HomeMy WebLinkAboutContract 36463CITY SECRETARY
CONTRACT NO, A DR
AGREEMENT CONCERNING CREATION AND OPERATION
OF TRADITION MUNICIPAL UTILITY DISTRICT NO.2
OF DENTON COUNTY
STATE OF TEXAS §
COUNTY OF DENTON §
This Agreement Concerning Creation and Operation of Tradition Municipal
Utility District No. 2 of Denton County (this "Agreement") is entered into by the City of
Fort Worth, Texas a home -rule municipal .corporation situated in Tarrant, Denton, and
Wise Counties, Texas, (the "City"), acting by and through its duly -authorized Assistant
City Manager; Aperion Communities, LLLP, Eladio Properties, LLLP, Drooy Properties,
LLLP, and Rocksand Investments, LLLP, Arizona limited liability limited partnerships
(individually and collectively, "Owner"); and Tradition Municipal Utility District No. 2
of Denton County, a municipal utility district created pursuant to Article XVI, Section 59,
of the Texas Constitution, Chapters 49 and 54 of the Texas Water Code and the
applicable Special District Local Law and any other district created over the
Development by dividing the District into one or more new Districts pursuant to the
District Legislation (the "District"), which District, after the District Confirmation Date
or, for any later created District, the date the election dividing a District is held pursuant
to § 8189.104 of the District Legislation), will become a Party to this Agreement.
ARTICLE I
RECITALS
A. Owner has represented to the City that Owner is the owner of
approximately 1,922,137 acres in Denton County, Texas, as shown on Exhibit A and
described on Exhibit B attached to this Agreement (the "Development"). The
Development lies entirely within the City's extraterritorial jurisdiction ("ETJ").
Be
The Texas legislature approved the creation of Tradition Municipal Utility
District No. 2 of Denton County containing the Development by House Bill 3182, 80th
Texas Legislature, Regular Session, Special District Local Laws Code,- Chapter 8189,
effective September 1, 2007 (the "District Legislation"); however, the District Legislation
provides that the election to confirm creation of the District may not be held unless the
City adopts a resolution after September 7, 2007, reconfirming its consent to the creation
of the District.
C. .Owner has submitted a petition to the City to obtain the City's consent to
the creation- of the District (the "Consent Petition") in accordance with the District
Legislation,
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D. Owner will submit a petition to the City requesting that certain
comerci mal portions of the Development be annexed into the corporate limits of the City
for the limited purpose of allowing the City to impose a sales and use tax in accordance
with the terms and conditions which shall be set forth in the Strategic Partnership
Agreement.
E. The purposes of this Agreement are to set out the mutually agreeable
terms and conditions relating to the creation and operation of the District, which are the
provisions under which the City has adopted its resolution consenting to the creation of
the District in accordance with the District Legislation and consistent with Section 42.042
of the Local Government Code and Section 54.016 of the Water Code. It is an essential
element of the granting of the City's consent to the creation of the District that, after the
District Confirmation Date, the District will approve and execute this Agreement and
become a Party to it.
F. On , 200 ,the City Council of the City adopted Resolution No.
consenting to the creation of the District (the "Consent Resolution"), which
Consent Resolution approved, and is subject to, the terms and conditions of this
Agreement.
G. The Development will be subject to that certain Agreement Regarding
Water and Wastewater Utility Service (City Secretary Contract No. between
Aqua Utilities, Inc., Owner, the District and the City which is attached as Exhibit C to
this Agreement (the "Utility Agreement").
H. Pursuant to the Utility Agreement, Aqua Utilities, Inc., Owner, the City,
and the District will execute that certain Buy - Out Option Contract, a copy of which is
attached to the Utility Agreement as Exhibit F (the "Buy -Out Contract").
NOW THEREFORE, for and in consideration, of the mutual agreements,
covenants, and conditions hereinafter set forth, the Parties contract and agree as follows:
ARTICLE II
DEFINITIONS
"Agreement" means this Agreement Concerning Creation and Operation of Tradition
Municipal Utility District No. 2 of Denton County.
"Assignee" means a successor to Owner as defined in Section 13.10(b) of this
Agreement.
"Attorney General" means the Attorney General of the State of Texas.
"Board" means -the Board of Directors of a District.
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'Bond" means (a) any instrument, including a bond, note, certificate of participation, or
other instrument evidencing a proportionate interest in payments, due to be paid by the
District, or (b) any other type of obligation that (1) is issued or incurred by the District
under the District's borrowing power, without regard to whether it is subject to annual
appropriation, and (2) is represented by an instrument issued in bearer or registered form
or is not represented by an instrument but the transfer of which is registered on books
maintained for that purpose by or on behalf of the District. The term shall include
obligations issued to refund outstanding Bonds, but shall not include reimbursement
agreements entered into between the District and a developer of the Development or bond
anticipation notes.
"Bond Limit Amount" -means the maximum amount of Bonds, excluding refunding
Bonds, that may be issued by the District pursuant to Section 5.04 of this Agreement..
"Buy -Out Contract" means that certain Buy -Out Option Contract to be executed by the
District, Owner, the City and Aqua Utilities, Inc., and wherein the District and Aqua
Utilities, Inc. agree to convey to the City certain retail water and wastewater facilities, a
copy of which is attached to the Utility Agreement as Exhibit F.
"CCN" means a certificate of convenience and necessity or similar permit issued by the
TCEQ authorizing a specified entity to be the retail water or wastewater service provider
in a specified area.
"CFA Policy" means the City's "Policy for the Installation of Community Facilities" as
amended March 20, 2001 (M & C G4 3181) and in effect on the effective date of the
Development Agreement, including any amendments in effect on that date.
"City" means the City of Fort Worth, Texas, a home rule municipality located in Tarrant;
Wise, and Denton Counties.
"City Attorney" means the City Attorney of the City.
"City Council" means the City Council of the City.
"Cit�ManagPr" means the City Manager of the City.
"Cit�jection" means an objection by the City to a Bond issue as defined in Section
5.10 of this Agreement.
"City Review Fees" means: (a) the fees and charges applicable to the City's preliminary
and final plat review and approval process according to the fee schedule adopted by the
City Council and in effect on the date of submittal of each plat application; and (b) fees
and charges applicable to the review of plans relating to construction of Infrastructure
according to the fee schedule adopted by the City Council and in effect on the date of
submittal of such plans.
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"City Secretary" means the City Secretary of the City.
"Consent Petition" means the petition submitted by Owner to the City requesting the
City's consent to the creation of the District and to the Road Project.
"Consent Resolution" means the Resolution No. adopted , 200_ by
the City Council that approves this Agreement and that contains the City's consent to the
creation of the District in accordance with the District Legislation, including, but not
limited to, consent for holding a confirmation election and undertaking the Road Project.
"Contractor" means a person or entity that constructs, alters or repairs Infrastructure
required to serve the Development.
"Development" means that certain 1,920-acre tract located in Denton County, Texas as
shown on Exhibit A and described on Exhibit B.
"Development Agreement" means the Development Agreement attached as Exhibit D
to this Agreement to be executed by the City and Owner.
"Development Director" means the Director of the City's Development Department.
"District" means the Tradition Municipal Utility District No. 2 of Denton County and any
other district created within the Development by dividing the District into one or more
new Districts pursuant to the District Legislation.
"District Confirmation Date" means the date on which the Board canvasses the results of
the election held within the District confirming the creation of the District.
"District Joinder" means the joinder entered into by a District after the formation of such
District as required by Section 4.01, the form of which is attached as Exhibit H of this
Agreement.
"District Legislation" means House Bill 3182, 80th Texas Legislature, Regular Session,
Special District Local Laws Code; Chapter 8189, effective September 1, 2007, creating
the District.
"Effective Date" means the effective date of this Agreement and is , 200_, the
date on which the Consent Resolution was adopted by the City.
"ETJ" means the extraterritorial jurisdiction of a city as defined by the Local Government
Code, as amended, with the City's ETJ being an unincorporated area presently extending
five miles from the City's corporate limits, excluding other incorporated municipalities
and their respective ETJs.
"Finance Director" means the Director of the City's Finance Department,
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'Governing Regulations" means all City ordinances, regulations, policies, manuals and
other requirements relating to Infrastructure, including without limitation, the design,
location, construction, payment of fees, operation, and maintenance thereof, that are
applicable within the City's corporate limits on the Effective Date. Further, "Governing
Regulations" includes all amendments to the foregoing requirements and all new
requirements relating to Infrastructure that are adopted or approved after the "Effective
Date", except any amendments from which Development is exempt pursuant to Chapter
245 of the Local Government Code, and any "Special Regulations" as such term is
defined in the Development Agreement.
"Impact Fee Agreement" means that certain Agreement Regarding Payment of Impact
Fees and Financing of Water and Wastewater Facilities among Owner, the District and
the City, a copy of which is attached as Exhibit G to the Utility Agreement.
"Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure
improvements installed or constructed to serve the Development, whether located within
or outside the Development.
"Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of
Infrastructure according to the fee schedule adopted by the City Council and in effect on
the date of the inspection.
"Local Government Code" means the Texas Local Government Code, as amended.
"Notice" means notice as defined in Section 13.01 of this Agreement.
"Owner" means, individually and collectively,. Aperion Communities, LLLP, Eladio
Properties, LLLP, Drooy Properties, LLLP, and Rocksand Investments, LLLP, Arizona
limited liability limited partnerships, their successors and their Assignees as permitted by
this_ Agreement.
"Partv" means, individually, the City, Owner, or the District, their successors and their
Assignees as permitted by this Agreement.
"Road Project" means the construction, acquisition, improvement, maintenance, and
operation of all macadamized, graveled, or paved roads and improvements in aid of such
roads located within the District and shown on any final plat approved by the City's Plan
Commission for the Development.
"Strategic Partnership Agreement" means the Strategic Partnership Agreement attached
as Exhibit E to this Agreement to be .executed by the City and the District providing for
the limited purpose annexation of certain portions of the Development designated for
commercial use for the sole purpose of imposing a sales and use tax pursuant to Section
43.0751 of the Local Government Code.
"TCE "means the Texas Commission on Environmental Quality or its successor state
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agency.
"Tradition" means the proposed master -planned community, containing approximately
2,660 acres that may include residential, commercial and recreational uses as generally
depicted for informational purposes only on Exhibit A.
"Utility Agreement" means that certain Agreement Regarding Water and Wastewater
Utility Service among Aqua Utilities, Inc., Owner, the District and the City, a copy of
which is attached as Exhibit C to this Agreement.
"Water Code" means the Texas Water Code, as amended.
"Water Director" means the Director of the City's Water Department.
ARTICLE III
CITY CONSENTS
In accordance with the terms of this Agreement, the City consents to (a) the
creation of the District over the Development, (b) the District undertaking the Road
Project, and (c) the calling and holding of an election within the District to confirm the
creation of the District.
ARTICLE IV
EXECUTION OF AGREEMENTS
4.01 Documents To Be Executed. Owner covenants and agrees to approve,
execute and deliver to the City the following agreements within 60 days of approval of
this Agreement by the City Council; Owner covenants and agrees to cause Aqua Utilities,
Inc., a Texas Corporation to approve, execute and deliver agreements (b)-(d) below
within 60 days of approval of this Agreement by the City Council; in addition, Owner
covenants and agrees to cause the District to approve, execute and deliver to the City the
following agreements within 60 days after the District Confirmation Date and to cause
any subsequently created District to approve, execute and deliver to the City a District
Joinder into this Agreement and the following agreements within 60 days after the date
the election dividing the District is held pursuant to §8189.104 of the District Legislation:
(a) This Agreement;
(b) The Utility Agreement;
(c) The Buy -Out Option Contract;
(d) The Memorandum of Buy -Out
Opti
and the following agreement within ninety (90) days after the District Confirmation Date
or the date the election dividing the District is held pursuant to § 8189.104 of the District
Legislation: -
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(f) The Strategic Partnership Agreement.
4.02 Issuance of Bonds. If the District fails to approve, execute and deliver to
the City any one or more of the agreements identified in Section 4.01 of this Agreement
within the time frames required by Section 4.01 and such failure is not cured within
fifteen (15) days after Notice from the City to Owner and the District, such failure shall
constitute a material breach of this Agreement by Owner and shall entitle the City to
prevent the issuance of Bonds until the failure has been cured.
4.03 Reimbursement. If Owner fails to cause the District to approve, execute
and deliver to the City any one or more of the agreements identified in Section 4.01 of
this Agreement within the time frames required by Section 4.01 and such failure is not
cured within fifteen (15) days after Notice from the City to Owner and the District, then
Owner shall not, from and after the date of such failure, enter into any agreements with
the District or seek reimbursement from the District for any expenses incurred in
connection with the District or development of the Development until the failure has been
cured.
4.04 Strategic Partnership Agreement. By this Agreement and the Consent
Resolution, the City has approved the form of the Strategic Partnership Agreement;
however, pursuant to Section 43.0751(e) of the Local Government Code, the City
Council is authorized to adopt the Strategic Partnership Agreement only after such
agreement has been adopted by the Board.
ARTICLE V
ISSUANCE OF BONDS AND CONSENT TO ROAD PROJECT
5.01 Issuance of Bonds. The District may issue Bonds as permitted by law and
this Agreement. Except as authorized by this Agreement, the District shall not issue
Bonds without prior approval of the City Council.
5.02 Purposes. The purposes for which the District may issue Bonds shall be
restricted to the following.
(a) Purchase, construction, acquisition, repair, extension and improvement of
land, easements, works, improvements, facilities, plants, equipment, and
appliances necessary to:
(i) Provide a water supply for the District for municipal, domestic,
and commercial uses;
(ii) Collect, transport, process, dispose of, and control all domestic,
commercial, industrial or communal wastes from- the District,
whether in fluid, solid, or composite state;
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(iii) Gather, conduct, divert, and control local storm water or other
local harmful excesses of water in the District; and
(iv) Undertake the Road Project as set forth in Section 5.04(a) of this
Agreement;
(b) Payment of organization expenses, initial operation expenses, cost of
issuance, interest during construction and capitalized interest;
(c) Establishment, operation, and maintenance of a .fire department to. perform
fire -fighting services within the District; and
(d) Refunding of any outstanding Bonds of the District for a debt service
savings; provided, however, that any such refunding Bonds otherwise satisfy
the requirements of this Agreement.
5.03 Limitations on Bonds. Owner and the District acknowledge that but for
this Agreement, pursuant to Section 54.016 of the Water Code, the City's consent to
inclusion of the Development within the District could include restrictions on the
purposes for which the District may issue Bonds and that those restrictions could entirely
prohibit issuance of Bonds for roads. Owner and the District also acknowledge that
Section 8189.102(c) _ of the District Legislation provides that the District may not
undertake a road project unless the City consents by ordinance or resolution.
5.04 Road Project.
(a) Notwithstanding the restrictions otherwise permitted by Section 54.016 of
the Water Code (as referenced in Section 5.03 of this Agreement), the
City acknowledges that the District has the power to undertake the Road
Project within the District in accordance with Section 8189.102(c) of the
District Legislation, provided the City consents by ordinance or
resolution, and that such City consent was granted by the Consent
Resolution, subject to the terms of this Agreement. This Agreement
hereby authorizes and further consents to the District undertaking the
Road Project within the District and to the issuance by the District of
Bonds for the Road Project; however, the District may issue Bonds only
after the District becomes a Party to this Agreement. In consideration for
the City's consent to the Road Project, the District agrees that the total
amount of Bonds issued by the District (including all Bonds issued by all
Districts subsequently created pursuant to the District Legislation) for all
purposes (excluding refunding Bonds) shall not exceed $352,000,000,
less the amount of funds expended by the District pursuant to Sections
4.03 (a), (b) and (c) of the Strategic Partnership Agreement for any of the
authorized purposes listed in Section 5.02 of this Agreement (the "Bond
Limit Amount"), unless specifically approved by the City Council. Owner
and the District acknowledge that the Bond Limit Amount is sufficient to
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accomplish the purposes of the District and that Owner and the District
have voluntarily agreed to the Bond Limit Amount in consideration for the
City's consent to the Road Project. District facilities, if any, the cost of
which exceeds the Bond Limit Amount will be dedicated to the District
without reimbursement unless otherwise approved by the City Council.
(b) In the event a District is divided pursuant to the District Legislation:
(i) for purposes of Section 5.04(a) above, the Bond Limit Amount
shall be allocated among the Districts_as determined by the Boards
of the Districts based on, among other things, the proportional
allocation of costs for facilities and infrastructure within each
District; and
(ii) for purposes of Section 5.05(e) below, the latest Bond issuance
date for any District created by the division of the District pursuant
to the District Legislation shall be 15 years after the date the
election dividing the District is held pursuant to § 8189.104 of the
District Legislation unless the District obtains the City's prior
written approval.
5.05 Bond Requirements. The District shall obtain all necessary authorizations
for Bonds issued to finance the acquisition or construction of facilities and infrastructure
for the benefit of the District in accordance with this Agreement and laws applicable to
the District. All Bonds issued by the District shall comply with the following
requirements:
(a) Alf maturity of 25 years for any one series of Bonds; and
(b) Interest rate that does not exceed two percent (204) above the highest
average interest rate reported by the Daily on Buyer in its weekly "20
Bond Index" during the one month period immediately preceding the date
that the notice of the sale of such Bonds is given; and
(c) The Bonds shall expressly provide that the District shall reserve the right to
redeem Bonds at any time beginning not later than the tenth (loth)
anniversary of the date of issuance, without premium. No variable rate
Bonds shall be issued by the District without City Council approval; and
(d) Any- refunding Bonds of the District must provide for a minimum of three
percent (3%) present value savings and, further, must provide that the latest
maturity of the refunding Bonds may not extend beyond the latest maturity
of the refunded Bonds unless approved by the City Council; and
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(e) No Bonds shall be issued having an issuance date more than fifteen (15)
years after the District Confirmation Date without the City's prior written
approval.
(f) No Bonds shall be issued unless the principal amount of outstanding Bonds,
together with the amount of the proposed Bonds, would be equal to or less
than fifteen percent (15%) of the certified taxable assessed valuation within
the District according to the Tarrant Appraisal District or its successor.
5.06 Certifications. With respect to any matter required by this Article V to be
certified in writing, this Agreement also requires, and the District hereby warrants, that
every statement in any certification shall be true and correct in. all material respects and
that the person signing the certification has been given the requisite authority to do so on
behalf of the District.
5.07 Economic Feasibility. Before submission of an application for approval of
issuance of Bonds to the TCEQ or the Attorney General, the District's financial advisor
shall certify in writing to the City Secretary, City Manager, and Finance Director that the
Bonds are being issued within the then -current economic feasibility guidelines
established by the TCEQ for districts issuing bonds for water, sewer, drainage or road
facilities in Denton County.
5.08 Notice of Bond Issues. At least thirty (30) days before submission of an
application for approval of issuance of Bonds to the TCEQ or the Attorney General,
whichever occurs first, the District shall deliver to the City Secretary, City Manager, and
Finance Director the certification required by Section 5.07 of this Agreement and Notice
containing: (a) the amount of Bonds being proposed for issuance; (b) a description of the
projects to be funded and/or the Bonds to be refunded by such Bonds; and (c) the
proposed debt service and District tax rate after issuance of the Bonds. If the District is
not required to obtain TCEQ approval of the issuance of the Bonds, the District shall
deliver such certification and Notice to the City Secretary, City Manager, and Finance
Director at least sixty (60) days prior to issuance of Bonds, except refunding Bonds, by
the District.
5.09 Compliance with Agreements. At least thirty (30) days before submission
of an application for approval of issuance of Bonds to the TCEQ or the Attorney General,
whichever occurs first, the District shall certify in writing to the City Secretary, City
Manager, and Finance Director that the District is not in breach of any material provision
of the Consent Resolution, this Agreement, or the Strategic Partnership Agreement.
Material provisions include, but are not limited to, Sections 4.01, 5.01, 5.02, 5.04, 5.05,
5.06, 6.01 and Articles VII and VIII of this Agreement; but exclude Section 6.10 of this
Agreement which is not a material provision of this Agreement for purposes of this
Section 5.09.
5.10 Bond Objections. The City shall have a period of sixty (60) days after
receiving the last of the certifications and Notices required by Sections 5.08 and 5.09 of
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this Agreement within which to object to the Bonds. If the City fails to object to a
proposed Bond issue within such 60-day period, the City shall be deemed to have waived
all objections. The only basis for an objection by the City to a proposed Bond issue shall
be that the District is in default of a material provision of the Consent Resolution, this
Agreement, the Utility Agreement, the Buyout Agreement, or the Strategic Partnership
Agreement. If the City objects to a proposed Bond issue (a "City Objection"), such
objection (a) shall be in writing, (b) shall be given to the District; (c) shall be signed by
the City Manager or the City Manager's designee, and (d) shall specifically identify the
material provision(s) of the Consent Resolution, this Agreement, the Utility Agreement,
the Buyout Agreement or the Strategic Partnership Agreement for which the District is in
default. It shall not be a basis for a City Objection that the City disagrees with the
District's financial advisor as to the financial feasibility of the Bonds so long as the
proposed Bonds are approved by the TCEQ and Attorney General. In the event a City
Objection is timely given to the District (as required by this section) with respect to a
specific Bond application, the City and the District shall cooperate to resolve the City
Objection within a reasonable time, and the Bond application to which the City Objection
applies shall be delayed until the City Objection has been cured or waived. Unless
otherwise cured by written agreement of the Parties, a City Objection shall be deemed
cured if (x) the District files a petition seeking declaratory judgment in state district court,
(y) not less than thirty (30) days before filing the petition the District gives the City
Attorney and the City Manager Notice of, and waives any objections to the City's right to
intervene in, such a declaratory judgment action, and (z) the district court determines that
the District is not in default with respect to any material provision of the Consent
Resolution, this Agreement, the Utility Agreement, the Buyout Agreement, or the
Strategic Partnership Agreement or, alternatively, finds that if such a default had
previously occurred, the default has been cured. A City Objection may be waived by the
City at any time.
5.11 Official Statements. Within thirty (30) days after the District closes the
sale of each series of Bonds, the District shall deliver to the City Secretary, City
Manager, and Finance Director a copy of the final official statement for such series of
Bonds. If the City requests additional information regarding such issuance of the Bonds,
the District shall promptly provide such information at no cost to the City.
5.12 Reimbursement Agreements.
(a) .The District shall not enter into agreements with landowners or developers
for reimbursement of costs incurred in connection with the District with a
total reimbursement amount exceeding the Bond Limit Amount.
(b) All agreements entered into by the District with landowners or developers
for reimbursement of costs incurred in connection with the District shall
provide that: (1) the District will not reimburse the landowner or
developer for costs not evidenced by the issuance of Bonds within fifteen
(15) years after the District Confirmation Date, and (ii) the landowner or
developer waives all claims against the City for reimbursement of
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obligations not evidenced by the issuance of Bonds within fifteen (15)
years after the District Confirmation Date.
(c) The District agrees that any developer reimbursement agreements entered
into by the District in violation of this section shall be void.
(d) The District hereby indemnifies the City against any claims pursuant to
reimbursement agreements executed in violation of this section.
(e) The District shall. submit copies of such reimbursement agreements to the
City within 60 days after such agreements are fully executed.
ARTICLE VI
CONSTRUCTION, OPERATION, MAINTENANCE
AND INSPECTION OF DISTRICT FACILITIES
6.01 Infrastructure Standards. All Infrastructure shall be designed and
constructed in compliance with: (a) the Governing Regulations; (b) the rules and
regulations, if any, of the District; (c) the rules and regulations of TCEQ; and (d) the rules
and regulations, if any, of the holder of any CCN for retail water or retail wastewater
service to all or any portion of the Development. In the event of any conflict between the
Governing Regulations and either the rules and regulations of the District or the rules and
regulations of any CCN holder, the Governing Regulations shall control unless otherwise
agreed in writing by the Development Director.
6.02 Additional Construction Standards for Water Utility Infrastructure. The
water utility Infrastructure serving the Development must be constructed using the same
type, or a compatible type, of meters, valves, meter boxes and service lines used by the
City for its municipal water system; provided, however, that automated meter reading
("AMR") -compatible may be used.
6.03 Plan Review• Payment of Fees• and Pre -Construction Conference.
Construction of Infrastructure shall not commence until the plans and specifications have
been reviewed and accepted by the City for compliance with the Governing Regulations;
a pre -construction conference has been held by the Contractor, the District's engineer and
representatives of the City's Department of Engineering; and the applicable City Review
Fees have been paid. At such pre -construction conference, the Department of
Engineering shall designate City employees to serve as the project inspector (the "City
Inspector") for purposes of Sections 6.05, 6.07 and 6.11 and the project manager.
6.04 Community Facilities Agreements. Construction of Infrastructure shall
not commence until Owner has executed a Communities Facilities Agreement in
accordance with the CFA Policy. Notwithstanding the Governing Regulations, the City
shall not participate in the cost of construction of any Infrastructure unless the City
requires the construction of Infrastructure that exceeds that which is roughly
proportionate to the impact of the Development.
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6.05 Inspections by Third Party Inspectors. Except as otherwise provided in this
section, inspectors retained by the District (or by Owner on behalf of the District) and
approved by the City (which approval shall not be unreasonably withheld or delayed)
shall perform or cause to be performed all inspections and testing of the construction of
Infrastructure for compliance with this Article VI.. The District or Owner, as applicable,
shall submit the names, addresses and phone numbers of such inspectors simultaneously
with submittal of plans in accordance with Section 6.03. Construction of Infrastructure
shall not commence until such inspectors have been approved by the City. The District
shall cause the inspectors to provide copies of all inspection and testing reports to the
City Inspector. All costs of such third party inspectors shall be paid by the District (or
by Owner on behalf of the District).
6.06 Termination of Third Party Inspectors. The City has the right to terminate
any third party inspector retained by the District or Owner pursuant to Section 6.05 if the
inspector: (i) fails to properly perform inspections and testing to ensure construction in
compliance with Article VI; or (ii) fails to provide copies of inspection and testing
reports to the City's Department. of Engineering. Upon termination of any third party
inspector, the City, at its option, may allow the use of another approved third party
inspector or perform all necessary inspections and testing. Should the City elect to
perform inspections and testing for compliance with this Article VI pursuant to this
Section 6.06, the City shall perform such inspections and testing in a timely manner
(which inspections shall satisfy all applicable requirements of the TCEQ) and the District
or Owner on behalf of the District) shall pay Infrastructure Inspection Fees.
6.07 Inspection by City. The City has the right, but not the obligation, to inspect
and test the Infrastructure at any time. Further, the City has the right to participate in a
final inspection of all Infrastructure. The Contractor shall notify the City Inspector when
Infrastructure is ready for final inspection. If the City Inspector concurs that construction
of the Infrastructure is substantially complete, the City Inspector will schedule a final
inspection by the City within 30 days. Upon such final inspection and correction of any
punch list items, written certification by the City Inspector that Infrastructure has been
constructed in compliance with the Governing Regulations shall, for purposes of Section
5.09, constitute compliance with Sections 6.01(a), 6.02, 6.03, 6.04, 6.05, 6.07, and 6.09
of this Agreement. Notwithstanding anything contained herein, the City shall have the
right to charge Infrastructure Inspection Fees for such inspections and testing only if the
City performs inspections and testing pursuant to Section 6.06.
6.08 Contracts with Contractors. If a Contractor is not an Owner, then the
Owner shall incorporate the requirements of this Article VI into a written construction
contract with the Contractor. All contracts with such non -Owner Contractors shall
provide that the City is a third -party beneficiary of, and may enforce the contracts
against, the Contractor.
6.09 Access by City Employees. Upon prior Notice by the City, any duly
authorized employee of the City bearing proper credentials and identification shall be
Agreement Concerning Creation and Operation
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Page 13
014940.00010:1057539.03
granted access- to any property of the District within the Development as the City may
determine necessary for the purpose of inspection and testing of Infrastructure.
6.10 Operation and Maintenance of Infrastructure. The District shall cause all
Infrastructure to be operated and maintained in accordance with the Governing
Regulations.
6.11 As -Built Drawings. The District shall deliver mylar as -built drawings for
all Infrastructure to the City Inspector within 30 days after final inspection.
ARTICLE VII
REPORTING REQUIREMENTS
The District shall: (a) send a copy of each order or other action setting an ad
valorem tax rate to the City Secretary, City Manager, and Finance Director within thirty
(30) days after the District adopts the rate; (b) send a copy of each annual audit to the
City Secretary, City Manager, and Finance Director within thirty (30) days after approval
by the Board; and (c) provide copies of any material event notices filed under applicable
federal securities laws or regulations to the City Secretary, City Manager, and Finance
Director within thirty (30) days after filing such notices with the applicable federal
agency.
ARTICLE VIII
AREA OF, AND LIMITATIONS ON, SERVICE
No District shall sell or deliver services to areas outside of that District without
prior City Council approval; provided, however, a District may serve a maximum of ten
(10) retail residential water connections outside that District without the Water Director's
written approval.
ARTICLE IX
CONVERSION, ANNEXATION; DISANNEXATION}
OR DIVISION OF DISTRICT
Except after prior approval by the City Council, a District shall not: (a) annex
any additional lands to the District; (b) convert into another type -of district; (c)
consolidate with another district; (d) seek additional governmental powers beyond those
in the District Legislation. The City hereby consents to division of the District as
provided by, and in accordance with, the District Legislation and the Consent Resolution.
Each subsequently created District shall become a Party to this Agreement on the date the
election dividing the District is held pursuant ,to § 8189.104 of the District Legislation.
Within 30. days of the election, the newly formed District shall execute and deliver a
District Joinder in substantially the form attached hereto as Exhibit H to all other Parties.
Agreement Concerning Creation and Operation
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014940.00010:1057539.03
ARTICLE X
ANNEXATION OF DISTRICT BY CITY
10.01 General Terms, The Parties acknowledge and agree that the Development
lies wholly within the City's ETJ. The Parties further acknowledge that the creation of
the District, and the City's consent thereto, are for purposes that include promoting the
orderly development and extension of City services to the Development upon annexation.
10.02 Incorporation. In furtherance of the purposes of this Agreement, the
District and Owner, on behalf of themselves and their respective successors and
Assignees covenant and agree to the extent allowed by law that, except upon written
consent of the City Council, neither the District nor Owner will: (a) seek or support any
effort to incorporate the Development or any part thereof, or (b) sign, join in, associate
with, or direct to be signed any petition seeking to incorporate any of the. Development or
seeking to include any of the Development within the boundaries of any other
incorporated entity.
10.03 Notices. Within thirty (30) days after the District Confirmation Date and
the date of the election dividing the District is held pursuant to § 8189.104 of the District
Legislation, each District shall file in the real property records of Denton County: (a) a.
notice in the form required by Section 49.452 of the Water Code; and (b) a notice in the
form of Exhibit F attached to this Agreement stating that the City has the authority to
annex that District subject to the limitations set forth in Section 10.05,
10.04 Annexation of Portions of Development. Owner and the District agree to
cooperate with and assist the City in annexing one or more areas in the manner prescribed
by law which does not result in the dissolution of the District, each- of which may not
exceed 525 feet in width at its widest point or such other width limitation subsequently
imposed by law, as reasonably necessary for the City to connect areas to the City that are
outside the District and that the City intends to annex. The City consents and agrees that
such areas shall be located within right of way areas or along lot lines whenever possible.
Notwithstanding the zoning designation approved for the annexed area, such area can be
developed and used in accordance with the Development Agreement.
10.05 Full Purpose Annexation. The City will not annex land within a District
for full purposes any earlier than the first to occur of (a) the date that construction of
water, sanitary sewer, drainage and road facilities to serve 90% of the District is
complete; (b) 15 years after the Effective Date for the original District; (c) for.
subsequently formed Districts, 15 years after the date of the election dividing the District.
is held pursuant to § 8189.104 of the District Legislation; (d) the dissolution of a District
(other than as a result of annexation by the City); or (e) September 1, 2011, if creation of
the original District has not been confirmed at an election conducted on or before that
date.
Agreement Concerning Creation and Operation
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10.00 Limited Purpose Annexation. The Parties agree that the City shall have
the right to annex those portions of a District that are intended for retail development for
the sole and limited purpose for the City to impose its sales and use tax within the
boundaries of such retail areas, pursuant to Section 43.0751 of the Local Government
Code. The terms and conditions upon which such limited purpose annexations may occur
shall be set forth in the Strategic Partnership Agreement.
10.07 Reimbursement Agreements. The District will not enter into any
developer reimbursement agreements or agreements for new projects or extraordinary
expenses, except as necessary for continued operation arid maintenance - of existing
District facilities, after publication of the first notice of proposed full purpose annexation
of the District by the City permitted under Section 10.05 of this Agreement (which first
publication shall not occur earlier than the date provided in the Development
Agreement), other than an annexation pursuant to Section 10.04 of this Agreement. The
District further agrees that any developer reimbursement agreements entered into by the
District in violation of this requirement shall be void.
ARTICLE XI
TERM OF AGREEMENT
This Agreement shall be effective. from the Effective Date and shall continue in
effect until all of the land initially in the original District as described in Exhibit B is
annexed for full purposes and dissolved by the City or until terminated in writing by
mutual agreement of the City and a District; provided, however, if the creation of the
original District has not been confirmed at an election conducted on or before September
10, 2009, this Agreement may be terminated by the City by providing Notice to Owner.
ARTICLE XII
BREACH, NOTICE AND REMEDIES
12.01 Notification of Breach. If either Party commits a breach of this
Agreement, the non -breaching Party shall give Notice to the breaching Party that
describes the breach in reasonable detail.
12.02 Cure of Breach. The breaching Parry shall commence curing such breach
within fourteen (14) calendar days after the time the breaching Party receives such Notice
and complete the cure within fourteen (14) calendar days from the date of
commencement of the cure; however, if the breach is not reasonably susceptible to cure
by the breaching Parry within such 14-day period, the non -breaching Party shall not bring
any action so long as the breaching Party has commenced to cure the default within such
14-day period and diligently completes the cure within a reasonable time without
unreasonable cessation of the work.
12.03 Remedies for Breach. If the breaching Party does not substantially cure
such breach within the stated period of time, the non -breaching Party may, in its sole
discretion, and without prejudice to any other right under this Agreement, law, or equity,
Agreement Concerning Creation and Operation
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014940.00010:1057539.03
seek an action under the Uniform Declaratory Judgment Act, specific performance,
mandamus, injunctive relief, and other remedies described in this Agreement; provided,
however, that the non -breaching Party shall not be entitled to terminate this Agreement
and each Party specifically waives any right such Party has or in the future may have to
terminate this Agreement (except for the right of the City to terminate as provided in
Article XI of this Agreement). It is understood and agreed that no Party will seek or
recover actual, consequential or any other type of monetary damages or awards, including
but not limited to attorney's fees, in the event that any Party brings suit under or related
to this Agreement. Aperion Communities, LLLP, Eladio Properties, LLLP, Drooy
Properties, LLLP, and Rocksand Investments, LLLP, are jointly and severally liable for
the obligations of Owner when it is a breaching Party under this Agreement, and the City
may pursue its remedies for breach against any one or more of them.
12.04 Governmental Powers; Waiver of Immunity. By execution of this
Agreement, neither the City nor the District waives or surrenders any of their respective
governmental powers, immunities or rights, except as specificallywaived pursuant to this
section. The City and the District mutually waive their governmental immunity from suit
and liability only as to any action brought by a Party to pursue the remedies available
under this Agreement and only to the extent necessary to pursue such remedies. Nothing
in this section shall waive any claims, defenses or immunities that the City or the District
has with respect to suits against the City or the District by persons or entities not a party
to this Agreement.
ARTICLE XIII
ADDITIONAL PROVISIONS
13.01 Notice. Any notices, certifications, approvals, or other communications (a
"Notice") required to be given by one Party to another under this Agreement shall be
given in writing addressed to the Party to be notified at the address set forth below and
shall be deemed given: (a) when the Notice is delivered in person to the person to whose
attention the Notice is addressed; (b) when received if the Notice is deposited in the
United States Mail, certified or registered mail, return receipt requested, postage prepaid;
(c) when the Notice is delivered by Federal Express, UPS, or another nationally
recognized courier service with evidence of delivery signed by any person at the delivery
address; or (d) five business days after the Notice is sent by FAX (with electronic
confirmation by the sending FAX machine) with a confirming copy sent by United States
mail within 48 hours after the FAX is sent. If any date or period provided in this
Agreement ends on a Saturday, Sunday, or legal holiday, the applicable. period for
calculating the Notice shall be extended -to the first business day following the Saturday,
Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the
Parties are set forth below. The Parties may change the information set forth below by
sending Notice of such changes to the other Party as provided in this Section 13.01.
Agreement Concerning Creation and Operation
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014940.00010:1057539.03
To the City:
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, TX 76102
Attn: City Secretary
FAX: 817-392-6196
City of Fort Worth, Texas
1)00 Throckmorton Street
Fort Worth, TX 76102
Attn: City Manager
FAX: 817-392-6134
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, TX 76102
Attn: Development Director
FAX: 817-392-7985
City of Fort Worth,- Texas
1000 Throckmorton Street
Fort Worth, TX 76102
Attn: City Attorney
FAX: 817-39278359
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, TX 76102
Attn: Finance Director
FAX: 817-3924966
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, TX 76102
Attn: Engineering Director
FAX: 817- 871-7895
To the District:
Tradition Municipal Utility District No. 2 of Denton County
c/o: Coats Rose
3 Greenway Plaza, Suite 2000
Houston, TX 77046
Attn: Timothy G. Green
FAX: 713-890-3924
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To Owner:
Aperion Communities, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane .
FAX: 48M514414
Eladio Properties, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
FAX: 480-9514414
Drooy Properties, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
FAX: 48M514414
Rocksand Investments, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
FAX: 48M514414
13.02 No Waiver. Any failure by a Party to insist upon strict performance by the
other Party of any material provision of this Agreement shall not be deemed a waiver
thereof, and the Party shall have the right at any time thereafter to insist upon strict
performance of any and all provisions of this Agreement. No provision of this
Agreement may be waived except by writing signed by the Party waiving such provision.
Any waiver shall be limited to the specific purposes for which it is given. No waiver by
any Party hereto of any term or condition of this Agreement shall be deemed or construed
to be a waiver of any other term or condition or subsequent waiver of the same term or
condition.
13.03 City Consent and Approval. Except as provided in Section 5.10 above, in
any provision of this Agreement that provides for the consent or approval of the City staff
or City Council, such consent or approval may be withheld or conditioned by the staff or
City Council at its sole discretion.
13.04 Governing Law and Venue. THIS AGREEMENT MUST BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AS THEY APPLY
TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO
ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES
Agreement Concerning Creation and Operation
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' O1d940.00010:1057539.03
ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN I -ARRANT COUNTY,
TEXAS AND HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT
COUNTY, TEXAS, AND HEREBY AGREE THAT ANY SUCH COURTS SHALL BE A PROPER
FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER.
13.05 Authority to Execute. The City warrants that this Agreement has been
approved by the City Council in accordance with all applicable public meeting and public
notice requirements (including, but not limited to, notices required by the Texas Open
Meetings Act) and that the individual executing this Agreement on behalf of the City has
been authorized to do so. Each Owner warrants that the execution of this Agreement is
duly authorized in conformity with the articles of incorporation, bylaws, partnership
agreement, or other applicable organizational documents of each Owner and that the
individual executing this Agreement on behalf of each Owner has been authorized to do
so. The District warrants that this Agreement has been approved by the Board in
aecordance with all applicable public meeting and public notice requirements (including,
but not limited to, notices required by the Texas Open Meetings Act) and that the
individual executing this Agreement on behalf of the Board has been authorized to do so.
13.06 Severability. The provisions of this Agreement are severable and, in the
event any word, phrase, clause, sentence, paragraph, section, or other provision of this
Agreement, or the application thereof to any person or circumstance, shall ever be held or
determined to be invalid, illegal, or unenforceable for any reason, and the extent of such
invalidity or unenforceability does not cause substantial deviation from the underlying
intent of the parties as expressed in this Agreement, then such provision shall be deemed
severed from this Agreement with respect to such person, entity or circumstance, without
invalidating the remainder of this Agreement or the application of such provision to other
persons, entities or circumstances, and a new provision shall be deemed substituted in
lieu of the provision so severed which new provision shall, to the extent possible,
accomplish the intent of the Parties as evidenced by the provision so severed.
13.07 Changes in State or Federal Laws. If any state or federal law changes on
as to make it impossible for the City or the District to perform its obligations under this
Agreement, the Parties will cooperate to amend the Agreement in such a manner that is
most consistent with the original intent of the Agreement as legally possible.
13.08 Additional Documents and Acts. The Parties agree that at any time after
execution of this Agreement, they will, upon the request of any other Party, execute
and/or exchange any other documents necessary to effectuate the terms of this Agreement
and perform any further acts or things as the other Party may reasonably request to
effectuate the terms of this Agreement.
13.09 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
13.10 Assignment.
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014930.00010:1057539.03
(a) Neither the District nor the City may assign this Agreement without the
written consent of the other Parties. Neither the division of the District pursuant to the
District Legislation nor the execution of a District Joinder shall be deemed an assignment
of this Agreement
(b) Owner has the right, from time to time, to assign this. Agreement, in whole
or in part, and including any obligation, right, title, or interest of Owner under this
Agreement, to the District (after the District Confirmation Date) and to any person or
entity (an "Assignee") without the consent of the City, provided that the following
conditions are satisfied: (1) if not the District, Assignee is a successor owner of all or any
part of the Development or is a lender to a successor owner of all or any part of the
Development; (2) if not the District, Assignee has a contractual right to be reimbursed for
water, sewer, or drainage improvements and/or the Road Project from Bonds (or has a
lien or other security interest in such reimbursements); (3) the assignment is in writing
executed by Owner and Assignee in the form of assignment attached as Exhibit G; (4)
Assignee expressly assumes in the assignment any assigned obligations and expressly
agrees in the assignment to observe, perform, and be bound by this Agreement to the
extent this Agreement relates to the obligations, rights, titles, or interests assigned; and
(5) a copy of the executed assignment is provided to all Parties within fifteen (15) days
after execution. Provided the foregoing conditions are satisfied, from and after the date
the assignment is executed by Owner and Assignee, the City agrees to look solely to
Assignee for the performance of all obligations assigned to Assignee and agrees that
Owner shall be released from performing the assigned obligations and from any liability
that results from the Assignee's failure to perform the assigned obligations. No
assignment by Owner shall release Owner from any liability that resulted from an act or
omission by Owner that occurred prior to the effective date of the assignment. Owner
shall . maintain written records of all assignments made by Owner (including, for each
Assignee, the Notice information 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 binding upon and inure to the benefit of the Parties and their respective
successors and Assignees. Notwithstanding the foregoing, however, Owner shall not
have the right to assign this Agreement, or any right, title, or interest of Owner under this
Agreement, until the District has become a Party.
(c) In the event an additional District is created over the Development in
accordance with the District Legislation, such District shall become a party to this
Agreement and such District shall assume all of the rights and obligations of the
Tradition Municipal Utility District No. 2 of Denton County as to the land located within
such District's boundaries. Within 30 days following the date the election dividing the
District is held, such District shall execute the District Joinder attached as Exhibit H and
provide a copy thereof to the other Parties.
Agreement Concerning Creation and Operation
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014940.00010:1057539.03
13.11 Amendment. This Agreement may be amended only with the written
consent of all Parties and with approval of the governing bodies of the City and the
District.
13.12 Interpretation. The Parties acknowledge that each party and, if it so
chooses, its counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement or any amendments or
exhibits hereto. As used in this Agreement, the term "including" means "including
without limitation" and the term "days" means calendar days, not business days.
Wherever required by the context, the singular shall include the plural, and the plural
shall include the singular. Each defined term herein may be used in its singular or plural
form whether or not so defined.
13.13 No Third Party Beneficiary. This Agreement is solely for the benefit of
the Parties,& and neither the City, the District nor Owner intends by any provision of this
Agreement to create any rights in any third -party beneficiaries or to confer any benefit
upon or enforceable rights under this Agreement or otherwise upon anyone other than the
City, the District and Owner.
13.14 Reimbursement for City's Professional Fees. Owner will reimburse the
City for reasonable attorneys fees incurred by the City in connection with the negotiation
and preparation of this Agreement, the Development Agreement, the Strategic
Partnership Agreement, agreements concerning the provision of water and wastewater
service to the Development, and any other documents executed by Owner, the District,
and the City in connection with the Development. Owner's obligation is limited to the
actual, out of pocket costs and expenses paid to or owed to third parties. for services
rendered prior to the approval of this Agreement by the City Council. Owner shall
reimburse the City for such fees within thirty (30) days after this Agreement has been
executed by the City and Owner and the City has delivered to Owner an invoice for such
fees setting forth in reasonable detail a description of the work performed, including
identification of the attorney who performed the work, the date on which the work was
performed, and the time spent on each date.
Agreement Concerning Creation and Operation
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014940.00010:1057539.03
13.15 Incorporation of Exhibits by Reference. All exhibits attached to this
Agreement"are incorporated into this Agreement by reference for the purposes set forth
herein, as follows.
Exhibit A Map of Tradition
Exhibit B Legal description of the Development
Exhibit C Utility Agreement
Exhibit D Development Agreement
Exhibit E Strategic Partnership Agreement
Exhibit F Annexation Notice
Exhibit G Assignment and Assumption Agreement
Exhibit H Form of District Joinder
13.16 Conspicuous Provisions. The City, Aqua Utilities, the District, and Owner
acknowledge that the provisions of this Agreement set out in bold, CAPITALS (or any
combination thereof) satisfy the requirements for the express negligence rule and/or are
conspicuous.
13.17 Counterpart Originals. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original.
Agreement Concerning Creation and Operation
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014940.00010:1057539.03
ATTEST.•
By:
Marty Hendrix, City Secretary
Date:
APPROVED AS TO FORM AND
LEGALITY:
Assistant City Attorney
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF FORT WORTH
Assistant City Manager
This instrument was acknowledged before me, on the _day of ,
200_, by , Assistant City Manager of the City of Fort Worth, Texas on
behalf of said city.
Notary Public, State of Texas
Printed Name:.
My Commission Expires:
[SEAL]
Agreement Concerning Creation and Operation
of Tradition MUD No. 2 Page 24
014940.00010:1057539.03
APERION COMMUNITIES, LLLP, an Arizona
limited liability limited partnership.
By:
David P. Maniatis, General Partner
Date:
STATE OF §
COUNTY OF §
This instrument was acknowledged before me, on the _day of ,
200_, by David Maniatis, General Partner of Aperion Communities, LLLP, an Arizona
limited liability limited partnership, on behalf of said limited partnership.
Notary Public, State of
Printed Name.
My Commission Expires:
[SEAL]
Agreement Concerning Creation and Operation
of Tradition MUD No. 2 Page 25
014940.00010:1057539.03
ELADIO PROPERTIES, LLLP, an Arizona limited
liability limited partnership.
By:
David P. Maniatis, General Partner
Date:
STATE OF §
COUNTY OF §
This instrument was acknowledged before_ me, on the _day of ,
200_, by David Maniatis, General Partner of Eladio Communities, LLLP, an Arizona
limited liability limited partnership, on behalf of said limited partnership.
Notary Public, State of
Printed Name:
My Commission Expires:
[SEAL]
Agreement Concerning Creation and Operation
of Tradition MiJD No. 2 Page 26
014940.00010:1057539.03
DROOY PROPERTIES, LLLP, an Arizona limited
liability limited partnership.
By:
David jr. Maniatis, General Partner
Date:
STATE OF §
COUNTY OF §
This instrument was acknowledged before me, on the _day of ,
200 , by David Maniatis, General Partner of Drooy. Communities, LLLP, an Arizona
limited liability limited partnership, on behalf of said limited partnership.
Notary Public, State of
Printed Name:
My Commission Expires:
[SEAL]
Agreement Concerning Creation and Operation
of Tradition MUD No. 2 Page 27
014940.00010:1057539.03
ROCKSAND INVESTMENTS, LLLP, an Arizona
limited liability limited partnership.
By:
David P. Maniatis, General Partner
Date:
STATE OF §
COUNTY OF §
This instrument was acknowledged before me, on the _day of ,
200_, by David Maniatis, General Partner of Rocksand Investments, LLLP, an Arizona
limited liability limited partnership, on behalf of said limited partnership.
Notary Public, State of
Printed Name:
My Commission Expires:
[SEAL]
Agreement Concerning Creation and Operation
of Tradition MUD No. 2 Page 28
014940.00010:1057539.03
Pursuant to Article IV hereof and following the District Confirmation Date, the
District has executed the Agreement.
TRADITION MUNICIPAL UTILITY
DISTRICT NO. 2 OF DENTON COUNTY
By:
President, Board of Directors
Date:
STATE OF TEXAS
COUNTY OF TARRANT
This instrument was acknowledged before me, on the _day of ,
200_, by , President, Board of Directors of Tradition Municipal Utility
District No. 2 of Denton County, on behalf of said district.
Notary Public, State of Texas
Printed Name:
My Commission Expires:
[SEAL]
Agreement Concerning Creation and Operation
of Tradition MUD No. 2 Page 29
014940.00010:1057539.03
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Exhibit B
Legal description of the Development
BEING a 1,922.737 acre tract of land ni the G. Cardenas Survey, Abstract No. 214, the James Chesier
Survey, Abstract No. 225, the W.D. Reed Survey, Abstract No. 1125, the W.C. Brookfield Survey,
Abstract No. 34, and the W.A. Ferris Survey, Abstract No. 419 situated in Denton County, Texas and being
a combination of a portion of those tracts conveyed to Aperion Communities, L.L.L.P. (Aperion Tract One -
A and Aperion Tract One-B), by deed recorded under County Clerk's File No. 200441913 of the Real
Property Records of Denton County, Texas (RPRDCT), that tract conveyed to Nancy Talley Reynolds, et
al, by deed recorded in Volume 2301, Page 223 RPRDCT, a portion of that tract conveyed to Aperion
Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2003490652 RPRDCT (Aperion
Tract Two), that tract conveyed to Rocksand Investments, LLLP by deed recorded in Instrument Number
2005-30851 RPRDCT and those tracts recorded in Volume 5128, Page 3102 and Volume 5119, Page 715,
RPRDCT and being more particularly described as follows:
TRACT ONE
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the north right -of --way line of
State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract,
said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded
in Volume 2906, Page 363 RPRDCT; THENCE
N 00032'36" W along the west line of said Alliance 161 Investments tract and the east line of said
McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of 3701.24 feet to a 3/8"
iron pin found; THENCE N 89039'59" E along the north line of said Alliance 161 Investments tract and the
east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of 1826.89
feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion Tract One -A;
THENCE N 00°22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page
363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2"
iron pin set, said capped iron pin set also being on the west line of said Nancy Reynolds Talley, et al tract,
said iron pin also being the POINT OF BEGINNING of the herein described tract;
THENCE N 00°22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page
363 RPRDCT, and the west Line of said Aperion Tract One -A, a distance of 102.53 feet to a capped 1/2"
iron pin set
THENCE N 57046'29" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page
363 RPRDCT, the east line of a tract conveyed to Peggy Jeannine Eaton and Betty Marie McIntyre by deed
recorded under County Clerk's File No. 2003-203215 and the west line of said Nancy Reynolds Talley, et al
tract, a distance of 253.45 feet to a 1/2" iron pin found;
THENCE N 00°21'32" E along the east line of said Peggy Jeannine Eaton and Betty Marie McIntyre tract
and the west line of said Nancy Reynolds Talley, et al tract, a distance of 1364.27 feet to a railroad spike
found, said railroad spike also being on a west line of said Aperion Tract One -A, said railroad spike also
being in Sam Reynolds Road;
THENCE N 00012'20" W along the east line of said Peggy Jeannine Eaton and Betty Marie McIntyre tract
anA the west line of said Aperion Tract One -A and in Sam Reynolds Road, a distance of 2791.88 feet to a
railroad spike found;
THENCE S 89052'16" W along the north line of said Peggy Jeannine Eaton and Betty Marie McIntyre tract
and the west line of said Aperion Tract One -A and in Sam Reynolds Road, a distance of 1909.29 feet to a
5/8" iron pin found, said iron pin also being on the east line of Indian Trails Phase 1, an addition to Denton
County, Texas as recorded in Cabinet G, Page 311 of the Plat Records of Denton County, Texas (PRDCT) v
THENCE N 00009'15" W along the west line of said Aperion Tract One -A, the east line of said Indian
Trails Phase 1, the east line of a tract conveyed to Avondale Ranch by deed recorded in Volume 5289, Page
4253 RPRDCT and in Sam Reynolds Road, a distance of 1437.47 feet to a 60d nail in asphalt found, said
Exhibit B to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page I
014940.00010:1057539.03
60d nail also being the southwest corner of a tract conveyed to Milton High by deed recorded in Volume
501, Page 248 RPRDCT;
THENCE N 76015'28" E along the west line of said Aperion Tract One -A and the south line of said High
tract, a distance of 381.87 feet to a 1/2" iron pin found;
THENCE N 00° 18'S8" W along the west line of said Aperion Tract One -A and the east line of said High
tract, a distance of 307.76 feet to a 1/2" iron pin found;
THENCE S 89°55'09" W along the west line of said Aperion Tract One -A and the north line of said High
tract, a distance of 370.41 feet to a 60d nail found, said 60d nail also being on the east line of said Avondale
Ranch tract and in Sam Reynolds Road;
THENCE N 00°12'09" W along the west line of said Aperion Tract One -A, the east line of said Avondale
Ranch tract, the east line of a tract conveyed to W.E. Wilkerson by deed recorded in Volume 960, Page 35
RPRDCT, the east line of a tract conveyed to Edward Zelnik, et ux Janet by deed recorded in Volume
4062, Page 1905 RPRDCT, the east line of a tract conveyed to J. Lloyd Barksdale, et ux Dorthy by deed
recorded in Volume 829, Page 271 RPRDCT, the east line of a tract conveyed to J. Lloyd Barksdale, et ux
Dorthy by deed recorded in Volume 829, Page 275 RPRDCT, the east line of a tract conveyed to Gary
Lynn Barksdale, et ux Toni Gayle by deed recorded in Volume 1545, Page 427 RPRDCT, the east line of a
tract conveyed to Bobby J. Henry by deed recorded in Volume 5028, Page 3683 RPRDCT, and in Sam
Reynolds Road, a distance of 3495.34 feet to a railroad spike found, said railroad spike also being on the
south line of a tract conveyed to Margaret DiNapoli, et al, by deed recorded in Volume 4522, Page 2063
RPRDCT;
THENCE S 89057'51" E along the west line of said Aperion Tract One -A and the south line of said
Margaret DiNapoli, et al tract, a distance of 509.83 feet to a 5/8" iron pin found, said iron pin also being on
the west line of a tract conveyed to Archie Eddleman by deed recorded in Volume 2322, Page 824
WRDCT;
THENCE S 00014'31" E along the west line of said Aperion Tract One -A and the west line of said
Eddleman tract, a distance of 226.43 feet to a 1/2" iron pin found;
THENCE N 89005'10" E along the west line of said Aperion Tract One -A and the south line of said
Eddleman tract, a distance of 870.61 feet to a 5/8" iron pin found, said iron pin also being the southwest
corner of a tract conveyed to Ricky Iverson by deed recorded in Volume 4718, Page 362 RPRDCT;
THENCE N 88048'54" E along the west line of said Aperion Tract One -A and the south line of said Iverson
tract and the south line of a tract conveyed to Carol Theis by deed recorded in Volume 1038, Page 887
WRDCT, a distance of 1598.77 feet to a 1/2" iron pin found;
THENCE N 00024'54" W along the west line of said Aperion Tract One -A and the east line of said Theis
tract and the east line of a tract conveyed to S.R. Harper by deed recorded in Volume 1726, Page 31
RPRDCT, a distance of 907.14 feet to a 1/2" iron pin found, said iron pin also being the southeast comer of
a tract conveyed to Roy Chastain by Contract of Sale recorded under County Clerk's File No. 97-R0021328
RPRDCT;
THENCE N 00043'24" W along the west line of said Aperion Tract One -A and the east line of said
Chastain tract, a distance of 423.43 feet to a 1/2" iron pin found, said iron in also being the southeast
corner of said Aperion Tract Two;
THENCE S 8805TO1" W along the south line of said Aperion Tract Two and the north line of said Chastain
tract, a distance of 1193.21 feet to a capped 1/2" iron pin found, said iron pin also being on the east line of a
tract conveyed to Wayne Harris by deed recorded in Volume 976, Page 42 RPRDCT;
THENCE N 00°35'15" W along the west line of said Aperion Tract Two and the east line of said Harris
tract, the east line of a tract conveyed to John McCurry, by deed recorded in Volume 971, Page 697
RPRDCT, the east line of a tract conveyed to Samuel Haynes by deed recorded in Volume 962, Page 43
RPRDCT, and the east line of a tract conveyed to Howell Choate by deed recorded in Volume 924, Page
921 RPRDCT, a distance of 2336.13 feet to a 1/2" iron pin found, said iron pin also being the southwest
Exhibit B to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 2
014940.00010:1057539.03
corner of a tract conveyed to The Pennington Family Trust by deed recorded in Volume 4833, Page 525
RPRDCT;
THENCE S 88003'05" E along the north line of said Aperion Tract Two and the south line of said
Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT, a distance of 977.84 feet to a
capped 1/2" iron pin previously set, said iron pin also being on the north line of Aperion Tract One -A;
THENCE N 00°33'20" W, departing the south line of said Pennington Family Trust tract and the north line
of said Aperion Tract One -A, a distance of 723.83 feet to a capped 1/2" iron pin previously set, said iron
in also being on the south right-of-way line of F.M. 407 (90' R.O.W.);
THENCE N 89°26'40" E, along the south right -of --way line of said F.M. 407 and along the north, line of
said Pennington Family Trust tract, a distance of 170.00 feet to a capped 1/2" iron pin previously set;
THENCE S 00°33'20" E, departing the south right -of --way line of said F.M. 407 and the north line of said
Pennington Family Trust tract, a distance of 731.26 feet to a capped 1/2" iron pin previously set, said iron
pin also being on the south line of said Pennington Family Trust tract and the north line of Aperion Tract
One -A;
THENCE S 880031OS" E along the north line of said Aperion Tract One -A and the south line of said
Pennington Family Trust tract, a distance of 42.05 feet to a 1/2" iron pin found, said iron pin also being on
the north line of Aperion Tract One -A;
THENCE N 89000124" E along the north line of said Aperion Tract One -A, the south line of said
Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT and the south line of a tract
conveyed to The Pennington Family Trust by deed recorded in Volume 4833, Page 521 RPRDCT, a
distance of 1146.79 feet to a 1/2" iron pin found, said iron pin also being on the southerly right-of-way line
of Farm -to -Market Road No. 407 (F.M. 407) (90' ROW);
THENCE S 50°10'01" E along the north line of said Aperion Tract One -A and the southerly right -of --way
line of F.M. 407, a distance of 682.19 feet to a capped 1/2" iron pin set, said iron pin also being the Point of
Curvature of a circular curve to the left having a radius of 617.96 feet, a central angle of 39°44'46" and
being subtended by a chord which bears S 70°02'24" E , 420.13 feet;
THENCE along said curve to the left and the north line of said Aperion Tract One -A and the southerly
right -of --way line of F.M. 407, a distance of 428.68 feet to a capped 1/2" iron pin set;
THENCE S 89054'47" E tangent to said curve and along the north line of said Aperion Tract One -A and the
southerly right-of-way line of F.M. 407, a distance of 458.09 feet to a point on the east line of the City of
Fort Worth ETJ line and the west line of the Town of Northlake ETJ line;
THENCE S 00000'00" W. departing the north line of said Aperion Tract One -A and the southerly right-of-
way line of said F.M 407, along the east line of the City of Fort Worth ETJ-line and along the west line of
the Town of Northlake ETJ line, a distance of 2998.33 feet to a point on the north line of a tract conveyed
to Patricia Malloy by deed recorded in Volume 769, Page 965 RPRDCT;
THENCE S 88057'42" W along the east line of said Aperion Tract One -A and the north line of the north
line of said Patricia Malloy tract, a distance of 802.46 feet to a 5/8" iron pin found; -
THENCE S 00°10'33" E along the east line of said Aperion Tract One -A and the west line of said Patricia
Malloy tract, a distance of 3748.38 feet to a 5/8" iron pin found, said iron pin also being the northwest
corner of Riggs Place, an addition to Denton County, Texas as recorded in Cabinet E, Page 359 PRDCT;
THENCE S 00017'37" E along the east line of said Aperion Tract One -A, the west line of said Riggs Place
and the west line of a remainder tract conveyed to James Riggs, Jr., et ux Deborah, by deed recorded in
Volume 870, Page 444 RPRDCT, a distance of 4211.11 feet to a 1/2" iron pin found, said iron pin also
being in Sam Reynolds Road;
THENCE N 89056'15" E along the east line of said Aperion Tract One -A, the south line of said James
Riggs, Jr. remainder tract, the south line of said Riggs Place; the south line of Sunflower Meadows, an
addition to Denton County, Texas as recorded in Cabinet O, Page 122 PRDCT, the south line of Sage
Exhibit B to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 3
014940.00010:1057539.03
Meadows, Phase One, an addition to Denton County, Texas as recorded in Cabinet M, Page 208 PRDCT;
the south line of a tract conveyed to Locust Thorn, L.P., by deed recorded in Volume 4009, Page 321
RPRDCT, the south line of Foxbane Estates, an addition to Denton County, Texas as recorded in Cabinet
H, Page 24 PRDCT and in Sam Reynolds Road, a distance of 3409.24 feet to a capped 1/2" iron pin set,
said iron pin also being the original northwest corner of Peyton Place, Phase One, an addition to Denton
County, Texas as recorded in Cabinet M, Page 266 PRDCT;
THENCE S 00°15'21" E along the east line of said Aperion Tract One -A, the west line of said Peyton
Place, Phase One and the west line of Peyton Place, Phase Two, an addition to Denton County, Texas as
recorded in Cabinet P. Page 50 PRDCT, a distance of 1482.19 feet to a 1/2" iron pin found, said iron pin
also being the northeast corner of a tract conveyed to Rocksand Investments, LLLP by deed recorded in
Instrument Number 2005-30851 RPRDCT;
THENCE S 00°03'07" E along the east line of said Rocksand Investments tract, a distance of 503.35 feet to
a 1/2" iron pin found, said iron pin also being on the northwesterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-
R0020408 RPRDCT; said iron pin also being the Point of Curvature of a non -tangent circular curve to the
left having a radius of 5829.65 feet, a central angle of 19°15'23" and being subtended by a chord which
bears S 54°00'43" W, 1950.06 feet;
THENCE along said curve to the left and the northwesterly line of said Atchison, Topeka and Santa Fe
Railway Company tract, a distance of 1959.27 feet to a 1/2" iron pin found;
THENCE S 44023'02" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway
Company tract, a distance of 27.66 feet to a 5/8" iron pin found;
THENCE N 45°36'58" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway
Company tract, a distance of 50.00 feet to a 5/8" iron pin found;
THENCE S 44°23'02" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway
Company tract, a distance of 1446.37 feet to a 5/8" iron pin found, said iron pin.being on the east line of
said Aperion Tract One -A and the west line of said Rocksand Investments tract;
THENCE N 00007'20" W along the east line of said Aperion Tract One -A and the west line of said
Rocksand Investments tract, a distance of 857.55 feet to a cappediron pin set;
THENCE N 90000'00" W. departing the east line of said Aperion Tract One -A and the west line of said
Rocksand Investments tract, a distance of 773.31 feet to a capped 1/2" iron pin set;
THENCE N 65058'36" W, a distance of 1029.92 feet to a capped 1/2" iron pin set;.
THENCE N 44°08'03" W, a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE N 52034'22" W, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE N 86014'27" W, a distance of 222.13 feet to the POINT OF BEGINNING and containing
59,787,842 square feet or 1372,540 acres of land, more or less.
TRACT TWO
BEING a 550.197 acre tract of land in the W.C. Brookfield Survey, Abstract No. 34, situated in Denton
County, Texas and being that same tract of land as described in deeds recorded in Volume 5128, Page 3102
and Volume 5119, Page 715 of the Real Property Records of Denton County, Texas (RPRDCT) and being
more particularly described as follows:
BEGINNING at a point in the north line of F.M. 407 at the southeast corner of the herein described tract of
land, said point lying in the west line of a tract of land as described in deed to Bill Pennington, recorded in
Volume 572, Page 131, RPRDCT;
THENCE along the north line of said F.M. 407, as follows:
Exhibit B to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 4
014940.00010:1057539.03
Northwesterly, along a curve to the left, having a radius point that bears S 18°06'28" W, 624.31 feet, an arc
distance of 204.03 feet, a central angle of 18°43'31" and being subtended by a chord which bears N
81 ° 15' 18" W, 203.13 feet;
S 89°22'S7" W, a distance of 1876.49 feet;
S 89'18'36" W, a distance of 1931.01 feet;
THENCE N 00004'03" W, departing the north line of said F.M. 407, a distance of 2834.59 feet;
THENCE N 00000'51" E, a distance of 1161.59 feet;
THENCE N 00004'13" E, a distance of 1244.99 feet to the northwest corner of the herein described tract of
land;
THENCE, being adjoined to the north by a tract of land as described in deed to Orville Rogers, recorded in
Document No. 94-R0029773, RPRDCT, along the north line of the herein described tract of land, as
follows:
S 89°3T03" E, a distance of 5409.41 feet;
S 00°32'35" W. a distance of 352.79 feet;
N 89°46'56" E, a distance of 651.45 feet;
THENCE S 00044'37" E, being adjoined to the east by a tract of land as described in deed to Laura Carter
Johnson, recorded in Volume 3038, Page 713, RPRDCT, a distance of 1372.47 feet;
THENCE N 85016'40" W, a distance of 2099.00 feet;
THENCE S 00024'45" E, being adjoined to the east by the aforementioned Pennington tract, a distance of
3642.68 feet to the POINT OF BEGINNING and containing 550,197 acres, more or less.
Exhibit B to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 5
014940.00010:1057539.03
Exhibit C
Utility Agreement
The Utility Agreement is available for inspection and copying in the City Secretary's
Office, Third Floor of City Hall, 1000 Throckmorton,
Exhibit C to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 1
014940.00010:1057539.03
Exhibit D
Development Agreement
The Development Agreement is available for inspection and copying in the City
Secretary's Office, Third Floor of City Hall, 1000 Throckmorton,
Exhibit D to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 1
014940.00010:1057539.03
Exhibit E
Strategic Partnership Agreement
The Strategic Partnership Agreement is available for inspection and copying in the City
Secretary's Office, Third Floor of City Hall, 1000 Throckmorton,
Exhibit E to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 1
014940.00010:1057539.03
Exhibit F
STATE OF TEXAS
COUNTY OF DENTON
NOTICE CONCERNING ANNEXATION AND SERVICES
The real property described in Exhibit A attached hereto and incorporated herein
is currently located in Tradition Municipal Utility District No. 2 of Denton County (the
"District"). The District is located wholly within the extraterritorial jurisdiction of the
City of Fort Worth. The City does not impose property taxes within the District and is
not required by state law to provide police protection, fire protection, road maintenance
or any other municipal services to the District.
The City of Fort Worth may annex the District for full purposes upon the earliest
to occur of:
(1) The date construction of water, wastewater, drainage, road and other
infrastructure improvements to serve 90% of the land within the District is
complete;
(2) Dissolution of the District [and all Districts resulting therefrom]; or
(3)
For additional information concerning potential nnnexatioi� of the District,
contact the City of Fort Worth Development Director,
TRADITION MUNICIPAL UTILITY
DISTRICT NO. 2 OF DENTON COUNTY
By:
Nance printed:.
Title:
Exhibit F to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 1
014940.00010:1057539.03
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before ine, on the _day of
200_3 by President, Board of Directors
. on behalf of said district.
[SEAL]
After recording, return to:
Water Director
City of Fort Worth
1000 Throckmorton
Fort Worth, TX 76102
Exhibit F to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Notary Public, State of Texas
Printed Name:
My Commission Expires:
of
Page 2
014940.00010:1057539.03
Exhibit A
Exhibit A to Exhibit F to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 3
014940.00010:1057539.03
Exhibit G
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is
made and entered into as of the day of , between
a ("Assignor"),
and a
("Assignee") (Assignor and Assignee are hereinafter sometimes collectively referred to
as the "Parties" and singularly as a "Party").
RECITALS:
A. Assignor is the owner of the rights of the Owner under that certain
"Agreement Concerning Creation and Operation of Tradition Municipal Utility District
No. 2 of Denton County" (City Secretary Contract No. , M & C - ) (the
"Agreement") effective as of , among Aperion Communities,
LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, collectively and
individually as Owner, the City of Fort Worth, Texas, as the City, and the Tradition
Municipal Utility District No. 2 of Denton County, as the District, relating to the creation
and operation of the District, to the extent that the Agreement covers, affects, and relates
to the lands described on Exhibit A attached to and made a part hereof of this
Assignment for all purposes (the "Transferred Premises").
B. Assignor desires to assign certain of its rights under the Agreement as it
relates to the Transferred Premises to Assignee, and Assignee desires to acquire such
rights, on and subject to the terms and conditions of this Assignment.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
obligations set forth herein, and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the Parties hereby agree and act as
follows:
1. Certain Defined Terms. Unless indicated otherwise herein, capitalized
terms in this Assignment shall have the same respective meanings as are ascribed to them
in the Agreement.
2. Assisinment: Subject to all of the terms and conditions of this
Assignment, Assignor hereby assigns all [or describe specifically assigned rights if
partial] of its rights under the Agreement, insofar as the Agreement covers, affects; and
relates to the Transferred Premises.
3. Assumption. Assignee hereby assumes all obligations of Assignor and
any liability that may result from acts or omissions by Assignee under the Agreement as
it relates to the Transferred Premises that may arise or accrue from and after the effective
Exhibit G to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 1
014940.00010:1057539.03
date of this Assignment, and Assignor is hereby released from all such obligations and
liabilities from and after the effective date of this Assignment; provided, however, this
Assignment does not release Assignor from any liability that resulted from an act or
omission by Assignor that occurred prior to the effective date of this Assignment unless
the City approves the release in writing.
4. Governing Law. THIS ASSIGNMENT MUST BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY
TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO
ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY.
5. Counterpart/Facsimile Execution. This Assignment has been prepared
in multiple counterparts, each of which shall constitute an original hereof, and the
execution of any one of such counterparts by any signatory shall have the same force and
effect and shall be binding upon such signatory to the same extent as if the same
counterpart were executed by all of the signatories. Facsimile copies of signatures may
be appended hereto with the same force and effect as legally delivered original
signatures.
6. Notice to City. A copy of this Assignment shall be provided to the City
within fifteen (15) days after execution.
7. Binding Effect. This Assignment shall be binding upon and shall inure to
the benefit of Assignor and Assignees and their respective heirs, personal representatives,
successors, and assigns.
EXECUTED as of the day and year first above written.
ASSIGNOR:
By:
Printed
Name:
Title:
ASSIGNEE:
By:
Exhibit G to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 2
014940.00010:1057539.03 .
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND
, 200_, by
STATE OF TEXAS
COUNTY OF
SWORN TO AND
, 200_, by
[Add Acknowledgments]
Printed
Name:_
Title:
SUBSCRIBED before me on the
Notary Public, State of Texas
SUBSCRIBED before me on the
Exhibit G to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Notary Public, State of Texas
Page 3
0149a0.00010:1057539.03
EXHIBIT "A"
The Transferred Premises
Exhibit A to Exhibit G to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 4
014940.00010:1057539.03
EXHIBIT H
District Joinder
This District Joinder to the Tradition Agreements (this "District Joinder") is made
and entered into as of the day of (the "Effective
)ate" ), by the undersigned ( the "District").
A. The District was created on over a portion of the
Development as a result of a division of the original District in accordance with the
District Legislation. A map showing the boundaries of the District in relation to the
Development is attached as Exhibit A. The portion of the Development within the
District's boundaries, (the "District Area") is described in Exhibit B, attached to and
made a part of this District Joinder for all purposes.
B. Aperion Communities, LLLP, Eladio Properties, LLLP, Drooy Properties,
LLLP, and Rocksand Investments, LLLP, Arizona limited liability limited partnerships;
the City of Fort Worth, Texas a home -rule municipal corporation situated in Tarrant,
Denton, and Wise Counties, Texas, acting by and through its duly authorized Assistant
City Manager; and the Tradition Municipal Utility District No. 2 of Denton County, a
municipal utility district created pursuant to Article XVI, Section 59, of the Texas
Constitution, Chapters 49 and 54 of the Texas Water Code and the applicable Special
District Local Law and any other district created over the Development by dividing the
original district into one or more new districts pursuant to the District Legislation, and (as
applicable) Aqua Utilities, Inc., formerly known as. AquaSource Utility, Inc., a Texas
corporation, entered into the following agreements (hereafter, the "Tradition
Agreements"):
i. the "Agreement Concerning Creation and Operation of Tradition
Municipal Utility District No. 2 of Denton County," City Secretary
Contract No. , M & C NO (the "Creation
Agreement"), attached hereto as Exhibit C.
ii. the "Agreement Regarding Water and Wastewater Utility Service,"
City Secretary Contract No. , M & C - , attached
hereto as Exhibit C.
iii. the "Buy -Out Option Contract," City Secretary Contract No.
, M & C - , attached hereto as Exhibit D;
iv. the "Memorandum of Buy -Out Option Contract" attached to the
Buy -Out Option Contract as Exhibit C;
v. the "Strategic Partnership Agreement," City Secretary Contract No.
, M & C - , attached hereto as Exhibit E; and
vi. the "Agreement Regarding Payment of Impact Fees and Financing
of Water and Wastewater Facilities" attached to the Agreement
Regarding Water and Wastewater Utility Service as Exhibit G.
Exhibit H to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
Page 4
014940.00010:1057539.03
CO Under the terms of the Tradition Agreements, the District became a party
to the Tradition Agreements on the date the election dividing the original district was
held pursuant to § 8189.104 of the District Legislation; however, the District desires to
memorialize its commitment to assume all of the rights and obligations of the Tradition
Municipal Utility District No. 2 of Denton County under the Tradition Agreements as to
the land located within the District Area.
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the District hereby acknowledges and agrees as follows:
l . Unless indicated otherwise herein, capitalized terms in this District Joinder
shall have the same meanings as are ascribed to them in the Creation Agreement,
2. The New District hereby memorializes its status as a party to the Tradition
Agreements. The New District hereby agrees to perform all obligations of the District
under the Tradition Agreements as they relate to the District Area.
3. This Joinder shall be binding upon and shall inure to the benefit of City,
Owner, District and the New District, as applicable, and their respective heirs, personal
representatives, successors, and assigns, as of the Effective Date.
EXECUTED as of the Effective Date.
Exhibit H to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
By:
President, Board of Directors of the New District
Date:
Page 5
014940.00010:1057539.03
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me, on the _day of
200_5 by President, Board of Directors
on behalf of said district.
Notary Public, State of Texas
Printed Name:
My Commission Expires.
[SEAL]
Exhibit H to
Agreement Concerning Creation and Operation
of Tradition MUD No. 2
of
Page 6
014940.00010:1057539.03 .
Page 1 of 3
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12/18/2007 -Res. No. 3568-12-2007
DATE: Tuesday, December 18, 2007
LOG NAME: 06TRADITION2 REFERENCE NO.: C-22589
SUBJECT:
Authorize Execution of the Consent Resolution, Development Agreement, Buy -Out Option
Agreement, Impact Fee Agreement, Utility Agreement, Wholesale Wastewater Service Agreement,
and the Agreement for the Sale of Treated Water and Approve the Form of the Strategic Partnership
Agreement for Tradition Municipal Utility District No. 2 of Denton County
RECOMMENDATION:
It is recommended that the City Council:
1. Adopt a resolution consenting to the creation of Tradition Municipal Utility District No. 2 of Denton County
("District");
2. Authorize the City Manager or a designee to execute the following contingent upon receipt of necessary
executed documents from Aqua Utilities:
a. A Development Agreement between the City and Aperion Communities, LLLP, Eladio Properties,
LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP;
b. A Buy -Out Option Agreement between the City, Aqua Utilities, Aperion Communities, LLLP, Eladio
Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP, and the District;
c. An Impact Fee Agreement between the City, Aqua Utilities, Aperion Communities, LLLP, Eladio
Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP, and the District;
d. A Utility Agreement between the City and Aqua Utilities, Aperion Communities, LLLP, Eladio
Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP, and the District;
e. A Wholesale Wastewater Service Agreement between the City and Aqua Utilities;
f. An Agreement for the Sale of Treated Water between the City and Aqua Utilities; and
3. Authorize the City Manager or a designee to bring forth the Strategic Partnership Agreement for approval
after the formation of the Municipal Utility District.
DISCUSSION:
Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and Rocksand
Investments, LLLP, (AEDR) are Arizona limited liability partnerships that own and are developing
approximately 2,663 acres in Fort Worth's and Northlake's extraterritorial jurisdiction as a mixed -use
development to be known as "Tradition." The property is in Denton County and is located north of Highway
114 and west of Highway 156. On December 13, 2005, (M&C C-21198) the City Council authorized the City
Manager to enter into contracts for the first 431 acres of this development known as Tradition Municipal
Utility District No. 1 of Denton County. The district was confirmed by the voters on May 12, 2007.
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 1 /8/2008
City funds. Any effect on expenditures and revenues will be budgeted in future fiscal years.
Page 3 of 3
TO Fund/Accouni/Centers
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
FROM FundlAccountlCenters
Dale Fisseler (6140)
Fernando Costa (8042)
Susan Alanis (8180)
http://www.cfwnet. org/council�acketlReports/mc�rint.asp
1/8/2008
Page 1 of 2
Tidwell, Allison
From: Gray, Allison M.
Sent: Wednesday, August 19, 2009 11:10 AM
To: Gonzales, Ronald; Alanis, Susan
Cc: Fullenwider, Sarah; Burghdoff, Dana; Hendrix, Marty; Cole, Tennie; Madison, Menique; Otis, Sarah; Seidel,
Nicole M.; Tidwell, Allison; Tinker, Marlena; Knight, Beth
Subject: RE: MUD Contracts
Ron,
I have contacted Marcella Olson, the attorney for the Municipal Utility District and she has spoken to the representatives
of the district. The contracts that we received and were partially executed were picked up and returned to the District for
their execution and recording. The contracts required that the documents be executed within 60 days of the confirmation
of the district. Due to the economy and some personnel changes with the property owner the district has not yet been
confirmed. There is not a date certain for that district confirmation.
So Ron, the contracts are in the possession of the Municipal Utility District and have not been fully executed yet. The
property owner believes that someone will purchase the property, confirm the district, execute the contracts and move
forward. Unfortunately, I can't tell you when we will get fully executed contracts returned to us.
If you have any questions or need further information please let me know and I will tell you what I can,
Allison
From: Gonzales, Ronald
Sent: Thursday, August 13, 2009 3:31 PM
To: Alanis, Susan; Gray, Allison M.
Cc: Fullenwider, Sarah; Burghdoff, Dana; Hendrix, Marty; Cole,
Tidwell, Allison; Tinker, Marlena
Subject: RE: MUD Contracts
Tennie; Madison, Menique; Otis, Sarah; Seidel, Nicole M.;
If th�� pr<i,��ti��<� t��a�i»ut h�� �u51x��iulF��i th��il ���c�� rE���onin�c�ii�l t«�o c�opi��5 of thc� ��oiit,r�i.c�t� b��� j�rovi�l���l
fui• nin»b��riii�. «'t� ����ill ni�a�iiit���i n <i. �,oh�. Itc�l•<� fui• th�� uffi<°i�i�l rE��°ur�i �i,ii�i return uii�� to ��uu fur
full c�rc�c°utiorl. 'hl��i,uk �-uu fiti�u,�i ���n�1 .�11Lisuli.
Null
From: Alanis, Susan
Sent: Thursday, August 13, 2009 3:08 PM
To: Gonzales, Ronald; Gray, Allison M.
Cc: Fullenwider, Sarah; Burghdoff, Dana
Subject: Re: MUD Contracts
Ron:
I will find out why you haven't received it and resolve that if possible. It will not be possible to suspend this practice
altogether due to the cross-referencing in them. It has always been anticipated that there could be a long gap before final
execution because some cannot be signed until formation of the separate governmental entities. With the slowdown in
development, they may be slowed even further. It makes sense to me for your office to have the official record even
though they are partially executed so they are available for public inquiry.
Allison:
Please see what is going on with these in particular.
8/19/2009
Page 2 of 2
Thanks,
Susan
From: Gonzales, Ronald
To: Gray, Allison M.
Cc: Burghdoff, Dana; Alanis, Susan
Sent: Thu Aug 13 14:59:23 2009
Subject: MUD Contracts
1L� 11S011,
I have been informed that olu• office. has assigned 14 eontrac�t numbers for NIUD contra�c'�ts for
wlllcll we ha,Ve 110t reeelVe(1 the Hill}' exeelltecl (10('lllTlent� The c011t1'a,ct I1I11111)el'S a1'e as fO110Ws:
3G200, 36201, 36202, 36462, 364G3, 36464, 364fi�, 364G6, 3G46"�, 36468, 37136, 3713"�, 3"�138, 3713�
aaul 3"(140
In the past, 1VIaI•t}' 11ad agrcecl to issue contr�ut ulunbers for the 1VIi1D contra�c'ts as we ware
advised that we would receive the executed contract for processing and lna,illtenance upon all
signatures beillg obtained. Since �'e have not received the executed copies for the above NIITD
contra�c'ts, Dla,l•t}' lic•us directed tllat effective toda��' we are not to issue contra�'t numbers for any
1VILJll contra�'t that is not full}' executed.
At j'onr earliest opportunit}', please provide the executed copies of the above NIUD contracts for
our records, if a,va�ilable. If the}' are not a,va,ila�ble, please advise wllo tive ma}� contact to obtain
the copies. Thank j'ou.
Ron Gonzales
tLssistallt City' Secretarj', Citjr of Folt Wo1•tll
Ron�anlchGoiiGales ��folfivorthgov.org
81"f.cli/�. V1�4
"Wztlt L1ur 1'�y�vurl� tholirva�n Wvrks"
8/19/2009