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HomeMy WebLinkAboutContract 42128-A1 I I CITY CONTRACT NO.SECRETARY �-J Z�Z�✓�'I AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF FORT WORTH, TEXAS AND BROOKFIELD ACQUISITIONS, L.P. FOR THE BROOKFIELD DEVELOPMENT THE STATE OF TEXAS § COUNTY OF DENTON § This Amended Development Agreement (this "Amended Agreement") is entered into by the City of Fort Worth, Texas, a home-rule municipal corporation situated in Parker, Tarrant, Johnson, Denton and Wise Counties, Texas (the "City"), acting by and through its duly authorized Assistant City Manager, and Brookfield Acquisitions, L.P., a Texas limited partnership ("Owner"). ARTICLE I RECITALS A. Owner owns approximately 231.579 acres in Denton County, Texas, as shown on Exhibit A and described in Exhibit B attached to this Amended Agreement (the "Property"). The Property lies entirely within the City's extraterritorial jurisdiction ("ETJ"). Owner intends to develop the Property as a mixed-use master-planned community to be known as "Brookfield" (the "Project") B. On January 4, 2005, the City Council adopted Resolution No. 3157-01-2005 (the "Creation Resolution") consenting to creation of the South Denton County Water Control and Improvement District No. 1 encompassing the Property (the "District"). C. The Texas Commission on Environmental Quality ("TCEO") approved the creation of the District by order issued April 19, 2007. D. The Board of Directors of the District conducted an election to confirm creation Of the District on November 6, 2007, and canvassed the results of the election on November 15, 2007. E. On January. 25, 2011, the City Council approved -that certain Agreement Concerning Operation of South Denton County Water Control and Improvement District No. 1 (City Secretary Contract No. 42127, M & C C-24720) between the City and the District containing, among other.provisions, consent to conversion of the District to a fresh water supply district operating under Chapter 53, Texas Water Code, as amended, and issuance of bonds by the District for road projects, as amended by that certain Amended Agreement Concerning Operation of South Denton County Water Control and Improvement District No. 1 dated {City Secretary Contract No.42TI-A-1 J F. On January 25, 2011, the City Council approved that certain Development Agreement Between the City of Fort Worth, Texas and Brookfield Acquisitions, --. the Amended Brookfield Development Agreement Page 1 OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Brookfield Development (Mayor and Council Communication C-24720, City Secretary Contract No. 42128) (the "Original Development Agreement") and that certain Brookfield Water and Wastewater Utility Service Agreement between the City, the District, Owner, and Aqua Utilities, Inc. (City Secretary Contract No. 42120, M & C C-24720) (the "Original Utility Agreement"). G. When the Original Development Agreement and the Original Utility Agreement were approved, the Property was located in an area for which Certificate of Convenience and Necessity ("CCN") No. 11157 had been issued by TCEQ to Aqua Utilities, Inc. ("Aqua Utilities") to provide retail water service and CCN No. 20453 had been issued to Aqua Utilities to provide retail sewer service. Such agreements contemplated that Aqua Utilities would provide retail water and sewer service to the Property for a term of 17 years, after which the City had an option to become the retail water and sewer provider and to purchase, for a nominal amount, water and wastewater infrastructure to serve the Property. H. Effective on or about1Yf9111�'X ZOl\ , Aqua Utilities transferred all of its assets to Aqua Texas, Inc. ("Aqua Texas"), including without limitation TPDES Permit No. WQ0014263,CCN No. 11157, and CCN No. 20453. I. The District has been converted to a fresh water supply district operating pursuant to Chapters 49, 51 and 53 of the Texas Water Code. J. Aqua Texas, the City, the District, Alpha Ranch Fresh Water Supply District of Denton and Wise Counties (the "Alpha Ranch District") and North Fort Worth Water Control and Improvement District No. 1 of Denton and Wise Counties have entered into that certain Water and Wastewater Utility Services Transfer Agreement dated 6101bAIA 1�2011T 204 (City Secretary Contract No. 6�, , providing, among other terms, for Aqua Te as to transfer to the City all'of its rights and obligations in connection with retail water service to the Property under CCN No. 11157 and to transfer to the District all of its rights and obligations in connection with retail sewer service to the Property under CCN No. 20453 (the "Utility Services Transfer Agreement"), superseding the Original Utility Agreement and ancillary agreements concerning water and sewer service to the Property. K. The Utility Services Transfer Agreement also provides for Aqua Texas to transfer to the Alpha Ranch District all of its rights and obligations in connection with TPDES Permit No. WQ0014263-001 authorizing the construction and operation of a wastewater treatment plant for the treatment and discharge of treated sewage effluent into or adjacent to Elizabeth Creek traversing a portion of the property included in the Alpha Ranch District (the "Wastewater Treatment Plant"). L. The City, the District and the Alpha Ranch District have entered into that certain Agreement Concerning Sewer Service to Alpha Ranch and Brookfield Developments (the "Sewer Service Agreement") dated e JUJ 241'6 (City Secretary Contract No. lor,), . The Sewer Service Agreement p vides that the District and the Alpha Ranch District have the option to construct, or cause to be constructed, the Wastewater Treatment Plant to provide interim sewer service within the District and the Alpha Ranch District. Amended Brookfield Development Agreement Page 2 M. The District and/or the Alpha Ranch District shall construct, or cause to be constructed, an off-site sewer main to the Fort Worth system in accordance with that certain Sewer Infrastructure Agreement datedY tp��,�,����( , p�� (City Secretary Contract No. , � whereupon the Wastewater Treatment Plant will be taken out of service and the City will become the provider of retail sewer services to all customers within the Alpha Ranch District and the District. N. Owner has submitted water, sewer and drainage studies, a traffic impact analysis, and preliminary plat PP-16-060 for the Project to the City. O. It is necessary to amend the Original Development Agreement to reflect the new arrangements for providing water and sewer service to the Property and to address other outstanding issues. P. This.Amended Agreement supersedes the Original Development Agreement. Q. The Parties have the authority to enter into this Agreement pursuant to Section 212.172 of the Local Government Code. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and conditions hereinafter set forth, the Parties agree as follows: ARTICLE II DEFINITIONS "Accessory Use" means a use which is clearly incidental to the use of the Principal Building or the primary use of the property and which is located on the same premises as the primary use. "Amended Agreement' means this Amended Development Agreement between the City and Owner. "Assignee" means a successor to Owner as defined in Sections 9.02(b) and-9.03 of this Agreement. "Board"means the board of supervisors 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 Property or bond anticipation notes. Amended Brookfield Development Agreement Page 3 "Building Codes" means the Sign Code and the Fire Code, as defined herein, and all other City ordinances, regulations, policies, manuals and other requirements applicable as of the Filing Date to the construction of Structures within the City's corporate limits. Further, "Building Codes" includes all amendments to the foregoing requirements and all new requirements relating to Structures that are adopted or approved after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: "Building Permit and Inspection Fees" means the fees and charges applicable to the issuance of building permits for, and inspection of, Structures according to the fee schedule adopted by the City Council and in effect on the date of submittal of application for a building permit or request for an inspection. "CCN" means a certificate of convenience and necessity or similar permit issued by the TCEQ authorizing a specified entity to be the retail water or sewer provider in a specified area. "CFA Policy" means the City's "Policy for the Installation of Community Facilities" as amended March 20, 2001 (M & G-13181), and as further amended from time to time, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code. "CFA Review Fees" means fees assessed in accordance with the CFA Policy for community facilities agreements. "Citv" means the City of Fort Worth, Texas, a home-rule municipality located in Parker, Tarrant, Johnson, Denton and Wise Counties, Texas. "Cijy Code" means the Code of the City of Fort Worth. "City Council" means the City Council of the City. "City Manager"means the City Manager of the City. "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 and approval of plans relating to the construction of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of submittal of such plans. "Commercial Tracts" means Tracts 1 and 2 shown on the Development Plan and described in Exhibit C. "Contractor" means a person or entity that constructs, alters or repairs Infrastructure required to serve the Property and determined to be qualified for such by the applicable department with the City, expressly including without limitation qualification of water and wastewater contractors by the City's Water Department. Amended Brookfield Development Agreement Page 4 "Coop "means Denton County, Texas. "County Review Fees" means fees and charges applicable to the review and approval of plans relating to the construction of detention and flood control structures and connections to County Roads according to the fee schedule adopted by the Commissioners Court and in effect on the day of submittal of such plans. "County Road" means any road located within the County but not within the District or a municipality. "Creation Resolution" means Resolution No. 3157-01-2005 approved by the City Council on January 4, 2005, consenting to creation of the District. "Development Director" means the Director of the City's Planning and Development Department. "Development Permit" means to apply and be granted a development permit for every buildable lot within the District in accordance with the Regulations for Floodplain Management in Denton County. "Development Plan"means Exhibit D attached to this Amended Agreement. "District" means South Denton County Water Control and Improvement District No. 1, which has been converted to a fresh water supply district, as such district may be renamed. "District Confirmation Date"means November 15, 2007. "Effective Date"means the date when this Amended Agreement is fully 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 "Filing Date"means January 25, 2011. "Finance Director"means the Director of the City's Finance Department. "Fire Code" means the following chapters and sections of the International Fire Code, Sections 13-1 and 13-2 of the City Code in effect on the Filing Date, and including all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: (a) Chapter 1 (Administration), excluding Sections 104.10 (Fire Investigations), 104.10.1 (Assistance from Other Agencies), and 104.11 (Authority at Fires and Other Emergencies), Section 105.1.2, Item #1 (Operational Permits), and all sections related to Item 41, and Section 105.6 (Required Operational Permits); Amended Brookfield Development Agreement Page 5 (b) Chapter 2 (Definitions); (c) Chapter 5 (Fire Service Features), excluding Section 506 (Key Boxes) and Section 509 (Fire Command Center); (d) Chapter 6 (Building Services and Systems); (e) Chapter 7 (Fire Resistance Rated Construction); (f) Chapter 8 (Interior Finish, Decorative Materials and Furnishings), Section 806 only; (g) Chapter 9 (Fire Protection System); (h) Chapter 22 (Service Stations and Repair Garages), excluding Section 2205 (Operational Requirements); (i) Chapter 23 (High-Piled Combustible Storage), excluding Section 2305 (Housekeeping and Maintenance); (j) Chapter 27 (Hazardous Materials — General Provisions), excluding reference to Section 105.6 in Section 2701.5 (Permits), Section 2703.3 (Release of Hazardous Materials) and Section 2703.9.1.1 (Fire Department Liaison); (k) Chapter 33 (Explosives and Fireworks); (1) Chapter 38 (Liquefied Petroleum Gases); (in) Chapter 45 (Referenced Standards); (n) Appendix B (Fire-Flow Requirements for Buildings); and (o) Appendix I (Installation of Fire Service Features, Fire Protection Systems and Tanks). "Gas Drilling Ordinance" means Ordinance No. 18449-02-2009 (M & C G-16439), as amended as of the Filing Date and including all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code. "Governing_Regulations" means all City and County ordinances, regulations, policies, manuals and other requirements relating to Infrastructure, including the design, location, construction, payment of fees, operation and maintenance thereof, that were applicable within the City's corporate limits and the County's limits on the Filing 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 Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code. Amended Brookfield Development Agreement Page 6 "Gross Acre" means each of the 231.579 acres included within the Property, without any exclusions for easements, right-of-way or any other purpose. "Habitable Structure", for purposes of Section 3.06, means any structure for which a certificate of occupancy is required. A Habitable Structure shall not include detached accessory buildings, garages and sheds. "Homeowners Association" means the association established by Owner in accordance with the Declaration of Conditions, Conditions and Restrictions described in Section 3.10. "Impact Fees" means capital contributions funding or recouping the cost of capital improvements necessitated by and attributable to new development approved by the City in accordance with Chapter 395, Texas Local Government Code, but expressly excluding fees for roadway facilities. "Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure improvements installed or constructed to serve the Property, whether located within or outside the Property. When "Infrastructure" is expressly identified, such as water Infrastructure or wastewater Infrastructure, "Infrastructure" is limited to the specified type. "Infrastructure Agreements" means those certain agreements concerning construction of water, sewer and roads to serve the Property. "Infrastructure Inspection and Material Testing Fees" means the fees applicable to the inspection and testing of water and sewer Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of the inspection. "Infrastructure Inspection Fees — Denton County" means the fees applicable to the inspection and testing of all detention and flood control structures and connections to County Roads according to the fee schedule adopted by the Commissioners Court and in effect on the date of the inspection. "Lender" means a person or entity that receives a collateral assignment, pledge, security interest, lien, or other encumbrance of or in all or any part of the Property or in any Owner's or Assignee's rights under this Amended Agreement to secure repayment of a debt or performance of an obligation by such Owner or Assignee. "Local Government Code"means the Texas Local Government Code, as amended. "Lot Owner" means any "end-buyer of a fully developed and improved lot" within the Property as such phrase is used in Section 212.172(f) of the Local Government Code. A Lot Owner is neither an Owner nor a Party and is bound by this Amended Agreement in accordance with Section 9.04. "Non-Owner Assi ee" is defined in Section 9.02(c) of this Amended Agreement. "Notice"means notice as defined in Section 9.01 of this Amended Agreement. Amended Brookfield Development Agreement Page 7 "One-Family Residential Tract" means Tract 3 shown on the Development Plan and described in Exhibit C. "Operation Agreement" means the Agreement Concerning Operation of South Denton Water Control and Improvement District No. 1 (City Secretary Contract No. 42127, M & CC- 24720) between the City and the District, as amended by that certain Amended Agreement Concerning Operation of South Denton Water Control and Improvement District No. 1 (City Secretary Contract No. TZ17-9- A-1 M& C 1__15qBp . "Original Utility Agreement" means that certain Brookfield Water and Wastewater Utility-Service Agreement between the District, Aqua Utilities, Inc., Owner and the City (City Secretary No. 42130, M& C C-24720). "Owner" means Brookfield Acquisitions, L.P., a Texas limited partnership, and its successors and Assignees permitted by this Amended Agreement, but does not include a Lot Owner. "Party" means, individually, the City, Owner, or Owner's successors and Assignees permitted by this Amended Agreement "Premises" means a single tract or platted lot. In addition, multiple adjacent tracts or platted lots under common ownership will be deemed to be a single premises if they meet the following requirements: (a) Lots or tracts are not separated by intervening streets, alleys, utility or railroad rights-of-way or other interruption; (b) Property contains a single primary use; and (c) Property is not used for one- or two-family residential purposes. . Tracts or platted lots that are at cross corners or that are connected by narrow strips of land too small to serve as emergency access easements shall not be considered to be adjacent. "Principal Building" means a building in which the primary use of the lot on which the building is located is conducted. "Public Building", for purposes of Section 3.06, means all buildings with occupancies greater than 50 persons and more than 750 square feet used or designed and intended to be used for motion picture theaters, symphony and concert halls, television and radio studios admitting an audience, theaters, banquet halls, night clubs, restaurants, taverns and bars, amusement arcades, art galleries, bowling allies, community halls, courtrooms, dance halls, exhibition halls, funeral parlors, gymnasiums without spectator seating, indoor swimming pools and tennis courts without spectator seating, lecture halls, libraries, museums, waiting areas in transportation terminals, pool and billiard parlors, arenas with spectator seating, skating rinks with spectator seating, swimming pools with spectator seating, tennis courts with spectator seating, and amusement park outdoor activities. Amended Brookfield Development Agreement Page 8 "Sewer Infrastructure Agreement"has the meaning set out in Recital M. "Sewer Service Agreement" has the meaning set out in Recital L. "Sign Code"means Chapter 29 of the City Code. "Strategic Partnership Agreement"means a Strategic Partnership Agreement Between the City of Fort Worth, Texas and South Denton County Water Control and Improvement District. "Structure" means any permanent building or structure that is intended for human occupancy and any other structure (including signs). "Subdivision Regulations" means the City's Subdivision Ordinance No. 17154-09-2006 in effect on the Filing Date, and including all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code. "TCE " means the Texas Commission on Environmental Quality or its successor state agency. "Utility Services Transfer Agreement"has the meaning set out in Recital J. "Zoning Ordinance" means the sections of Ordinance No. 13896 identified in this Amended Agreement, together with any amendments thereto that are in effect on the Filing Date, codified as Appendix "A"to the City Code. "Zoning Ordinance" includes all amendments to the foregoing regulations that are adopted after the Filing Date, except any amendments that are inapplicable to development of the Property pursuant to Chapter 245 of the Local Government Code: ARTICLE III DEVELOPMENT REGULATIONS 3.01 Applicable Regulations. The Property shall be developed in accordance with the Subdivision Regulations and all other City ordinances, regulations, policies, manuals and other requirements that would apply to the Property if it were located within the City's corporate limits, including without limitation the Building Codes and Governing Regulations, except as modified by this Amended Agreement. Provisions of the Zoning Ordinance specified below (and no others) shall apply to development of the Property. If this Amended Agreement imposes stricter requirements, this Amended Agreement shall control. The Property shall also be developed in accordance with the Subdivision Regulations — Denton County, policies, manuals and other requirements that apply to property in the City's extraterritorial jurisdiction located in the County. In the event of a conflict between the Subdivision Regulations and the Subdivision Regulations Denton County, the more stringent regulation will apply. Notwithstanding anything herein to the contrary, Owner shall not be required to comply with any County regulation, policy, manual or other requirement unless it is generally applicable in portions of the City's ETJ located in the County. Further, Owner shall comply with all applicable federal, state and local regulations applicable to the Property Amended Brookfield Development Agreement Page 9 3.02 Land Use and Development Regulations. Tracts 1, 2 and 3 identified on the Development Plan attached as Exhibit D and described in Exhibit C shall be developed as follows: (a) Tracts 1 and 2 shall be developed in accordance with the permitted uses and development regulations applicable to the "E"Neighborhood Commercial District as reflected in Sections 4.803 and 4.901 of the Zoning Ordinance, plus large retail stores in accordance with Section 5.134 of the Zoning Ordinance and accessory uses permitted in accordance with Section 3.03. (b) Tract 3 shall be developed in accordance with the uses permitted in the "A-5" One-Family District, as reflected in Section 4.600 of the Zoning Ordinance, plus private or non-profit community center and accessory uses permitted in accordance with Section 3.03. The Property shall include not more than 880 single-family residential lots with a minimum lot size of 5,000 square feet. Residential density shall not exceed an average of 3.8 units per Gross Acre (herein defined). All single-family residential lots in Tract 3 shall be developed in accordance with Section 4.705 of the Zoning Ordinance applicable to the "A-5" One-Family Residential District. (c) Owner may revise the lot layout on Tract 3 from time to time, provided Owner complies with the Subdivision Regulations and does not exceed the maximum lot count or density described in Section 3.02(b). 3.03 Accessory Uses. No accessory uses shall be permitted in the Property, except for the following accessory uses, which shall be subject to compliance with the designated sections of the Zoning Ordinance: (a) Accessory Uses on Residential Lots (Section 5.301); (b) Fences (Section 5.305); and (c) Storage or Display in Commercial Districts, Outdoors (Section 5.306). 3.04 Temporary Uses. No temporary uses shall be permitted in the Property, except for the following temporary uses, which shall be subject to compliance with the designated sections of the Zoning Ordinance: (a) Garage or Other Occasional Sales, except that no permits shall be required and no fees shall be charged (Section 5.402); (b) Model Home (Section 5.403); (c) Trailer, Portable Sales, Construction or Storage (Section 5.405); and (d) Temporary Batch Plants, Asphalt or Concrete (Section 5.401). Amended Brookfield Development Agreement Page 10 3.05 Development Standards. The following provisions of Chapter 6 of the Zoning Ordinance shall apply to the Property: (a) Off-Street Parking and Loading (Article 2); and (b) Signs (Article 4). 3.06 Gas Drilling and Production; Setbacks from Gas Wells. Seven natural gas wells have been drilled on the Property, as shown on Exhibit E (individually and collectively, the "Existing Wells"). The Existing Wells are not subject to the Gas Drilling Ordinance or any other City regulations concerning natural gas drilling. Notwithstanding the foregoing, residences, religious institutions, hospital buildings, schools, public parks or Public Buildings shall be constructed at least 300 feet from the center of any natural gas well on the Property, at the surface of the ground, or at least 225 feet from a gas well pad side on which more than one well is placed, and shall adhere to all setbacks applicable to compressor stations and tanks. All other Habitable Structures shall be constructed at least 200 feet from the center of any natural gas well on the Property, at the surface of the ground, or at least 125 feet from a gas well pad site on which more than one well is placed, and shall adhere to all setbacks applicable to compressor stations and tanks. 3.07 Parks and Recreational Amenities. (a) Application of the City's current Neighborhood and Community Park Dedication Policy (N&CPDP) based on a projected 796 single family units would require dedication of 6.690 acres of neighborhood parkland. (b) Application of the N&CPDP would require payment of neighborhood park development fees of$30,000 per acre totaling $200,700.00. (c) Owner shall not be required to escrow neighborhood park development fees with the City. However, the design and development of amenities must meet or exceed City standards as defined in the City's N&CPDP and Park, Recreation and Open Space Master Plan. Owner shall retain detailed documentation for the expenditures on Phase One park improvements. Additionally, the design and development of recreational amenities will be as defined in the City's N&CPDP and Park Recreation and Open Space Master Plan and shall provide such documentation to the City's Parks and Recreation Department upon request. Owner shall install the following recreational amenities on the Property, in lieu of dedication of neighborhood parkland pursuant to Subsection(a): (i) A private amenity center consisting of a pool, cabana with restrooms and playground; (ii) A five-foot walking trail paved with concrete, crushed granite or other all- weather surface, connecting residential areas with the amenity center and elementary school; Amended Brookfield Development Agreement Page 11 (iii) At least 4,500 feet of linear parkland with a minimum width of 100 feet; and (iv) A minimum of 45 acres of open space. (d) The recreational amenities provided by Owner in accordance with Subsection (c) shall constitute full satisfaction of all park dedication and fee requirements. Owner shall provide evidence of expenditure of at least $200,700.00 for the amenities described in Subsection (c)(ii) and (c)(iii). (e) All park and recreational facilities shall remain the property of the District or a Homeowners Association until full purpose annexation has taken place. Upon full purpose annexation, the City's Parks and Recreation Department will become the owner of all parkland and amenities owned by the District or a Homeowners Association. 3.08 Fences. In addition to fence regulations outlined in Chapter 5, Article 3 of the Zoning Ordinance, the following requirements shall apply. All fences adjacent to S.H. 114 shall be constructed of brick, stone, reinforced concrete products, masonry, split rail or designed tubular steel. A stained wood fence on metal posts with pickets facing the street is permitted, provided that such fence is screened by a berm so that the fence is not visible from the freeway or street. Chain link is expressly prohibited. A four-foot wrought iron fence will be constructed on all lots abutting open space or parkland. 3.09 Landscape Requirements. The Property shall be subject to landscape requirements contained in Chapter 6, Article 3 of the Zoning Ordinance in effect as of the Filing Date. Owner shall submit a landscape plan for medians and parkways to the City Parks and Community Services Department and the Transportation and Public Works Department for approval of plant material, consideration of future maintenance requirements and prevention of traffic hazards. In addition, the following landscaping and amenities, at a minimum, shall be installed on each residential lot prior to initial-occupancy: (a) One (1) three-inch caliper tree shall be planted in front of each house with a second three-inch caliper tree to be located per homeowneribuilder preference. (b) Shrubs shall be provided in any size increments totaling a minimum of 25 gallons on each residential lot. (c) The front'and side yards of each residential lot shall be fully sodded. (d) Freeze and rain sensors shall be installed in all irrigation systems in front and side yards. 3.10 Covenants, Conditions and Restrictions; Design Review Guidelines. (a) Prior to the sale of any lots in the Property, Owner shall file Declaration of Covenants, Conditions and Restrictions and Design Review Guidelines in the Denton County real property records, which shall be consistent with this Amended Brookfield Development Agreement Page 12 Amended Agreement. Owner shall provide evidence of filing to the City within thirty (30) days after filing. (b) All builders and property owners in the Property shall adhere to the Declaration of Covenants, Conditions and Restrictions and the Design Review Guidelines. (c) The Board and the Homeowners Association may amend the Declaration of Covenants, Conditions and Restrictions and the Design Review Guidelines, provided that the spirit of such documents is not diminished and a copy of the amendment is provided to the City within thirty (30) days after adoption. 3.11 Entry Feature. Owner shall construct an entry feature at the entrance to the Property. The entry feature shall have a minimum cost of$25,000.00 and shall consist of an entry sign, landscaping and/or other elements, at Owner's discretion. No element of the entry feature shall (a) exceed a height of 35 feet; (b) extend on or over a right-of-way; (c) be located within the sight visibility triangles of any intersection at which the feature is located; or (d) impede any future roadway improvements for SH 114 or any proposed street within the development. Such entry feature shall be constructed prior to commencement of construction of the 50th single- family residence on the Property. 3.12 Traffic Management. Owner will submit a traffic impact analysis to the City in conjunction with submittal of the first preliminary plat for the Property and will coordinate with the City's Transportation and Public Works Department and the Texas Department of Transportation concerning installation of deceleration lanes, traffic signals, and/or roundabouts that are roughly proportionate to the proposed development, at Owner's cost. The traffic study shall prescribe the timing and phasing of all traffic mitigation required for the related development of the site. All mitigation necessary attributable to the development shall be installed with the final plat phase for which the mitigation is proposed. 3.13 Final Plat Approval. Subdivision of the Property or any portion thereof shall require approval of plats by the City Plan Commission. The conveyance by metes and bounds of any portion of the Property to any person for the purpose of qualifying such person to be a member of the Board shall not be considered a subdivision of land requiring a final plat or otherwise requiring the approval of the City; provided, however, no Structure shall be constructed on any portion of the Property conveyed for such purpose unless and until a plat of such portion has been approved by the City Plan Commission and Denton County Public Works/Engineering. 3.14 Building Permits; Fees; Inspections of Structures. (a) City. All Structures constructed on the Property shall be subject to City building permit and inspection requirements and fees (the `Building Permit and Inspection Fees") as if such Structures were constructed within the City's corporate limits. (b) County. The developer will apply for and be granted a Development Permit through the County in accordance with the development permit guidelines and application process. At this time the City will assign a 911 address to the subject property. Amended Brookfield Development Agreement Page 13 3.15 Temporary Manufactured Housing. A maximum of five temporary HUD-certified manufactured homes shall be permitted on the Property for any purpose necessary for the creation or administration of the District (including, but not limited to, providing qualified voters within the District or qualifying persons to serve on the Board of Directors of the District). Owner will apply for and be granted a Development Permit through the County in accordance with the development permit guidelines and application process for all temporary manufactured housing. At this time, Owner will be issued a 911 address for the property in question. Owner will notify the City of the make, model, HUD number, and 911 address of each home within 15 days after it is occupied. Manufactured homes permitted by this Amended Agreement: (a) are not required to be located on a platted lot; (b) do not have to comply with the Governing Regulations; (c) do not require any permit or other approval by the City; and (d) will be removed within thirty (30) days after they are no longer needed for the creation or administration of the District. 3.16 Enforcement of Environmental Regulations. Pursuant to Section 212.172(b)(6) of the Local Government Code, the Parties agree that the City may, but is not obligated or required to, enforce environmental regulations set out in Chapter 12.5 of the City Code, as amended from time to time. Provided however, the City will enforce the backflow requirements and plumbing code for connections to the City's water system. 3.17 Homeowners Association. Owner will establish the Homeowners Association in accordance with the Declaration of Covenants, Conditions, and Restrictions. Membership in the Homeowners Association shall be mandatory for all owners of property within the Property. The Homeowners Association shall perform all duties identified in the Declaration of Covenants, Conditions and Restrictions and shall operate and maintain all parkland and recreational amenities in accordance with this Amended Agreement. 3.18 Enforcement. The City and Owner agree that this Amended Agreement and Section 212.172 of the Local Government Code authorize enforcement by the City of the Building Codes, Governing Regulations and all other City ordinances applicable to the Property pursuant to this Amended Agreement in the same manner duly enacted municipal regulations are enforced within the City's corporate boundaries. 3.19 Maintenance of Roads. The District will maintain all roads within the District and all roads adjacent to the District that are required by the City for development of the Property. ARTICLE IV DESIGN, CONSTRUCTION,INSPECTION, DEDICATION, OPERATION AND MAINTENANCE OF DISTRICT FACILITIES 4.01 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 of the TCEQ. In the event of any conflict between the Governing Regulations and the rules and regulations of the District, the Governing Regulations shall control unless otherwise agreed in writing by the Water or Transportation Public Works Director, as applicable. In the event of any conflict between the Infrastructure Agreements and this Amended Agreement, the Infrastructure Agreements shall control. Amended Brookfield Development Agreement Page 14 4.02 Plan Review; Payment of Fees; and Pre-Construction Conference. Construction of Infrastructure shall not commence until (i) final construction plans and specifications have been reviewed and approved by the City for compliance with the Governing Regulations; (ii) a pre- construction conference has been held by the Fort Worth pre-qualified Contractor, the District's engineer and designated representatives of the City; and (iii) the applicable City Review Fees and Infrastructure Inspection and Material Testing Fees have been paid. At such pre-construction conference, the City shall designate City employees to serve as the project manager and the project inspector (the "City Inspector"). The City will review all plans within two weeks after each submittal. 4.03 Community Facilities Agreements and Financial Guarantee. Construction of Infrastructure shall not commence until Owner has executed a Communities Facilities Agreement and provided the appropriate form of financial guarantee pursuant to the CFA policy. In the event of a conflict between this Agreement and the CFA Policy,this Agreement will prevail. 4.04 Inspections. (a) City employees or third parry inspectors retained in accordance with generally applicable City policies ("City Inspectors") shall perform all inspections and testing of water and sewer Infrastructure as such Infrastructure is constructed.The District or the developer will pay the water and sewer inspection fee to the City prior to scheduling for pre-construction meeting. The City Inspectors shall notify Owner and the District at least 24 hours before each inspection to enable the District's engineers to be present during the inspections. The District's engineer may observe City inspections for the purpose of gathering the information required to complete and submit all TCEQ required reports. The City Inspectors shall cooperate with the District to provide inspection reports that satisfy TCEQ requirements for issuance of bonds by the District. (b) Inspections of all other Infrastructure shall be performed by inspectors retained and paid for by the District (or by Owner on behalf of the District) and approved by the City ("Third Party Inspectors") shall perform all inspections and testing of the construction of Infrastructure for compliance with this Article IV. The District or Owner, as applicable, shall submit the names, addresses and phone numbers of such inspectors as part of the submittal of final construction plans. Construction of Infrastructure shall not commence until such inspectors have been approved by the City which approval shall not be unreasonably withheld or delayed. The District, or Owner, as applicable, shall require all Third Party Inspectors to provide copies of all inspection and testing reports to the City Inspector within five (5) business days of the date of the inspection. 4.05 Termination of Third Party Inspectors. The City has the right to terminate any Third Party Inspector retained by the District or Owner pursuant to Section 4.04(b) if the inspector: (a) fails to perform inspections and testing to ensure construction in compliance with this Article IV; or (b) fails to timely provide copies of inspection and testing reports to the City's Transportation and Public Works Department. and does not correct any such deficiencies within ten (10) days after receipt of written notice from the City. Upon termination of any Third Party Amended Brookfield Development Agreement Page 15 Inspector, the City at its option, may: (i) allow the use of another approved Third Parry Inspector, or (ii) perform all necessary inspections and testing. Should the City elect to perform inspections and testing pursuant to this Section 4.05, the City shall perform such inspections and testing for compliance with this Article IV in a timely manner and the District shall pay the City an inspection fee to reimburse the City for its reasonable and necessary costs of performing the Infrastructure inspection, but not exceeding the City's generally applicable fee schedule. 4.06 Final Inspections. (a) Com. The City shall have the right to charge an Infrastructure Inspection and Material Testing Fee for the City conducted inspections and testing only for inspections and testing performed by the City pursuant to Section 4.04(a). In such case, the City may charge the City's prevailing Infrastructure Inspection and Material Testing Fee applicable to inspections within the City's corporate limits. Notwithstanding the foregoing limitation on the City's right to charge an Infrastructure Inspection and Material Testing Fee, the City has the right, but not the obligation, to inspect and test the Infrastructure at any time and to participate in a final inspection of all Infrastructure. The Contractor shall notify the City Inspector when Infrastructure is ready for final inspection. If the City Inspector concurs that construction of the Infrastructure is substantially complete, the City Inspector will schedule a final inspection by the City within 30 days. Upon such final inspection and correction of any punch list items, written certification by the City Inspector that Infrastructure has been constructed in compliance with City Utility Standards shall constitute compliance with the inspection requirements of this Article IV. (b) Cogn1y. The County shall inspect all flood control structures and connections to County Roads. The Denton County Public Works Department will be responsible for conducting these inspections in accordance with the Denton County Subdivision Rules and Regulations. 4.07 Contractors. Owner shall incorporate the requirements of this Article IV into written construction contracts with all Contractors who are not Owners. All contracts with such non-Owner Contractors shall provide that the City is a third-parry beneficiary of, and may enforce the contracts against, the Contractor. Contractors should meet the pre-qualification requirements of Fort Worth for water, sewer, drainage and roadway. 4.08 Access by City Employees. Any duly authorized employee of the City bearing proper credentials and identification shall be granted access to any property of the District within the Property as the City or County may determine necessary for the purpose of inspection and testing of Infrastructure. 4.09 Wastewater Service. Interim sewer service to the Property may be provided by the District utilizing the Wastewater Treatment Plant or the Shale Creek wastewater plant authorized under TCEQ Permit No. WQ14186-001 (the "Shale Creek Wastewater Treatment Plant"), up to a maximum of 2,500 retail connections within the Property, the Alpha Ranch District, and approximately 158 acres in North Fort Worth Water Control District No. 1 of Denton and Wise Amended Brookfield Development Agreement Page 16 Counties in accordance with the Sewer Service Agreement. Upon completion of construction of certain sewer infrastructure at no cost to the City and acceptance by the City, the City shall provide wastewater service to the Property (including without limitation all customers initially served by the District using the Wastewater Treatment Plant) at the City's standard rate applicable to out-of-city customers, not to exceed 125% of the in-city rate in accordance with the Sewer Service Agreement and the Sewer Infrastructure Agreement. On-site septic systems are prohibited. 4.10 Water Service. The City shall provide water service to the Property at the City's standard rate applicable to out-of-city customers, not to exceed 125% of the in-city rate. Water wells are prohibited. 4.11 As-Built Drawings. Owner shall deliver mylar as-built drawings for all Infrastructure to both the City's and County's Engineering Department within thirty (30) days after final inspection by the City. 4.12 Reimbursement Agreements. Owner shall not enter into agreements for reimbursement of costs incurred in connection with the District with a total reimbursement amount exceeding $78,860,000.00, the current voted utility and bond authorization with the District. All agreements entered into by the District for reimbursement of costs incurred in connection with the District shall provide that: (a) the District will not reimburse landowners or developers for costs not reimbursed by the issuance of Bonds before fe__bffi0LaA 1 , 2936; and (b) Owner waives all claims against the City for reimbursement of obligatiolis not reimbursed by the issuance of Bonds before '?b,3q, 4436. The District may issue refunding obligations at any time and in any amoutA authorized by the voters within the District. Any reimbursement agreements entered into by Owner in violation of this section shall be void. ARTICLE V DEVELOPMENT FEES 5.01 Fees. The Property shall .be subject to all fees applicable to development within the City's corporate limits, including without limitation Infrastructure Inspection and Material Testing Fees, City Review Fees, CFA Review Fee, Impact Fees, Building Permit and Inspection Fees, tap fees, water main capacity charges, sewer per acre charges and front footage charges except as expressly addressed in this Amended Agreement. Failure to expressly identify fees and charges does not constitute a waiver of such fees and charges. 5.02 Utility Transfer Fee. (a) The District shall collect a fee of$500 per lot within the Property to compensate Aqua Texas for transfer of water and sewer service rights for the Property and other defined areas (the "Utility Transfer Fee"), up to a maximum total payment to Aqua Texas of$2,000,000.00, in accordance with the Utility Service Transfer Agreement. (b) The District shall collect the Utility Transfer Fee for all lots contained in each final plat for the Property prior to submittal of the final plat to the City for approval and shall deliver such fees to Aqua Texas in accordance with the Utility Amended Brookfield Development Agreement Page 17 Service Transfer Agreement. The District shall continue to collect the Utility\ Transfer Fee until Aqua Texas receives Utility Transfer Fees totaling $2,000,000.00 pursuant to the Utility Service Transfer Agreement. The City will not record a final plat for any portion of the Property until Aqua Texas provides written verification to the City, with a copy to the District, of receipt of Utility Transfer Fees for each lot within such final plat. (c) The City has no obligation to collect Utility Transfer Fees or to pay such fees to Aqua Texas. 5.03 Impact Fees. (a) The City may assess and collect water and .sewer impact fees in accordance with Chapter 395, Local Government Code, and the City's impact fee ordinance (collectively, "Impact Fees") for structures within the District in accordance with this Section. (b) For structures that initially receive retail sewer service utilizing the Elizabeth Creek Wastewater Treatment Plant and/or by contracting with Aqua Texas for service using the Shale Creek Wastewater Treatment Plant pursuant to the Sewer Service Agreement, the City (i) will assess a Sewer Impact Fee for each structure at the time of recordation of a subdivision plat; and(ii) will collect a sewer Impact Fee for each structure as a condition of issuance of a building permit for such structure at the collection rate generally applicable within the City's corporate limits. After the City becomes the retail sewer provider to the Property pursuant to the Sewer Service Agreement, the City will collect a sewer Impact Fee from each new customer within the District connecting to the City's wastewater system in accordance with the City's generally applicable requirements for retail sewer customers within the City's corporate limits. (c) The City may assess and collect water Impact Fees on the same basis applied to comparable classes of retail customers within the City's corporate limits. (d) The City shall not collect roadway impact fees for the Property. ARTICLE VI ANNEXATION 6.01 Immunity from Annexation. Except as otherwise provided in this Article VI, the Property shall be immune from annexation during the term of this Amended Agreement, and the City guarantees immunity from annexation during such time. 6.02 Full-Purpose Annexation. Except as provided in Section 6.05, the City shall not annex all or any portion of the Property for full purposes until on or after the earlier to occur of- (a) f(a) the dissolution of the District (other than as the result of annexation by the City); (b) the date that construction of water, sanitary sewer, drainage and road facilities to serve 90% of the Property is complete and bonds have been issued by the District to reimburse Owner or developer for such facilities; or(c) i _,263.6-. Amended Brookfield Development Agreement Page 18 6.03 Limited Purpose Annexation. Owner agrees that the City shall have the right to annex those portions of the Development that are intended for commercial development for the sole and limited purpose of imposing sales and use tax pursuant to Section 43.0751 of the Local Government Code pursuant to a Strategic Partnership Agreement entered into by the District and the City. . 6.04 Incorporation. In furtherance of the purposes of this Amended Agreement, Owner, on behalf of itself and its successors and Assignees, covenants and agrees to the extent allowed by law that, except upon written consent of the City Council, which approval may be withheld or conditioned by the City Council at its sole discretion, they will not: (a) seek or support any effort to incorporate the Property, or any part thereof, or (b) sign,join in, associate with, or direct to be signed any petition seeking to incorporate any of the Property or to include any of the Property within the boundaries of any other incorporated entity. 6.05 Annexation of Portions of Property. Owner agrees to cooperate with and assist the City in annexing one or more areas in accordance with Section 43.071 of the Local Government Code each of which may not exceed 525 feet in width at its widest point or such other width limitation subsequently imposed by law, as reasonably necessary for the City to connect areas to the City that are outside the District and that the City intends to annex. The City agrees that such areas shall be located within right-of-way areas or along lot lines, wherever possible. Notwithstanding the zoning designation approved for the annexed area, such area can be developed and used in accordance with this Amended Agreement. 6.06 Consent to Annexation. Owner and all future Owners and all future Lot Owners, as defined herein and consistent with Section 9.04, of all or any portion of the Property irrevocably and unconditionally consent to the full purpose annexation of the Property into the corporate limits of the City in accordance with this Amended Agreement (specifically including without limitation Section 6.07). This Amended Agreement shall serve as the petition of Owner, all future owners and all future lot owners to full purpose annexation of the Property in accordance with this Amended Agreement. The Owner will memorialize the consent to full purpose annexation by the City in the form of a notice to be recorded in the real property records for Denton County for each subsequent Lot Owner within the District and to be provided to each Lot Owner at the closing of the sale of the lot. 6.07 Procedure for Full Purpose Annexation. Owner and all future Owners and all future Lot Owners, as defined herein and consistent with Section 9.04, of all or any portion of the Property acknowledge that the Property is exempt from municipal annexation plan requirements pursuant to Section 43.052(h)(2) of the Local Government Code and hereby consent to full purpose annexation of the Property in accordance with the procedure applicable to areas exempted from the municipal annexation plan set out in Chapter 43 of the Local Government Code, Subchapter C-1, or, if amended, pursuant to the most comparable annexation procedure. ARTICLE VII TERM OF AMENDED AGREEMENT This Amended Agreement is a development agreement authorized by Section 212.172 of the Local Government Code. This Amended Agreement will terminate on the earlier to occur of: Amended Brookfield Development Agreement Page 19 (a) 7i2i�ru 1 a � � or (b) full purpose annexation of the Property pursuant to Section 6 20 The term of this Amended Agreement shall not be affected by the full purpose annexations pursuant to Section 6.05 or by the limited purpose annexation of any commercial property pursuant to the Strategic Partnership Agreement. ARTICLE VIII BREACH, NOTICE AND REMEDIES 8.01 Notification of Breach. If a Party commits a breach of this Amended Agreement, the non-breaching Party shall give Notice to the breaching Party that describes the breach in reasonable detail. 8.02 Cure of Breach. The breaching Party shall commence curing such breach within fourteen (14) calendar days after receipt of such Notice and shall 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 fourteen (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 fourteen (14) day period and diligently completes the work within a reasonable time (not to exceed an additional thirty (30) days) without unreasonable cessation of the work. 8.03 Remedies for Breach. If the breaching Party does not substantially cure such breach within the stated period of time, the non-breaching Party may, in its sole discretion, and without prejudice to any other right under this Amended Agreement, law, or equity, seek any relief available at law or in equity, including, but not limited to, an action under the Uniform Declaratory Judgment Act, specific perf6rinance, mandamus and injunctive relief, provided, however, that the non-breaching Party shall not be entitled to monetary damages or to terminate this Amended Agreement, and each Party specifically waives any right such Party has or in the future may have to terminate this Amended 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 Amended Agreement. 8.04 Goverrimental Powers; Waiver of lmMumit . It is understood that by execution of this Amended 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 Amended 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 Amended Agreement. ARTICLE IX ADDITIONAL PROVISIONS 9.01 Notice. Any notices, certifications, approvals, or other communications required to be given by one Party to another under this Amended Agreement (a"Notice") shall be given in Amended Brookfield Development Agreement Page 20 writing addressed to the Party to be notified at the address set forth below and shall be deemed given: (i) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (ii) when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid; and (iii) 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. If any date or period provided in this Amended Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the notice shall be extended to the first business day following the Saturday, Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this section. To the City: City of Fort Worth, Texas 200 Texas Street Fort Worth, Texas 76102 Attn: City Manager City of Fort Worth, Texas 200 Texas Street Fort Worth, Texas 76102 Attn: Planning and Development Director City of Fort Worth, Texas 200 Texas Street Fort Worth, Texas 76102 Attn: City Attorney To Owner: Brookfield Acquisitions, L.P. Attn: Ross Calhoun 1800 Valley View Lane, Suite 300 Farmers Branch, TX 75234 9.02 Assignment. (a) By Owner to the District. Owner has the right (from time to time with the consent of the City, which consent shall not be unreasonably withheld or delayed and upon written Notice to the City) to assign to the District those portions of this Amended Agreement concerning the provision of retail water and/or wastewater service to the Property and any Infrastructure related thereto, including any obligation, right, title, or-interest of Owner under this Amended Agreement. Each assignment shall be in writing in the form attached hereto as Exhibit F, shall be executed by Owner and the District, and shall obligate the District to be bound by this Amended Agreement to the extent this Amended Agreement applies or Amended Brookfield Development Agreement Page 21 relates to the obligations, rights, title, or interests being assigned. Owner shall provide a copy of each assignment to all Parties within fifteen (15) days after execution. From and after such assignment, the City agrees to look solely to the District for the performance of all obligations assigned to the District and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the District's failure to perform the assigned obligations; provided, however, if a copy of the assignment is not received by the City within fifteen (15) days after execution, Owner shall not be released until the City receives such assignment. No assignment by Owner shall release Owner from any liability resulting from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to the District, including a copy of each executed assignment, and, upon written request from any Parry or Assignee, shall provide a copy of such records to the requesting person or entity. The District shall be considered an "Assignee" for purposes of this Amended Agreement. (b) By Owner to Successor Owners. Owner has the right (from time to time with the consent of the City, which consent shall not be unreasonably withheld or delayed, and upon written Notice to the City) to assign this Amended Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Amended Agreement, to an Assignee that is, or will become an owner of any portion of the Property within fifteen (15) days after the assignment. Each assignment shall be in writing in the form attached hereto as Exhibit F, shall be executed by Owner and the Assignee and shall obligate the Assignee to be bound by this Amended Agreement to the extent this Amended Agreement applies or relates to the obligations, rights, title, or interests being assigned. Owner shall provide a copy of each assignment to all Parties within fifteen (15) days after execution. From and after such assignment, the City agrees to look solely to the Assignee for the performance of all obligations assigned to the Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, if a copy of the assignment is not received by the City within fifteen (15) days after execution, Owner shall not be released until the City receives such assignment. 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 unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Amended Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. (c) By Owner to Non-Owners. Subject to the City's prior written approval, Owner has the right, from time to time, to assign this Amended Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Amended Agreement, to any person or entity that is not an owner of any portion Amended Brookfield Development Agreement Page 22 of the Property (a "Non-Owner Assignee"). Each assignment shall be in writing executed by Owner and the Non-Owner Assignee in the form attached hereto as Exhibit F and shall obligate the Non-Owner Assignee to be bound by this Amended Agreement to the extent this Amended Agreement applies or relates to the obligations, rights, title, or interests being assigned. A copy of each assignment shall be provided to all Parties within fifteen (15) days after execution. If the City approves the Non-Owner Assignee in writing (which approval shall not be unreasonably withheld or delayed if the Non-Owner Assignee can demonstrate, to the reasonable satisfaction of the City, that the Non- Owner Assignee has the financial ability to perform the assigned obligations), then the City agrees to look solely to the Non-Owner Assignee for the performance of all obligations assigned to the Non-Owner Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Non-Owner Assignee's failure to perform the assigned obligations. If the City fails or refuses to approve the Non-Owner Assignee, the assignment shall nevertheless be effective; however, the Owner shall continue to be responsible, jointly and severally, with the Non-Owner Assignee for the performance of all obligations assigned. No assignment by Owner shall release Owner from any liability resulting from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Non-Owner Assignees, including a copy of each executed assignment and the Non-Owner Assignee's Notice information as required by this Amended Agreement, and, upon written request from any Party or Non-Owner Assignee, shall provide a copy of such records to the requesting person or entity. (d) By the City. The City shall not assign this Amended Agreement, in whole or in part, and including any obligation, right, title, or interest of the City under this Amended Agreement, to any person, entity, or political subdivision without the prior written approval of Owner, which approval shall not be unreasonably withheld or delayed. 9.03 Encumbrance by Owner and Assignees. 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 Amended Agreement for the benefit of their respective Lenders without the consent of, but with prompt but no later than 15 days 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 Amended 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 Amended Agreement, in which case the Lender shall be bound by this Amended Agreement and shall not be entitled to the rights and benefits of this Amended Agreement with respect to such portion of the Property until all defaults under this Amended 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 Amended Brookfield Development Agreement Page 23 not the obligation, to cure any default under this Amended Agreement and shall be given a reasonable time but no later than 60 days to do so in addition to the cure periods provided by Article VIII of this Amended Agreement; and the City agrees to accept such cure as if offered by the defaulting Party. A Lender is not a Parry to this Amended Agreement unless this Amended 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 Amended Agreement. Notwithstanding the foregoing, however, this Amended 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 Amended Agreement and shall not be entitled to the rights and benefits of this Amended Agreement with respect to the acquired portion of the Property until all defaults under this Amended Agreement with respect to the acquired portion of the Property have been cured. 9.04 Recordation and Applicability to Lot Owners. Pursuant to the requirements of Section 212.172(c) of the Local Government Code, Owner shall record this Amended Agreement, and all amendments to this Amended Agreement, in the real property records of Denton County, Texas, and shall provide a file-marked copy of the recorded Amended Agreement to the Planning and Development Director within ten (10) days after its execution. This Amended Agreement shall be binding upon the Property, the City, Owner, any Lender that has become an Assignee, and any other Assignee, and their respective successors and assigns. The Parties agree that this Amended Agreement benefits and burdens the Property and touches and concerns the Property. The rights and obligations under this Amended Agreement are intended to be covenants running with the Property. Notwithstanding the foregoing, this Amended Agreement is not binding upon, and shall not constitute any encumbrance to title as to any lot owner except for land use and development regulations that apply to the lot in question. 9.05 No Waiver. Any failure by a Party to insist upon strict performance by the other Parry of any material provision of this Amended Agreement shall not be deemed a waiver thereof, and the Parry shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Amended Agreement. No provision of this Amended 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 Amended 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. 9.06 Reservation of Rights and Claims. Except as expressly provided in this Amended Agreement, Owner does not, by entering into this Amended Agreement, waive any rights arising under Chapter 245, Chapter 43, or Section 212.904, as amended, of the Texas Local Government Code, or under any other provision of law. 9.07 Governing Law and Venue. This Amended 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 Amended Agreement is performable in Denton County, Texas, and hereby submit to the jurisdiction of the courts of Denton County, Texas, and Amended Brookfield Development Agreement Page 24 hereby agree that any such court shall be a proper forum for the determination of any dispute arising hereunder. 9.08 Performance Requirements; Force Majeure. Time is of the essence in the performance by the Parties of their respective obligations under this Amended Agreement. Whenever performance is required, the Parry must use good faith and due diligence to perform and take all necessary measures to perform, but if completion of performance is delayed by reason of acts of God, civil commotion, terrorism, strikes, picketing, casualty, or other similar matter beyond the reasonable control of the Party, then the time for performance will be appropriately extended by the amount of delay so caused, and the Party so delayed shall resume full performance at the earliest possible time. 9.09 Severability. The provisions of this Amended Agreement are severable. If any word, phrase, clause, sentence, paragraph, section, or other provision of this Amended 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 Amended Agreement, then such provision shall be deemed severed from this Amended Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Amended 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 evidenced by the severed provision. Without limiting the generality of the foregoing, (i) if it is determined that, as of the Effective Date, Owner does not own any portion of the Property, this Amended Agreement shall remain in full force and effect with respect to all of the Property that Owner does then own, and (ii) if it is determined, as of the Effective Date, that any portion of the Property is not within the City's ETJ, this Amended Agreement shall remain in full force and effect with respect to all of the Property that is then within the City's ETJ. If at any time after the Effective Date it is determined that any portion of the Property is no longer within the City's ETJ, this Amended Agreement shall remain in full force and effect with respect to all of the Property that remains within the City's.ETJ. 9.10 Changes in State or Federal Laws. If any state or federal law changes so as to make it impossible for a Party to perform its obligations under this Amended Agreement, the Parties will cooperate to amend this Amended Agreement in such a manner that is most consistent with the original intent of this Amended Agreement as legally possible. 9.11 Additional Documents and Acts. The Parties agree that at any time after execution of this Amended Agreement, they will, upon request of the other Party, execute and/or exchange any other documents necessary to effectuate the terms of this Amended Agreement and perform any further acts or things as the other Party may reasonably request to effectuate the terms of this Amended Agreement. 9.12 Captions. Captions and headings used in this Amended Agreement are for reference purposes only and shall not be deemed a part of this Amended Agreement. Amended Brookfield Development Agreement Page 25 9.13 Amendment. This Amended Agreement may be amended only with the written consent of the Parties and with the approval of the City Council, except as expressly permitted herein. 9.14 Interpretation. The Parties acknowledge that each Party and, if it so chooses, its counsel have reviewed and revised this Amended 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 Amended Agreement or any amendments or exhibits hereto. As used in this Amended 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. 9.15 No Third-Party Beneficiaries. This Amended Agreement is solely for the benefit of the City and Owner, and neither the City nor Owner intends by any provision of this Amended Agreement to create any rights. in any third-parry beneficiaries or to confer any benefit or enforceable rights under this Amended Agreement or otherwise upon anyone other than the City and Owner. Notwithstanding the foregoing, the City and Owner intend that the District shall be a third-party beneficiary of this Amended Agreement. 9.16 Authority to Execute. The City warrants that this Amended 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 Amended Agreement on behalf of the City has been authorized to do so. Owner warrants that the execution of this Amended Agreement is duly authorized in conformity with the articles of incorporation, bylaws, partnership agreement or other applicable organizational documents of Owner and that the individual executing this Amended Agreement on behalf of Owner has been authorized to do so. Each Assignee or Lender who becomes a Party to this Amended Agreement represents and warrants that this Amended Agreement has been approved by appropriate action of such Assignee or Lender and that the individual executing this Amended Agreement on behalf of such Assignee or Lender has been authorized to do so. 9.17 Exhibits. All exhibits attached to this Amended Agreement are incorporated as part of this Amended Agreement for the purposes set forth herein, as follows: EXHIBITS Exhibit A Map of the Property Exhibit B Legal Description of the Property Exhibit C Legal Descriptions of Tracts 1, 2 and 3 Shown on Development Plan Exhibit D Development Plan Exhibit E Gas Wells Exhibit F Assignment and Assumption Agreement 9.18 Takings Impact Assessment. Owner expressly and unconditionally waives and releases the City from any obligation to perform a takings impact assessment under the Texas Amended Brookfield Development Agreement Page 26 Private Real Property Rights Act, Texas Government Code Chapter 2007, as it may apply to this Amended Agreement or the Property. 9.19 Conspicuous Provisions, The Parties acknowledge that the provisions of this Amended Agreement set out in bold, CAPITALS (or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 9.20 Counterpart Originals. This Amended Agreement may be executed in counterparts, each of which shall be deemed to be an original. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Amended Brookfield Development Agreement Page 27 ATTEST: Clu` OF FORT WORTH �XAS ary Kayser, City SecretaryU Fernando Costa, Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me, on the/Vkday of , 201 ,7 by Fernando Costa, Assistant City Manager of the City of Fort Worth, Texas on b4alf of said city. auua,,� TRIKINYA L JOHNSON Notary P btu lic, 4�0f Texas Public,State of Texas ;Notary 4-17-2018 —� Comm.Expires 0Printed Name: a ted N life Notary ID 1238832-0 r� � 'L` n`3 My Commission Expires: o 11/1 t [SEAL] OFFICIAL RECORD Amended Brookfield Development Agreement Page 28 CITY SECRETARY FT.WORTH,TX - _ _ j Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. RV-,�&uVkMJ Dana Burghdoff Assistant Director-P nning Planning&Development Department BROOKFIELD ACQUISITIONS, L.P., a Texas limited partnership By: MMM Ventures, LLC, a Texas limited liability company Its: General Partner By: 2M Ventures, LLC, a Delaware limited liability company Its: Manager By: -)Zk ,1 Mehrdad MoayediTitle: Governing Person STATE OF TEXAS § COUNTY OFJ ,� § r�This instrument was acknowledged before me, on the day of N J A n , 2016, by Mehrdad Moayedi, Governing Person of 2M Ventures, LLC, a D laware fimited liability company, Manager of MMM Ventures, LLC, a Texas limited liability company, in its capacity as General Partner of Brookfield Acquisitions, L.P., a Texas limited partnership, on behalf of said limited partnership. Notary Public, State of Texas Printed Name: � L & 81E L6 C DEBBIE LACEY Notary ID # 123942280 My Commission Expires: My Commission Expires 5 August 16, 2017 STS IE Af 1E"! [SEAL] Amended Brookfield Development Agreement Page 29 Exhibit A Map of the Property Exhibit A to Amended Brookfield Development Agreement Page 1 ------ -- -------- ------------..... . ...------ ---- . . --------- ..---- ...._..----'- -----.._..._--- --.._...----------- ---- -- O / O V) / ' cs a W W — �-3 �s t,•�,�r-4*�x ��-,a� F� ��t�r i J r ';'']d f 3 Wr.{TGs 'yJ' N [ .'•� r ,:�i %J�.i'�., i J' I� C M. G� i -,y r5r�'3's' viae �7 MW LU LL n�iSf Lug, `'mak,we,'ag{(5'f r' �yy ^` 'o-'x s / i "-..--�. LL O 1 2 F`� '�3 + �.,���� I O O RON CO cr f CC Z VJLLJ � / I o I i t 1 I O v ! __ ----•---- c I ; O W I I ( Q M , Qt � 1y� O I , � N Z pim m --� W g W O U to . ......................................................................................................................................................... Exhibit B Legal Description of the Property BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being all of a tract of land described as Tract 1 and 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a concrete monument with a 1/2 inch iron rod found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 1,026.70 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set at the Southeast corner of a tract of land described in Deed to Willow Bend 114, recorded in Document Number 2005-8893, Deed Records, Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 2,518.47 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439" found at the Northeast corner of Lot 13, Block A of WILLOW SPRINGS SUBDIVISION, an Addition to Denton County, Texas according to the Plat thereof recorded in Cabinet D, Page 317, Plat Records, Denton County, Texas; THENCE South 89 degrees 59 minutes 13 seconds West, along the North line of said Lot 13, a distance of 13.26 feet to a 1 inch iron rod found at the Southeast corner of a tract of land described in Deed to Robert B. Logan, recorded in Volume 515, Page 92, Deed Records, Denton County, Texas; THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch iron rod found at the Northwest corner of said Tract 1; THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3,160.54 feet to a 1/2 inch iron rod with a yellow plastic cap stamped `BC&D" found at the Northeast corner of said Tract 1; THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753.84 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" f6und at the most Easterly Southeast corner of said Tract 1; THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2,150.81 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at an inner ell corner of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West, a distance of 1,322.76 feet to 'the POINT OF BEGINNING and containing 231.579 acres of land, more or less. Exhibit B to Amended Brookfield Development Agreement Page 1 Exhibit C Legal Descriptions of Tracts 1, 2 and 3 Shown on Development Plan TRACT 1 5.486 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being part of a tract of land described as Tract 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southwest corner of said Tract 2, said point being North 89 degrees 31 minutes 05 seconds West, a distance of 1,026.70 feet from a concrete monument found at the Southeast corner of said Tract 2 THENCE North 00 degrees 19 minutes 46 seconds East, along the West line of said Tract 2, a distance of 686.80 feet to a point for corner; THENCE South 57 degrees 04 minutes 50 seconds East, leaving said West line, a distance of 417.13 feet to a point for corner; THENCE North 70 degrees 37 minutes 46 seconds East, a distance of 56.90 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 97.38 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 79 degrees 29 minutes 06 seconds West, a distance of 10.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner at the beginning of a curve to the right having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 420.00 feet and a chord bearing and distance of South 05 degrees 00 minutes 59 seconds East, 80.49 feet; THENCE Southerly, along said curve to the right, an arc distance of 80.61 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 00 degrees 28 minutes 55 seconds West, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" set for corner; THENCE South 45 degrees 28 minutes 55 seconds West, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner in the North right-of-way line of said State Highway No. 114 Exhibit C to Amended Brookfield Development Agreement Page 1 THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 426.33 feet to the POINT OF BEGINNING and containing 5.486 acres of land, more or less. TRACT 2 5.825 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being part of a tract of land described as Tract 1 and 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a concrete monument found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2, said point being South 89 degrees 31 minutes 05 seconds East, a distance of 1,026.70 feet from a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set at the Southwest corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 500.37 feet to a 60D set for corner; THENCE North 44 degrees 31 minutes 05 seconds West, leaving said North right-of-way line, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE North 00 degrees 28 minutes 55 seconds East,a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner at the beginning of a curve to the left having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 500.00 feet and a chord bearing and distance of North 05 degrees 00 minutes 59 seconds West, 95.82 feet; THENCE Northerly, along said curve to the left, an arc distance of 95.97 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" set for corner; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 84.56 feet to a point for corner; THENCE South 79 degrees 29 minutes 06 seconds West, a distance of 10.00 feet to a point for corner; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 106.72 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" set for.corner; THENCE North 70 degrees 37 minutes 46 seconds East, a distance of 116.17 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; Exhibit C to Amended Brookfield Development Agreement Page 2 THENCE North 88 degrees 03 minutes 48 seconds East, a distance of 89.87 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner; THENCE South 65 degrees 01 minutes 18 seconds East, a distance of 400.62 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set for corner in the East line of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West, passing the Northeast corner of said Tract 2 at a distance of 6.97 feet and continuing for a total distance of 380.14 feet to the POINT OF BEGINNING and containing 5.825 acres of land, more or less. TRACT 3 220.268 ACRES BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being a part of those tracts of land described as Tract 1 and Tract 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: COMMENCING at a concrete monument found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 500.37 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found at the POINT OF BEGINNING of the tract of land herein described: THENCE North 89 degrees 31 minutes 05 seconds, continuing along said North right-of-way line, a distance of 100.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 45 degrees 28 minutes 55 seconds, East, leaving said North right-of-way line, a distance of 14.14 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North OO'degrees 28 minutes 55 seconds East, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner at the beginning of a curve to the left, having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 420.00 feet and a chord bearing and distance of North 05 degrees 00 minutes 59 seconds West, 80.49 feet; THENCE Northerly, along said curve to the left, an arc distance of 80.61 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" found for corner; THENCE North 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA"found for corner; Exhibit C to Amended Brookfield Development Agreement Page 3 THENCE North 79 degrees 29 minutes 06 seconds East, a distance of 10.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 10 degrees 30 minutes 54 seconds West, a distance of 97.38 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE South 70 degrees 37 minutes 46 seconds West, a distance of 56.90 feet to a point for corner; THENCE North 57 degrees 04 minutes 50 seconds West, a distance of 417.13 feet to a point for corner in the West line of said Tract 2 and the East line of WILLOW SPRINGS SUBDIVISION, an Addition to Denton County, Texas according to the Plat thereof recorded in Cabinet D, Page 317, Plat Records, Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 1,831.67 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"5439" found at the Northeast corner of Lot 13, Block A of said Addition; THENCE South 89 degrees 59 minutes 13 seconds West, along the North line of said Lot 13, a distance of 13.26 feet to a 1 inch iron rod found at the Southeast corner of a tract of land described in Deed to Robert B. Logan, recorded in Volume 515, Page 92, Deed Records, Denton County, Texas; THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch iron rod found at the Northwest corner of said Tract 1; THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3,160.54 feet to a 1/2 inch iron rod with a yellow plastic cap stamped `BC&D" found at the Northeast corner of said Tract l; THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753.84 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the most Easterly Southeast corner of said Tract 1; THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2,150.81 feet to a 1/2 inch iron rod with a yellow plastic cap stamped `BC&D" found at an inner ell corner of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West, a distance of 1,322.76 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE North 65 degrees 01 minutes 18 seconds West, a distance of 400.62 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" found for corner; Exhibit C to Amended Brookfield Development Agreement Page 4 THENCE South 88 degrees 03 minutes 48 seconds West, a distance of 89.87 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA"found for corner; THENCE South 70 degrees 37 minutes 46 seconds West, a distance of 116.17 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 106.72 feet to a point for corner; THENCE North 79 degrees 29 minutes 06 seconds East, a distance of 10.00 feet to a point for corner; THENCE South 10 degrees 30 minutes 54 seconds East, a distance of 84.56 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" found for corner at the beginning of a curve to the right, having a central angle of 10 degrees 59 minutes 49 seconds, a radius of 500.00 feet and a chord bearing and distance of South 05 degrees 00 minutes 59 seconds West, 95.82 feet; THENCE Southerly, along said curve to the right, an arc distance of 95.97 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA" found for corner; THENCE South 00 degrees 28 minutes 55 seconds West, a distance of 211.75 feet to a 1/2 inch iron rod with a yellow plastic cap stamped"DAA"found for corner; THENCE South 44 degrees 31 minutes 05 seconds East, a distance of 14.14 feet to the POINT OF BEGINNING and containing 220.268 acres of land, more or less. Exhibit C to Amended Brookfield Development Agreement Page 5 Exhibit D Development Plan Exhibit D to Amended Brookfield Development Agreement Page 1 ----------------------------------- ------------------------------------------- ------------------------------------------ n MC) 0 T m > 0 • - �o 0 =T L ---------------- z 79 CL Z ---- --- M r1 m MR . z x 0c) • M CD —.MAN X ME Z�z 241. ol ii U) C) Ct CD 0 mm 41. ----------------- ---------------------------------------- ------------------------ --------------------------------------------------------------------- Exhibit E Gas Wells ` 4 AAT xr' 1 4! 1 ,r, g � � r.yPt�„e� •'� mss''. � �. 'A � Y If a 14. Devon GIS Mapping Di6 iu—.71tii plo R(G:[R.'Jttt.6.purp"}6 1 Ong•and IS nB�11Bf 1 Mgaly(SCOfdBd(M1ll nOP e zfw•vay endo ffatitendM to W ued u are. Scale 1:9,028 ! to Printed: 1/14/2011 4:20:25 PM ' Exhibit E to Amended Brookfield Development Agreement Page 1 Exhibit F ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT("Assignment") is made and entered into as of the day of 200_, 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 Owner under that certain Amended Development Agreement between the City of Fort Worth and Brookfield Acquisitions, L.P. for the Brookfield Development (City Secretary Contract No. 2$r-At M & C- l--15ci$Q ) (the "Amended Agreement") effective as of V-J,9 _ � , -2 }, between Brookfield Acquisitions, L.P. ("Owner") and the City of Fortbrt , Texas (the "City"), relating to the development of the Property (as described therein), to the extent that the Amended Agreement covers, affects, and relates to the lands described on Exhibit A attached hereto (the "Transferred Premises"). B. Assignor desires to assign certain of its rights under the Amended 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 meanings ascribed to them in the Amended Agreement. 2. Assignment. Subject to all of the terms and conditions of this Assignment, Assignor hereby assigns all for describe specifically assigned rights if partial] of its rights and obligations under the Amended Agreement, insofar as the Amended 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 Amended Agreement as it relates to the Transferred Premises that may arise or accrue from and after the effective date of this Assignment, and Assignor is hereby released from all such obligations and liabilities from and after the effective date of this Assignment; provided, however, this Assignment does not release Assignor from any liability that resulted from an act or omission by Assignor that occurred prior to the effective date of this Assignment unless the City approves the release in writing. Exhibit F to Amended Brookfield Development Agreement Page 1 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 may be executed in multiple counterparts, each of which shall be deemed to be an original. 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 representative, successors, and assigns. EXECUTED as of the day and year first written above. -jNOR: 13y: Printed Name: Title: ASSIGNEE: By: Printed Name: Title: Exhibit F to Amended Brookfield Development Agreement Page 2 r STATE OF TEXAS § COUNTY OF § SWORN TO AND SUBSCRIBED before me on the day of , 20_, by Notary Public, State of Texas Printed Name: My Commission Expires: [SEAL] STATE OF TEXAS § COUNTY OF § SWORN TO AND SUBSCRIBED before me on the day of , 20 , by Notary Public, State of Texas Printed Name: My Commission Expires: [SEAL] 41376.14 Exhibit F to Amended Brookfield Development Agreement Page 3 M&C Review Page 1 of 3 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FORTWORTIll COUNCIL ACTION: Approved on 12/13/2016 - Resolution No. 4725-12-2016 &4726-12-2016 REFERENCE 12BROOKFIELD, ALPHA DATE: 12/13/2016 NO.: L-15980 LOG NAME: RANCH, SHALE CREEK AGREEMENTS CODE: L TYPE: NON- PUBLIC CONSENT HEARING: NO SUBJECT: Adoption of Resolutions Consenting to the Expansion of the Alpha Ranch Fresh Water Supply District and Authorize the Execution of Various Agreements and Amended Agreements Relating to Development, Construction, Water and Wastewater Service, Wholesale and Utility Transfer for South Denton County Water Control Improvement District No.1, Alpha Ranch Fresh Water Supply District of Denton and Wise County and North Fort Worth Water Control Improvement District No. 1 (ETJ/DENTON COUNTY and COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council adopt the attached resolutions consenting to the addition of approximately 183 acres into the Alpha Ranch Fresh Water Supply District and authorize the City Manager or a designee to execute the following Agreements and to take any actions to carry out such Agreements: 1. Wholesale Water Agreement between Aqua Texas and Fort Worth 2. Water and Wastewater Utility Services Transfer Agreement 3. Agreement Concerning Water and Sewer Service to Shale Creek Development 4. Agreement Terminating Brookfield Water and Wastewater Utility Service Agreement and Buy-Out Option Agreement 5. Agreement Terminating Brookfield Wholesale Water and Wastewater Agreements 6. Agreement Concerning Sewer Service to Alpha Ranch and Brookfield Developments 7. Water Infrastructure Agreement 8. Sewer Infrastructure Agreement 9. Brookfield Development (South Denton County Water Control Improvement District No. 1) Agreement 10. Alpha Ranch Development Agreement 11. Shale Creek Development Agreement 12. South Denton County (Brookfield Development) Creation and Operation Agreement 13. Alpha Ranch Creation and Operation Agreement 14. Agreement for Construction of Sendera Ranch Blvd DISCUSSION: Entities affiliated with Centurion American Development Group (Developer) own approximately 2,000 acres of land in the City's Extraterritorial Jurisdiction in proximity to State Highway 114, as shown on the attached map (the Property). The Property is undeveloped and is located within the Alpha Ranch Fresh Water Control and Improvement District, consisting of the Elizabeth Creek and Alpha Ranch developments (collectively, the Alpha Ranch development), the South Denton County Water Control and Improvement District No. 1 (the Brookfield development), and the North Fort Worth Water Control and Improvement District No. 1 of Denton and Wise Counties (the Shale Creek development) (the Districts), which districts were created with the City's consent. The Developer agreed to develop the Property with a mixture of residential, commercial and recreational uses in accordance with City standards. The Districts were created and approved by the City Council as follows: Alpha Ranch, consisting of approximately 1,294 acres on February 15, 2007; Brookfield, httn:Hanns.cfwnet.org/council packet/me review.asn?ID=22358&eouncildate=12/13/2016 2/20/2017 M&C Review Page 2 of 3 consisting of approximately 231 acres on April 19, 2007; and Shale Creek, consisting of approximately 251 acres on August 21, 2006. On January 25, 2011, the City Council approved operation, development and utility Agreements for the Brookfield District. (M&C C-24720, CSC Nos. 42127, 42128 and 42120 respectively.) When the Development and Utility Agreements were approved, the Property was located in an area for which Certificate of Convenience and Necessity (CCN) had been issued by TCEQ to Aqua Texas to provide retail water. The Agreements contemplated that Aqua Texas would provide retail water and sewer service to the Property for a term of 17 years, after which the City had an option to become the retail water and sewer provider and to purchase, for a nominal amount, water and wastewater infrastructure to serve the Property. Aqua Texas, the City, the Districts desire to enter into an Agreement providing, among other terms, for Aqua Texas to transfer to the City all of its rights and obligations in connection with retail water service to the Property under their CCN and to transfer to the Districts all of its rights and obligations in connection with retail sewer service to the Property superseding the original utility agreement and ancillary agreements concerning water and sewer service to the Property. On September 23, 2014, the City Council adopted Resolution No. 4361-09-2014 which authorized the city staff to negotiate Agreements with the Developer, Aqua Texas and the Districts for: 1) the transfer the CCN to the City from Aqua Texas; 2) to negotiate for the provision of water and sewer service to the Property to include a Wholesale Water Agreement to serve part of the Shale Creek Development with no infrastructure or meter cost to the City; 3) to negotiate for the construction of water and sewer infrastructure to include a water line to connect Sendera Ranch pump station to existing City infrastructure and a wastewater treatment plant; 4) negotiate for the construction of a sewer line connecting to the City's system, and at the City's discretion, discontinuance of by the Districts of the wastewater treatment plant upon the City becoming the retail sewer service provider to the property; 5)to negotiate for the construction, consistent with the City's Master Thoroughfare Plan, of a four-lane extension of Sendera Ranch Boulevard from its existing terminus to SH 114 outside the City limits, at no cost to the City, and to be reimbursed less any proportional share required for the portion of the extension located within the City limits with roadway impact fees or fee credits in accordance with the City's transportation impact fee policy; and construction of a portion of Sendera Ranch Boulevard outside of the City limits, at no cost to the City and to be reimbursed less any proportional share required for the portion of the extension; and 6) to amend the Development Agreement for Brookfield and enter into Development Agreements for the Alpha Ranch District and Shale Creek to reflect the new arrangements for providing water and sewer service to the Property and to address other outstanding issues. This M&C does not request approval of a contract with a business entity. Aqua Texas has agreed to transfer to the City Aqua Texas' CCN and contract rights and obligations governing retail water utility service to Brookfield, Alpha Ranch and Shale Creek and to include land immediately adjacent to Alpha Ranch provided that the land is annexed by the Alpha Ranch District. Alpha Ranch District has submitted two petitions to annex the area for Council's approval. Staff recommends approving the attached resolutions to allow Alpha Ranch to annex the area which will transfer the CCN from Aqua Texas to the City. The parties have the authority to enter into this Agreement pursuant to Section 212.172 of the Local Government Code. The property is located in the City's extraterritorial jurisdiction adjacent to CITY COUNCIL DISTRICT 7. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that this agreement will have no immediate material effect on City funds. Any effect on expenditures and revenues will be budgeted in future fiscal years. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 httn://aDns.cfwnet.org/council packet/mc review.asn?ID=22358&councildate=12/13/2016 2/20/2017 M&C Review Page 3 of 3 Submitted for City Manager's Office by: Jesus (Jay) Chapa (5804) Originating Department Head: Sarah J. Fullenwider (7606) Additional Information Contact: Melinda Ramos (7631) ATTACHMENTS Alpha Ranch Resolution Consent to Annex 12.doc Alpha Ranch Resolution Consent to Annex 171.doc Aqua Texas 1295.pdf Exhibit for 12 acres resolution.pdf Exhibit for 171 acres resolution.pdf Forms (3) 1295.pdf Ryan Dynasty Trust 1295.pdf Water district alpha Ranch shale creek brookfield Map.pdf http://aDDs.Cfwnet.orsz/council packet/mc review.asp?ID=22355&councildatc=12/13/2016 2/20/2017 L-15980 C CERTIFICATE OF INTERESTED PARTIES FORM 1295 loll Complete Nos,1-4 and 6 it there are Interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2016-139111 Brookfield Acquisitions, L.P. Farmers Branch,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form Is 11/2112016 being filed. Fort Worth Date Acknowled ed: 3 Provide the identification number used by the governmental entity or state agency to track or Identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. 0000 Agreement Terminating Brookfield Water and Wastewater Utility Service Agreement,Agreement Terminating Wholesale Water and Wastewater Agreements, Water Infrastructure Agreement,Amended Dev.Agree. 4 Nature of interest Name of Interested Parry City,State,Country(place of business) (check applicable) Controlling Intermediary Olson,Marcella Fort Worth,TX United States X Davis,Ken Fort Worth,TX United States X Moayedi,Mehrdad Farmers Branch,TX United States X Brundrett,Thad Fort Worth,TX United States X Burkhardt,Ryan Addison,TX United States X 5 Check only If there Is NO Interested Party. ❑ 6 AFFIDAVIT I swear,or affirm,under penalty of perjury.that the above disclosure is true and correct. MISTY C. BUSH el Notary Public,State of Texas Comm.Expbes 10.29.2018 Notor y 1f0 130008472 Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP/SEAL ABOVE Sworn to and subscribed before me,by the said 1 this the z} day of _ 20 {1r 1 to certify which,witness my hand and seal of office. Signal a of ofk&r administering oath Printed name o officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277