HomeMy WebLinkAboutContract 36195 CITY SECRETARY
CONTRACT NO.
UTILITY AGREEMENT FOR MORNINGSTAR RANCH
This Utility Agreement("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"); WYA The Ranch at Mary's Creek, Ltd., a Texas limited partnership ("Owner");
MorningStar Ranch Municipal Utility District No. 1 of Parker County ("District One"); and
MorningStar Ranch Municipal Utility District No. 2 of Parker County ("District Two"),
municipal utility districts to be created by the Texas Commission on Environmental Quality (the
"TCEQ"), pursuant to Article XVI, Section 59, of the Texas Constitution and Chapters 49 and 54
of the Texas Water Code (individually, a "District" and, collectively, the "Districts"), which
Districts will become parties to this Agreement in accordance with the Consent Agreements, as
defined below. The City, Owner, and the Districts are hereinafter sometimes referred to,
individually, as a "Party" and, collectively, as the "Parties". This Agreement will take effect
upon execution by all Parties (the "Effective Date").
RECITALS
A. Owner has represented to the City that Owner is the owner of approximately 737
acres in Parker County, Texas, as shown on Exhibit A and more particularly described in
Exhibit B attached to this Agreement (the "Pro e "). The Property lies entirely within the
City's extraterritorial jurisdiction ("ETF).
B. Owner intends to submit petitions to the TCEQ for creation of District One
encompassing approximately 380.316 acres of the Property and District Two encompassing
approximately 356.829 acres of the Property.
C. Owner intends to develop the Property as a mixed-use master-planned community
to be known as"MorningStar Ranch".
D. On December 4, 2007, the City Council of the City of Fort Worth (the "Ci1y
Council") adopted Resolution No. 3560-12-2007 consenting to creation of District One and
Resolution No. 3561-12-2007 consenting to creation of District Two (the "Consent
Resolutions").
E. On December 4, 2007, the City Council approved that certain Agreement
Concerning Creation and Operation of MorningStar Ranch Municipal Utility District No. 1 of
Parker County (City Secretary Contract No. 36198, M & C-22562) and than certain Agreement
Concerning Creation and Operation of MorningStar Ranch Municipal Utility District No. 2 of
Parker County (City Secretary Contract No. 36199, M & C-22562) (the "Consent Agreements"),
including approval of the form of the Strategic Partnership Agreements (herein defined)
attached as Exhibit C to the Consent Agreements.
F. On December 4, 2007, the City Council approved that certain Development
Agreement for MorningStar Ranch (City Secretary Contract No. 36202, M & C C-22562) (the
"Development Agreement").
G. The Property is located in an area for which no certificate of convenience cam'
necessity ("CCN")has been issued by the TCEQ for retail water or wastewater se iic9
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H. A portion of the Property is located in the Westside IV Pressure Plane, defined in
the City's Water Master Plan as land between the 840-foot contour and the 940-foot contour (the
"Westside IV Property"),"and the remainder of the Property is located in the Westside V Pressure
Plane, defined in the City's Water Master Plan as the land above the 940-foot contour (the
"Westside V Property"), as shown on Exhibit C.
I. The City has plans to construct a water treatment plant at 11800 Old Weatherford
Road, which will serve the western sector of the City (the "Westside Treatment Plant"), with an
estimated completion date of 2010.
J. The Parties have reached certain agreements regarding the financing,
construction, operation and ownership of: an Irrigation System (herein defined) supplied by
groundwater to provide irrigation water service to the Property, and that could also be used for
distribution of reclaimed water to the Property in accordance with Title 30, Texas Administrative
Code, Chapter 210; a Drinking Water System (herein defined) supplied by groundwater to
provide potable water service to the Property; and certain off-site water and wastewater
infrastructure.
K. The Parties have reached certain agreements pursuant to which the City will
provide retail water and wastewater service to the Property.
L. The Districts will become parties to this Agreement after the confirmation of the
Districts in accordance with the Consent Agreements.
NOW, THEREFORE, for and in consideration of the mutual agreements, covenants and
conditions hereafter set forth, the Parties contract and agree as follows:
ARTICLE I
WASTEWATER SERVICE, INFRASTRUCTURE AND CHARGES
1.01 Wastewater Service. The City shall provide retail wastewater collection and
treatment service to customers within the Property, subject to the Owner's performance of its
obligations under this Article I.
1.02 Off-Site Wastewater Line. Owner shall design and construct or cause to be
designed and constructed approximately 14,000 linear feet of sanitary sewer main connecting the
Property to the existing Walsh Ranch/Mary's Creek sewer line, in the general location from
Point A to Point B as shown on Exhibit D, with the final alignment to be determined by the City
after consulting with Owner and making reasonable efforts to address Owner's concerns
regarding its alignment and to select a cost-effective alignment (the "Off-Site Wastewater
Line"). The diameter of the Off-Site Wastewater Line shall be determined by the City, but shall
not exceed twenty-four (24) inches. The Parties acknowledge that a line with a diameter of
twelve (12) inches is needed to serve the Property. Owner and the Districts shall be entitled to
reimbursement from the City for the cost of oversizing the Off-Site Wastewater Line pursuant to
and in accordance with Section 3.05.
1.03 On-Site Wastewater Infrastructure. Owner shall design and construct or cause to
be designed and constructed wastewater mains and one lift station on the Property as needed to
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provide wastewater service to the proposed development on the Property. On-site sewage
treatment and disposal facilities are prohibited on the Property.
1.04 Tap Fees; Impact Fees.
(a) Tap or service connection fees for wastewater service provided within the
Property (excluding Impact Fees as herein defined) shall be the same as if the services are
provided within the City's corporate limits, but only to the extent that such fees are not Impact
Fees.
(b) The City may collect the maximum assessable wastewater impact fees (based on
the meter size) for the costs of capital improvements or facility expansions necessitated by and
attributable to the development of the Property ("Impact Fees"), as determined by the City from
time to time in accordance with Chapter 395 of the Local Government Code ("Chapter 395").
ARTICLE II
WATER SERVICE, INFRASTRUCTURE AND CHARGES
2.01 Construction, Ownership and Operation of Irrigation System.
(a) Owner shall design and construct or cause to be designed and constructed to serve
the proposed development on the Property a groundwater-supplied irrigation system to include
irrigation wells, storage ponds, pump stations, hydropneumatic tanks, distribution lines and
meters (the "Irrigation System") which shall be constructed to applicable City and State
standards, including construction standards applicable to and sufficient for use of reclaimed
water pursuant to Title 30, Texas Administrative Code, Chapter 210.
(b) The Irrigation System will be owned and operated by the Districts in compliance
with applicable regulatory requirements, unless and until the City exercises its option to acquire
and operate the Irrigation System pursuant to Section 2.08.
2.02 Construction, Ownership and Operation of Drinking Water System and Drinking
Water Wells.
(a) Owner shall design and construct or cause to be designed and constructed a
drinking water system sufficient to serve the proposed development on the Property and to
include: (i) storage tanks, hydropneumatic tanks, distribution lines and- meters (including
individual retail meters), which shall be designed and constructed in compliance with applicable
City and State standards, including Chapter 290 of Title 30 of the Texas Administrative Code
(the "Drinking Water System") and (ii) public water supply wells, which shall be located,
constructed and developed in compliance with applicable City and State standards, including
Section 290.41 of Title 30 of the Texas Administrative Code (the "Drinking Water Wells").
(b) The Districts shall own and operate the Drinking Water System and the Drinking
Water Wells to provide retail potable water service to the proposed development on the Property
until the City becomes the retail potable water supplier for the Property pursuant to Section 2.03.
When the City becomes the retail potable water supplier for the Property, then the City shall
become the owner and operator of the Drinking Water System. The Districts shall disconnect the
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Drinking Water Wells from the Drinking Water System and shall retain ownership of the
Drinking Water Wells. Thereafter, the Districts may use the Drinking Water Wells in
conjunction with the Irrigation System to provide irrigation water service to customers on the
Property until and unless the City elects to become owner and operator of the Irrigation System
and/or the Drinking Water Wells pursuant to Section 2.08.
(c) Owner shall construct the Irrigation System and the Drinking Water System as
separate systems in order to preclude the possibility of cross-contamination.
(d) All operators of the Drinking Water System shall comply with TCEQ regulations
for operation of public water supply systems, including Chapter 290 of Title 30 of the Texas
Administrative Code.
2.03 Construction of Phase One Water Line and Commencement of Retail Potable
Water Service by City.
(a) Unless the design and construction schedule is deferred pursuant to Subsection
(b), the Districts shall design and complete construction of the Phase One Water Line (as
hereafter defined in Section 2.04) on or before December 31, 2010.
(b) If, on or before December 31, 2010, Owner has commenced constructing more
than four water wells in connection with construction of the Irrigation System and the Drinking
Water System, then the December 31, 2010 deadline contained in Subsection (a) shall not apply,
and the deadline for Owner to design and construct the Phase One Water Line shall be extended
to December 31, 2012.
(c) The City shall provide retail potable water service to the Property upon
completion of construction of the Phase One Water Line by Owner in compliance with
Subsection (a) or (b) and acceptance by the City of the Phase One Water Line, which
acceptance shall not be unreasonably delayed or withheld (provided the Phase One Water Line is
constructed in accordance with Section 3.01), provided, however the City's obligation to provide
retail potable water service to the Property shall not commence before December 31, 2010.
2.04 Phase One Water Line.
(a) Owner, shall design and construct or cause to be designed and constructed (on the
applicable schedule described in Subsection 2.03) approximately 7,400 linear feet of water main
connecting the Property to the City's existing water line which lies east of the I-20/Farmer Road
interchange, in the general location from Point C to Point D as shown on Exhibit C, with the
final alignment to be determined by the City after consulting with Owner and making reasonable
efforts to address Owner's concerns regarding the alignment and to select a cost-effective
alignment (the "Phase One Water Line").
(b) The diameter of the Phase One Water Line shall be determined by the City, but
shall not exceed twenty-four (24) inches. The Parties acknowledge that a diameter of sixteen
(16) inches is needed to serve the Property. Owner and the Districts shall be entitled to
reimbursement from the City for the cost of oversizing the Phase One Water Line pursuant to
and in accordance with Section 3.05.
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2.05 Phase Two Water Line.
(a) Owner shall design and construct or cause to be designed and constructed
approximately 16,900 linear feet of water main from Point D to Point E, as shown on Exhibit C,
with the final alignment to be determined by the City after consulting with Owner and making
reasonable efforts to address Owner's concerns regarding the alignment and to select a cost-
effective alignment(the "Phase Two Water Line").
(b) The diameter of the Phase Two Water Line shall be determined by the City, but
shall not exceed twenty-four (24) inches. The Parties acknowledge that a diameter of sixteen
(16) inches is needed to serve the Property. Owner and the Districts shall be entitled to
reimbursement from the City for the cost of oversizing the Phase Two Water Line pursuant to
and in accordance with Section 3.05.
(c) Owner may construct portions of the Phase Two Water Line as needed to serve
the Property. Owner shall complete the design and construction of the Phase Two Water Line
within eighteen (18) months after receipt of written Notice from the City that the Phase Two
Water Line is necessary for proper functioning of the City's water system, provided, however,
Owner shall not be required to begin designing the Phase Two Water Line until there are 1,000
occupied single-family residences on the Property.
2.06 Service to Westside IV; On-Site Infrastructure. The City shall provide retail
potable water service to the Westside IV Property pursuant to Section 2.03, and subject to the
District's compliance with Sections 2.03-2.05, using City water supplied to the Westside IV
Property by the Phase One Water Line. Owner shall construct or cause to be constructed all
infrastructure within the Westside IV Property necessary to provide potable water service to the
proposed development within the Westside IV Property, including on-site water distribution
lines. Owner shall design and construct the on-site water distribution lines to include capacity
sufficient for potable water service and fire protection for the areas served by those lines, but to
exclude capacity for irrigation, which will be provided by the Districts through the Irrigation
System.
2.07 Service to Westside V; On-Site Infrastructure. The City shall provide retail
potable water service to the Westside V Property pursuant to Section 2.03, and subject to the
District's compliance with Sections 2.03-2.05, using City water supplied to the Westside V
Property by the Phase One Water Line and/or the Phase Two Water Line. Owner shall construct
or cause to be constructed all infrastructure within the Westside V Property necessary to provide
water service to customers within the Westside V Property, including on-site distribution lines, a
pump station, ground storage tank and hydropneumatic tank sized to serve the Westside V
Property. Owner shall design and construct the on-site water distribution lines to include
capacity sufficient for potable water service and fire protection for the areas served by those
lines, but to exclude capacity for irrigation, which will be provided by the Districts through the
Irrigation System.
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2.08 Ownership and Operation of Irrigation System and Drinking Water Wells.
(a) The Irrigation System and the Drinking Water Wells shall remain the property of
the Districts until the Property is annexed for full purposes, except as provided by this section.
Upon full purpose annexation by the City of Property within either District and dissolution of
such District, the District shall, at the City's request, convey its interest in the Irrigation System
and the Drinking Water Wells to the homeowners association serving the homes within the
dissolving District.
(b) The City has the option, but not the obligation, to become the owner and operator
of the Irrigation System and/or the Drinking Water Wells. The City may exercise the option by
providing written Notice to the Districts between September 1 and September 30 during any year
after the City becomes the retail potable water supplier. The Districts shall convey the Irrigation
System and/or the Drinking Water Wells to the City in accordance with the City's Notice to the
Districts, at no cost to the City, effective January 1 of the following year, and the City shall
assume all rights and obligations relating to the Irrigation System and/or the Drinking Water
Wells.
(c) If, at any time before the City exercises the option described in Subsection (b),
the Districts wish to cease the operation of the.Drinking Water Wells, the Districts shall provide
sixty (60) days Notice of such intent to the City. The City may elect to become the owner and
operator of the Drinking Water Wells by providing Notice to the Districts, whereupon the City
shall assume all rights and obligations relating to the Drinking Water Wells.
(d) If any well subject to this Agreement is abandoned, the owner of the well when it
is abandoned shall be responsible for plugging the well in accordance with State law.
2.09 Meters. Owner shall install or cause to be installed separate water meters for
irrigation and potable water service. Such meters shall be owned and maintained by the Districts
except as provided in this section. When the City becomes the retail potable water supplier for
the Property pursuant to Section 2.03, the City shall become the owner of, and assume all
maintenance obligations for, meters for potable water service. If the City elects to become the
owner and operator of the Irrigation System pursuant to Section 2.08, the City shall be the owner
of, and assume all maintenance obligations for, the irrigation meters. Single-family residential
meters for potable water shall comply with City standards and shall be a minimum of one-half
(1/2) inch in diameter and may be larger in diameter, at the Districts' option. Meters for
nonresidential uses shall be sized based on potable and fire flow/fire suppression requirements.
2.10 Contributions to Regional Off-Site Westside V System.
(a) The City may in the future construct a Regional Westside V water system,
consisting of: (i) approximately 14,100 linear feet of twenty (20) inch water main extending
from the existing ground storage tank and pump station on IH-20 along Farmer Road to the
northern boundary of the Property (the "20-Inch Main"); (ii) pump station improvements; and
(iii) an elevated storage tank, as shown on Exhibit E (collectively, the "Regional Westside V
System").
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(b) If the City constructs the Regional Westside V System, Owner or the Districts,
collectively, shall pay or cause to be paid $600,000 as their share of the costs associated with the
design and construction of such system, including one or more of the following: (i) costs of
oversizing the 20-Inch Main, (ii) each District's pro rata share of the cost of the 20-Inch Main
based on the required line size; and (iii) each District's share of the elevated storage tank and
pump station improvements based on:
Acres of property in the Westside V Pressure Plane within the District
Total acres of property in the Westside V Pressure Plane (excluding developed
areas without a need for water service)
(c) District One's share of the elevated tank and pump station based on the formula
contained in Subsection (b) is .06%, calculated as follows:
10 Acres
16,866 Acres (19,151 total acreage in Westside V, less 2,265 acres of developed
areas)
(d) District Two's share of the elevated tank and pump station based on the formula
contained in Subsection (b) is 1.22%, calculated as follows:
206 Acres
16,886 Acres (19,151 total acreage in Westside V, less 2,265 acres of developed
areas)
(e) Within ninety (90) days after substantial completion of the construction of the
Regional Westside V System as shown on Exhibit E, the City will calculate Owner's and the
Districts' pro rata share of the cost of the 20-Inch Main and the elevated storage tank and pump
station improvements. The remainder of the $600,000 payment shall be retained by the City as
Owner's and the Districts' contribution to the costs of oversizing the 20-Inch Main.
(f) Owner and the District shall deliver funds in the amount of$600,000 to the City
prior to commencement of construction of infrastructure within the Westside V Property
pursuant to Section 2.07. However, if the Regional Westside V System as shown on Exhibit E
is not substantially constructed within ten(10) years after the Effective Date, then this obligation
to deliver such funds shall terminate, and the City shall refund the $600,000 payment, together
with all interest earned by the City on such funds. Although the City is not obligated to complete
the Regional Westside V System, the ten (10) year period for substantial completion shall be
considered performance of an "obligation" solely for purposes of, and may be extended by,
Force Majeure pursuant to Section 5.11.
2.11 Certificates of Convenience and Necessity. The Districts shall submit an
application to the TCEQ for a CCN to provide retail water service to the Property and shall
cooperate with the City-to transfer the CCN to the City for portions of the Property, effective
when the City commences providing retail potable water service to such portions of the Property
pursuant to Section 2.03. The Parties covenant and agree that they shall execute and deliver
such other and further assurances, instruments and documents as are or may become necessary or
convenient to effectuate and carry out the intent of this Section 2.11.
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2.12 Tqp Fees, Impact Fees.
(a) Tap or service connection fees for potable water service provided by the City
within the Property (excluding Impact Fees) shall be the same as if the services are provided
within the City's corporate limits.
(b) The City may collect the maximum assessable water impact fees (based on the
meter size) for the costs of capital improvements or facility expansions necessitated by and
attributable to the development of the Property ("Impact Fees"), as determined by the City from
time to time in accordance with Chapter 395.
(c) While Owner or the Districts own the Drinking Water System, prior to connecting
each meter to the Drinking Water System, the District shall collect the amount of the City's
currently assessed Impact Fee for the Property, or if no Impact Fee has been determined for the
Property, that Impact Fee that is the City's maximum assessable Impact Fee for inside-City
customers for such meter, shall deposit this Impact Fee in an'interest-bearing account, and shall
transfer or otherwise pay that amount, including interest, to the City within 60 days of the City's
commencement of retail service to that retail meter. Payments to the City pursuant to this
Section 2.12(c) are not contingent upon the Districts' collection of such amounts, and may be
paid from the Districts' operation and maintenance tax revenues or any other source of District
funds.
2.13 Annexation Notices to Customers. The City may place the following notice or a
substantially similar notice on water bills sent to customers within the Districts: "This service
address is inside the boundaries of a municipal utility district that may be annexed in the future
by the City of Fort Worth."
ARTICLE III
PUBLIC INFRASTRUCTURE; GENERAL PROVISIONS
3.01 Design and Construction of Public Infrastructure. The Irrigation System and the
Drinking Water System (the "Private Infrastructure"), together with the Off-Site Wastewater
Line, Phase One Water Line, Phase Two Water Line, and all other water and wastewater
infrastructure installed, constructed or caused to be constructed by Owner or District to provide
water or wastewater service to the Property, whether inside or outside the Property (the "Public
Infrastructure"), shall be designed and constructed in accordance with the Infrastructure
standards required by, and subject to inspection by the City in accordance with, Article VI of the
Consent Agreement.
3.02 Easements and Rights-of-Way. All easements or rights-of-way required for the
installation of the Public Infrastructure shall be granted or acquired by Owner or the Districts and
dedicated jointly to the Districts and the City, at no cost to the City, and shall be in the form
reasonably required by the City for such types of easements. Owner may construct the Irrigation
System and the Drinking Water System within the City's public right-of-way or within any
easements dedicated jointly to the City and the Districts, and may enter such public right-of-way
and easements to perform repairs and maintenance of the Irrigation System and the Drinking
Water System during the District's ownership of those systems. —
�N
II
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3.03 Dedication and Ownership of Public Infrastructure; Capacity.
(a) Upon approval and acceptance by the City, the Districts shall convey legal title to
the Public Infrastructure to the City; however, each District shall have a continuing right to
require the City to utilize a portion of the capacity in the conveyed Public Infrastructure equal to
the capacity funded by or on behalf of such District, up to the capacity necessary to serve the
Property, which capacity shall be made available by the City at all times as necessary to provide
water and wastewater service to customers within such District.
(b) In the event it is ever finally determined by a court of proper jurisdiction that the
Districts are not authorized by law to convey legal title to all or any portion of the Public
Infrastructure to the City, title to such Public Infrastructure shall automatically revert to the
Districts. Thereafter, the City shall be entitled to utilize such Public Infrastructure in accordance
with the terms of this Agreement, expressly including Section 3.03(a), for a payment of$1.00
per year. The Districts shall provide copies to the City of any correspondence, notices or other
documents concerning the Districts' authority to convey legal title to all or any portion of the
Public Infrastructure to the City.
(c) In the transfer of any Public Infrastructure to the City pursuant to this Agreement,
Owner and the Districts covenant and agree to take or cause to be taken such actions and
execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such
instruments, documents, transfers and conveyances as may be required to convey, transfer and
deliver the facilities, confirm the ownership of the transferred assets, and discharge any
encumbrances against the transferred assets that are outstanding as of the date of transfer.
3.04 Repair and Maintenance of Public Infrastructure and Roads. Upon dedication of
Public Infrastructure to the City, the City shall operate and maintain the Public Infrastructure.
3.05 Recovery of Oversizing�Costs by Owner. The City will cooperate with Owner's
efforts to recover a portion of Owner's cost of design and construction of oversizing certain
water and wastewater lines from payments by future users outside the Districts who desire to use
such capacity, in accordance with the "per acre" or similar City ordinances, including Chapter
35, Article III, Division 4 of the Fort Worth City Code ("Water Main Capacity Charges"). In
particular, this oversizing consists of design and construction of: the Off-Site Wastewater Line in
excess of the twelve (12) inch diameter needed to serve the Property pursuant to Section 1.02;
and the Phase One Water Line and Phase Two Water Line in excess of the sixteen (16) inch
diameter needed to the Property, as set forth in Sections 2.04-2.05. The City does not represent
that Owner will be eligible for such cost recovery or that Owner will be successful in recovering
any portion of such costs.
3.06 Oversizing of Public Infrastructure. The City shall not require Owner or the
Districts to construct or pay for Public Infrastructure, except as expressly provided herein.
3.07 Rates. The City shall provide retail water and wastewater service at the rates
established by the City Council for service outside the City's corporate boundaries, as amended
from time to time.
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3.08 Districts' Responsibilities for Infrastructure. Each District shall be responsible
for constructing the Public Infrastructure, the Irrigation System and the Drinking Water System
to serve the residents within such District.
ARTICLE IV
OWNERSHIP, LIABILITY AND INDEMNIFICATION
4.01 Liability and Ownership. As between the Owner, the Districts and the City,
responsibility for the operation of the Public Infrastructure, including damages related thereto,
shall remain with Owner and the Districts until such infrastructure is conveyed to and accepted
by the City. The City shall be responsible for the operation of the Public Infrastructure
transferred to it, but only those damages related to the acts and occurrences after the date of
transfer.
4.02 Indemnity. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OWNER
AND THE DISTRICTS (EACH AN "INDEMNIFYING PARTY") AGREE TO INDEMNIFY AND DEFEND
THE CITY AND ITS OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS,
CONSULTANTS, CONTRACTORS, SUCCESSORS AND ASSIGNS WITH REGARD TO ANY AND ALL
CLAIMS, LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS, ADMINISTRATIVE
PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS, ENFORCEMENT
ACTIONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION THEREWITH (INCLUDING,
BUT NOT LIMITED TO, REASONABLE ATTORNEYS FEES, COSTS OF INVESTIGATION AND
EXPENSES, INCLUDING THOSE INCURRED BY THE CITY IN ENFORCING THIS INDEMNITY),
DIRECTLY OR INDIRECTLY ARISING OUT OF,CAUSED BY OR RESULTING FROM (IN WHOLE OR IN
PART) ANY BREACH OF THIS AGREEMENT BY SUCH INDEMNIFYING PARTY (COLLECTIVELY,
"LIABILITIES").
4.03 Governmental Powers; Waiver of Immunity. By execution of this Agreement, the
City does not waive or surrender any of its governmental powers, immunities or rights, except as
specifically waived pursuant to this section. The City waives its 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 has with respect to suits against the
City by persons or entities not a party to this Agreement.
ARTICLE V
MISCELLANEOUS
5.01 Governing Law, Jurisdiction 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 ACKNOWLEDGE THAT THIS
AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS, AND HEREBY SUBMIT TO THE
JURISDICTION OF THE COURTS OF TARRANT COUNTY, TEXAS, AND HEREBY AGREE THAT ANY
SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING
HEREUNDER.
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5.02 Notice. Any notices, certifications, approvals, or other communications required
to be given by one Party to another under this Agreement (a "Notice") 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 Parties as provided in this section.
To the City:
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: City Secretary
FAX: 817-392-6196
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: City Manager
FAX: 817-392-6134
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Water Director
FAX: 817-392-2398
To the Districts:
MorningStar Ranch Municipal Utility District No. 1 of Parker County
c/o: Coats Rose
5420 LBJ Freeway, Suite 1300
Dallas, Texas 75240
Attn: Timothy G. Green
FAX: 972-982-8451
MorningStar Ranch Page 11
Final Utility Agreement 016391.00010:1041721.020
MorningStar Ranch Municipal Utility District No. 2 of Parker County
c/o: Coats Rose
5420 LBJ Freeway, Suite 1300
Dallas, Texas 75240
Attn: Timothy G. Green
FAX: 972-982-8451
To Owner:
WYA The Ranch at Mary's Creek, Ltd.
1122 Jackson Street
Suite 616
Dallas, Texas 75202
Attn: Allen Jones
FAX: 214-593-1196
5.03 Assignment.
(a) Neither the Districts nor the City may assign this Agreement without the written
consent of the other Parties.
(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 any
person or entity (an "Assignee") without the consent of the City, provided that the following
conditions are satisfied: (1) Assignee is a District, a successor owner of all or any part of the
Property or a lender to a successor owner of all or any part of the Property; (2) the assignment is
in writing executed by Owner and Assignee in the form of assignment attached as Exhibit F;
(3) 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 (4) 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 Districts have become Parties.
MorningStar Ranch Page 12
Final Utility Agreement 016391.00010:1041721.020
(c) Owner and Assignees have the right, from time to time, to collaterally assign,
pledge, grant a lien or security interest in, or otherwise encumber any of their respective rights,
title, or interest under this Agreement for the benefit of their respective lenders without the
consent of, but with prompt written Notice to, the City. The collateral assignment, pledge, grant
of lien or security interest, or other encumbrance shall not, however, obligate any lender to
perform any obligations or incur any liability under this Agreement: (a) unless the lender agrees
in writing to perform such obligations or incur such liability; or (b) unless the lender holds fee
simple title to any portion of the Property and elects to or proceeds to develop such portion under
this Agreement, in which case the lender shall be bound by this Agreement and shall not be
entitled to the rights and benefits of this Agreement with respect to such portion of the Property
until all defaults under this Agreement with respect to the acquired portion have been cured.
Provided that the City has received a copy of the applicable collateral assignment, including
Notice information for a lender, then that lender shall have the right, but not the obligation, to
cure any default under this Agreement and shall be given a reasonable time to do so in addition
to the cure periods provided by Section 5.12 of this Agreement; and the City agrees to accept
such cure as if offered by the defaulting Party. A.lender is not a Party to this Agreement unless
this Agreement is amended, with the consent of the lender, to add the lender as a Party or unless
the lender holds fee simple title to any portion of the Property and elects to or proceeds to
develop such portion under this Agreement. Notwithstanding the foregoing, however, this
Agreement shall continue to bind the Property and shall survive any transfer, conveyance, or
assignment occasioned by the exercise of foreclosure or other rights by a lender, whether judicial
or non judicial. Any purchaser from or successor owner through a lender of any portion of the
Property shall be bound by this Agreement and shall not be entitled to the rights and benefits of
this Agreement with respect to the acquired portion of the Property until all defaults under this
Agreement with respect to the acquired portion of the Property have been cured.
5.04 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 Districts.
5.05 No Waiver. Any failure by a Party to insist upon strict performance by any 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.
5.06 Severability. The provisions of this Agreement are severable. If 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-orthe--
application of such provision to other persons, entities or circumstances, and a new.provisM�j K
MorningStar Ranch Page 13 0
Final Utility Agreement 016391,00010:1041721.020
shall be deemed substituted in lieu of the severed provision which new provision shall, to the
extent possible, accomplish the intent of the Parties as evidenced by the severed provision.
5.07 Authority. The Parties acknowledge that each Party has the authority to enter into
this Agreement pursuant to the laws of the State of Texas.
5.08 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.
5.09 Conspicuous Provisions. The Parties acknowledge that the provisions of this
Agreement that are set out in bold, capitals (or any combination thereof) satisfy the
requirements for the express negligence rule and/or are conspicuous.
5.10 No Third Party Beneficiary. This Agreement is solely for the benefit of the
Parties, and no Party 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 Districts and Owner.
5.11 Force Maieure. No Party shall be considered to be in default in the performance
of any of the obligations hereunder (other than obligations of either Party to pay costs and
expenses) if such failure of performance shall be due to an uncontrollable force beyond the
control of the Parties, including but not limited to, the failure of facilities, flood, earthquake,
tornado, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, labor
dispute, labor or material shortage, sabotage, or restraint by a court order or public authority,
which by the exercise of due diligence and foresight such Party could not have reasonably been
expected to avoid. Any Party rendered unable to fulfill any obligation by reason of an
uncontrollable force shall exercise due diligence to remove such inability with all reasonable
dispatch.
5.12 Breach,Notice and Remedies.
(a) Notification of Breach. If any 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.
(b) Cure of Breach. The breaching Party 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 Party 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.
Morningstar Ranch Page 14
Final Utility Agreement 016391.00010:1041721.020
(c) 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, 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. It is understood and
agreed that no Party shall 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.
(d) Governmental Powers; Waiver of Immunity. By execution of this Agreement,
neither the City nor the Districts waive or surrender any of their respective governmental powers,
immunities or rights, except as specifically waived pursuant to this subsection. The City and the
Districts 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 Districts have with respect to suits against the City or
the Districts by persons or entities not a party to this Agreement.
5.13 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 the Property
Exhibit B Metes and Bounds Description of the Property
Exhibit C Water System
Exhibit D Wastewater System
Exhibit E Regional Westside V System
Exhibit F Form of Assignment and Assumption Agreement
CITY OF FORT WORTH
k, b a r7 H5
By:
Marty Hendrix, arc Ott,
City Secretary Assistant/City Manager
Date: l d g
APPROVED AS TO FORM AND
LEGALITY: contract Authorizatioa
Date '
1
Assistant City Attorney
g g "CITY
Mornin Star Ranch Page 15 I Final Utility Agreement 163j T,00.14:1.
ATTEST: WYA THE RANCH AT MARY'S CREEK,
a Texas limited partnership
By: WYA The Ranch Holdings, LLC,
Its: Gener i Partner
By:
Secretary Name: 414,1.,
sprint name)
Title: N k4.6�
Date:
MorningStar Ranch Page 16
Final Utility Agreement 016391.00010:1041721.020
Pursuant to Article IV of the Consent Agreement and following the District Confirmation Date,
the Districts have executed this Agreement.
MORNINGSTAR RANCH MUNICIPAL
UTILITY DISTRICT NO. 1 OF PARKER
COUNTY
By:
President, Board of Directors
Date:
MORNINGSTAR RANCH MUNICIPAL
UTILITY DISTRICT NO. 2 OF PARKER
COUNTY
By:
President, Board of Directors
Date:
MorningStar Ranch Page 17
Final Utility Agreement 016391.00OI0:1041721.020
Exhibit A
Map of the Property
MUD NO.2
MUD NO,1
MUD NO.2
MUD NO.1
3
0
G�
G�
do Zo MUD 1=380.316 AC
24
MUD 2=356.829 AC
N
M
M
w MUD NO.2
MUD NO.1
OLD WEATHERFORD ROAD
N
MAP OF THE WE
PROPERTY
s
Cmi�e Bury�u EXHIBIT
_ 10B # 014574 DATE: 8.27.07 DRAWN: JST DESIGNED:
DGN=9o\^loD\014367\civ\EXHIBITS\20070713 - H4L\CA - EXh A.Sht CDDyrlph+02007 by CDr+ar L Su Bass,Inc.
_..............-"._...___..._._.-_......__...._...__....._._.._....._._............_.------------._..............._.__......_._....___........_.._-._.....:
MorningStar Ranch
Exhibit A to Final Utility Agreement Page I 016391.00010A041721.020
Exhibit B
Metes and Bounds Description of the Property
EXHIBIT"B"
LEGAL DESCRIPTION
OVERALL BOUNDARY
BEING a tract of land situated in the M.Teter Survey,Abstract Number 2070,the J.Morris
Survey,Abstract Number 927,the P.McClary Survey,Abstract Number 907,and the W.Cagle
Survey,Abstract Number 2373,Parker County,Texas,and being all of that certain tract of land
described by deed to WYA The Ranch At Mary's Creek,LTD.,et al as recorded in Document
Number 609010,Deed Records,Parker County,Texas, and being more particularly described by
metes and bounds as follows:
BEGINNING at a Texas Department of Transportation(TxDOT)monument found at the
northwest comer of said WYA The Ranch At Mary's Creek tract recorded in Volume 2388,Page
295,and being the southwest comer of that certain Tract 1 described by deed to the Lyon Living
Trust as recorded in Volume 1870,Page 1479,Deed Records,Parker County,Texas,and being
in the existing east right-of-way line of FM 3325 (a variable width public right-of-way);
THENCE S 89014'27"E,2434.74 feet with the common line of said WYA The Ranch At
Mary's Creek tract and said Lyon tract to a fence post found at an ell comer in the north line of
said WYA The Ranch At Mary's Creek tract,said post also being the southeast comer of said
Tract 1,and being in the west line of that certain Tract 2 described by deed to the Lyon Living
Trust as recorded in Volume 1870,Page 1479,Deed Records,Parker County,Texas;
THENCE S 00034'26"E,247.95 feet with the common line of said WYA The Ranch At Mary's
Creek tract and said Tract 2 to a fence post found;
THENCE S 90'00'00"E,4213.23 feet,continuing with said common line of the WYA The
Ranch At Mary's Creek tract and Tract 2 to a fence post found at the northeast comer of said
WYA The Ranch At Mary's Creek tract,said post also being the southeast comer of said Tract 2;
THENCE S 00'23'50"W, 1811.87 feet to a fence post found in the north line of that certain tract
of land described by deed to W.C.and Mildred F. Onken as recorded in Volume 1142,Page 646,
Deed Records,Parker County,Texas;
THENCE S 89'36'00"W,2076.68 feet along the common line of said WYA The Ranch At
Mary's Creek tract and said Onken tract to a fence post found at the northwest corner of said
Onken tract;
THENCE S 00039'57"E,4818.20 feet to a fence post found in the north right-of-way line of
Mary's Creek Road(a variable width public right-of-way);
THENCE along said north right-of-way line of Mary's Creek Road the following bearings and
distances:
N 68041'38"W,340.65 feet to a fence post found;
C&B Job No. 014367.010.001.0447
J:VOB\01457401\SUR\WP\LEG\4754_EXB.doc August 01,2007
Page 1 of 3
MorningStar Ranch
Exhibit B to Final Utility Agreement Page 1 016391.00010:1041721.020
N 78-22'46"W,382.24 feet to a fence post found;
S 78'58'08"W,296.38 feet to a fence post found;
S 72-22'40"W, 628.68 feet to a fence post found;
S 83'35'04"W, 195.27 feet to a fence post found;
N 83041'56"W, 132.72 feet to a fence post found;
N 64'18'37"W, 160.48 feet to a fence post found;
N 80-29'46"W,540.38 feet to a fence post found;
N 89024'18"W, 1436.95 feet to a TxDOT monument found at the south end of a comer
clip at the intersection of said north right of way line of Mary's Creek Road and the
aforementioned east right-of-way line of FM 3325;
THENCE N 44'34'43"W,71.60 feet to a TxDOT monument found at the north end of said
corner clip;
THENCE along said east right-of-way line of FM 3325 the following bearings and distances:
N 00'30'28"W, 851.96 feet to a 1/2 inch iron rod found at the southeast comer of the
aforementioned WYA The Ranch At Mary's Creek tract recorded in Volume 2388, Page
306;
N 00'31'16"W,292.31 feet to a TxDOT monument found;
N 00'38'05"W, 13.24 feet to a 112 inch iron rod found at the northeast corner of said
WYA The Ranch At Mary's Creek tract recorded in Volume 2388,Page 306;
N 00029'35"W, 1786.94 feet to a TxDOT monument found;
N 04058'56"E, 50.19 to a TxDOT monument found;
N 00'28'54"W, 100.03 feet to a TxDOT monument found;
N 06'09'53"W, 50.19 feet to a TxDOT monument found;
N 00-23'20"W,47.37 feet to a TxDOT monument found;
N 02'01'08"W, 155.70 feet to a TxDOT monument found;
N 06'25'30"E, 104.34 feet to a TxDOT monument found;
C&B Job No.014367.010.001.0447
J:VOB\01457401\St1R\WP\LEG\4754—EXB.doc August 01,2007
Page 2 of 3
MorningStar Ranch
Exhibit B to Final Utility Agreement Page 2 016391.00010:1041721MO
T
N 06°42'02"W,309.02 feet to a TxDOT monument found;
N 28°47'19"W, 106.85 feet to a TxDOT monument found at the beginning of a non-
tangent curve to the left;
248.63 feet with said non-tangent curve to the left,through a central angle of 04°52'14",
having a radius of 2924.79 feet,the long chord of which bears N 15°59'46"W,248.56
feet to a TxDOT monument found;
N 18025'34"W,877.10 feet to a TxDOT monument found at the beginning of a curve to
the right;
581.35 feet with said curve to the right,through a central angle of 18°00'22",having a
radius of 1849.86 feet,the long chord of which bears N 09°24'15"W,578.96 feet to a
TxDOT monument found;
N 00025'13W,796.84 feet to a TxDOT monument found at the beginning of a curve to
the right;
THENCE 461.63 feet with said curve to the right,through a central angle of 03°29'23",having
a radius of 7,579.44 feet,the long chord of which bears N 01°21'16"E,461.56 feet to the Point
Of Beginning and containing 737.346 acres of land,more or less.
This document was prepared under 22 TAC §663.21, does not reflect the results of an
on the ground survey, and 15 not to be used to convey or e5tabl*h intere5t5 in real
property except those rights and mtere5t5 implied or e5tabli5hed by the creation or
reconfiguration of the boundary of the political 5ubdiv15ion for which it was prepared.
C&B Job No.014367.010.001.0447
J:VOB\01457401\SUR\WP\L,EG\4754_EXB.doc August 01,2007
Page 3 of 3
MorningStar Ranch
Exhibit B to Final Utility Agreement Page 3 016391.00010:1041721.020
Exhibit C
Water System
3325 F.M.3325 (FARMER OAD) JWE
(
PROPOSED 24"WL WEST SIDE V
(7,400tL.F.) POINT D 06" REQUIRED)PHASE I
WEST SIDE
CONNECT TO EXISTING
20 (POINT C) r
a
O
WEST
IDE
v
PROPOSED 24"WL
06,900�L.F.)
06"REQUIRED)
PHASE II
CONNECT
TO EXISTING
I / (POINT E)
41 Fy,15S 3D�Wl�
s�
„o
Wy
h Y 7
WATER PLAN
EXHIBIT
c.,m�urea.c_ JOB # 014574 DATE: 11.28.07 DRAWN: JRH DESIGNED: C
DGN=g.\Joo\014367\cly\EXHIBITS\20070713 - H&L\UA - Exh C.sht Copyright 02007 by Carter s Burgess,lnc.
.._____......................._......_..._._._..__......_.....___..._...._..._..._.__...__...._...._..._._...... ----
MorningStar Ranch
Exhibit C to Final Utility Agreement Page 1 016391.00010:1041721.020
Exhibit D
Wastewater
System
3325 F.M.3325 (FARMER OAD)
q
a
O
w
20 !
!
O
(POINT B)
2
h
O +i
O
a
i
I I r
CONNECT
TO EXISTING
(POINT A)
DOST 36'SS
yz
WASTEWATER PLAN N
CM*W' EXHIBIT
D
_ JOB # 014574 DATE: 7,13.07 DRAWN: JRH DESIGNED:
DGN=qs\Job\014367\CIV\E%HIBITS\20070713 - HBL\DA - Exh D.sht Copyrlpht 02007 by Carter s Burgess,Inc.
...__...._................................._..__......._.....__.._.__.._.._....___...__._..__ ..._.._______......__..__...._..._..._.___..._....._... .
(I'}d}'./.
MorningStar Ranch
Exhibit D to Final Utility Agreement Page 1 0 163 9
Exhibit E
Regional Westside V
System
TO WEST SIDE V
FUTURE ELEVATED
STORAGE TANK 1
—1
1
r v
0
a
w
O Tf�RFORD ROAD
1
PROPOSED 24' WL
(16,500.t L.F.)
20
EXISTING GROUND
STORAGE TANK &
PUMP STATION
N
REGIONAL WESTSIDE V
E
SYSTEM w
s
Carter Burgess EXHIBIT
_ JOB # 014574 DATE: 7.13.07 DRAWN: JRH DESIGNED: E
DGN=q.\Job\014367\CIV\EXH181TS\20070713 - H&L\UA - Exh E.Sht Copyr f Oht 02007 by Carter 6 Burpees,Inc.
..............................................................................................._..._...__.__.--------......------------_---..__.._.__...._:
MorningStar Ranch
Exhibit E to Final Utility Agreement Page 1 016391.00010:1041721.020
Exhibit F
Form of Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made and
entered into as of the day of 3 , 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 "Utility
Agreement for MomingStar Ranch (City Secretary Contract No. 36195, M & C-22562) (the
"Agreement") among WYA The Ranch at Mary's Creek, Ltd., a Texas limited partnership,
MomingStar Ranch Municipal Utility District No. 1 of Parker County, MomingStar Ranch
Municipal Utility District No. 2 of Parker County and the City of Fort Worth, Texas, relating to
the providing of certain utility service, 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. Assignment. 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 date of this
Assignment. 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.
MomingStar Ranch
Exhibit F to Final Utility Agreement Page 1 016391.00010:1041721.020
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:
I I
By:
Printed Name:
Title:
ASSIGNEE:
I I
By:
Printed Name:
Title:
MorningStar Ranch
Exhibit F to Final Utility Agreement Page 2 016391.00010:1041721.020
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of , 200_, by
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of , 200_, by
Notary Public, State of Texas
MorningStar Ranch
Exhibit F to Final Utility Agreement Page 3 016391.00010:1041721.020
Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12/4/2007 - Resolution No. # 3560-12-2007 & 3561-12-2007
DATE: Tuesday, December 04, 2007
LOG NAME: 06MORNING STAR REFERENCE NO.: C-22562
SUBJECT:
Authorize Execution of the Consent Resolutions, Development Agreements and Utility Agreement,
and to Bring Forth the Strategic Partnership Agreements after the Formation of Each District for the
Morning Star Ranch Municipal Utility District No. 1 and No. 2
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager or a designee to bring forth the Strategic Partnership Agreements for each
District after the formation of the Municipal Utility District;
2. Authorize the City Manager or a designee to execute:
a. Development Agreements for each District between the City and WYA The Ranch at Mary's
Creek, LTD., a Texas limited partnership of WYA The Ranch Holdings, LLC, its general partner
("Developer');
b. A Utility Agreement between the City and Developer;
3. Adopt resolutions consenting to the creation of Morning Star Municipal Utility Districts No. 1 and No. 2 of
Parker County ("Districts").
DISCUSSION:
WYA The Ranch at Mary's Creek, LTD., a Texas limited partnership of WYA The Ranch Holdings, LLC, its
general partner, own and intend to develop approximately 737 acres in Fort Worth's extra-territorial
jurisdiction in Parker County. They petitioned the City and were granted conditional consent on May 9,
2006, (M&C G-15195 and G-15196), to form two municipal utility districts in this development. The
developer has made application to the Texas Commission on Environmental Quality to form these Districts.
In addition, they will be seeking road powers during the 2009 Texas legislative session.
The attached resolutions grant formal consent to the formation of the Districts and specifically grant to the
Districts the authority to finance road projects. In addition, it grants the City Manager the authority to
execute the "Agreement Concerning Creation and Operation of Morning Star Municipal Utility District No. 1"
and "Agreement Concerning Creation and Operation of Morning Star Municipal Utility District No. 2" (the
Consent Agreements). This is the contract between the developer, the District, and the City governing the
issuance of bonds, the construction standards for infrastructure and the terms of future annexation.
The other documents listed above, which are available for public inspection and copying in the City
Secretary's Office, can be summarized as follows:
The Development Agreements provide for the enforcement of municipal building codes and establishes
land use and development regulations for the development. In addition, it imposes Special Regulations to
govern design issues such as block lengths, street right-of-way and sidewalk widths. The development will
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/1/2008
Page 2 of 2
generally be in compliance with the development standards within the City limits. The Agreement also
identifies enhancements beyond the City's regulations in terms of amenities, entry features and
landscaping.
The Utility Agreement relates to the provision of water and wastewater facilities and service to the
development. Under this Agreement the City will acquire the water and sewer Certificates of Convenience
and Necessity (CCN). The Owner agrees to install approximately 7,400 linear feet of 24-inch offsite water
main as part of Phase 1 and approximately 16,900 linear feet of 24-inch offsite water main as part of Phase
2. Within the development, the Developer will install a parallel water system consisting of a potable water
system and a non-potable irrigation system. Initially both systems will be served by wells within the
development and operated by the District.
Once Fort Worth water becomes available, the potable water system will convert to Fort Worth supplied
water and the irrigation system will continue to be served by wells and operated by the district. Ultimately
the plan is for the Water Department to acquire both systems and provide reuse water to serve the irrigation
system in lieu of the wells. Future phases of the development will require conversion of a portion of the
development to the Westside V pressure plane. The Developer is agreeing to contribute $600,000 toward
the cost of the extension of the 20-inch Westside V water main, elevated storage tank and pump station.
The Agreement also provides for retail wastewater service to be provided to the development by Fort
Worth. The Developer will construct approximately 14,000 linear feet of 24-inch offsite sewer main to serve
the development. The City will collect the maximum allowable water and waste water impact fees to cover
the costs of providing service to the development. There is no City cost-participation in the installation of the
offsite lines or in the acquisition of the potable water system, irrigation system or wastewater system from
the District.
The Strategic Partnership Agreements will authorize the City to annex acreage within the Development
designated for commercial development for the limited purpose of imposing sales and use tax. These
agreements will be presented to the City Council with the appropriate public hearings after the district is
formally established by election.
This Development will not require the expenditure of City funds or the collection of offsetting revenue for
water services for several years.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that approval of these Agreements will have no immediate material effect on
City funds. Any effect on expenditures and revenues will be budgeted in future fiscal years.
TO Fund/Account/Centers FROM Fund/Account/C enters
Submitted for City Manager's Office by: Dale Fisseler (6266)
Originating Department Head: Fernando Costa (8042)
Additional Information Contact: Susan Alanis (8180)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/1/2008
Page 2 of
generally be in compliance with the development standards within the City limits. The Agreement also
identifies enhancements beyond the City's regulations in terms of amenities, entry features and
landscaping.
The Utility Agreement relates to the provision of water and wastewater facilities and service to the
development. Under this Agreement the City will acquire the water and sewer Certificates of Convenience
and Necessity (CCN). The Owner agrees to install approximately 7,400 linear feet of 24-inch offsite water
main as part of Phase 1 and approximately 16,900 linear feet of 24-inch offsite water main as part of Phase
2. Within the development, the Developer will install a parallel water system consisting of a potable water
system and a non-potable irrigation system. Initially both systems will be served by wells within the
development and operated by the District.
Once Fort Worth water becomes available, the potable water system will convert to Fort Worth supplied
water and the irrigation system will continue to be served by wells and operated by the district. Ultimately
the plan is for the Water Department to acquire both systems and provide reuse water to serve the irrigation-
system in lieu of the wells. Future phases of the development will require conversion of a portion of the
development to the Westside V pressure plane. The Developer is agreeing to contribute $600,000 toward
the cost of the extension of the 20-inch Westside V water main, elevated storage tank and pump station.
The Agreement also provides for retail wastewater service to be provided to the development by Fort
Worth. The Developer will construct approximately 14,000 linear feet of 24-inch offsite sewer main to serve
the development. The City will collect the maximum allowable water and waste water impact fees to cover
the costs of providing service to the development. There is no City cost-participation in the installation of the
offsite lines or in the acquisition of the potable water system, irrigation system or wastewater system from
the District.
The Strategic Partnership Agreements will authorize the City to annex acreage within the Development
designated for commercial development for the limited purpose of imposing sales and use tax. These
agreements will be presented to the City Council with the appropriate public hearings after the district is
formally established by election.
This Development will not require the expenditure of City funds or the collection of offsetting revenue for
water services for several years.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that approval of these Agreements will have no immediate material effect on
City funds. Any effect on expenditures and revenues will be budgeted in future fiscal years.
TO Fund/Account/Centers FROM Fund/AccountiCenters
Submitted for City Manager's Office by: Dale Fisseler (6266)
Originating Department Head: Fernando Costa (8042)
Additional Information Contact: Susan Alanis (8180)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp
KELLY HART & HALLMAN LLP
201 MAIN STREET,SUITE 2500
FORT NORTH,TEXAS 76102
Telephone: (817)332-2500 301 Congress,Suite 2000
Telecopy: (817)878-9280 Austin,Texas 78701
Writer's Direct Dial: (817)878-9370 1000 Louisiana,Suite 4700
Email Address: clark.rucker@kellyhart.com Houston,Texas 77002
December 30, 2010
City of Fort Worth, Texas Via Hand-Delivery
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention:
Marty Hendrix—City Secretary
Dale A. Fisseler—City Manager
Frank Crumb— Water Director
Re: Utility Agreement for Morningstar Ranch — City Secretary Contract No. 36195
("Utility Agreement").
To Whom It May Concern:
This law firm has been retained by WYA The Ranch at Mary's Creek, Ltd. ("Owner") to
advise it in matters related to its development of the 737 acre Morningstar Ranch property
located in Parker County, Texas ("Property"). This letter shall serve as written notice from
Owner that Owner, pursuant to the Utility Agreement, has commenced the construction of more
than four water wells on the Property in connection with the construction of the Irrigation
System and/or Drinking Water System.' Pursuant to paragraph 2.03(b) of the Utility Agreement,
the deadline for Owner to design and construct the Phase One Water Line shall therefore be
extended to December 31, 2012.
Should you have any questions, please feel free to call.
Sincerely,
Clark 1-1. Rucker
CHR/cg IS 4 5 g
06356.0100 1 Q 8
Terms not defined herein shall have the same meanings set forth in the Utility Agreement. QEC30 V'
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OFFICIAL RECORD �6
12 5572 1
CITY SECRETARY 8 9
FT. WORTH, TX