HomeMy WebLinkAboutContract 42127-A1 CITY SECRETARY
CONTRACT N0.
AMENDED AGREEMENT CONCERNING OPERATION OF
SOUTH DENTON COUNTY WATER CONTROL AND
IMPROVEMENT DISTRICT NO. 1
STATE OF TEXAS §
COUNTY OF DENTON §
This Amended Agreement Concerning Operation of South Denton County Water Control
and Improvement District No. 1 (this "Amended Agreement") is entered into by the City of Fort
Worth, Texas, a home-rule municipal corporation.situated in Tarrant, Parker, Tarrant, Denton,
and Wise Counties, Texas (the "City"), and South Denton County Water Control and
Improvement District No. 1, a fresh water supply district operatin pursuant to Chapters 49, 51
and 53 of the Texas Water Code (the "District"), effective 1 244-6 (the
"Effective Date"). }I",
ARTICLE I
RECITALS
A. Brookfield Acquisitions, L.P., a Texas limited partnership (the "Owner"), is the
owner of approximately 231.579 acres located entirely in the City's extraterritorial jurisdiction
("ETJ") in Denton County, Texas, as shown in Exhibit A and described in Exhibit B attached to
this Amended Agreement (the "Property").
B. On January 4, 2005, the City Council of the. City of Fort Worth (the "City
Council") approved Resolution No. 3157-01-2005 (the "Consent Resolution") consenting to
creation of a water control and improvement district encompassing the Property..
C. The Consent Resolution provided that the City shall have the right to review and
approve the District's bonds and notes prior to issuance and to place restrictions on the terms and
provisions of the bonds and notes issued by the District and conditions on the sale of bonds and
notes by the District to the extent such restrictions and conditions do not generally render the
District's bonds and notes unmarketable and limited the purposes for which the District may
issue bonds to expenditures relating to the provision of water, wastewater and drainage services.
D. The Texas Commission on Environmental Quality ("TCEQ") approved creation
of the District as a water control and improvement district by order issued April 19, 2007.
E. The District has been converted to a fresh water supply district operating pursuant
to Chapters 49, 51 and 53 of the Texas Water Code.
F. The Property is subject to that certain Agreement Concerning Operation of South
Denton County Water Control and Improvement District No. 1 dated January 25, 2011 (the
"Original Creation and Operation Agreement") (City Secretary Contract No. 42127, Mayor and
Council Communication C-24720) whereby the City defined the restrictions and conditions on
the District's bonds pursuant to the Consent Resolution, exp e eity es onse t to include
OFFICIAL RECORD
Amended Agreement Concerning Operation CITY SECRETARY
of South Denton County WCID No. I - Brookfield Page I FT,WORTH,TX
issuance of bonds by the District to include the Road Projects, and consented to conversion of
the District to a fresh water supply district operating under Chapter 53, Texas Water Code, as
amended.
G. The Property is subject to that certain Development Agreement between the City
of Fort Worth, Texas and Brookfield Acquisitions, L.P. for the Brookfield Development dated
August 11, 2011 (the "Original Development Agreement") (City Secretary Contract No..42128,
Mayor and Council Communication C-24720), as amended by that certain Amended
Development Agreement between the City of Fort Worth, Texas and Brookfield Acquisitions,
L.P. for the Brookfield Development dated L , 20 IX (City Secretary Contract No,
421A-A- (the "Amended Development Agreeme t"). 11
H. When the Original Creation and Operation Agreement and the Original
Development 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 Texas 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.
1. Aqua Texas, Inc. ("Aqua Texas"), the City, the District, the 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
20f(City Secretary Contract No. `36S , providing for Aqua Texas to
transfer t the City all
f 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 "CCN Transfer
Agreement"), superseding the previous agreements concerning water and sewer service to the
Property.
J. The CCN Transfer Agreement also provides for Aqua Texas to transfer to the
Alpha Ranch District all of its rights and obligations in connection 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".
K. The City, the District and the Alpha Ranch District have entered into that certain
Agreement Concerning Sewer Service Alpha Ranch anal Brookfield Developments (the
"Sewer Service Agreement") dated 1, 0 2AJ (City Secretary Contract No.
t{ ) pursuant to which the District and the A pha Kanch 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 Agreement Conceming Operation
of South Denton County WC1D No. 1 - Brookfield Page 2
L. Upon construction by the Alpha Ranch District and the District of an off-site
sewer main to the Fort Worth system in accordance with that certain Sewer Infrastructure
Agreement dated , 201 (City Secretary Contract No.71&51ethe
Wastewater Treatment Plant 411 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.
M. It is necessary to amend the Original Creation and Operation Agreement to reflect
the new arrangements for providing water and sewer service to the Property.
N. This Amended Agreement supersedes the Original Creation and Operation
Agreement.
NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and
conditions hereinafter set forth, the Parties contract and agree as follows:
ARTICLE II
DEFINITIONS
"Amended Agreement" means this Amended Agreement Concerning Operation of South Denton
County Water Control and Improvement District No. 1.
"Amended Development Agreement" means the Amended Development Agreement between the
City of Fort Worth, Texas and Brookfield Acquisitions, L.P. for the Brookfield Development
dated Ob4 L6,M 17L, 20>6(City Secretary Contract No VA'16').A
U 11
"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.
"Bond Limit Amount" means the maximum amount of Bonds, excluding refunding Bonds, that
may be issued by the District pursuant to Section 5.04 of this Amended Agreement.
"CFA Policy" means the "Policy for the Installation of Community Facilities" as amended in
March 2001 (M & G-13181), in effect on the Effective Date, including any amendments thereto
that are in effect on the Effective Date.
"Consent Resolution" means Resolution No. 3157-01-2005 adopted by the City Council on
January 4, 2005, consenting to creation of the District.
"District" means South Denton County Water Control and Improvement District No. 1, created
as a water control and improvement district and converted to a fresh water supply district, and
operating.under Chapters 49, 51 and 53 of the Texas Water Code.
Amended Agreement Concerning Operation
of South Denton County WCID No..l - Brookfield Page 3
"District Confirmation Date" means November 15, 2007.
"Effective Date" means the date on which this Amended Agreement is executed by the City and
the District.
"Joinder Agreement" means the agreement attached as Exhibit C.
"Notice" means notice as defined in Section 12.01 of this Amended Agreement.
"Party" means, individually, the City or the District.
"Property" means that certain 231.579-acre tract located in Denton County, Texas, as shown in
Exhibit A and described in Exhibit B.
"Road Projects" means construction, acquisition, improvement, maintenance and operation of
macadamized, graveled or paved roads and turnpikes and improvements in aid of such roads and
turnpikes.
ARTICLE III
CITY CONSENTS; EXECUTION OF JOINDER
3.01 City Consents. The City consents to: (a) conversion of the District to a fresh
water supply district operating under Chapter 53, Texas Water Code, as amended; (b) issuance of
Bonds by the District for Road Projects; and (c) any other actions taken by the District as
required for the District to obtain the authority to issue bonds for the purposes set forth in
Section 5.02.
3.02 Execution of Joinder. Within sixty (60) days after the Effective Date, the District
shall deliver to the City a joinder instrument by which the District shall confirm and adopt the
applicable terms and provisions of the Amended Development Agreement, in substantially the
form attached hereto as Exhibit C (the"Joinder Agreement").
ARTICLE IV
ISSUANCE OF BONDS AND CONSENT TO ROAD PROJECTS
4.01 Issuance of Bonds. The District may issue Bonds only as permitted by law and
this Amended Agreement, This Amended Agreement shall supersede the Consent Resolution
with regard to restrictions on the terms and provisions of the Bonds issued by the District,
conditions on the sale of Bonds, and the purposes for which the District may issue Bonds.
Except as authorized by this Amended Agreement, the District shall not issue Bonds without
prior approval of the City Council.
4.02 Purposes. The purposes for which the District may issue Bonds shall be restricted
to the following:
(a) Purchase, construction, acquisition, repair, extension and improvement of
land, easements, works, improvements, facilities, plants, equipment, and
appliances necessary to:
Amended Agreement Concerning Operation
of South Denton County WCID No. I -Brookfield Page 4
(i) Provide a water supply for the District for municipal, domestic,
and commercial uses;
(ii) Collect, transport, process, dispose of, and control all domestic,
commercial, industrial or communal wastes from the District,
whether in fluid, solid, or composite state;
(iii) Gather, conduct, divert, and control local storm water or other
local harmful excesses of water in the District; and
(b) Establishment, operation, maintenance and construction of facilities for
the provision of police, fire-fighting and other emergency services within
the District; and
(c) Purchase, construction, acquisition, repair, extension, and improvement of
land, easements, works, improvements, facilities, plants, equipment, and
appliances as shall be consistent with the purposes for which the District is
organized; and
(d) Construction, acquisition, improvement, maintenance and operation of
macadamized, graveled or paved roads and turnpikes and improvements in
aid of such roads and turnpikes (the "Road Projects"); and
(e) Payment of organization expenses, initial operation expenses, cost of
issuance, interest during construction and capitalized interest; and
(f) Refunding of any outstanding Bonds of the District for debt service
savings; provided, however, that any such refunding Bonds otherwise
satisfy the requirements of this Amended Agreement.
4.03 Limitations on Bonds. The District acknowledges that but for this Amended
Agreement, pursuant to Section 54.016 of the Water Code, the City's consent to inclusion of the
Property within the District could include restrictions on the purposes for which the District may
issue Bonds and that those restrictions could entirely prohibit issuance of Bonds for roads.
4.04 Road Projects. Notwithstanding the restrictions otherwise permitted by Section
54.016 of the Water Code (as referenced in Section 4.03) this Amended Agreement hereby
authorizes and further consents to the District undertaking the Road Projects within the District
and to the issuance by the District of Bonds for the Road Projects. In consideration for the City's
consent to the Road Projects, the District agrees that the total amount of Bonds issued by the
District for all purposes (excluding refunding Bonds) shall not exceed $78,680,000, the current
voted utility and bond authorization (the "Bond Limit Amount"), unless specifically approved by
the City Council. The District acknowledges that the Bond Limit Amount is sufficient to
accomplish the purposes of the District and that the District has voluntarily agreed to the Bond
Limit Amount in consideration for the City's consent to the issuance of Bonds for the Road
Projects. District facilities, if any, the cost of which exceeds the Bond Limit Amount will be
dedicated to the District without reimbursement unless otherwise approved by the City Council.
Amended Agreement Concerning Operation
of South Denton County WCID No. I - Brookfield Page 5
4.05 Bond Requirements. The District shall obtain all necessary authorizations for
Bonds issued to finance the acquisition or construction of facilities and infrastructure for the
benefit of the District in accordance with this Amended Agreement and laws applicable to the
District. All Bonds issued by the District shall comply with the following requirements:
(a) Maximum maturity of 25 years for any one series of Bonds; and
(b) Interest rate that does not exceed two percent (2%) above the highest
average interest rate reported by the Daily Bond Buyer in its weekly "20
Bond Index" during the 30-day period immediately preceding the date that
the official notice of the sale of such Bonds is given; and
(c) The Bonds shall expressly provide that the District shall reserve the right
to redeem Bonds at any time beginning not later than the tenth (10th)
anniversary of the date of issuance, without premium. No variable rate
Bonds shall be issued by the District without City Council approval; and
(d) Any refunding Bonds of the District must provide for a minimum of three
percent (3%) present value savings and, further, must provide that: (i) the
latest maturity of the refunding Bonds may not extend beyond the latest
maturity of the refunded Bonds unless approved by the City Council; and
(ii) the refunding Bonds shall be structured with a call date not to exceed
seven (7) years from the date of issuance of the refunding Bonds, unless
otherwise approved by the City; and
(e) No Bonds shall be issued having an issuance date after ,
20X without the City's written approval; and
(f) NoBonds shall be issued unless the principal amount of outstanding
Bonds, together with the amount of the proposed Bonds, would be equal to
or less than fifteen percent (15%) of either the certified taxable assessed
valuation or most-current certified estimate of taxable assessed valuation
within the District according to the Denton-Central Appraisal District or
its successor.
4.06 Certifications. With respect to any matter required by this Article IV to be
certified in writing, this Amended Agreement also requires, and the District hereby warrants; that
every statement in any certification shall be true and correct in all material respects and that the
person signing the certification has been given the requisite authority to do so on behalf of the
District.
4.07 Economic Feasibility. Before submission of an application for approval of
issuance of Bonds to the TCEQ (as and if applicable) or the Attorney General, the District's
financial advisor shall certify in writing to the City Secretary, City Manager, and Finance
Director that the Bonds are being prepared for issuance within the then-current economic
feasibility rules established by the TCEQ for districts issuing bonds for water, sewer, drainage or
road facilities in Denton County.
Amended Agreement Concerning Operation
of South Denton County WCID No. l -Brookfield Page 6
4.08 Notice of Bond Issues. At least thirty (30) days before submission of an
application for approval of issuance of Bonds to the TCEQ (as and if applicable) or the Attorney
General, the District shall deliver to the City Secretary, City Manager, and Finance Director the
certification required by Section 4.07 and Notice containing: (a) the amount of Bonds being
proposed for issuance; (b) a description of the projects to be funded and/or the Bonds to be
refunded by such Bonds; and (c) the proposed debt service and total District tax rate after
issuance of the Bonds. If the District is not required to obtain TCEQ approval of the issuance of
the Bonds, the District shall deliver such certification and Notice to the City Secretary, City
Manager, and Finance Director at least thirty (30) days prior to issuance of Bonds, except
refunding Bonds, by the District.
ZD
4.09 Compliance with Agreements. At least thirty (30) days before submission of an
application for approval of issuance of Bonds to the TCEQ (as and if applicable) or the
Attorney General, the District shall certify in writing to the City Secretary, City Manager, and
Finance Director that the District is not in breach of any material provision of the Consent
Resolution or this Amended Agreement. Material provisions include, but are not limited to,
Sections 4.01, 4.02, 4.04, 4.05, 4.06 and Articles V and VII of this Amended Agreement.
4.10 Official Statements. Within thirty (30) days after the District closes the sale of
each series of Bonds, the District shall deliver to the City Secretary, City Manager, and Finance
Director a copy of the final official statement for such series of Bonds. If the City reasonably
requests additional information regarding such issuance of the Bonds, the District shall promptly
provide such information at no cost to the City.
4.11 Reimbursement Agreements.
(a) The District shall not enter into agreements with landowners or developers
for reimbursement of costs incurred in connection with the District with a
total reimbursement amount exceeding the Bond Limit Amount.
(b) All agreements entered into by the District with landowners or developers
for reimbursement of costs incurred in connection with the District shall
provide that: (i) the District will not reimburse the landowner or developer
for costs not reim µrsed by the issuance of Bonds before
ai2U , 20X' and (ii) the landowner or developer waives all
claims ab inst the City for reimbursement of obligations not reimbursed
by the issuance of Bonds on or before , 203e
(c) The District agrees that any developer reimbursement agreements entered
into by the District in violation of this section shall be void.
(d) To the extent permitted by law, the District hereby indemnifies the City
against any claims pursuant to reimbursement agreements executed in
violation of this section.
(e) The District shall submit copies of such reimbursement agreements to the
City within 60 days after such agreements are fully executed.
Amended Agreement Concerning Operation
of South Denton County WCID No. 1 -Brookfield Page 7
ARTICLE V
REPORTING REQUIREMENTS
The District shall: (a) send a copy of each order or other action setting an ad valorem tax
rate to the City Secretary, City Manager, and Finance Director within thirty (30) days after the
District adopts the rate; (b) send a copy of each annual audit (when required to be conducted by
TCEQ rules) to the City Secretary, City Manager, and Finance Director within thirty (30) days
after approval by the Board; and (c) provide copies of any material event notices filed under
applicable federal securities laws or regulations to the City Secretary, City Manager, and Finance
Director within thirty (30) days after filing such notices with the applicable information
repositories.
ARTICLE VI
AREA OF, AND LIMITATIONS ON, SERVICE
The District shall not sell or deliver services to areas outside the District without prior
City Council approval; provided, however, the District may serve a maximum of ten (10)
equivalent residential water connections outside the District with the City Water Director's
written approval.
ARTICLE VII
CONVERSION, ANNEXATION OR DISANNEXATION BY DISTRICT
The District shall not: (a) annex any additional lands to. the District; (b) convert from a
fresh water supply district to another type of district; (c) consolidate with another district; (d)
divide into two or more new districts; or (e) seek additional governmental powers beyond those
described in Chapters 49, 51 and 53 of the Water Code and Section 5.02 of this Amended
Agreement without prior City Council approval.
ARTICLE VIII
ANNEXATION OF DISTRICT BY CITY
8.01 General Terms. The Parties acknowledge and agree that the Property lies wholly
within the City's ETJ; is not bordered by another city, town, or village; and is not currently
included in the City's annexation plan.
8.02 Incorporation. In furtherance of the purposes of this Amended Agreement, the
District covenants and agrees to the extent allowed by law that, except upon written consent of
the City Council, the District shall 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 seeking to include any of the Property within the boundaries
of any other incorporated entity.
8.03 Notice. Within thirty (30) days after the Effective Date, the District shall file in
the real property records of Denton County: (a) a notice in the form required by Section 49.452
of the Water Code; and (b) an amended annexation notice in the form of Exhibit D attached to
Amended Agreement Concerning Operation
of South Denton County WCID No. 1 -Brookfield Page 8
this Amended Agreement stating that the City has the authority to annex the Property subject to
the limitations set forth in Section 9.04.
8.04 Full Purpose Annexation. 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) 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 y the District to reimburse Owner or developer for such facilities; or (c)
ARTICLE IX
TERM OF AGREEMENT
This Amended Agreement shall be effective from the Effective Date and shall continue in
effect until the District is annexed for full purposes and dissolved by the City or until terminated
in writing by mutual agreement of the City and the District.
ARTICLE X
BREACH, NOTICE AND REMEDIES
10.01 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.
10.02 Cure of Breach. The breaching Party shall commence curing such breach within
fourteen (14) calendar days after the time the breaching Party receives such Notice and complete
the cure within 14 calendar days from the date of commencement of the cure; however, if the
breach is not reasonably susceptible to cure by the breaching Party within such 14-day period,
the non-breaching Party shall not bring any action so long as the breaching Party has commenced
to cure the default within such 14-day period and diligently completes the cure within a
reasonable time without unreasonable cessation of the work.
10.03 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 an
action under the Uniform Declaratory Judgment Act, specific performance, mandamus,
injunctive relief, and other remedies described in this Amended Agreement; provided, however,
that the non-breaching Party shall not be entitled 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. 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.
10.04 Governmental Powers; Waiver of Immunity. By execution of this Amended
Agreement, neither the City nor the District waives or surrenders any of their respective
governmental powers, immunities or rights, except as specifically waived pursuant to this
section. The City and the District mutually waive their governmental immunity from suit and
Amended Agreement Concerning Operation
of South Denton County WCID No. I -Brookfield Page 9
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 or the District has with
respect to suits against the City or the District by persons or entities not a party to this Amended
Agreement.
ARTICLE XI
ADDITIONAL PROVISIONS
11.01 Notice. Any notices, certifications, approvals, or other communications (a
"Notice") required to be given by one Party to another under this Amended Agreement shall be
given in writing addressed to the Party to be notified at the address set forth below and shall be
deemed given: (a) when the Notice is delivered in person to the person to whose attention the
Notice is addressed; (b) when received if the Notice is deposited in the United States Mail,
certified or registered mail, return receipt requested, postage prepaid; or (c) when the Notice is
delivered by Federal Express, UPS, or another nationally recognized courier service with
evidence of delivery signed by any person at the delivery address. 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
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: City Secretary
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: City Manager
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Planning and Development Director
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: City Attorney
Amended Agreement Concerning Operation
of South Denton County WCID No. I - Brookfield Page 10
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Finance Director
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Transportation and Public Works Director
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Water Director
To the District:
South Denton County Water Control and Improvement
District No. 1
c/o Winstead PC
Attn: Ross Martin
500 Winstead Building
2728 N. Harwood Street
Dallas, Texas 75201
11.02 No Waiver. Any failure by a Party to insist upon strict performance by the other
Party of any material provision of this Amended Agreement shall not be deemed a waiver
thereof, and the Party shall have the right at any time thereafter to insist upon strict performance
of any and all provisions of this 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.
11.03 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 AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE
DETERMINATION OF ANY DISPUTE ARISING HEREUNDER.
11.04 Authority to Execute. The City warrants that this Amended Agreement has been
approved by the City Council in accordance with the City Charter and City Ordinances and all
applicable public meeting and public notice requirements (including, but not limited to, notices
Amended Agreement Concerning Operation
of South Denton County WCID No. I - Brookfield Page I 1
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. The District warrants that this
Amended Agreement has been approved by the Board in accordance with all applicable public
meeting and public notice requirements (including, but not limited to, notices required by the
Texas Open Meetings Act) and that the individual executing this Amended Agreement on behalf
of the Board has been authorized to do so.
11.05 Severability. The provisions of this Amended Agreement are severable and, in
the event 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 provision so severed which new provision shall, to the extent possible,
accomplish the intent of the Parties as evidenced by the provision so severed.
11.06 Changes in State or Federal Laws. If any state or federal law changes so as to
make it impossible for the City or the District to perform its obligations under this Amended
Agreement, the Parties will cooperate to amend the Amended Agreement in such a manner that
is most consistent with the original intent of the Amended Agreement as legally possible.
11.07 Additional Documents and Acts. The Parties agree that at any time after
execution of this Amended Agreement, they will, upon the request of any 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.
11.08 Captions. Captions and headings used in this Amended Agreement are for
reference purposes only and shall not be deemed a part of the Amended Agreement.
11.09 Assi nment. Neither the District nor the City may assign this Amended
Agreement without the written consent of the other Party.
11.10 Amendment. This Amended Agreement may be amended only with the written
consent of both Parties and with approval of the governing bodies of the City and the District.
11.1 1 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.
Amended Agreement Concerning Operation
of South Denton County WC1D No. 1 - Brookfield Page 12
1 1.12 Third-Party Beneficiaries. This Amended Agreement is solely for the benefit of
the Parties, and for the benefit of Owner as a third-party beneficiary. Neither the City nor the
District intends by any provision of this Amended Agreement to create any rights in any third-
party beneficiaries other than Owner or to confer any benefit upon or enforceable rights under
this Amended Agreement or otherwise upon anyone other than the City, the District and Owner.
11.13 Incorporation of Exhibits by Reference. All exhibits attached to this Amended
Agreement are incorporated into this Amended Agreement by reference for the purposes set
forth herein, as follows:
Exhibit A Map of Property
Exhibit B Legal description of the Property
Exhibit C Joinder Agreement
Exhibit D Annexation Notice
11.14 Conspicuous Provisions. The City and the District 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.
11.15 Counterpart Originals. This Amended Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Amended Agreement Concerning Operation
of South Denton County WCID No. 1 - Brookfield Page 13
ATTT: TY OF FORT WORTH
By: at,
Assistant City Manager
r/a
(�ai44/y Kayser, City Secre r
Date: 2 /S/�7
APPROVED AS TO FORM AND
LEGALITY:
Oro
Assistant City Attorney
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me, on the/! lay of r , 2016,'%
by Fernando Costa, Assistant City Manager of the City of Fort Worth, Texas on b half of said
City, r
�.,, TRIKINYA L JOHNSON
, ....,o
:i,• :Notary Public,State of Texas Notary P blit, SA of Texas
, Comm. Expires 04-17-2018
Notary ID 1238832-0 Printed Name: r.' -s
My Commission Expires: oy 1 7 2A/ v
[SEAL]
Amended Agreement Concerning Operation
of South Denton County WC1D No. 1 -Brookfield Page 14
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.
Dana Burghdoff
Assistant Director-P nning
Planning&Development Department
BROOKFIELD FRESH WATER SUPPLY DISTRICT
NO. 1 OF DENTON COUNTY
f/k/a South Denton County Water Control
and Improvement District No. 1
By: M.
Vice President, Board of Supervisors
Date:—.2-3
STATE OF TEXAS §
§
COUNTY OF b"A §
This instrument was acknowledged before me, on the 3-1d day of F L� , 2017,
by S _'^ imo►�,Vresident, Board of Supervisors of Brookfield Fresh Water Supply
District No. 1 of Denton County f/k/a South Denton County Water Control and Improvement
District No. 1, on behalf of said district.
Notary Public, State of Texas
Printed Name: R&°n- ban;PLs
My Commission Expires: 10-11- )r
°1PaY-PG9°=, REBECCA DANIELS
.*_ Notary public
STATE OF TEXAS
My Comm.Exp.October 11,2013 j3
56RS.T[�J^"
Amended Agreement Concerning Operation
of South Denton County WC1D No. I -Brookfield Page 15
Exhibit A
Map of Property
Exhibit A—Page 1
Amended Agreement Concerning Operation
of South Denton County WCID No. 1 -Brookfield
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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 l;
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 "EC&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"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 "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—Page I
Amended Agreement Concerning Operation
of South Denton County WCID No. 1 -Brookfield
Exhibit C
JOINDER AGREEMENT
WHEREAS, The Texas Commission on Environmental Quality ("TCEO") approved
creation of the South Denton County Water Control and Improvement District encompassing
231.579 acres of land described on Exhibit A (the "District") by order dated April 19, 2007; and
WHEREAS, the District was subsequently converted to a fresh water supply district
operating under Chapters 49, 51 and 53 of the Texas Water Code; and
WHEREAS, the City Council of the City of Fort Worth approved that certain Amended
Development Agreement between the Citv of Fort Worth and Brookfield Acquisitions, L.P.
governing all land within the District ons -(City Secretary Contract
No.42Zb-) (the "Amended Development Agreem t"); and
AIL
WHEREAS, the Board wishes to enter into this Joinder Agreement to confirm and adopt
the applicable terms and provisions of the Amended Development Agreement, and agrees to
operate pursuant to those terms and provisions of the Amended Development Agreement which
are applicable to the District, as such Amended Development Agreement may be amended from
time to time.
NOW, THEREFORE, BE IT RESOLVED, DETERMINED, AND AGREED BY
THE BOARD OF SUPERVISORS OF SOUTH DENTON COUNTY WATER CONTROL
AND IMPROVEMENT DISTRICT, AS FOLLOWS:
1. Consideration. This Joinder Agreement has been authorized, agreed to, and entered
into in consideration of the benefits and promises contained in the Amended
Development Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged.
2. Approval of Agreement. The Board hereby consents to, confirms and adopts the
applicable terms and provisions of the Amended Development Agreement and assumes
all obligations set out in the Amended Development Agreement which are applicable to
the District.
EXECUTED AND APPROVED ON , 2016.
SOUTH DENTON COUNTY WATER CONTROL
AND IMPROVEMENT DISTRICT NO. 1
By:
President, Board of Supervisors
Date:
Exhibit C—Page 1
Amended Agreement Concerning Operation
of South Denton County WCID No. 1 -Brookfield
ATTEST:
By:
Name:
Exhibit C—Page 2
Amended Agreement Concerning Operation
of South Denton County WCID No. I -Brookfield
Exhibit D
ANNEXATION NOTICE
STATE OF TEXAS §
COUNTY OF DENTON §
AMENDED NOTICE CONCERNING ANNEXATION AND SERVICES
The real property described in Exhibit A attached hereto and incorporated herein (the
"Property") is located in South Denton County Water Control and Improvement District No. 1
(the "District"). The District is located wholly within the extraterritorial jurisdiction of the City
of Fort Worth. The City does not impose property taxes within the District and is not required
by state law to provide police protection, fire protection, road maintenance or any other
municipal services to the District.
The City of Fort Worth may annex the Property for full purposes upon the earliest to
occur of:
(1) dissolution of the District; or
(2) 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;
1Z�'�3%,
THIS NOTICE SUPERSEDES THAT CERTAIN NOTICE CONCERNING ANNEXATION
AND SERVICES RECORDED IN THE DENTON COUNTY REAL PROPERTY RECORDS
ON OCTOBER 3, 2011, AS INSTRUMENT NO. 2011-93139.
For additional information concerning potential annexation of the District, contact the
City of Fort Worth Planning and Development Director.
SOUTH DENTON COUNTY WATER CONTROL
AND IMPROVEMENT DISTRICT NO. I
By:
Name printed:
Title:
Exhibit D—Page 1
Amended Agreement Concerning Operation
of South Denton County WCID No. 1-Brookfield
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me, on the day of , 20 ,
by , President, Board of Supervisors of South Denton County Water Control
and Improvement District No. 1, on behalf of said district.
Notary Public, State of Texas
Printed Name:
My Commission Expires:
[SEAL]
After recording, return to:
Water Director
City of Fort Worth
1000 Throckmorton
Fort Worth, TX 76102
Exhibit D—Page 2
Amended Agreement Concerning Operation
of South Denton County WCID No. I-Brookfield.
Annexation Notice
Exhibit A
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
cornea- 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 I 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 l;
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 "EC&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 `BC&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 "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.
41378.12
Exhibit D—Page 3
Amended Agreement Concerning Operation
of South Denton County WCID No. 1-Brookfield
M&C Review Page 1 of 3
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FOR�T�RT1i
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 NO
CONSENT HEARING:
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) awn 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://anns.cfwnet.orLy/council packet/me review.asn?ID=22358&councildate=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://anns.cfwnet.ora/council Dacket/mc review.asp?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
httn://anns.cfwnet.org/council packet/mc review.asn?TTS=223.58&counciIdate=12/13/2016 2/20/2017