HomeMy WebLinkAboutContract 47559 C ITY SECMAM(
CONTUCT NO. S`
AGREEMENT CONCERNING CREATION AND OPERATION
OF FAR NORTH FORT WORTH MUNICIPAL UTILITY DISTRICT NO. 1
STATE OF TEXAS §
COUNTIES OF TARRANT,DENTON §
AND WISE §
This Agreement Concerning Creation and Operation of Far North Fort Worth
Municipal Utility District No. 1 (this "Agreement") is entered into by the City of Fort
Worth, Texas, a home-rule municipal corporation situated in Tarrant, Denton, Johnson,
Parker and Wise Counties, Texas (the "C "), acting by and through its duly authorized
Assistant City Manager; Lackland Holdings, LLC, ("Owners"); and Far North Fort
Worth Municipal Utility District No. 1, a municipal utility district created pursuant to
Article XVI, Section 59, of the Texas Constitution, Chapters 49 and 54 of the Texas
Water Code, located within Tarrant, Denton and Wise Counties (the "District"), which
District, after the District Confirmation Date,will become a party to this Agreement.
ARTICLE I
RECITALS
A. Owner has represented to the City that Owner is the owner of
approximately 741.99 acres in Tarrant, Denton and Wise Counties, Texas, as shown on
Exhibit A and described in Exhibit B attached to this Agreement(the"Development").
The Development lies entirely within the City's extraterritorial jurisdiction ("ETT').
Owner intends the Development to be a master-planned community depicted for
informational purposes only on the attached Exhibit A.
B. On December 3, 2015, Owner, or its predecessor in title, petitioned the
City to obtain the City's consent to the creation of the District of 741.99 acres within the
Development(the"Consent Petition"1.
C. On December 3, 2015, Owner, or its predecessor in title, petitioned the
City requesting that certain commercial 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.
D. 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 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.
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E. On be G 4Pl 2015, ursuan��o �nsent Petition, the City
Council of the City adopted Resolution No. S'�4 conseriling to the creation of the
District (the "Consent Resolution"), which Consent Resolution approved, and is subject
to,the terms and conditions of this Agreement.
NOW THEREFORE, for and in consideration of the mutual agreements,
covenants, and conditions hereinafter set forth,the Parties contract and agree as follows:
ARTICLE H
DEFINITIONS
"Agreement" means this Agreement Concerning Creation and Operation of Far North
Fort Worth Municipal Utility District No. 1.
"Assignee" means a successor to Owner as defined in Section 14.10(b) of this
Agreement.
"Attorney General" means the Attorney General of the State of Texas.
"Board"means the Board of Directors of the District.
"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.
"CFA Policy" means the City's "Policy for the Installation of Community Facilities" as
amended March 20, 2001 (M & C G-13181) and in effect on the Effective Date, and any
amendments approved after the Effective Date.
"CL" means the City of Fort Worth, Texas, a home rule municipality located in Tarrant,
Wise, Johnson, Parker and Denton Counties.
"City Attorney"means the City Attorney of the City.
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"Ci , Code"means the Code of the City of Fort Worth.
"City Council"means the City Council of the City.
"City Manaaer"means the City Manager of the City.
"City Objection" 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.
"City Secretary"means the City Secretary of the City.
"Consent Petition" means the petition dated December 3, 2015, submitted by Owner or
its predecessor in title to the City requesting the City's consent to the creation of the
District and to the Road Projects.
"Consent Resolution"means the Resolution No. adopted 2015, by
the City Council that approves this Agreement and 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
Projects.
"Contractor" means a person or entity that constructs, alters or repairs Infrastructure
required to serve the Development.
"Development"means that certain 741.99-acre tract located in Tarrant, Denton and Wise
Counties, Texas as shown on Exhibit A and described in Exhibit B. Upon annexation
of the Far North MUD Road Tract by the District in accordance with Article IX, the
Development shall mean the 741.99-acre tract shown on Exhibit A and described in
Exhibits B.
"Development Agreement" means the Development Agreement Between the City of
Fort Worth, Texas and Lackland Holdings, LLC, which the City and Owners agree to
reasonably negotiate and enter into within 30 days of the District Confirmation Date.
"Planning and Development Director" means the Director of the City's Planning and
Development Department.
"District"means Far North Fort Worth Municipal Utility District No. 1, to be renamed in
accordance with Article X of this Agreement, created in the Development.
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"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.
"Effective Date" means the date this Agreement is executed.
"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.
"Governing Regulations" means the Subdivision Regulations and all City ordinances,
regulations, policies, manuals and other requirements relating to Infrastructure, including
without limitation the design, location, construction, 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 the Development is exempt pursuant
to Chapter 245 of the Local Government Code.
"Far North MUD" means the proposed master-planned community containing
approximately 741.99 acres that may include residential, commercial and recreational
uses as generally depicted for informational purposes only on Exhibit A.
"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 Govermnent Code"means the Texas Local Government Code, as amended.
"Notice" means notice as defined in Section 14.01 of this Agreement.
"Owner" means Lackland Holdings, LLC, and its successors and Assignees as permitted
by this Agreement.
"Party" means, individually, the City, Owner, or the District, their successors and their
Assignees as permitted by this Agreement.
"PUC"means the Public Utility Commission.
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"Road Projects" means the construction, acquisition, improvement, maintenance, and
operation of all paved roads and turnpikes and improvements in aid of such roads and
turnpikes 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 Between
the City of Fort Worth, Texas and the Far North Fort Worth Municipal Utility District
No. 1.
"Subdivision Regulations" means the City's Subdivision Ordinance No. 7234, the Plan
Commission Rules and Regulations in effect on the Effective Date and the CFA Policy,
and all amendments thereto and future versions of such regulations.
"TCEQ" means the Texas Commission on Environmental Quality or its successor state
agency.
"Utility Agreement" means the Utility Agreement of Far North Fort Worth Municipal
Utility District No. 1, relating to the provision of water and wastewater service to the
Development and the construction, ownership, operation and maintenance of water and
wastewater Infrastructure both inside and outside the Development, which the City and
the District agree to reasonably negotiate and enter into per the terms of Section 4.01 of
this Agreement.
"Water Code"means the Texas Water Code.
"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
Projects; 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 cause the
District to approve, execute and deliver this Agreement and the Utility Agreement to the
City within thirty (30) days after the District Confirmation Date and to approve, execute
and deliver the Strategic Partnership Agreement to the City within ninety (90) days after
the District Confirmation Date
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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 PROJECTS
5.01 Issuance of Bonds. The District may issue Bonds only as permitted by
law and this Agreement.
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 uses,
domestic uses and commercial purposes;
(ii) collect,transport, process, dispose of and control all domestic,
industrial, or communal wastes whether in fluid, solid, or
composite state;
(iii) gather, conduct, divert and control local storm water or other local
harmful excesses of water in the District; and
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(iv) undertake the Road Projects as set forth in Section 5.04.
(b) Payment of organization expenses, initial operation expenses, cost of
issuance, interest during construction and capitalized interest and any other
expenses authorized by Section 49.155, Texas Water Code; and
(c) Refunding of any outstanding Bonds of the District for debt service savings;
provided, however, 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.
5.04 Road Projects. 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 Projects in
accordance with the powers granted to the District by TCEQ at the time of creation and
Chapters 49 and 54, Texas Water Code, 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. The City requires that the Road Projects must include:
providing access for the Development to US 287, construction of two lanes of the
roadway from US 287 to Sendera Ranch Blvd. at the time Owners can obtain 600
building permits, and two additional lanes to the roadway from US 287 to Sendera Ranch
Blvd. at the time Owners can obtain 1,000 building permits (as depicted on Exhibit Q.
This Agreement hereby authorizes and further consents to the District undertaking the
Road Projects serving the District and to the issuance by the District of Bonds for the
Road Projects; 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 Projects, the
District agrees that the total amount of Bonds issued by the District for all purposes
(excluding refunding Bonds) shall not exceed an amount approved by the TCEQ and the
Office of the Attorney General and which can be supported by a debt service tax rate not
to exceed $1.00 per $100 valuation (the "Bond Limit Amount") unless specifically
approved by the City Council. Owner and the District acknowledge that the Bond Limit
Amount is sufficient to 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 Projects. 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.
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
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the District. All Bonds issued by the District shall comply with the following
requirements:
(a) Maximum maturity of 25 years for any one series of Bonds;
(b) Interest rate that does not exceed 2% above the highest average interest rate
reported by the Daily Bond 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;
(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 (10th)
anniversary of the date of issuance, without premium. No variable rate
Bonds shall be issued by the District without City Council approval;
(d) Any refiznding 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;
(e) No Bonds shall be issued having an issuance date more than fifteen (15)
years after the District Confirmation Date without the City's written
approval; and
(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 either the certified taxable assessed valuation
or most current certified estimates of taxable assessed valuation within the
District according to the appraisal districts of Tarrant, Denton and Wise
Counties.
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, PUC 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 or PUC for districts issuing bonds for water, sewer, drainage or
road facilities in Tarrant, Denton and Wise Counties.
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, PUC or the Attorney
General, whichever occurs first, the District shall deliver to the City Secretary, City
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Manager, and Finance Director the certification required by Section 5.07 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 or PUC 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, PUC 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, the Utility 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, and 6.01 and Articles VII and IX of this
Agreement.
5.10 Bond Objections. The City shall have a period of thirty (30) days after
receiving the last of the certifications and Notices required by Sections 5.08 and 5.09 of
this Agreement within which to object to the Bonds. If the City fails to object to a
proposed Bond issue within such 30-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, 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 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 have received all
necessary approvals from the TCEQ, PUC or 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) thirty (30) days before filing the petition the District gives the City Attorney and 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,
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.
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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: (i) 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
obligations not evidenced by the issuance of Bonds within fifteen (15)
years after the District Confirmation Date.
5.13 Use of Cost Reimbursements for Bond Debt Payments. If the District or
Owner receives payment from any party connecting to any Infrastructure constructed by
Owner or the District, pursuant to a "per acre" or "per MGD" ordinance or similar
regulation, the District or Owner, as applicable, shall use such payments in the following
order of priority:
(a) Reimbursement for the construction or installation of Infrastructure;
(b) Funding the construction or installation of Infrastructure; and
(c) Purchasing and retiring any Bond after the tenth anniversary of its
issuance.
ARTICLE VI
DESIGN, CONSTRUCTION,INSPECTION, DEDICATION, OPERATION
ANDMAINTENANCE 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; and (c) the rules and regulations, if any, of the TCEQ
and PUC. In the event of any conflict between the Governing Regulations and the rules
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and regulations of the District, the Governing Regulations shall control unless otherwise
agreed in writing by the Planning and Development Director.
6.02 Plan Review; Payment of Fees; and Pre-Construction Conference.
Construction of Infrastructure shall not commence until the plans and specifications have
been reviewed and approved 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.
6.03 Community Facilities Agreements. Construction of Infrastructure shall
not commence until Owner has executed a Communities Facilities Agreement in
accordance with the CFA Policy.
6.04 Reports; Inspections. The District, or Owner on behalf of the District,
shall employ a consulting engineer who will, during the construction of Infrastructure,
submit to the Board, PUC and TCEQ's executive director detailed written reports
showing whether the Infrastructure is being constructed in accordance with plans and
specifications and the contractor is complying with all contract documents. City
inspectors or third party inspectors pursuant to the City's third party inspection process
shall inspect and test the Infrastructure. The District, or Owner on behalf of the District,
shall pay all Infrastructure Inspection Fees. The City shall use its best efforts to cooperate
with the District's consulting engineer to prepare inspection reports in a form acceptable
to TCEQ and PUC. City, however, in no way guarantees that the Infrastructure will be
constructed in a manner acceptable to TCEQ/PUC or that TCEQ/PUC will approve the
issuance of Bonds.
6.05 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.
6.06 Access by City Employees. Upon prior Notice by the City, any duly
authorized employee of the City bearing proper credentials and identification shall be
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.
6.07 Dedication of Water and Wastewater Infrastructure and Easements to City.
The District will dedicate all water and wastewater Infrastructure constructed by or on
behalf of the District both inside and outside the District, together with all easements for
such Infrastructure, to the City upon final inspection and acceptance of such
Infrastructure by the City in accordance with the Utility Agreement.
6.08 Operation and Maintenance of Infrastructure. The District shall cause all
Infrastructure to be operated and maintained in accordance with the Governing
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Regulations, except for water and wastewater infrastructure dedicated to the City
pursuant to Section 6.07 and the Utility Agreement, which shall be operated and
maintained by the City. Upon acceptance of Infrastructure dedicated to the City, the
City will operate and maintain the Infrastructure. If repairs to District road facilities are
needed as a result of repair or maintenance of water or wastewater Infrastructure by the
City, the District shall perform or shall cause to be performed such repairs at no cost to
the City.
6.09 As-Built Drawings. The District shall deliver mylar as-built drawings for
all Infrastructure to the City's Transportation and Public Works Department within thirty
(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 LEVHTATIONS ON, SERVICE
The District shall not sell or deliver services to areas outside the District without
prior City Council approval; provided, however, the District may serve a maximum of ten
(10) retail residential water connections outside the District with the Water Director's
written approval.
ARTICLE IX
CONVERSION, CONSOLIDATION, OR DIVISION
BY DISTRICT
The District shall not (a) convert into another type of district; (b) consolidate with
another district; (c) divide into two or more new districts; or (d) seek additional
governmental powers beyond those granted to the District by the TCEQ in the creation
process without prior City Council approval.
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ARTICLE X
NAME CHANGE
If the District initiates proceedings to change the name of the District, it shall do
so in accordance with Section 49.071 of the Water Code or other applicable law.
ARTICLE XI
ANNEXATION OF DISTRICT BY CITY
11.01 General Terms. The Parties acknowledge and agree that the Development
lies wholly within the City's ETJ; is not bordered by another city, town, or village; and is
not currently included in the City's annexation plan. 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.
11.02 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.
11.03 Notice. Within thirty (30) days after the District Confirmation Date, the
District shall file in the real property records of Tarrant 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 D
attached to this Agreement stating that the City has the authority to annex the District
subject to the limitations set forth in Section 11.05.
11.04 Annexation of Portion 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. Notwithstanding the zoning
designation approved for the annexed area, such area can be developed and used in
accordance with the Development Agreement.
11.05 Full Purpose Annexation. The City will not annex the Development for
full purposes any earlier than the first to occur of(a) twenty(20) years after the Effective
Date; (b) the dissolution of the District (other than as a result of annexation by the City);
or(c) termination of the Development Agreement.
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11.06 Limited Purpose Annexation. The Parties agree that the City shall have
the right to annex those portions of the Development 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.
ARTICLE XII
TERM OF AGREEMENT
This Agreement shall be effective from the Effective Date and shall continue in
effect until the District is annexed for full purposes and dissolved by the City or until
terminated in writing by mutual agreement of the City and the District; provided,
however, if the creation of the District has not been confirmed at an election conducted
on or before November 15, 2017, this Agreement may be terminated by the City by
providing Notice to Owner.
ARTICLE XIII
BREACH,NOTICE AND REMEDIES
13.01 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.
13.02 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.
13.03 Remedies for Breach. If the breaching Party does not substantially clue
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 fixture may have to
terminate this Agreement (except for the right of the City to terminate as provided in
Article XII 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.
14
13.04 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 specifically waived 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 XIV
ADDITIONAL PROVISIONS
14.01 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 Parties as provided in this section.
To the City:
City of Fort Worth, Texas
1000 Throclunorton 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
15
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Planning and Development Director
FAX: 817-392-8359
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: City Attorney
FAX: 817-392-8359
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Finance Director
FAX: 817-392-8966
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Water Director
FAX: 817-392-8195
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Transportation/Public Works Director
FAX: 817-871-7895
To the District:
Far North Fort Worth Municipal Utility District No. 1
c/o: Don Allen
3045 Lackland Road
Fort Worth, Texas 76116
FAX: 817-732-2291
To Owner:
Lackland Holdings
3045 Lackland Road
Fort Worth, Texas 76116
16
14.02 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.
14.03 City Consent and Approval. 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, except as provided in Section 5.10.
14.04 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
ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT, DENTON AND
WISE COUNTIES,TEXAS AND HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF
TARRANT,DENTON AND WISE COUNTIES,TEXAS,AND HEREBY AGREE THAT ANY SUCH
COURTS SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE
ARISING HEREUNDER.
14.05 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
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 Board has been authorized to do so.
14.06 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
17
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
severed provision which new provision shall,to the extent possible, accomplish the intent
of the Parties as evidenced by the severed provision.
14.07 Changes in State or Federal Laws. If any state or federal law changes so
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.
14.08 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.
14.09 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
14.10 Assi ng ment.
(a) Neither the District 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 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 Projects from District 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
E; (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 assigrunent. Owner
shall maintain written records of all assignments made by Owner (including, for each
18
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 insure 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.
14.11 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.
14.12 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 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.
14.13 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.
14.14 Reimbursement for City's Professional Fees. Owner will reimburse the
City for reasonable attorneys fees incurred by the City in connection with 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 up to a maximum amount of $50,000. 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.
19
14.15 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 Far North Fort Worth MUD No. 1
Exhibit B Legal Description of the Development
Exhibit C Map of Road Projects
Exhibit D Annexation Notice
Exhibit E Assignment and Assumption Agreement
14.16 Conspicuous Provisions. The City, 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.
14.17 Counterpart Ori ig nals. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed by its
undersigned duly authorized representative in multiple copies on the date or dates
indicated below.
ATTEST: CITY OF FORT WORTH
By:
{�--
Mary K . s it retary Fernando Costa,Assistant City Manager
Date: 3�1/6
APPROVED AS TO FORM AND " r �
LEGALITY: ��
A 0"
p
Asststant City Attorney p° k
4 00�
ar,oaoo �
LACKLAND HOLDINGS,LLC
By: G�--
Na e: e k-
Its: LA4
Date:
OFFICIAL
CITY SP;R `
20
FI:Wr,4j p;
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me, on the Z7 day of ,
20lAI by fcv-y jc6 eloa- of the City of Fort Worth Texas on behalf of said city.
[SEAL] Notry Pu c, State of Texas
Printed Name: 4 Snv,*-
My Commission Expires: r;► /� 2vl
`�a•° •• TRIKINYA L. JOHNSON
Notary Public,State of Texas
_,:bV•`y' My Commission Expires
April 17, 2018
STATE OF TEXAS §
COUNTY OF j t+t rl'V §
This instrument was acknowledged before me, on the 2fj day of JAIVIt Cr ,
2010, by Lackland Holdings, LLC,by D vI EWv
Notary Public, State of exas
[SEAL] Printed Name: I I'1 Gf Vv,
My Commission Expires: 1 D1$f 1 a
MIRIAM VEGA
"""•. f texas
o
POA,'•. taly Pub11c,state
Nomission Expires
MV ct ber O8, 2019
21
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Exhibit D
STATE OF TEXAS
COUNTY OF TARRANT
NOTICE CONCERNING ANNEXATION AND SERVICES
The real property described in Exhibit A attached hereto and incorporated herein
is located in Far North Fort Worth Municipal Utility District No. 1 (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 fiill purposes upon the earliest
to occur of:
(1) Dissolution of the District; or
(2) , 2030
For additional information concerning potential annexation of the District, contact
the City of Fort Worth Planning and Development Director.
FAR NORTH FORT WORTH MUNICIPAL
UTILITY DISTRICT NO. 1
By:
Name printed:
Title:
26
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me, on the day of ,
20_, by President, Board of Directors of
, on behalf of said district.
Notary Public, State of Texas
[SEAL] Printed Name:
My Commission Expires:
After recording, return to:
Planning and Development Director
City of Fort Worth
1000 Throcklnorton
Fort Worth, TX. 76102
27
Exhibit A
(Notice)
28
Exhibit E
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 Far North Fort Worth Municipal
Utility District No. 1" (City Secretary Contract No. , M & C - _� (the
"Agreement") effective as of among , a
, as "Owner", the City of Fort Worth, Texas, as the City, and the Far
North Fort Worth Municipal Utility District No. 1, 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. 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
29
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. BindingEffect.ffect. 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:
1
By:
Printed name:
Title:
ASSIGNEE:
[ 1
By:
Printed name:
Title:
30
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of
20 , by
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of
20 , by
Notary Public, State of Texas
[Add Acknowledgments]
31
Exhibit A
(Transferred Premises)