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HomeMy WebLinkAboutContract 47396-A1 CITY SECRETARY CONTRACT W. Zp�6 SEQ 2 FIRST AMENDMENT TO CFA ESCROW AGREEMENT THIS FIRST AMENDMENT TO CFA ESCROW AGREEMENT (the "First Amendment' entered into as of this --� day of JuK, 2016 ("Effective Date"), by and among ROANOKE 35/114 PARTNERS, L.P., a Texas fimitd partnership ("Developer"), LRIC CHAMPIONS CENTER, LP, a Texas limited partnership ("LRIC"), TANGER FORT WORTH, LLC, a North Carolina limited liability company ("Tanger"), CITY OF FORT WORTH, a Texas municipal corporation ("Fort Worth") and FIRST AMERICAN TITLE INSURANCE COMPANY C/O REPUBLIC TITLE OF TEXAS,INC.("Escrow Agent")is to witness the following: WHEREAS, Developer and Fort Worth have entered into a Community Facilities Agreement for Champions Circle — Bucees Boulevard, Pilgrim Drive, and Outlet Boulevard (CFA No. 2015-071, DOE No. 7467, City Project No. 02589 in the City of Fort Worth, Denton County, Texas) (the "CFA"); WHEREAS, Developer, LRIC, Fort Worth, and Escrow Agent entered into that certain CFA Escrow Agreement ("Agreement") dated effective December 17, 2015, pursuant to which Developer deposited $5,905,480.44 (125% of the reasonably estimated costs to complete the CFA Obligations, plus applicable testing and City inspection fees) ("Developer's Deposit") into an escrow account with Escrow Agent as the Financial Security for the CFA Obligations (as such terms are defined in the Agreement); WHEREAS, LRIC is the owner of approximately 54.738 acres ("LRIC Tract") in Developer's Champions Circle development and Developer is responsible to LRIC for completing the construction of that portion of the CFA Obligations set forth on Exhibit "A" to the Agreement ("LRIC-Related CFA Obligations"). The wastewater line improvements and drainage improvements set forth on Exhibit "A" to this First Amendment ("Storm and Sanitary Sewer Obligations") are a portion of the LRIC-Related CFA Obligations. The reasonably estimated cost of all of the LRIC-Related CFA Obligations is $2,662,824.74 ("LRIC-Related CFA Obligations Cost"). Developer is responsible to LRIC for completing construction of all of the Storm and Sanitary Sewer Obligations on or before November 28, 2016 (the "Storm and Sanitary Sewer Deadline"), and for completing construction of the remainder of the LRIC-Related CFA Obligations on or before April 28,2017 ("LRIC Construction Deadline"); WHEREAS, Tanger is the contract purchaser of approximately 44 acres ("Tanger Tract") in Developer's Champions Circle development pursuant to that certain Purchase and Sale Agreement dated May 13, 2014, by and between Developer, as seller, and Tanger Devco,LLC, a North Carolina limited liability company, as purchaser (as subsequently amended and assigned to Tanger, the "Tanger Contract"), and Developer is responsible to Tanger for completing construction of all of the CFA Obligations, including the Storm and Sanitary Sewer Obligations, the reasonably estimated cost of which is $5,869,367.86 ("CFA Obligations Cost"). Developer is responsible to Tanger for completing construction of that portion of the Storm and Sanitary Sewer Obligations set forth on Exhibit "B" to this First Amendment (the "Tanger-Related Storm and Sanitary Sewer Obligations") on or before the Storm and Sanitary Sewer Deadline, and for completing construction of the remainder of the CFA Obligations on or before six (6) months after the closing of the transaction contemplated by the Tanger Contract("Tanger Construction Deadline"); and WHEREAS, the parties hereto desire to amend the Agreeme an er as a arty to the Agreement, on the terms and conditions set forth below. OFFICIAL RECORD CITY SECRETARY 2178582 FT. WORTH, TX NOW THEREFORE, for and in consideration of these recitals, ten dollars ($10.00) and other good and valuable consideration,the receipt, sufficiency and adequacy of which are hereby acknowledged,the parties hereto agree as follows: 1. PHYSICAL POSSESSION OF SECURITY FUNDS. The last sentence of Section 3 of the Agreement is deleted in its entirety and the following language is substituted therefor: "Fort Worth's rights in the Security Funds shall be superior to those of Escrow Agent's notwithstanding any terms or understandings (written or otherwise) between Developer,LRIC, Tanger,and Escrow Agent." 2. EVENTS OF DEFAULT. Section 5(a) of the Agreement is deleted in its entirety and the following language is substituted therefor: "(a) default in the timely payment for or performance of the CFA Obligations after written notice thereof has been given to Developer, LRIC, Tanger, and Escrow Agent and such default is not cured within seven(7)days after such notice; or" 3. RIGHTS AND REMEDIES OF FORT WORTH UPON AND AFTER DEFAULT. Section 6(a) of the Agreement is deleted in its entirety and the following language is substituted therefor: "(a) Remedy. Upon the occurrence of a Default and subject to LRIC's completion rights in Section 9 and Tanger's completion rights in Section 9, Fort Worth shall have the right to direct Escrow Agent to transfer to Fort Worth all of the Security Funds. Escrow Agent is hereby authorized to transfer the Security Funds immediately upon the receipt of a written statement purporting to be executed by an authorized representative of Fort Worth stating that: (i) a Default by Developer has occurred related to the CFA Obligations; (ii) written notice of such Default has been given by Fort Worth to Developer,LRIC, Tanger, and Escrow Agent and such Default was not cured within seven (7) days after such notice; and (iii) Fort Worth is entitled to have the Security Funds transferred in accordance with the Agreement." Section 6(b) is amended by the addition of the following language: "To Tanger: Tanger Fort Worth,LLC 3200 Northline Avenue, Suite 360 Greensboro,NC 27408 Attention: Thomas E. McDonough Email: tom.mcdonough@,tangeroutlets.com 2178582 with a copy to: Tanger Fort Worth,LLC 3200 Northline Avenue, Suite 360 Greensboro,NC 27408 Attention: Brian A. Auger,Esq. Email: brian.augerklgngeroutlets.com" 4. EXCLUSIVE RIGHTS AND REMEDIES. Section 7 of the Agreement is deleted in its entirety and the following language is substituted therefor: "If Developer fails to perform its obligations under the CFA, Fort Worth's sole and exclusive remedy shall be to complete the obligations of Developer at Developer's expense. In furtherance of such sole and exclusive remedy, Fort Worth is entitled to exercise its rights as set forth in Section 6 hereof, subject to LRIC's completion rights in Section 9 and Tanger's completion rights in Section 9." 5. PERIODIC WITHDRAWAL OF COLLATERAL. Section 9 of the Agreement is amended in its entirety as follows: "SECTION 9. PERIODIC WITHDRAWAL OF COLLATERAL. (a) Notwithstanding any contrary provision in this Agreement, Developer shall have the right to make monthly withdrawals of the Developer's Deposit portion of the Security Funds (hereinafter called the "Withdrawn Collateral") during the construction process, upon satisfaction of the following conditions: (i) Developer shall provide Fort Worth, LRIC, Tanger, and Escrow Agent with written notice (the "Withdrawal Notice") that Developer desires to obtain the Withdrawn Collateral in any amount less than or equal to the then-completed CFA Obligations as inspected or accepted by Fort Worth; and (ii) The balance of the Security Funds after withdrawal of the Withdrawn Collateral is at least equal to 125% of the estimated value of the CFA Obligations then remaining to be performed (such remaining value is hereinafter called the "Estimated Cost to Complete"). The Withdrawal Notice shall include a description of the Withdrawn Collateral, reasonable supporting documentation of the costs and expenses attributable to the requested Withdrawn Collateral, and Developer's calculation of the Estimated Cost to Complete. Upon receipt of the Withdrawal Notice, Fort Worth shall have seven (7) calendar days to notify Developer, LRIC, and Tanger of Fort Worth's objection to Developer's calculation of the Estimated Cost to Complete by providing Developer with Fort Worth's calculation of the Estimated Cost to Complete. The grounds for any objection are limited solely to a good faith determination by Fort Worth that the balance of the Security Funds is insufficient to cover the Estimated Cost to Complete. If Fort Worth fails to timely notify Developer, LRIC, Tanger, and Escrow Agent of any objection, then Developer's calculation shall be deemed to have been accepted and approved by Fort Worth, and Escrow Agent is authorized to release the Withdrawn Collateral requested by 2178582 Developer without delay. In the event a written objection is timely filed by Fort Worth and Fort Worth's calculation is within a range of five percent (5%) of Developer's Estimated Cost to Complete, then Developer shall be allowed to withdraw the amount corresponding to Fort Worth's calculation of the Estimated Cost to Complete with Developer having a right to reconcile the discrepancy with Fort Worth in subsequent Withdrawal Notices. If Fort Worth's calculation of the Estimated Cost to Complete is outside a range of five percent (5%) of Developer's Estimated Cost to Complete, then Fort Worth and Developer, through a designated representative, will reconcile the calculations and jointly approve an Estimated Cost to Complete and advise Escrow Agent to disburse the amount as jointly determined. Upon any such distribution of Withdrawn Collateral, Escrow Agent shall concurrently notify Fort Worth, LRIC, Tanger, and Developer of the amount of the Withdrawn Collateral and of the remaining balance of the Security Funds. (b) If Developer fails to complete the Storm and Sanitary Sewer Obligations on or before the Storm and Sanitary Sewer Deadline, then LRIC, as its sole and exclusive remedy, may, upon prior written notice to Escrow Agent, Fort Worth, Developer, and Tanger, elect to construct, in accordance with the CFA, the portions of the Storm and Sanitary Sewer Obligations that Developer has failed to construct. If LRIC elects to construct the Storm and Sanitary Sewer Obligations, LRIC must give Escrow Agent, Fort Worth, Developer, and Tanger written notice of its election within ten (10) business days after the Storm and Sanitary Sewer Deadline, If LRIC does not timely give notice of its election, LRIC will be deemed to have waived its self-help remedy with respect to the Storm and Sanitary Sewer Obligations. If LRIC timely elects to construct the Storm and Sanitary Sewer Obligations, then the terms and provisions set forth in Section 9(c) below regarding the parties' rights and obligations if LRIC elects to construct the LRIC-Related CFA Obligations shall apply to the Storm and Sanitary Sewer Obligations. If Developer fails to complete the Tanger-Related Storm and Sanitary Sewer Obligations on or before the Storm and Sanitary Sewer Deadline, then Tanger, as its sole and exclusive remedy, may, upon the expiration of LRIC's ten-business day election period and upon prior written notice to Escrow Agent, Fort Worth, Developer, and LRIC, construct, in accordance with the CFA, the portions of the Tanger-Related Storm and Sanitary Sewer Obligations that Developer has failed to construct. If Tanger elects to construct the Tanger-Related Storm and Sanitary Sewer Obligations, then the terms and provisions set forth in Section 9(d) below regarding the parties' rights and obligations if Tanger elects to construct the CFA Obligations shall apply to the Tanger-Related Storm and Sanitary Sewer Obligations. If LRIC has elected to exercise its remedies set forth in this Section 9(b), and if Tanger has elected to exercise its remedies set forth in this Section 9(b) and such work would encompass the Tanger-Related Storm and Sanitary Sewer Obligations, Tanger and LRIC agree to use good faith efforts to coordinate their work with respect to meeting their respective schedules, and Tanger and LRIC each agrees to cooperate to minimize any adverse impact on the other from its performance of the work each is performing. Tanger and LRIC shall also coordinate and cooperate to allocate the Security Funds to the remaining Storm and Sanitary Sewer Obligations. (c) If Developer fails to complete the LRIC-Related CFA Obligations by the LRIC Construction Deadline, then LRIC, as its sole and exclusive remedies, may, upon prior written notice to Escrow Agent, Fort Worth, Developer, and Tanger, either (i) extend the LRIC Construction Deadline, or (ii) construct, in accordance with the 2178582 CFA the applicable portions of the LRIC-Related CFA Obligations that Developer has failed to construct, in which event Developer shall grant to LRIC temporary construction easements and shall assign and transfer to LRIC all of Developer's design and construction contracts and agreements, subcontracts, and material supply agreements and/or purchase orders to allow LRIC to complete construction of the LRIC-Related CFA Obligations. In addition, if LRIC elects the second option from the preceding sentence, then LRIC shall also be authorized to request Withdrawn Collateral of up to $3,328,530.93 of the remaining Escrow Funds, which amount represents 125% of the LRIC-Related CFA Obligations Cost during the construction process upon delivery to Escrow Agent, Fort Worth, Developer, and Tanger of a Withdrawal Notice, reasonable supporting documentation of the cost and expenses attributable to the requested Withdrawn Collateral, and LRIC's calculation of the Estimated Cost to Complete the LRIC-Related CFA Obligations; provided, however, if Tanger has previously notified LRIC that Tanger intends to exercise its remedies with respect to the LRIC-Related CFA Obligations, then LRIC and Tanger shall proceed as set forth in Section 9(e) below. Upon receipt of the Withdrawal Notice, Fort Worth shall have seven (7) calendar days to notify LRIC of Fort Worth's objection to LRIC's calculation of the Estimated Cost to Complete the LRIC-Related CFA Obligations by providing LRIC with Fort Worth's calculation of the Estimated Cost to Complete the LRIC-Related CFA Obligations. The grounds for any objection are limited solely to a good faith determination by Fort Worth that the balance of the Escrowed Funds is insufficient to cover the Estimated Cost to Complete the LRIC- Related CFA Obligations. If Fort Worth fails to timely notify LRIC, Developer and Escrow Agent of any objection, then LRIC's calculation shall be deemed to have been accepted and approved by Fort Worth, and Escrow Agent is authorized to release the Withdrawn Collateral requested by LRIC without delay. In the event a written objection is timely filed by Fort Worth and Fort Worth's calculation is within a range of five percent (5%) of LRIC's Estimated Cost to Complete the LRIC- Related CFA Obligations, then LRIC shall be allowed to withdraw the Withdrawn Collateral in the amount corresponding to Fort Worth's calculation of the Estimated Cost to Complete the LRIC-Related CFA Obligations, with LRIC having a right to reconcile the discrepancy with Fort Worth in subsequent Withdrawal Notices. If Fort Worth's calculation of the Estimated Cost to Complete the LRIC-Related CFA Obligations is outside a range of five percent (5%) of LRIC's Estimated Cost to Complete the LRIC-Related CFA Obligations, Fort Worth and LRIC, through a designated representative, will reconcile the calculations and jointly approve an Estimated Cost to Complete the LRIC-Related CFA Obligations and advise Escrow Agent to disburse the amount as jointly determined. Upon any such distribution of Withdrawn Collateral, Escrow Agent shall concurrently notify Fort Worth, LRIC, Developer, and Tanger of the amount of the Withdrawn Collateral and of the remaining balance of the Security Funds. If the reasonable cost to LRIC of constructing the LRIC-Related CFA Obligations that Developer has failed to construct exceeds the Escrow Funds, Developer shall pay such reasonable additional costs to LRIC within thirty (30) days after its receipt from LRIC of written notice reasonably evidencing such additional costs. If the reasonable cost to LRIC of constructing the LRIC-Related CFA Obligations that Developer has failed to construct is less than the amount of the Escrow Funds disbursed to LRIC pursuant hereto, then Escrow Agent shall disburse the remaining Security Funds as set forth in Section 3 after receipt of written notice from Fort Worth that the CFA Obligations have been fully performed. 2178582 (d) If Developer fails to complete the CFA Obligations by the Tanger Construction Deadline, then Tanger, as its sole and exclusive remedies, may, upon prior written notice to Escrow Agent, Fort Worth, Developer, and LRIC either (i) extend the Tanger Construction Deadline, or (ii) construct, in accordance with the CFA the applicable portions of the CFA Obligations that Developer has failed to construct, in which event Developer shall grant to Tanger temporary construction easements and shall assign and transfer to Tanger all of Developer's design and construction contracts and agreements, subcontracts, and material supply agreements and/or purchase orders to allow Tanger to complete construction of the applicable portions of the CFA Obligations. In addition, if Tanger elects the second option from the preceding sentence, then Tanger shall also be authorized to request Withdrawn Collateral of the remaining Escrow Funds, which amount represents 125% of the CFA Obligations Cost during the construction process upon delivery to Escrow Agent, Fort Worth, Developer, and LRIC of a Withdrawal Notice, reasonable supporting documentation of the cost and expenses attributable to the requested Withdrawn Collateral, and Tanger's calculation of the Estimated Cost to Complete the CFA Obligations. Upon receipt of the Withdrawal Notice, Fort Worth shall have seven (7) calendar days to notify Tanger of Fort Worth's objection to Tanger's calculation of the Estimated Cost to Complete the CFA Obligations by providing Tanger with Fort Worth's calculation of the Estimated Cost to Complete the CFA Obligations. The grounds for any objection are limited solely to a good faith determination by Fort Worth that the balance of the Escrowed Funds is insufficient to cover the Estimated Cost to Complete the CFA Obligations. If Fort Worth fails to timely notify Tanger, Developer, LRIC, and Escrow Agent of any objection, then Tanger's calculation shall be deemed to have been accepted and approved by Fort Worth, and Escrow Agent is authorized to release the Withdrawn Collateral requested by Tanger without delay. In the event a written objection is timely filed by Fort Worth and Fort Worth's calculation is within a range of five percent(5%) of Tanger's Estimated Cost to Complete the CFA Obligations, then Tanger shall be allowed to withdraw the Withdrawn Collateral in the amount corresponding to Fort Worth's calculation of the Estimated Cost to Complete the CFA Obligations, with Tanger having a right to reconcile the discrepancy with Fort Worth in subsequent Withdrawal Notices. If Fort Worth's calculation of the Estimated Cost to Complete the CFA Obligations is outside a range of five percent (5%) of Tanger's Estimated Cost to Complete the CFA Obligations, Fort Worth and Tanger, through a designated representative, will reconcile the calculations and jointly approve an Estimated Cost to Complete the CFA Obligations and advise Escrow Agent to disburse the amount as jointly determined. Upon any such distribution of Withdrawn Collateral, Escrow Agent shall concurrently notify Fort Worth, LRIC, Tanger, and Developer of the amount of the Withdrawn Collateral and of the remaining balance of the Security Funds. If the cost to Tanger of constructing the CFA Obligations that Developer has failed to construct exceeds the Escrow Funds, Developer shall pay such additional costs to Tanger within thirty (30) days after its receipt from Tanger of written notice reasonably evidencing such additional costs. If the cost to Tanger of constructing the CFA Obligations that Developer has failed to construct is less than the amount of the Escrow Funds disbursed to Tanger pursuant hereto,then Escrow Agent shall disburse the remaining Security Funds as set forth in Section 3 after receipt of written notice from Fort Worth that the CFA Obligations have been fully performed. 2178582 (e) If LRIC has elected to exercise its remedies set forth in Section 9(c) above, and if Tanger has elected to exercise its remedies set forth in Section 9(d) above and such work would encompass the LRIC-Related CFA Obligations, Tanger and LRIC agree to use good faith efforts to coordinate their work with respect to meeting their respective schedules, and Tanger and LRIC each agrees to cooperate to minimize any adverse impact on the other from its performance of the work each is performing. Tanger and LRIC shall also coordinate and cooperate to allocate the Security Funds to the remaining CFA Obligations and the remaining LRIC-Related CFA Obligations. (f) If after the expiration of two (2) years from the date of this Agreement either: (i) none of the CFA Obligations have been performed; or (ii) there has been partial performance but the term of the CFA has not been extended by Fort Worth; then, in either event, Fort Worth shall be entitled to receive the Security Funds as specified in Section 6 and, if Fort Worth receives the Security Funds, Fort Worth shall construct the improvements contemplated in the CFA." 6. INDEMNITY. Section 15 of the Agreement is deleted in its entirety and the following language is substituted therefor: "SECTION 15. INDEMNITY. DEVELOPER, LRIC, AND TANGER EACH HEREBY AGREES TO HOLD HARMLESS, AND INDEMNIFY ESCROW AGENT (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ALL CLAIMS, DAMAGES, EXPENSES, COSTS, SUITS AND OTHER LIABILITY OF ANY HIND WHATSOEVER THAT ARISE OUT OF OR ARE DIRECTLY OR INDIRECTLY RELATED TO THE PERFORMANCE BY ESCROW AGENT OF ITS DUTIES HEREUNDER EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ESCROW AGENT OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES AND DEVELOPER,LRIC,AND TANGER EACH HEREBY AGREES TO HOLD HARMLESS,AND INDEMNIFY FORT WORTH(AND ITS RESPECTIVE DIRECTORS,OFFICERS,EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ALL CLAIMS, DAMAGES, EXPENSES, COSTS, SUITS AND OTHER LIABILITY OF ANY HIND WHATSOEVER THAT ARISE OUT OF OR ARE DIRECTLY OR INDIRECTLY RELATED TO ANY ACTIONS OR INACTION BY FORT WORTH WITH RESPECT TO THIS AGREEMENT." 7. BINDING EFFECT. This First Amendment shall be binding on the parties, their successors and assigns. No provision of the Agreement or this First Amendment may be amended, waived, or modified except pursuant to a written instrument executed by Fort Worth, Escrow Agent, Developer, LRIC, and Tanger. 8. COUNTERPARTS. This First Amendment may be executed in any number of multiple counterparts and by different parties on separate counterparts, all of which when taken together shall constitute one and the same agreement. [Remainder of Page Intentionally Blank; Signatures to Follow] 2178582 ACCORDINGLY, Fort Worth, Developer, LRIC, Tanger, and Escrow Agent have each caused this instrument to be executed in quadruplicate in each entity's respective name by its duly authorized signatories effective as of the date executed by the City Manager or his/her designee. DEVELOPER: ROANOKE 35/114 PARTNERS,L.P., a Texas limited partnership By: Roanoke 35/114 Genpar,LLC, a Texas limited liability company, its general partner By: William V.Boecker, Vice President LRIC: LRIC CHAMPIONS CENTER,LP, a Texas limited partnership By: LRIC Champions GP, LLC, a Texas limited liability company its general partner By: --/- ':�" Sin se9mb;Manager 4 4,6 A4e She Al- TANGER: TANGER FORT WORTH, LLC, a North Carolina limited liability company By: Tanger Devco, LLC, a North Carolina limited liability company, its Manager By: Name: Title: 2178582 ACCORDINGLY, Port Worth, Developer, LRIC, Tanger, and Escrow Agent have each caused this instrument to be executed in quadruplicate in each entity's respective name by its duly authorized signatories effective as of the date executed by the City Manager or his/her designee. DEVELOPER: ROANOKE 35/114 PARTNERS,L.P., a Texas limited partnership By: Roanoke 35/114 Genpar,LLC, a Texas limited liability company, its general partner By: William V.Boecker,Vice President LRIC: LRIC CHAMPIONS CENTER,LP, a Texas limited partnership By: LRIC Champions GP,LLC, a Texas limited liability company its general partner � 2...,- /--/ e By: to hen M sGoRi ,.,Manager TANGER: TANGER FORT WORTH,LLC, a North Carolina limited liability company By: Tanger Devco,LLC,a North Carolina limited liability company,its Manager By: Name: Title: 2178582 ACCORDINGLY, Fort Worth, Developer, LRIC, Tanger, and Escrow Agent have each caused this instrument to be executed in quadruplicate in each entity's respective name by its duly authorized signatories effective as of the date executed by the City Manager or his/her designee. DEVELOPER: ROANOKE 35/114 PARTNERS,L.P., a Texas limited partnership By: Roanoke 35/114 Genpar,LLC, a Texas limited liability company, its general partner By: William V.Boecker, Vice President LRIC: LRIC CHAMPIONS CENTER,LP, a Texas limited partnership By: LRIC Champions GP, LLC, a Texas limited liability company its general partner By: Stephen M.Lipscomb,Manager TANGER: TANGER FORT WORTH,LLC, a North Carolina limited liability company By: Tanger Devco,LLC, a North Carolina limited liability company, its Manager By: 1 �- Name: Title: Y;U pis i 2178582 FORT WORTH: CITY OF FORT WORT/H1 By: �d4k, Fernando Costa Assistant City Manager Approved as to form&legality: L X?a Douglas W.Black Sr. Assistant City Attorney M&C No. AWA,. Date: �- ®� . Attes ®� �o $ EO . M4 J. K r City ecretary o rP � ESCROW AGENT: FIRST AMERICAN TITLE INSURANCE COMPANY C/O REPUBLIC TITLE OF TEXAS,INC. 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