.
v19. Notice. Section 14.01 of the Original Consent Agreement relating to "Notice" is
hereby amended to add the following address for notice for the Kasper Family Limited
Partnership and Sentinel Land:
Kasper: Kasper Family Limited Partnership
101 Pitchstone Cove
Georgetown, TX 78628
Second Amended Consent Agreement SEWCMUDI
Page 28 of 39
Sentinel Land:
Sentinel Land Company, LLC
9111 Jollyville Road, Suite 212
Austin, Texas 78731
Attn: David Nairne
Email: David—Naime@hotmall.com
Sentinel Land Company, LLC
4910 Campus Drive
Newport Beach, CA 92660
Attn: Tom Rielly
Email: tomr@shamrockcommunities.com
-W,.20. First Amended Finance Plan. The City Council of the City of Georgetown, Texas
hereby approves the First Amended Finance Plan attached hereto as Exhibit B-2.
X21. Kasper Engineering Report. The City Council of the City of Georgetown, Texas
hereby approves the "Engineering Report for Annexation of Kasper Tract," attached
hereto as Exhibit F-2.
20-;22. Consultant Fees. As additional consideration for this Second Amendment,
pursuant to Section 13.10.050(AC) of the UDC, Sentinel Land shall pay City's outside
consultant and legal fees and expenses associated with the negotiation and preparation
of this Second Amendment and the Kasper Wastewater Services Agreement, which
amounts shall be paid in full to the City on or before the Effective Date.
2-;:23. Cross Default Matters. The Parties specifically acknowledge and agree that a
default by Owner or Developer under this Agreement shall not constitute a default by
Kasper Developer, and similarly, any default by Kasper Developer under this Agreement
shall not constitute a default by Owner or Developer.
22.24. Future Amendments. The Parties specifically acknowledge and agree that it is
their mutual intention that certain potential amendments to the Original Consent
Agreement, as amended by the First Amendment and this Second Amendment, shall not
require the joinder of all Parties, and therefore agree as follows:
(i) Any amendment that relates only to development obligations pertaining to
the Land may be executed by Owner, Developer and the City only;
Second Amended Consent Agreement SEWCMUD]
Page 29 of 39
(ii) Any amendment that relates only to development obligations pertaining to
the Kasper Tract may be executed by Kasper Developer and the City only;
(iii) Any amendment of this Agreement that pertains only to the District but
that does not impact the issuance of District Bonds or potential reimbursement of
any Party may be executed by the City and the District only, and
(iv) Notwithstanding the foregoing, no amendment or modification that would
delay, impair, or otherwise adversely impact the issuance of the Bonds by the
District, or that would impact any Party's right to any proceeds of the District
Bonds will be effective without all Parties' execution. Any such amendment or
modification not executed by all Parties shall have no force or effect.
U,-:25. Relationship of Developer and Owner Parties. It is specifically agreed by the
Parties that this Agreement does not create any contractual duty or obligation between
Owner, Developer and Kasper Developer. Each such Party is entering into this
Agreement to define its respective rights, duties and obligations to the City with respect
to the matters set forth in this Agreement only.
2-=r26. Miscellaneous.
A. Except as specifically otherwise amended by this Second
Amendment, all provisions of the Original Consent Agreement, as amended by the First
Amendment, shall continue to be in full force and effect.
B. Unless defined differently herein or the context clearly requires
otherwise, each capitalized term used in this Second Amendment shall have the meaning
ascribed to such term in the Original Consent Agreement or the First Amendment (as
applicable).
C. This Second Amendment may be executed in several counterparts,
each of which shall be deemed an original. The signatures to this Second Amendment
may be executed on separate pages, and when attached to this Second Amendment shall
constitute one (1) complete document.
D. The parties agree that the Second Amendment shall be recorded in
the Real Property Records of Williamson County, Texas at the expense of the Developer.
E. The following Exhibits are attached to this Second Amendment and
are hereby incorporated herein by reference for all purposes:
Second Amended Consent Agreement SEWCMUDI
Page 30 of 39
Exhibit A-2
Kasper Tract Survey
Exhibit B-2
First Amended Finance Plan
Exhibit C-2
Kasper Land Plan
Exhibit D-2
Kasper PUD Ordinance 2016-24
Exhibit E-2
Wastewater Services Agreement [Kasper Tract]
Exhibit F-2
Kasper Engineering Report
F. The effective date of this Second Amendment shall be latest date
accompanying the signature lines below (the "Second Amendment Effective Date").
G. Each Party certifies, represents, and warrants that the execution of
this Second Amendment is duly authorized and adopted in conformity with all
requirements applicable to such Party.
[The remainder of this page is intentionally left blank. Signatures and acknowledgements
follow.]
Second Amended Consent Agreement SEWCMUD1
Page 31 of 39
CITY:
ATTEST:
Shelley Nowling, City Secretary
APPROVED AS TO FORM:
By:
Charlie McNabb, City Attorney
STATE OF TEXAS §
COUNTY OF WILLIAMSON §
CITY OF GEORGETOWN, TEXAS
Dale Ross, Mayor
This instrument was acknowledged before me on the day of
2016, by Dale Ross, Mayor of the City of Georgetown, Texas, a home -
rule city, on behalf of the City.
(seal)
Notary Public Signature
Second Amended Consent Agreement SEWCMUDI
Page 32 of 39
OWNER:
STATE OF TEXAS §
COUNTY OF §
WOODHULL FAMILY PARTNERS
a Texas general partnership
Daniel Y_ Kruger
This instrument was acknowledged before me the day of
2016, by Daniel Y. Kruger of Woodhull Family Partners, a Texas
general partnership, on behalf of Woodhull Family Partners.
(seal)
Notary Public Signature
Second Amended Consent Agreement SEWCMUDI
Page 33 of 39
Hollie Woodhull Alexander
STATE OF TEXAS
COUNTY OF §
This instrument was acknowledged before me on the day of
2016, by Hollie Woodhull Alexander of Woodhull Family Partners,
a Texas general partnership, on behalf of said general partnership.
(seal)
Notary Public Signature
Second Amended Consent Agreement SEWCMUD]
Page 34 of 39
Margaret Woodhull
STATE OF COLORADO
COUNTY OF §
This instrument was acknowledged before me on the day of
2016, by Margaret Woodhull of Woodhull Family Partners, a Texas
general partnership, on behalf of said general partnership.
(seal)
Notary Public Signature
Second Amended Consent Agreement SEWCMUDI
Page 35 of 39
SENTINEL LAND: SENTINEL LAND COMPANY, LLC, a Delaware
limited partnership
By:
Name:
Title:
Da
THE STATE OF TEXAS §
COUNTY OF TRAVIS
This instrument was acknowledged before me on this day of
2016, by of Sentinel
Land Company, LLC, a Texas limited liability company, on behalf of said limited liability
company.
(seal)
Notary Public Signature
Second Amended Consent Agreement SEWCMUDI
Page 36 of 39
DEVELOPER: WOODHULL VENTURES 2015, L.P., a Delaware
limited partnership
By: Sentinel Woodhull GP, LLC, a Texas limited
liability company, its General Partner
David Nairne, Vice President
THE STATE OF
COUNTY OF
This instrument was acknowledged before me on this day of
2016, by David Nairne, Vice President of Sentinel Woodhull GP,
LLC, a Texas limited liability company, on behalf of said limited liability company in its
capacity as General Partner of Woodhull Ventures 2015, L.P., a Delaware limited
partnership.
(seal)
Notary Public Signature
Second Amended Consent Agreement SEWCMUD]
Page 37 of 39
KASPER:
KASPER FAMILY LIMITED PARTNERSHIP
a Texas limited partnership
By: Kasper Family Management, LLC, a
Texas limited liability corporation, its
general partner
By:
Marilyn K. Messick, Managing Member
By:
Kristofer A. Kasper, Managing Member
(acknowledgements follow on next page)
Second Amended Consent Agreement SEWCMUDI
Page 38 of 39
DISTRICT:
ATTEST:
as
Patrick Oliver, Secretary
Board of Directors
THE STATE OF TEXAS §
COUNTY OF
SOUTHEAST WILLIAMSON COUNTY
MUNICIPAL UTILITY DISTRICT NO. I
Chris Zigrossi, President
Board of Directors
This instrument was acknowledged before me on this day of
2016, by Chris Zigrossi, President of Southeast Williamson County
Municipal Utility District No. 1, a political subdivision of the State of Texas, on behalf of
the District.
(seal)
Notary Public Signature
Second Amended Consent Agreement SEWCNIUDI
Page 39 of 39