HomeMy WebLinkAboutContract 32896 CITY SECRETARY
CONTRACT NO.
AGREEMENT CONCERNING CREATION AND OPERATION
OF CITY OF FORT WORTH
MUNICIPAL UTILITY DISTRICT NO. 1 OF DENTON COUNTY
STATE OF TEXAS §
COUNTY OF DENTON §
This Agreement Concerning Creation and Operation of City of Fort Worth
Municipal Utility District No. 1 of Denton County (this "Agreement') is entered into by
the City of Fort Worth, Texas a home-rule municipal corporation situated in Tarrant,
Denton, and Wise Counties, Texas, (the "C "), acting by and through its duly
authorized Assistant City Manager; Aperion Communities, LLLP, Eladio Properties,
LLLP and Drooy Properties, LLLP, Arizona limited liability limited partnerships
(individually and collectively, "Owner"); and City of Fort Worth Municipal Utility
District No. 1 of Denton County, a municipal utility district created pursuant to Article
XVI, Section 59, of the Texas Constitution, Chapters 49 and 54 of the Texas Water Code,
and the applicable Special District Local Law (the "District"), which District, after the
District Confirmation Date, will become a party to this Agreement.
ARTICLE I
RECITALS
A. Owner has represented to the City that Owner is the owner of
approximately 431.303 acres in Denton County, Texas, as shown on Exhibit A and
described on Exhibit B attached to this Agreement (the "Development"). The
Development lies entirely within the City's extraterritorial jurisdiction ("ETT'). Owner
intends the Development to be the first phase of the master-planned community known as
"Tradition"depicted for informational purposes only on the attached Exhibit A.
B. The Texas legislature approved the creation of the District containing the
Development by Act of May 25, 2005, 79th Legislature, Regular Session, Chapter 1330,
Special District Local Laws Code, Chapter 8129, effective September 1, 2005 (the
"District Legislation"); provided, however, the District Legislation provides that the
election to confirm creation of the District may not be held unless the City adopts a
resolution after September 1, 2005 consenting to the creation of the District.
C. Owner has submitted a petition to the City to obtain the City's consent to
the creation of the District (the "Consent Petition") in accordance with the District
Legislation.
Agreement Concerting Creation and Operation Page 1
D. Owner has submitted a petition to the City requesting that certain
commercial portions of the Development be annexed into the corporate limits of the City
for the limited purpose of allowing the City to impose a sales and use tax.
E. The purposes of this Agreement are to set out the mutually agreeable
terms and conditions relating to the creation and operation of the District, which are the
provisions under which the City has adopted its resolution consenting to the creation of
the District in accordance with the District Legislation and consistent with Section 42.042
of the Local Government Code and Section 54.016 of the Water Code. It is an essential
element of the granting of the City's consent to the creation of the District that, after the
District Confirmation Date, the District will approve and execute this Agreement and
become a Parry to it.
F. On December 13, 2005, pursuant to the Consent Petition, the City Council
of the City adopted Resolution No. 3299-12-2005 consenting to the creation of the
District (the "Consent Resolution"), which Consent Resolution approved, and is subject
to,the terms and conditions of this Agreement.
G. The Development is subject to that certain Agreement Regarding Water
and Sewer Utility Service (City Secretary Contract No. 30790) between Aqua Utilities,
Inc., Owner, and the City executed October 26, 2004 ("Original Utility Service
Agreement"), which agreement will be amended, restated, and replaced in its entirety by
that certain Superseding Agreement Regarding Water and Wastewater Utility Service
among Aqua Utilities, Inc., Owner, the District, and the City, a copy of which is attached
as Exhibit C to this Agreement(the " Superseding Utilily Agreement').
H. Pursuant to the Superseding Utility Agreement, Aqua Utilities, Inc.,
Owner, the City, and the District will execute that certain Buy-Out Option Contract, a
copy of which is attached to the Superseding Utility Agreement as Exhibit G (the `Buy-
Out Contract").
I. Pursuant to Article X of this Agreement, the Parties acknowledge that the
name of the District will be changed to "Tradition Municipal Utility District No. 1 of
Denton County."
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
"Agreement" means this Agreement Concerning Creation and Operation of City of Fort
Worth Municipal Utility District No. 1 of Denton County.
�P e 2 Agreement ConcerningCreation and Operation
"Attorney General"means the Attorney General of the State of Texas.
"Board"means the Board of Directors of the District.
"Bond" means (a) any instrument, including a bond, note, certificate of participation, or
other instrument evidencing a proportionate interest in payments, due to be paid by the
District, or (b) any other type of obligation that (1) is issued or incurred by the District
under the District's borrowing power, without regard to whether it is subject to annual
appropriation, and (2) is represented by an instrument issued in bearer or registered form
or is not represented by an instrument but the transfer of which is registered on books
maintained for that purpose by or on behalf of the District. The term shall include
obligations issued to refund outstanding Bonds, but shall not include reimbursement
agreements entered into between the District and a developer of the Development or bond
anticipation notes.
"Bond Limit Amount" means the maximum amount of Bonds, excluding refunding
Bonds,that may be issued by the District pursuant to Section 5.04 of this Agreement.
"Building Codes" means those portions of the following City codes that impose
engineering or other technical standards on the design and construction of Infrastructure
and that are in effect on the Effective Date, including any amendments thereto that are in
effect on the Effective Date, except as modified by Section 6.12:
(i) 2003 International Building Code, Ordinance Nos. 15948 and 16162
Sections 7-46 through 7-49 of the City Code;
(ii) 2003 International Residential Code, Ordinance No. 15949, Sections 7-
61 through 7-64 of the City Code;
(iii) 2002 National Electrical Code, Ordinance Nos. 15994, 16028 and
16165; Sections 11-1 through 11-4 of the City Code;
(iv) 2003 International Plumbing Code and 2003 International Fuel Gas
Code, Ordinance Nos. 15951 and 16164, Sections 26-1 through 26-4 of
the City Code;
(v) 2003 International Mechanical Code, Ordinance Nos. 15950 and 16163,
Sections 7-166 through 7-169 of the City Code; and
(vi) The following chapters/sections of the 2003 International Fire Code,
(Ordinance Nos. 16027 and 16252, Sections 13-1 and 13-2 of the City
Code, and excluding all other chapters and sections:
(a) Chapter 1 (Administration), excluding Sections 104.10 (Fire
Investigations), 104.10.1 (Assistance from Other Agencies), and
Agreement Concerning Creation and Operation ' �v�l`,� �R(QaND Page 3
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104.11 (Authority at Fires and Other Emergencies), Section
105.1.2, Item #1 (Operational Permits), and all sections related to
Item #1, and Section 105.6 (Required Operational Permits);
(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 45 (Referenced Standards); and
(k) Appendix I (Installation of Fire Service Features, Fire Protection
Systems and Tanks)
(vi) 2003 International Energy Conservation Code (Ordinance No. 15952),
Sections 7-41 through 7-44 of the City Code
(vii) The following sections of the Environmental Protection and Compliance
Code (Ordinance No. 12274):
(a) Article I, Divisions 1-3 (Administration and Enforcement),
Sections 12.5-100 through 12.5-123 of the City Code;
(b) Article II (Air Quality), Sections 12.5-200 through 12.5-211 of the
City Code; and
(c) Article III (Stormwater Protection), Sections 12.5-300 through
12.5-321 of the City Code.
"Buy-Out Contract" means that certain Buy-Out Option Contract to be executed by the
District, Owner, the City and Aqua Utilities, Inc., and wherein the District and Aqua
Agreement Concerning Creation and Operation 1 1_ .o^l pI age 4
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"Buy-Out Contract" means that certain Buy-Out Option Contract to be executed by the
District, Owner, the City and Aqua Utilities, Inc., and wherein the District and Aqua
Utilities, Inc. agree to convey to the City certain retail water and wastewater facilities, a
copy of which is attached to the Superseding Agreement as Exhibit G.
"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 service provider in a
specified area.
"CFA Policy" means the City's "Policy for the Installation of Community Facilities" as
amended March 20, 2001 (M & C G-13181) and in effect on the effective date of the
Development Agreement, including any amendments in effect on that date.
"Cily" means the City of Fort Worth, Texas, a home rule municipality located in Tarrant,
Wise, and Denton Counties.
"City Attorney"means the City Attorney of the City.
"City 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 Objection" means an objection by the City to a Bond issue as defined in Section
5.10 of this Agreement.
"City Review Fees" means: (a) the fees and charges applicable to the City's preliminary
and final plat review and approval process according to the fee schedule adopted by the
City Council and in effect on the date of submittal of each plat application; and (b) fees
and charges applicable to the review of plans relating to construction of Infrastructure
according to the fee schedule adopted by the City Council and in effect on the date of
submittal of such plans.
"City Secretary"means the City Secretary of the City.
"Consent Petition" means the petition submitted by Owner to the City requesting the
City's consent to the creation of the District and to the Road Project.
"Consent Resolution" means the Resolution No. 3299-12-2005 adopted December 13,
2005 by the City Council that approves this Agreement and that contains the City's
consent to the creation of the District in accordance with the District Legislation,
including,but not limited to, consent for holding a confirmation election and undertaking
the Road Project.
"Contractor" means a person or entity that constructs, alters or repairs Infrastructure
Agreement Concerning Creation and Operation Page 5
required to serve the Development.
"Development"means that certain 431.303-acre tract located in Denton County, Texas as
shown on Exhibit A and described on Exhibit B.
"Development Agreement" means the Development Agreement attached as Exhibit D
to this Agreement to be executed by the City and Owner.
"Development Director"means the Director of the City's Development Department.
"District" means the City of Fort Worth Municipal Utility District No. 1 of Denton
County, to be renamed in accordance with Article X of this Agreement, created in the
Development by the District Legislation.
"District Confirmation Date" means the date on which the Board canvasses the results of
the election held within the District confirming the creation of the District.
"District Le islg ation" means Act of May 25, 2005, 79th Legislature, Regular Session,
Chapter 1330, Special District Local Laws Code, Chapter 8129, effective September 1,
2005, creating the District.
"Effective Date" means the effective date of this Agreement and is December 13, 2005,
the date on which the Consent Resolution was adopted by the City.
"ETJ"means the extraterritorial jurisdiction of a city as defined by the Local Government
Code, as amended, with the City's ETJ being an unincorporated area presently extending
five miles from the City's corporate limits, excluding other incorporated municipalities
and their respective ETJs.
"Finance Director"means the Director of the City's Finance Department.
"Governing Regulations" means the following (and only the following) that are in effect
on the Effective Date, including any amendments thereto that are in effect on the
Effective Date, except as modified by Section 6.12:
(i) Subdivision Regulations;
(ii) CFA Policy;
(iii) All City fire protection requirements for water line sizing, number of
connections,minimum water pressure, and number of fire hydrants;
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(iv) All City standards for design, location, construction, operation and
maintenance of water and wastewater infrastructure and expressly
including, without limitation, the Policy and Procedure for Processing
Water and Wastewater Projects for Design and Construction (1999) and
General Contract Documents and Specifications for Water Department
Projects;
(v) Utility location standards;
(vi) Transportation & Public Works Department, 2005 Pavement Design
Standards Manual;
(vii) Public Works Department Storm Drainage Criteria and Design Manual;
(viii) City's Standard Specifications for Street and Storm Drain Construction;
(ix) Transportation and Public Works Department Traffic Engineering Design
Standards and Policy Guidelines;
(x) Roadway Standards and Master Thoroughfare Plan approved by the City
Council on February 19, 2002;
(xi) Denton County standards for the construction of drainage and stormwater
improvements contained in Denton County Subdivision Rules and
Regulations(September, 2003), Sections VIII, IX, and XI.
(xii) Denton County Regulations for Floodplain Management; and
(xiii) Special Regulations.
"Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure
improvements installed or constructed to serve the Development, whether located within
or outside the Development.
"Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of
Infrastructure according to the fee schedule adopted by the City Council and in effect on
the date of the inspection.
"Local Government Code"means the Texas Local Government Code, as amended.
"Notice"means notice as defined in Section 14.01 of this Agreement.
"Original Utility Service Agreement" means that certain Agreement Regarding Water
and Sewer Utility Service (City Secretary Contract No. 30790) between Aqua Utilities,
Inc., Owner, and the City executed October 26, 2004.
Agreement Concerning Creation and Operation Page 7
"Owner" means, individually and collectively, Aperion Communities, LLLP, Eladio
Properties, LLLP and Drooy Properties, LLLP, Arizona limited liability limited
partnerships,their successors and their Assignees as permitted by this Agreement.
"PqjIf means, individually, the City, Owner, or the District, their successors and their
Assignees as permitted by this Agreement.
"Road Protect" means the construction, acquisition, improvement, maintenance, and
operation of all macadamized, graveled, or paved roads and turnpikes and improvements
in aid of such roads and turnpikes located within the District and shown on any final plat
approved by the City's Plan Commission for the Development.
"Special Regulations" means regulations concerning street, right-of-way and sidewalk
width, block length and minimum street centerline off-sets described in Exhibit E to this
Agreement.
"Strategic Partnership Agreement" means the Strategic Partnership Agreement attached
as Exhibit F to this Agreement to be executed by the City and the District providing for
the limited purpose annexation of certain portions of the Development designated for
commercial use for the sole purpose of imposing a sales and use tax pursuant to Section
43.0751 of the Local Government Code.
"Subdivision Regulations" means the City's Subdivision Ordinance No. 7234 and Plan
Commission Rules and Regulations in effect on the Effective Date, including any
amendments thereto in effect on the Effective Date.
"Superseding Utiliy Agreement" means that certain Superseding Agreement Regarding
Water and Wastewater Utility Service among Aqua Utilities, Inc., Owner,the District and
the City, a copy of which is attached as Exhibit C to this Agreement.
"TCEO" means the Texas Commission on Environmental Quality or its successor state
agency.
"Tradition" means the proposed master-planned community containing approximately
2,660 acres that may include residential, commercial and recreational uses as generally
depicted for informational purposes only on Exhibit A.
"Water Code"means the Texas Water Code, as amended.
"Water Director"means the Director of the City's Water Department.
Agreement Concerning Creation and Operation Page 8
ARTICLE III
CITY CONSENTS
In accordance with the terms of this Agreement, the City consents to (a) the
creation of the District over the Development, (b) the District undertaking the Road
Project, and (c) the calling and holding of an election within the District to confirm the
creation of the District.
ARTICLE IV
EXECUTION OF AGREEMENTS
4.01 Documents To Be Executed. Owner covenants and agrees to cause the
District to approve, execute and deliver to the City the following agreements within thirty
(30)days after the District Confirmation Date:
(a) This Agreement;
(b) The Superseding Utility Agreement;
(c) The Buy-Out Option Contract; and
(d) The Memorandum of Buy-Out Option Contract attached to the Buy-Out
Contract as Exhibit C;
and the following agreement within ninety(90)days after the District Confirmation Date:
(e) The Strategic Partnership Agreement.
4.02 Issuance of Bonds. If the District fails to approve, execute and deliver to
the City any one or more of the agreements identified in Section 4.01 of this Agreement
within the time frames required by Section 4.01 and such failure is not cured within
fifteen (15) days after Notice from the City to Owner and the District, such failure shall
constitute a material breach of this Agreement by Owner and shall entitle the City to
prevent the issuance of Bonds until the failure has been cured.
4.03 Reimbursement. If Owner fails to cause the District to approve, execute
and deliver to the City any one or more of the agreements identified in Section 4.01 of
this Agreement within the time frames required by Section 4.01 and such failure is not
cured within fifteen (15) days after Notice from the City to Owner and the District, then
Owner shall not, from and after the date of such failure, enter into any agreements with
the District or seek reimbursement from the District for any expenses incurred in
connection with the District or development of the Development until the failure has been
cured.
4.04 Strategic Partnership Agreement. By this Agreement and the Consent
Resolution, the City has approved the form of the Strategic Partnership Agreement;
however, pursuant to Section 43.0751(e) of the Local Government Code, the City
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Council is authorized to adopt the Strategic Partnership Agreement only after such
agreement has been adopted by the Board.
ARTICLE V
ISSUANCE OF BONDS AND CONSENT TO ROAD PROJECT
5.01 Issuance of Bonds. The District may issue Bonds as permitted by law and
this Agreement. Except as authorized by this Agreement, the District shall not issue
Bonds without prior approval of the City Council.
5.02 Purposes. The purposes for which the District may issue Bonds shall be
restricted to the following:
(a) Purchase, construction, acquisition, repair, extension and improvement of
land, easements, works, improvements, facilities, plants, equipment, and
appliances necessary to:
(i) Provide a water supply for the District for municipal, 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
(iv) Undertake the Road Project as set forth in Section 5.04;
(b) Payment of organization expenses, initial operation expenses, cost of
issuance, interest during construction and capitalized interest;
(c) Establishment, operation, and maintenance of a fire department to perform
fire-fighting services within the District; and
(d) Refunding of any outstanding Bonds of the District for a debt service
savings;provided, however, that any such refunding Bonds otherwise satisfy
the requirements of this Agreement.
5.03 Limitations on Bonds. Owner and the District acknowledge that but for
this Agreement, pursuant to Section 54.016 of the Water Code, the City's consent to
inclusion of the Development within the District could include restrictions on the
purposes for which the District may issue Bonds and that those restrictions could entirely
prohibit issuance of Bonds for roads. Owner and the District also acknowledge that
Section 8129.102(c) of the District Legislation provides that the District may not
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undertake a road project unless the City consents by ordinance or resolution.
5.04 Road Project. Notwithstanding the restrictions otherwise permitted by
Section 54.016 of the Water Code (as referenced in Section 5.03 of this Agreement), the
City acknowledges that the District has the power to undertake the Road Project within
the District in accordance with Section 8129.102(c) of the District Legislation, provided
the City consents by ordinance or resolution, and that such City consent was granted by
the Consent Resolution, subject to the terms of this Agreement. This Agreement hereby
authorizes and further consents to the District undertaking the Road Project within the
District and to the issuance by the District of Bonds for the Road Project; however, the
District may issue Bonds only after the District becomes a Party to this Agreement. In
consideration for the City's consent to the Road Project, the District agrees that the total
amount of Bonds issued by the District for all purposes (excluding refunding Bonds)
shall not exceed $31,820,000, less the amount of funds expended by the District pursuant
to Sections 4.03(a), (b) and (c) of the Strategic Partnership Agreement for any of the
authorized purposes listed in Section 5.02 (the "Bond Limit Amount"), unless
specifically approved by the City Council. Owner and the District acknowledge that the
Bond Limit Amount is sufficient to accomplish the purposes of the District and that
Owner and the District have voluntarily agreed to the Bond Limit Amount in
consideration for the City's consent to the Road Project. District facilities, if any, the
cost of which exceeds the Bond Limit Amount will be dedicated to the District without
reimbursement unless otherwise approved by the City Council.
5.05 Bond Requirements. The District shall obtain all necessary authorizations
for Bonds issued to finance the acquisition or construction of facilities and infrastructure
for the benefit of the District in accordance with this Agreement and laws applicable to
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 one month period immediately preceding the date
that the 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 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
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(e) No Bonds shall be issued having an issuance date more than fifteen (15)
years after the District Confirmation Date without the City's written
approval.
5.06 Certifications. With respect to any matter required by this Article V to be
certified in writing, this Agreement also requires, and the District hereby warrants, that
every statement in any certification shall be true and correct in all material respects and
that the person signing the certification has been given the requisite authority to do so on
behalf of the District.
5.07 Economic Feasibility. Before submission of an application for approval of
issuance of Bonds to the TCEQ or the Attorney General, the District's financial advisor
shall certify in writing to the City Secretary, City Manager, and Finance Director that the
Bonds are being issued within the then-current economic feasibility guidelines
established by the TCEQ for districts issuing bonds for water, sewer, drainage or road
facilities in Denton County.
5.08 Notice of Bond Issues. At least thirty (30) days before submission of an
application for approval of issuance of Bonds to the TCEQ or the Attorney General,
whichever occurs first, the District shall deliver to the City Secretary, City Manager, and
Finance Director the certification required by Section 5.07 and Notice containing: (a) the
amount of Bonds being proposed for issuance; (b) a description of the projects to be
funded and/or the Bonds to be refunded by such Bonds; and (c)the proposed debt service
and District tax rate after issuance of the Bonds. If the District is not required to obtain
TCEQ approval of the issuance of the Bonds, the District shall deliver such certification
and Notice to the City Secretary, City Manager, and Finance Director at least sixty (60)
days prior to issuance of Bonds, except refunding Bonds,by the District.
5.09 Compliance with Agreements. At least thirty (30) days before submission
of an application for approval of issuance of Bonds to the TCEQ or the Attorney General,
whichever occurs first, the District shall certify in writing to the City Secretary, City
Manager, and Finance Director that the District is not in breach of any material provision
of the Consent Resolution, this Agreement, or the Strategic Partnership Agreement.
Material provisions include, but are not limited to, Sections 4.01, 5.01, 5.02, 5.04, 5.05,
5.06 and 6.01 and Articles VII and IX of this Agreement; but exclude Section 6.10 of
this Agreement which is not a material provision of this Agreement for purposes of this
Section 5.09.
5.10 Bond Objections. The City shall have a period of sixty (60) days after
receiving the last of the certifications and Notices required by Sections 5.08 and 5.09 of
this Agreement within which to object to the Bonds. If the City fails to object to a
proposed Bond issue within such 60-day period, the City shall be deemed to have waived
all objections. The only basis for an objection by the City to a proposed Bond issue shall
be that the District is in default of a material provision of the Consent Resolution, this
Agreement, the Superseding Utility Agreement, the Buyout Agreement, or the Strategic
Partnership Agreement. If the City objects to a proposed Bond issue (a "01Y
Agreement Concerning Creation and Operation Page 12
Objection"), such objection (a) shall be in writing, (b) shall be given to the District; (c)
shall be signed by the City Manager or the City Manager's designee, and (d) shall
specifically identify the material provision(s) of the Consent Resolution, this Agreement,
the Superseding Utility Agreement, the Buyout Agreement or the Strategic Partnership
Agreement for which the District is in default. It shall not be a basis for a City Objection
that the City disagrees with the District's financial advisor as to the financial feasibility of
the Bonds so long as the proposed Bonds are approved by the TCEQ and Attorney
General. In the event a City Objection is timely given to the District (as required by this
section) with respect to a specific Bond application, the City and the District shall
cooperate to resolve the City Objection within a reasonable time, and the Bond
application to which the City Objection applies shall be delayed until the City Objection
has been cured or waived. Unless otherwise cured by written agreement of the Parties, a
City Objection shall be deemed cured if (x) the District files a petition seeking
declaratory judgment in state district court, (y) thirty (30) days before filing the petition
the District gives the City Attorney and the City Manager Notice of, and waives any
objections to the City's right to intervene in, such a declaratory judgment action, and (z)
the district court determines that the District is not in default with respect to any material
provision of the Consent Resolution, this Agreement, the Superseding Utility
Agreement, the Buyout Agreement, or the Strategic Partnership Agreement or,
alternatively, finds that if such a default had previously occurred, the default has been
cured. A City Objection may be waived by the City at any time.
5.11 Official Statements. Within thirty (30) days after the District closes the
sale of each series of Bonds, the District shall deliver to the City Secretary, City
Manager, and Finance Director a copy of the final official statement for such series of
Bonds. If the City requests additional information regarding such issuance of the Bonds,
the District shall promptly provide such information at no cost to the City.
ARTICLE VI
CONSTRUCTION,OPERATION,MAINTENANCE
AND INSPECTION OF DISTRICT FACILITIES
6.01 Infrastructure Standards. All Infrastructure shall be designed and
constructed in compliance with: (a) the Governing Regulations; (b) the rules and
regulations, if any, of the District; (c)the rules and regulations of TCEQ; and(d)the rules
and regulations, if any, of the holder of any CCN for retail water or retail wastewater
service to all or any portion of the Development. In the event of any conflict between the
Governing Regulations and either the rules and regulations of the District or the rules and
regulations of any CCN holder, the Governing Regulations shall control unless otherwise
agreed in writing by the Development Director.
6.02 Additional Construction Standards for Water Utility Infrastructure. The
water utility Infrastructure serving the Development must be constructed using the same
type, or a compatible type, of meters, valves, meter boxes and service lines used by the
City for its municipal water system; provided, however, that automated meter reading
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("AMR")-compatible may be used.
6.03 Plan Review; Payment of Fees; and Pre-Construction Conference.
Construction of Infrastructure shall not commence until the plans and specifications have
been reviewed and accepted by the City for compliance with the Governing Regulations;
a pre-construction conference has been held by the Contractor, the District's engineer and
representatives of the City's Department of Engineering; and the applicable City Review
Fees have been paid. At such pre-construction conference, the Department of
Engineering shall designate City employees to serve as the project inspector (the "Cily
Infector")for purposes of Sections 6.05, 6.07 and 6.11 and the project manager.
6.04 Community Facilities Agreements. Construction of Infrastructure shall
not commence until Owner has executed a Communities Facilities Agreement in
accordance with the CFA Policy. Notwithstanding the Governing Regulations, the City
shall not participate in the cost of construction of any Infrastructure unless the City
requires the construction of Infrastructure that exceeds that which is roughly
proportionate to the impact of the Development.
6.05 Inspections by Third Party Inspectors. Except as otherwise provided in this
section, inspectors retained by the District (or by Owner on behalf of the District) and
approved by the City (which approval shall not be unreasonably withheld or delayed)
shall perform or cause to be performed all inspections and testing of the construction of
Infrastructure for compliance with this Article VI. The District or Owner, as applicable,
shall submit the names, addresses and phone numbers of such inspectors simultaneously
with submittal of plans in accordance with Section 6.03. Construction of Infrastructure
shall not commence until such inspectors have been approved by the City. The District
shall cause the inspectors to provide copies of all inspection and testing reports to the
City Inspector. All costs of such third party inspectors shall be paid by the District (or
by Owner on behalf of the District).
6.06 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 6.05 if the
inspector: (i) fails to properly perform inspections and testing to ensure construction in
compliance with Article VI; or (ii) fails to provide copies of inspection and testing
reports to the City's Department of Engineering. Upon termination of any third party
inspector, the City, at its option, may allow the use of another approved third party
inspector or perform all necessary inspections and testing. Should the City elect to
perform inspections and testing for compliance with this Article VI pursuant to this
Section 6.06, the City shall perform such inspections and testing in a timely manner
(which inspections shall satisfy all applicable requirements of the TCEQ) and the District
(or Owner on behalf of the District) shall pay Infrastructure Inspection Fees.
6.07 Inspection by City. The City has the right, but not the obligation,to inspect
and test the Infrastructure at any time. Further, the City has the right 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
Agreement Concerning Creation and Operation �' �'�� V � Page 14
CITY �1_VTH 1
FT, WORTH, MY.
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 the Governing Regulations shall, for purposes of Section
5.09, constitute compliance with Sections 6.01(a), 6.02, 6.03, 6.04, 6.05, 6.07, and 6.09
of this Agreement. Notwithstanding anything contained herein, the City shall have the
right to charge Infrastructure Inspection Fees for such inspections and testing only if the
City performs inspections and testing pursuant to Section 6.06.
6.08 Contracts with Contractors. If a Contractor is not an Owner, then the
Owner shall incorporate the requirements of this Article VI into a written construction
contract with the Contractor. All contracts with such non-Owner Contractors shall
provide that the City is a third-party beneficiary of, and may enforce the contracts
against,the Contractor.
6.09 Access by City Employ. Upon prior Notice by the City, any duly
authorized employee of the City bearing proper credentials and identification shall be
granted access to any property of the District within the Development as the City may
determine necessary for the purpose of inspection and testing of Infrastructure.
6.10 Operation and Maintenance of Infrastructure. The District shall cause all
Infrastructure to be operated and maintained in accordance with the Governing
Regulations.
6.11 As-Built Drawings. The District shall deliver mylar as-built drawings for
all Infrastructure to the City Inspector within 30 days after final inspection.
6.12 Modification of Governing Regulations.
(a) If a preliminary plat for the entire 431.303 acres comprising the
Development is approved by the City's Plan Commission before January 1, 2007,
construction of Infrastructure in all portions of the Development for which the Plan
Commission approves final plats shall be in accordance with the Governing Regulations,
as defined in Article I.
(b) If a preliminary plat for the entire 431.303 acres comprising the
Development is approved by the City's Plan Commission between January 1, 2007 and
September 30, 2007, the Governing Regulations that are in effect on January 1, 2007,
including amendments in effect on January 1, 2007, shall apply to construction of
Infrastructure in all portions of the Development for which a final plat is approved by the
Plan Commission, and the definition of"Governing Regulations" shall be deemed to be
amended accordingly.
(c) If a preliminary plat for all or any portion of the Development is approved
by the Plan Commission on or after October 1, 2007, the Governing Regulations that are
in effect on the date of submittal of the preliminary plat shall apply to construction of
Agreement Concerning Creation and Operation Page 15
Infrastructure in all portions of the Development for which a final plat is approved by the
Plan Commission, and the definition of"Governing Regulations" shall be deemed to be
amended accordingly.
ARTICLE VII
REPORTING REQUIREMENTS
The District shall: (a) send a copy of each order or other action setting an ad
valorem tax rate to the City Secretary, City Manager, and Finance Director within thirty
(30) days after the District adopts the rate; (b) send a copy of each annual audit to the
City Secretary, City Manager, and Finance Director within thirty (30) days after approval
by the Board; and (c) provide copies of any material event notices filed under applicable
federal securities laws or regulations to the City Secretary, City Manager, and Finance
Director within thirty (30) days after filing such notices with the applicable federal
agency.
ARTICLE VIII
AREA OF,AND 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) retail residential water connections outside the District without the Water Director's
written approval.
ARTICLE IX
CONVERSION,ANNEXATION OR DISANNEXATION BY DISTRICT
The District shall not: (a) annex any additional lands to the District; (b) convert
into 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 in the
District Legislation without prior City Council approval.
ARTICLE X
NAME CHANGE
The District shall initiate proceedings to change the name of the District to
"Tradition Municipal Utility District No. 1 of Denton County" in accordance with
Section 49.071 of the Water Code or other applicable law within sixty(60) days after the
District Confirmation Date.
ARTICLE XI
ANNEXATION OF DISTRICT BY CITY
11.01 General Terms. The Parties acknowledge and agree that the Development
lies wholly within the City's ETJ; is not bordered by another city, town, or village; and is
not currently included in the City's annexation plan. The Parties further acknowledge
Agreement Concerning Creation and Operation Page 16
that the creation of the District, and the City's consent thereto, are for purposes that
include promoting the orderly development and extension of City services to the
Development upon annexation.
11.02 Incorporation. In furtherance of the purposes of this Agreement, the
District and Owner, on behalf of themselves and their respective successors and
Assignees covenant and agree to the extent allowed by law that, except upon written
consent of the City Council, neither the District nor Owner will: (a) seek or support any
effort to incorporate the Development or any part thereof; or (b) sign, join in, associate
with, or direct to be signed any petition seeking to incorporate any of the Development or
seeking to include any of the Development within the boundaries of any other
incorporated entity.
11.03 Notice. Within thirty (30) days after the District Confirmation Date, the
District shall file in the real property records of Denton County: (a) a notice in the form
required by Section 49.452 of the Water Code; and(b) a notice in the form of Exhibit G
attached to this Agreement stating that the City has the authority to annex the District
subject to the limitations set forth in Section 11.05.
11.04 Annexation of Portions of Development. Owner and the District agree to
cooperate with and assist the City in annexing one or more areas in the manner prescribed
by law which does not result in the dissolution of the District, each of which may not
exceed 525 feet in width at its widest point or such other width limitation subsequently
imposed by law, as reasonably necessary for the City to connect areas to the City that are
outside the District and that the City intends to annex. Notwithstanding the zoning
designation approved for the annexed area, such area can be developed and used in
accordance with the Development Agreement.
11.05 Full Purpose Annexation. The City will not annex the Development for
full purposes any earlier than the first to occur of(a) the date that construction of water,
sanitary sewer, drainage and road facilities to serve 90% of the Development is complete;
(b) fifteen (15) years after the Effective Date; (c) the dissolution of the District (other
than as a result of annexation by the City); or (d) termination of the Development
Agreement.
11.06 Limited Purpose Annexation. The Parties agree that the City shall have
the right to annex those portions of the Development that are intended for retail
development for the sole and limited purpose for the City to impose its sales and use tax
within the boundaries of such retail areas, pursuant to Section 43.0751 of the Local
Government Code. The terms and conditions upon which such limited purpose
annexations may occur shall be set forth in the Strategic Partnership Agreement.
11.07 Reimbursement Agreements. The District will not enter into any
developer reimbursement agreements or agreements for new projects or extraordinary
expenses, except as necessary for continued operation and maintenance of existing
District facilities, after publication of the first notice of proposed full purpose annexation
Agreement Concerning Creation and Operation Page 17
of the District by the City (which first publication shall not occur earlier than the date
provided in the Development Agreement), other than an annexation pursuant to Section
11.04 of this Agreement. The District further agrees that any developer reimbursement
agreements entered into by the District in violation of this requirement shall be void.
ARTICLE XII
TERM OF AGREEMENT
This Agreement shall be effective from the Effective Date and shall continue in
effect until the District is annexed for full purposes and dissolved by the City or until
terminated in writing by mutual agreement of the City and the District; provided,
however, if the creation of the District has not been confirmed at an election conducted
on or before November 30, 2006, this Agreement may be terminated by the City by
providing Notice to Owner.
ARTICLE XIII
BREACH,NOTICE AND REMEDIES
13.01 Notification of Breach. If either Party commits a breach of this
Agreement, the non-breaching Party shall give Notice to the breaching Party that
describes the breach in reasonable detail.
13.02 Cure of Breach. The breaching Party shall commence curing such breach
within fourteen (14) calendar days after the time the breaching Party receives such Notice
and complete the cure within 14 calendar days from the date of commencement of the
cure; however, if the breach is not reasonably susceptible to cure by the breaching Party
within such 14-day period, the non-breaching Party shall not bring any action so long as
the breaching Party has commenced to cure the default within such 14-day period and
diligently completes the cure within a reasonable time without unreasonable cessation of
the work.
13.03 Remedies for Breach. If the breaching Party does not substantially cure
such breach within the stated period of time, the non-breaching Party may, in its sole
discretion, and without prejudice to any other right under this Agreement, law, or equity,
seek an action under the Uniform Declaratory Judgment Act, specific performance,
mandamus, injunctive relief, and other remedies described in this Agreement; provided,
however, that the non-breaching Party shall not be entitled to terminate this Agreement
and each Party specifically waives any right such Party has or in the future may have to
terminate this Agreement (except for the right of the City to terminate as provided in
Article XII of this Agreement). It is understood and agreed that no Party will seek or
recover actual, consequential or any other type of monetary damages or awards, including
but not limited to attorney's fees, in the event that any Party brings suit under or related
to this Agreement. Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy
Properties, LLLP, are jointly and severally liable for the obligations of Owner when it is
a breaching Party under this Agreement, and the City may pursue its remedies for breach
against any one or more of them.
Agreement Concerning Creation and Operation Page 18
13.04 Governmental Powers; Waiver of Immunity. By execution of this
Agreement, neither the City nor the District waives or surrenders any of their respective
governmental powers, immunities or rights, except as specifically waived pursuant to this
section. The City and the District mutually waive their governmental immunity from suit
and liability only as to any action brought by a Party to pursue the remedies available
under this Agreement and only to the extent necessary to pursue such remedies. Nothing
in this section shall waive any claims, defenses or immunities that the City or the District
has with respect to suits against the City or the District by persons or entities not a parry
to this Agreement.
ARTICLE XIV
ADDITIONAL PROVISIONS
14.01 Notice. Any notices, certifications, approvals, or other communications (a
"Notice") required to be given by one Party to another under this Agreement shall be
given in writing addressed to the Parry to be notified at the address set forth below and
shall be deemed given: (a) when the Notice is delivered in person to the person to whose
attention the Notice is addressed; (b) when received if the Notice is deposited in the
United States Mail, certified or registered mail, return receipt requested, postage prepaid;
(c) when the Notice is delivered by Federal Express, UPS, or another nationally
recognized courier service with evidence of delivery signed by any person at the delivery
address; or (d) five business days after the Notice is sent by FAX (with electronic
confirmation by the sending FAX machine) with a confirming copy sent by United States
mail within 48 hours after the FAX is sent. If any date or period provided in this
Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for
calculating the Notice shall be extended to the first business day following the Saturday,
Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the
Parties are set forth below. The Parties may change the information set forth below by
sending Notice of such changes to the other Party as provided in this Section 14.01.
To the City:
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Tx. 76102
Attn: City Secretary
FAX: 817-392-6196
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Tx. 76102
Attn: City Manager
FAX: 817-392-6134
Agreement Concerning Creation and Operation UIAli I � Page 19
Orf a 111HAUY
qqpp e,anr+�y7�,WC Req
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Tx. 76102
Attn: Development Director
FAX: 817-392-7985
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Tx. 76102
Attn: City Attorney
FAX: 817-392-8359
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Tx. 76102
Attn: Finance Director
FAX: 817-392-8966
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Tx. 76102
Attn: Engineering Director
FAX: 817- 871-7895
To the District:
Fort Worth Municipal Utility District No. 1 of Denton County
c/o: Coats Rose
3 Greenway Plaza, Suite 2000
Houston, TX 77046
Attn: Timothy G. Green
FAX: 713-890-3924
To Owner:
Aperion Communities, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
FAX: 480-951-8414
Eladio Properties, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
FAX: 480-951-8414
Agreement Concerning Creation and Operation Page 20
Drooy Properties,LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
FAX: 480-951-8414
14.02 No Waiver. Any failure by a Party to insist upon strict performance by the
other Party of any material provision of this Agreement shall not be deemed a waiver
thereof, and the Party shall have the right at any time thereafter to insist upon strict
performance of any and all provisions of this Agreement. No provision of this
Agreement may be waived except by writing signed by the Party waiving such provision.
Any waiver shall be limited to the specific purposes for which it is given. No waiver by
any Party hereto of any term or condition of this Agreement shall be deemed or construed
to be a waiver of any other term or condition or subsequent waiver of the same term or
condition.
14.03 City Consent and Approval. In any provision of this Agreement that
provides for the consent or approval of the City staff or City Council, such consent or
approval may be withheld or conditioned by the staff or City Council at its sole
discretion, except as provided in Section 5.10.
14.04 Governing Law and Venue. THIS AGREEMENT MUST BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY
TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO
ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES
ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY,
TEXAS AND HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT
COUNTY, TEXAS, AND HEREBY AGREE THAT ANY SUCH COURTS SHALL BE A PROPER
FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER.
14.05 Authority to Execute. The City warrants that this Agreement has been
approved by the City Council in accordance with all applicable public meeting and public
notice requirements (including, but not limited to, notices required by the Texas Open
Meetings Act) and that the individual executing this Agreement on behalf of the City has
been authorized to do so. Each Owner warrants that the execution of this Agreement is
duly authorized in conformity with the articles of incorporation, bylaws, partnership
agreement, or other applicable organizational documents of each Owner and that the
individual executing this Agreement on behalf of each Owner has been authorized to do
so. The District warrants that this Agreement has been approved by the Board in
accordance with all applicable public meeting and public notice requirements (including,
but not limited to, notices required by the Texas Open Meetings Act) and that the
individual executing this Agreement on behalf of the Board has been authorized to do so.
14.06 Severability. The provisions of this Agreement are severable and, in the
event any word, phrase, clause, sentence, paragraph, section, or other provision of this
Agreement Concerning Creation and Operation �pp �v1�r�'` MAI
zPa e 21
C9 � �SLlkS npr'11 g
Agreement, or the application thereof to any person or circumstance, shall ever be held or
determined to be invalid, illegal, or unenforceable for any reason, and the extent of such
invalidity or unenforceability does not cause substantial deviation from the underlying
intent of the parties as expressed in this Agreement, then such provision shall be deemed
severed from this Agreement with respect to such person, entity or circumstance, without
invalidating the remainder of this Agreement 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.
14.07 Changes in State or Federal Laws. If any state or federal law changes so
as to make it impossible for the City or the District to perform its obligations under this
Agreement, the Parties will cooperate to amend the Agreement in such a manner that is
most consistent with the original intent of the Agreement as legally possible.
14.08 Additional Documents and Acts. The Parties agree that at any time after
execution of this Agreement, they will, upon the request of any other Party, execute
and/or exchange any other documents necessary to effectuate the terms of this Agreement
and perform any further acts or things as the other Party may reasonably request to
effectuate the terms of this Agreement.
14.09 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
14.10 Assignment.
(a) Neither the District nor the City may assign this Agreement without the
written consent of the other Parties.
(b) Owner has the right, from time to time, to assign this Agreement, in whole
or in part, and including any obligation, right, title, or interest of Owner under this
Agreement, to the District (after the District Confirmation Date) and to any person or
entity (an "Assignee") without the consent of the City, provided that the following
conditions are satisfied: (1) if not the District, Assignee is a successor owner of all or any
part of the Development or is a lender to a successor owner of all or any part of the
Development; (2) if not the District, Assignee has a contractual right to be reimbursed for
water, sewer, or drainage improvements and/or the Road Project from District Bonds (or
has a lien or other security interest in such reimbursements); (3) the assignment is in
writing executed by Owner and Assignee in the form of assignment attached as Exhibit
H; (4) Assignee expressly assumes in the assignment any assigned obligations and
expressly agrees in the assignment to observe, perform, and be bound by this Agreement
to the extent this Agreement relates to the obligations, rights, titles, or interests assigned;
and (5) a copy of the executed assignment is provided to all Parties within 15 days after
execution. Provided the foregoing conditions are satisfied, from and after the date the
assignment is executed by Owner and Assignee, the City agrees to look solely to
Assignee for the performance of all obligations assigned to Assignee and agrees that
•, 1--:1,
`,
Agreement Concerning Creation and Operation 7 _ Page 22
Owner shall be released from performing the assigned obligations and from any liability
that results from the Assignee's failure to perform the assigned obligations. No
assignment by Owner shall release Owner from any liability that resulted from an act or
omission by Owner that occurred prior to the effective date of the assignment. Owner
shall maintain written records of all assignments made by Owner (including, for each
Assignee, the Notice information required by this Agreement, and including a copy of
each executed assignment) and, upon written request from any Party or Assignee, shall
provide a copy of such records to the requesting person or entity. It is specifically
intended that this Agreement, and all terms, conditions and covenants herein, shall
survive a transfer, conveyance, or assignment occasioned by the exercise of foreclosure
of lien rights by a creditor or a Party, whether judicial or non judicial. This Agreement
shall be binding upon and insure to the benefit of the Parties and their respective
successors and Assignees. Notwithstanding the foregoing, however, Owner shall not
have the right to assign this Agreement, or any right, title, or interest of Owner under this
Agreement, until the District has become a Party.
14.11 Amendment. This Agreement may be amended only with the written
consent of all Parties and with approval of the governing bodies of the City and the
District.
14.12 Interpretation. The Parties acknowledge that each party and, if it so
chooses, its counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against the drafting
parry shall not be employed in the interpretation of this Agreement or any amendments or
exhibits hereto. As used in this Agreement, the term "including" means "including
without limitation" and the term "days" means calendar days, not business days.
Wherever required by the context, the singular shall include the plural, and the plural
shall include the singular. Each defined term herein may be used in its singular or plural
form whether or not so defined.
14.13 No Third Party Beneficiary. This Agreement is solely for the benefit of
the Parties, and neither the City, the District nor Owner intends by any provision of this
Agreement to create any rights in any third-party beneficiaries or to confer any benefit
upon or enforceable rights under this Agreement or otherwise upon anyone other than the
City,the District and Owner.
14.14 Reimbursement for City's Professional Fees. Owner will reimburse the
City for reasonable attorneys fees incurred by the City in connection with negotiation and
preparation of this Agreement, the Development Agreement, the Strategic Partnership
Agreement, agreements concerning the provision of water and wastewater service to the
Development, and any other documents executed by Owner, the District, and the City in
connection with the Development. Owner's obligation is limited to the actual, out-of-
pocket costs and expenses paid to or owed to third-parties for services rendered prior to
the approval of this Agreement by the City Council. Owner shall reimburse the City for
such fees within thirty (30) days after this Agreement has been executed by the City and
Owner and the City has delivered to Owner an invoice for such fees setting forth in
Agreement Concerning Creation and Operation Page 23
reasonable detail a description of the work performed, including identification of the
attorney who performed the work, the date on which the work was performed, and the
time spent on each date.
14.15 Incorporation of Exhibits by Reference. All exhibits attached to this
Agreement are incorporated into this Agreement by reference for the purposes set forth
herein, as follows:
Exhibit A Map of Tradition
Exhibit B Legal description of the Development
Exhibit C Superseding Utility Agreement
Exhibit D Development Agreement
Exhibit E Special Regulations
Exhibit F Strategic Partnership Agreement
Exhibit G Annexation Notice
Exhibit H Assignment and Assumption Agreement
14.16 Conspicuous Provisions. The City, Aqua Utilities, the District, and Owner
acknowledge that the provisions of this Agreement set out in bold, cAPITALs (or any
combination thereof) satisfy the requirements for the express negligence rule and/or are
conspicuous.
14.17 Counterpart Originals. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original.
ATTEST: T OF FOR OR H
Marty Hendrix6City Secretary Marc Ott, ssistant ity Manager
Date:
APPROVED AS TO FORM AND
LEGALITY:
Assistant Ci y Attorney
ZaAPERION COMMUNITIES, LLLP, an Arizona
Contract AuthorizastioR limited liab' t limit nership.
--_ .t BY
:A
Bad@ David P. Maniatis, General Partner
Date: 152-11- os
10FFI ,Ii"!1. 111EC0�
Agreement Concerning Creation and Operation V 9ry5 �l qI',�`,' Page 24
ELADIO PROPERTIES, LLLP, an Arizona limited
liability limit partnersG 1n
By:
,.,avid P. Maru �is, General Partner
Date: 19-11 a�
DROOY PROPERTIES, LLLP, an Arizona limited
liability limited,partnership.
By:
David P. Maniatis, General Partner
Date: I P-11- o5-
Pursuant
SPursuant to Article IV hereof and following the District Confirmation Date, the
District has executed the Agreement.
CITY OF FORT WORTH MUNICIPAL UTILITY
DISTRICT NO. 1 OF DENTON COUNTY
By:
CC President, Board of Directors
Date: MMU 31 .2 nC ]
STATE OF TEXAS §
COUNTY OF TARRANT § —per
This instrument was acknowledged before me, on the Al day o �
2005, by Marc Ott, Assistant City Manager of the City of Fort Worth, Texas on behalf of
said city.
HETTIE LANE
i SAY Opt�►1NSSION EXPIRES 'Notary Public, State of Texas
July 26,2007 Printed Name: &-tne- "x c—
My Commission Expires: ?
[SEAL]
-
a
�Ey V
Agreement Concerning Creation and Operation Page 25
STATE OF TEXAS §
COUNTY OF TARRANT §
This ins+niment was a4' owledged before me, on the day of MQV
2000;1 by Mic-h4t,� B\An ���resident, Board of Directors of City of To-it-Worth
Municipal Utility District No. 1 of Denton County, on behalf of said district.
mwk-.
Notary Public, State of Texas
a a LESLIE A. CODE Printed Name:
' C&%V"ft ,,;T a My Commission Expires:
STATE OF_ A �,A §
COUNTY OF fYl ate,f oA §
This instrument was acknowledged before me, on the JIL4"day of by o-p Lp"
2005, by David Maniatis, General Partner of Aperion Communities, LLLP, an Arizona
limited liability limited partnership, on behalf of said limited partnership.
�"� '/�/ v V—�o--- —
Notary Public, State of 14 g-1 Z=oAXA',
Printed Name: ,,m I )
My Commission Expires: 10
[SEAL] OFFICIAL SEAT.
KIM MITCHELL
Ninny FV*-Sine of Antons
MARICOPACotAm
My CwM Erpat oaoea 14,2W8
Agreement Concerning Creation and Operation Page 26
STATE OF_ Z5���71k §
COUNTY OF Mc�Zi L�3 §
This instrument was acknowledged before me, on the_L[L4-day of. bp�pen}ao z ,
2005, by David Maniatis, General Partner of Eladio Communities, LLLP, an Arizona
limited liability limited partnership, on behalf of said limited partnership.
VL —
Notary Public, Stat of -jQ7„A::YX
Printed Name: VCA
My Commission Expires:
[SEAL] OFFICIAL SEAL
KIM MITCHELL
Notary N*-S10 of Ana=
MARKWA COMM
G,y My Comm.Expires Oc6ober 14,2008
STATE OF_ Z—i rnr\�,p_ §
COUNTY OF_�(L t1 §
This instrument was acknowledged before me, on the!!0"'day of beo-emhe Z ,
2005, by David Maniatis, General Partner of Drooy Communities, LLLP, an Arizona
limited liability limited partnership, on behalf of said limited partnership.
Notary Public, State of
Printed Name: 9,' (�'" ��hp I I
My Commission Expires:
[SEAL] OFFICIAL SEAL
KIM MITCHELL
Notary Aft.SW of Ariwa
MARICOPA COWN
�. .,.' My Curren.Expires Ocober 14,2008
Agreement Concerning Creation and Operation Page 27
Exhibit A
Map of Tradition
Exhibit A to
Agreement Concerning Creation and Operation Page 1
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Exhibit B
Legal description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G.
Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a
combination of that tract conveyed to Alliance 161 Investments by deed recorded in
Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by
deed recorded under County Clerk's File No. 2004-11913 RPRDCT(Aperion Tract One-
A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley
Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more
particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-
of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract
conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363
RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and
the east line of said McIntyre, et at,tract recorded in Volume 2906, Page 363 RPRDCT, a
distance of 3701.24 feet to a 3/8" iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and
the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a
distance of 1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line
of said Aperion Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in
Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a
distance of 1294.80 feet to a capped 1/2" iron pin set;
THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52E34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44EO8'03" E,a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65E58'36" E, a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said
capped 1/2" iron pin set also being on the east line of said Aperion Tract One-A and the
west line of that tract conveyed to Ferbro Investments, LLC by deed recorded under
County Clerk's File No. 97-0003605 RPRDCT;
Exhibit B to
Agreement Concerning Creation and Operation Page 1
THENCE S OOE07'20" E along the east line of said Aperion Tract One-A and the west
line of said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found,
said iron pin being on the northwesterly line of a tract conveyed to The Atchison, Topeka
and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-
R0020408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the
northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a
distance of 2256.14 feet to a 5/8" iron pin found;
THENCE N 47E15'51" W along the east line of said Aperion Tract One-A and the
northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a
distance of 24.73 feet to a 5/8" iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the
northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a
distance of 1121.43 feet to a brass monument in concrete found, said brass monument
also being on the said north right-of-way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 286.33 feet to a brass
monument in concrete found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 703.04 feet to a brass
monument in concrete found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2"
iron pin set;
THENCE N OOE 11'12" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron
pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2"
iron pin set;
THENCE S OOE11'12" E along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron
pin set;
Exhibit B to
Agreement Concerning Creation and Operation Page 2
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 238.28 feet to the Point of
Beginning and containing 16,728,840 square feet or 384.041 acres of land, more or less.
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on
the south line of said Aperion Tract One-B, said brass monument also being on the north
right-of-way line of State Highway No. 114, said brass monument also being on the west
line of a tract conveyed to Ferbro Investments by deed recorded under County Clerk's
File No. 97-0003605 RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north
right-of-way line of State Highway No.114, a distance of 1072.97 feet to a brass
monument in concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north
right-of-way line of State Highway No.114, a distance of 900.20 feet to a brass
monument in concrete found, said brass monument also being on the southeasterly line of
a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed
recorded under County Clerk's File No. 93-R0020408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the
southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a
distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line
of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract One-B and the west
line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning
and containing 2,058,725 square feet or 47.262 acres of land, more or less.
Exhibit B to
Agreement Concerning Creation and Operation Page 3
Exhibit C
Superseding Utility Agreement
Exhibit C to
Agreement Concerning Creation and Operation Page 1
SUPERSEDING AGREEMENT REGARDING
WATER AND WASTEWATER UTILITY SERVICE
This Superseding Agreement Regarding Water and Wastewater Utility Service
("As reement') is entered into by and between the City of Fort Worth, Texas (the "Li '% a
home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas, acting
by and through its duly authorized Assistant City Manager; Aqua Utilities, Inc., formerly known
as AquaSource Utility, Inc., a Texas corporation ("Aqua Utilities"); Aperion Communities,
LLLP, Eladio Properties, LLLP and Drooy Properties, LLLP, Arizona limited liability limited
partnerships (individually and collectively, "Owner"); and the City of Fort Worth Municipal
Utility District No. 1 of Denton County, a municipal utility district created pursuant to Article
XVI, Section 59, of the Texas Constitution, Chapters 49 and 54 of the Texas Water Code and the
applicable Special District Local Law (the "District"), which District, after the District
Confirmation Date, will become a Party to this Agreement.
ARTICLE I
RECITALS
A. Aqua Utilities wishes to provide retail water and wastewater utility service to
approximately 431.303 acres in Denton County, Texas, as shown on Exhibit A and more
particularly described in Exhibit B attached to this Agreement (the "Development"), which
Development lies entirely within the City's extraterritorial jurisdiction("ETT').
B. Aqua Utilities currently holds Certificate of Convenience and Necessity No. 11157 for
retail water service issued by the Texas Commission on Environmental Quality ("TCEQ') and
covering several geographic service areas, including the area in Denton and Wise Counties
shown on Exhibit D to this Agreement (the "Denton-Wise County CCN Area"), which includes
the Development. Aqua Utilities wishes to provide retail water and waste water utility service to
Tradition. Aqua Utilities, Owner, and the City wish to cooperate in providing water and
wastewater service to Tradition.
C. No entity presently holds a CCN for wastewater service in the area that includes the
Development.
D. The City has reached certain agreements with Aqua Utilities regarding the provision of
wholesale water and wastewater service, and has a continuing interest in, and certain
governmental responsibilities regarding, the regulation of development for the health and safety
of residents in its ETJ.
E. Owner has represented to the Parties that it owns and intends to develop the Development
as the first phase of "Tradition," a master-planned community containing approximately 2,660
acres, as depicted in Exhibit A and more particularly described in Exhibit C.
F. Aqua Utilities, Owner and the City entered into the "Agreement Regarding Water and
Sewer Utility Service," dated October 26, 2004, City Secretary Contract No. 30790, ("Oriincl
Utility Service A>;reement") regarding water and wastewater utility infrastructure and service to
be provided to the first 1,000 connections within the Development and to address certain issues
Superseding Agreement Regarding
Water and Wastewater Utility Service
related to planning for water and wastewater utility service to Tradition and the remainder of the
Denton-Wise CCN area.
G. After the Original Utility Service Agreement was executed, Owner petitioned the Texas
Legislature to form a Municipal Utility District to cover the Development and thereafter the
Texas Legislature approved the creation of City of Fort Worth Municipal Utility District No. 1 of
Denton County containing the Development, by Act of May 25, 2005, 79th Legislature, Regular
Session, Chapter 1330, Special District Local Laws Code, Chapter 8129, effective September 1,
2005 (the "District").
H. On December 13, 2005, the City Council of the City adopted Resolution No. 3299-12-
2005 consenting to the creation of the District, approving the "Agreement Concerning Creation
and Operation of City of Fort Worth Municipal Utility District No. 1 of Denton County" among
the City, the Owner and the District (the "Consent Agreement"), which Consent Agreement was
executed by the City and Owner and provides for Owner to cause the District to approve, execute
and deliver this Agreement to the City.
I. Aqua Utilities, Owner and the City wish to amend, restate and supersede the Original
Utility Service Agreement to provide for further and amended agreements of the Parties
regarding water and wastewater infrastructure and service, including among other things, to
provide for the District to be a Party to this Agreement, to provide for changed circumstances
arising out of the creation of the District, and to provide for services to the entirety of the
Development, rather than only to the first 1,000 connections within the Development (defined in
the Original Utility Service Agreement as the"Land").
J. The Parties to the Original Utility Service Agreement and to this Agreement intend that,
upon its execution, this Agreement shall entirely supersede the Original Utility Service
Agreement, as of the Effective Date of this Agreement.
NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and
conditions hereinafter set forth,the Parties contract and agree as follows:
ARTICLE II
DEFINITIONS
"Agreement" means this Superseding Agreement Regarding Water and Wastewater Utility
Service.
"Agreement for Sale of Treated Water" means the "Agreement for Sale of Treated Water"
between the City and Aqua Utilities, the form of which is attached to this Agreement as Exhibit
E.
"Agreement for Wastewater Service" means the "Wholesale Wastewater Service Agreement"
between the City and Aqua Utilities, the form of which is attached to this Agreement as Exhibit
F.
"Aqua Utilities"means Aqua Utilities, Inc., a Texas corporation.
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 2
"Assignee" means the assignee of the Owner, as permitted by this Agreement and defined in
Section 9.05(b).
"Buy-Out Contract" means the "Buy-Out Option Contract," the form of which is attached to this
Agreement as Exhibit G.
"CFA Policy" means the "Policy for the Installation of Community Facilities" as amended in
March 2001 (M & C G-13181) in effect on the Effective Date, including any amendments
thereto that are in effect on the Effective Date.
"Ciff" means the City of Fort Worth, a home rule municipality located in Tarrant, Denton and
Wise Counties, Texas.
"City Council"means the City Council of the City.
"City Utility Standards" means (i) all City fire protection requirements for water line sizing,
number of connections, minimum water pressure and number of fire hydrants that are in effect
on the Effective Date, including any amendments thereto in effect on the Effective Date; and (ii);
all City standards for design, location, construction, operation and maintenance of water and
wastewater utility Infrastructure that are in effect on the Effective Date, including any
amendments thereto in effect on the Effective Date, except as modified by Section 5.13, and
expressly including without limitation the following:
(a) Subdivision Regulations;
(b) CFA Policy;
(c) Policy and Procedure for Processing Water and Wastewater Projects for Design
and Construction(1999); and
(d) General Contract Documents and Specifications for Water Department Projects
"City Review Fees" means 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.
"Consent Agreement" means the Agreement Concerning Creation and Operation of City of Fort
Worth Municipal Utility District No. 1 of Denton County by and among the City, the District,
and Owner, which was approved by the City Council on December 13, 2005 (City Secretary
Contract No. 32896,M & C C -21197) and executed as of December 21, 2005.
"Contractor" means a person or entity that constructs, alters or repairs Infrastructure required to
serve the Development, whether located within or outside the Development.
"Denton-Wise County CCN Area" means that portion of the Aqua Utilities Certificate of
Convenience and Necessity No. 11157 for retail water service issued by the Texas Commission
on Environmental Quality ("TCEQ") and covering the area in Denton and Wise Counties shown
on Exhibit D.
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 3
"Development"means that certain 431.303-acre tract located in Denton County, Texas shown on
Exhibit A and more particularly described in Exhibit B.
"Director"means the City Water Department Director or designee.
"District" means the City of Fort Worth Municipal Utility District No. 1 of Denton County, the
name of which will be changed to "Tradition Municipal Utility District No. 1 of Denton County"
pursuant to the Consent Agreement.
"Effective Date"means the effective date of this Agreement as defined in Section 9.17.
"Impact Fees" means City water and wastewater impact fees for new or enlarged connections
adopted by one or more City ordinances in Chapter 35, Division 2, of the Fort Worth City Code
in accordance with Chapter 395, Texas Local Government Code, as such may be amended from
time to time.
"Infrastructure" means all water and wastewater (unless expressly identified as only water or
only wastewater) facilities, equipment or related improvements necessary to serve the
Development,whether located within or outside the Development.
"Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of
Infrastructure according to the fee schedule adopted by the City Council and in effect on the date
of the inspection.
"Infrastructure Standards" means the standards for construction, operation and maintenance
defined as the Infrastructure Standards as set forth in Article V.
"Notice"means notice as defined in Section 9.03 of this Agreement.
"Original Utility Service Agreement"means the "Agreement Regarding Water and Sewer Utility
Service," City Secretary Contract No. 30790, between Aqua Utilities, Owner, and the City
executed October 26, 2004.
"Owner" means, individually and collectively, Aperion Communities, LLLP, Eladio Properties,
LLLP and Drooy Properties, LLLP, Arizona limited liability limited partnerships, and each of
their respective Assignees as permitted by Section 9.05.
"E411f" means, individually, the City, Owner, District or Aqua Utilities, and any successors and
assigns,as permitted by this Agreement.
"Policy" means the"Policy for the Installation of Community Facilities" adopted in March 2001
by the City Council, as may be amended from time to time.
"Prior Contractual Commitment" means a contractual commitment dated January 16, 2004 or
earlier calling for or allowing water or wastewater utility system Infrastructure that does not
comply with City Utility Standards, as defined in Section 7.04.
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 4
"Subdivision Regulations" means the City's Subdivision Ordinance No. 7234 and Plan
Commission Rules and Regulations in effect on the Effective Date, together with any
amendments thereto that are in effect on the Effective Date.
"IgEQ"means the Texas Commission on Environmental Quality or its successor agency.
"TRA"means the Trinity River Authority of Texas.
"Tradition" means the proposed master-planned community containing approximately 2,660
acres as depicted in Exhibit A and more particularly described in Exhibit C.
ARTICLE III
WATER AND WASTEWATER UTILITY SERVICE PLANS
3.01 Service Plans to be Submitted. Owner will submit retail water and wastewater
utility service plans for Tradition to the City for review and approval, which approval shall not
be unreasonably withheld. The City will make reasonable efforts to complete its review within
120 days of receipt of each plan. Multiple service plans may be submitted to the City as
Tradition is subdivided and developed, but in no event shall a plan include less than 300 acres
without the City's consent. Approval of both a retail water utility service plan and a retail
wastewater utility service plan by the City shall be a condition of the City's approval of a final
plat for each phase of Tradition. If Owner creates any additional conservation and reclamation
districts over the area covered by Tradition, the Owner shall submit a single retail water utility
service plan and a single retail wastewater service utility service plan covering each district.
3.02 Water Plans. To obtain City approval, a water utility service plan must, at a
minimum, meet the following requirements:
a. The water utility Infrastructure shall meet all City Utility Standards set out in
Article V.
b. The plan must demonstrate that an adequate supply of potable water meeting all
TCEQ public water system requirements will be provided. Such demonstration shall
be made prior to the City's approval of a preliminary plat for each phase of Tradition.
Water supplies may be obtained from any source, including but not limited to (i)
groundwater sources, (ii) third party suppliers or (iii) upon agreement of the City,
pursuant to a treated water delivery contract with the City.
c. All plans and specifications proposed for water utility Infrastructure, including all
meters,valves,meter boxes, service lines and any offsite facilities, shall be submitted
to the City as part of the retail water utility service plan.
d. Upon City approval of the retail water utility service plan submitted pursuant to this
Agreement, the City will not seek to challenge the Aqua Utilities water CCN area
covered by that plan.
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 5
3.03 Wastewater Plans. To obtain City approval, wastewater utility service plans must
at a minimum meet the following requirements:
a. The wastewater utility Infrastructure shall meet all City Utility Standards set out in
Article V.
b. All plans and specifications proposed for wastewater utility Infrastructure, including
all meters, valves, meter boxes, service lines and any offsite facilities, shall be
submitted to the City as part of the retail wastewater utility service plan.
c. For areas within Tradition, but outside the Development, where Aqua Utilities,
Owner or the District will provide wastewater treatment service by owning or
operating a treatment plant, such wastewater treatment plant shall be permitted,
constructed, operated and maintained in accordance with all applicable TCEQ
requirements, and in addition shall be permitted to meet effluent limitations no less
stringent than 5-5-2-1 (5 parts per million ["ppm"] biochemical oxygen demand; 5
ppm total suspended solids; 2 ppm nitrogen; and 1 ppm phosphorous). The City will
not contest any TCEQ or other regulatory approvals sought by Aqua Utilities, Owner
or the District for such wastewater treatment plant so long as the plant remains in
compliance with applicable TCEQ requirements and the foregoing effluent
limitations.
ARTICLE IV
SERVICE TO THE DEVELOPMENT
4.01 Water Service. The City will provide treated water service to the Development
under the terms of the Agreement for Sale of Treated Water by and between the City and Aqua
Utilities, attached as Exhibit E. For areas within Tradition, but outside the Development, Aqua
Utilities may obtain water supplies from any source, including but not limited to (i) groundwater
sources, (ii) third party wholesale suppliers, or (iii) water from the City pursuant to a treated
water delivery contract to be agreed upon between the City and Aqua Utilities; however, nothing
in this Agreement requires the City to enter into such a contract or to otherwise provide treated
water service to areas of Tradition outside the Development unless a treated water delivery
contract is subsequently agreed upon for such areas. Any treated water delivery contracts to be
entered into by the City pursuant to this Agreement shall not contain terms and conditions more
favorable than set forth in the City's uniform wholesale water service contracts with its existing
wholesale customers.
4.02 Wastewater Service. The City will provide wastewater collection and treatment
service to the Development under the terms of the Agreement for Wastewater Service by and
between the City and Aqua Utilities, attached as Exhibit F
4.03 Easements and Rights-of-Way. All easements or rights-of-way required for the
installation of the Infrastructure will be granted or acquired by Aqua Utilities, Owner or the
District, at no cost to the City. To facilitate the water and wastewater service to the
Development to be provided pursuant to the terms of this Agreement, Aqua Utilities, Owner and
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 6
the District will grant and provide to the City such easements as are necessary to connect the City's
water and wastewater systems or the IRA's wastewater system to the Development, and for the
continuous operation and maintenance of all metering and sampling facilities, all at no cost to the
City.
4.04 Access, Ingress and Egress. Upon prior Notice by the City, any duly authorized
employee of the City bearing proper credentials and identification shall be granted access to any
premises located within the Development as the City may determine is necessary for the purpose of
inspection, observation, measurement, sampling, testing or auditing, in the provision of water and
wastewater service to be provided pursuant to the tenons of this Agreement. In addition, the City
will be given continuous route of ingress and egress to all metering and sampling facilities.
4.05 Ownership and Construction of Infrastructure. The Infrastructure on the
Development's side of the City's water and wastewater meters will be owned by the District, and
leased to Aqua Utilities unless and until it is acquired by the City pursuant to Section 7.01.
Aqua Utilities shall not provide water or wastewater service to the Development pursuant to the
Section 4.01 "Agreement for Sale of Treated Water by and between the City and Aqua Utilities"
or the Section 4.02 "Agreement for Wastewater Service by and between the City and Aqua
Utilities" except through Infrastructure owned by District. If prior to January 1, 2007 no
mutually acceptable lease agreement is reached between Aqua Utilities and the District for the
operation and maintenance of the Infrastructure, or if within five (5) years of the Effective Date,
the District does not own any water or sewer Infrastructure capable of providing retail water or
sewer service to the District,then Aqua Utilities and the City shall terminate each of those water
and sewer service agreements pursuant to the provisions therein for termination by mutual
consent.
4.06 Notices to Retail Customers. At least once annually, water bills sent to all retail
customers within the District will contain the following statement: "This service address is
inside the boundaries of a municipal utility district that may be annexed in the future by the City
of Fort Worth."
4.07 Service by Another Entity. If Owner or the District engages or allows any entity
other than Aqua Utilities to provide water or wastewater service to land within Tradition, then
Owner or the District will first contractually obligate such provider to the terms and conditions
of this Agreement to the same extent that Aqua Utilities is obligated.
ARTICLE V
CONSTRUCTION, OPERATION AND MAINTENANCE
OFINFRASTRUCTURE
5.01 Infrastructure Standards. All Infrastructure shall be designed and constructed in
compliance with this Article V and: (a) the City Utility Standards; (b) rules and regulations of
the TCEQ; (c) the rules and regulations, if any, of the District; and (d) the rules and regulations
of Aqua Utilities that apply to the Development("Infrastructure Standards").
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 7
5.02 Conflicts. In the event of any conflict between the City Utility Standards and any
other standards, rules, or regulations listed above, the City Utility Standards shall control unless
otherwise agreed in writing by the Director.
5.03 Additional Construction Standards for Water Utility Infrastructure. The water
utility Infrastructure serving the Development must be constructed using the same type, or a
compatible type, of meters, valves, meter boxes and service lines used by the City for its
municipal water system; provided, however, that automated meter reading ("AMR")-compatible
may be used. For additional connections in Tradition, but outside the Development, the water
system may be constructed using meters, valves, meter boxes and service lines chosen by the
retail provider, subject to the requirements of Article III.
5.04 Plan Review, Payment of Fees: and Pre-Construction Conference. Construction
of Infrastructure shall not commence until the plans and specifications have been reviewed and
accepted by the City for compliance with the City's Utility Standards; a pre-construction
conference has been held by the Contractor, the District's engineer and representatives of the
City's Department of Engineering; and the applicable City Review Fees have been paid. At such
pre-construction conference, the Department of Engineering shall designate City employees to
serve as the project inspector (the "City Inspector") for purposes of Sections 5.06, 5.08 and 5.11
and the project manager.
5.05 Community Facilities Agreements. Construction of Infrastructure shall not
commence until a Community Facilities Agreement has been executed in accordance with the
City's CFA Policy. Notwithstanding the Infrastructure Standards, the City shall not participate
in the cost of construction of any Infrastructure unless the City requires the construction of
Infrastructure that exceeds that which is roughly proportionate to the impact of the Development.
5.06 Inspections by Third Party Inspectors. Except as otherwise provided in this
Article V, inspectors retained by the District (or by Owner on behalf of the District) and
approved by the City (which approval shall not be unreasonably withheld or delayed) shall
perform or cause to be performed all inspections and testing of the construction of Infrastructure
for compliance with this Article V. The District or Owner, as applicable, shall submit the
names, addresses and phone numbers of such inspectors simultaneously with submittal of plans
in accordance with Article III. Construction of Infrastructure shall not commence until such
inspectors have been approved by the City. The District shall cause the inspectors to provide
copies of all inspection and testing reports to the City Inspector. All costs of such third party
inspectors shall be paid by the District(or by Owner on behalf of the District).
5.07 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 5.06 if the inspector:
(i) fails to properly perform inspections and testing to ensure construction in compliance with
this Article V; or (ii) fails to provide copies of inspection and testing reports to the City's
Department of Engineering. Upon termination of any third party inspector, the City, at its
option, may: (i) allow the use of another approved third party inspector, or (ii) perform all
necessary inspections and testing. Should the City elect to perform inspections and testing
pursuant to this Section 5.07, the City shall perform such inspections and testing for compliance
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 8
with this Article V in a timely manner (which inspections shall satisfy all applicable
requirements of the TCEQ) and the District shall pay Infrastructure Inspection Fees.
5.08 Inspection by City. The City has the right, but not the obligation, to inspect and
test the Infrastructure at any time. Further, the City has the right 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 Sections 5.01(1), 5.03, 5.04, 5.05, 5.06,
5.08, and 5.09. Notwithstanding anything contained herein, the City shall have the right to
charge Infrastructure Inspection Fees for such inspections and testing only if the City performs
inspections and testing pursuant to Section 5.07.
5.09 Access by City Employees. Upon prior Notice by the City, any duly authorized
employee of the City bearing proper credentials and identification shall be granted access to any
property of the District within the Development as the City may determine necessary for the
purpose of inspection and testing of Infrastructure.
5.10 Contractors. If any Party engages a Contractor to construct Infrastructure, such
Party shall incorporate the requirements of this Article V into a written construction contract
with the Contractor. All such contracts shall provide that the City is a third-party beneficiary of
and may enforce such contracts against the Contractor.
5.11 Operation and Maintenance of Infrastructure. The District and Aqua Utilities
shall cause all Infrastructure, once it is constructed, to be operated and maintained in compliance
with the Infrastructure Standards.
5.12 As-Built Drawings. The District and Aqua Utilities shall be jointly responsible
for the delivery of mylar as-built drawings for all Infrastructure to the City Inspector within 30
days after final inspection.
5.13 Modification of Governing Regulations.
(a) If a preliminary plat for the entire 431.303 acres comprising the
Development is approved by the City's Plan Commission before January 1, 2007, the
development of all portions of the Development for which the Plan Commission approves final
plats shall be in accordance with the Governing Regulations, as defined in Article I.
(b) If a preliminary plat for the entire 431.303 acres comprising the
Development is approved by the City's Plan Commission between January 1, 2007 and
September 30, 2007, the Governing Regulations that are in effect on January 1, 2007, including
amendments in effect on January 1, 2007, shall apply to development of all portions of the
Development for which a final plat is approved by the Plan Commission, and the definition of
"Governing Regulations" shall be deemed to be amended accordingly.
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 9
(c) If a preliminary plat for all or any portion of the Development is approved
by the Plan Commission on or after October 1, 2007,the Governing Regulations that are in effect
on the date of submittal of the preliminary plat shall apply to development of all portions of the
Development for which a final plat is approved by the Plan Commission, and the definition of
"Governing Regulations" shall be deemed to be amended accordingly.
ARTICLE VI
IMPACT FEES
6.01 Initiation of Fees. At such time as City water or wastewater meters are installed
to provide service to the Development pursuant to this Agreement, Owner shall be responsible
for paying to the City all Impact Fees for each new or enlarged water and wastewater connection
within the Development, based upon the size of the retail water meter.
6.02 Quarterly Payments. Payment of Impact Fees under this Article VI shall be sent
to the City within 30 days of the close of each quarter of the year, beginning with the quarter
ending March 30, 2006. Such quarterly payments shall include Impact Fees for each new or
enlarged connection for water and/or wastewater service for which application has been made
within the Development during the preceding quarter of the year.
6.03 Reporting Requirements. Owner, Aqua Utilities and the District shall provide to
the City such information that relates to the making of new and/or enlarged connections within
the Development as may be requested by the Director, including information required to be
provided by the Agreement for Sale of Treated Water and the Agreement for Wastewater
Service.
ARTICLE VII
PURCHASE OF FACILITIES
7.01 Transfer of Retail Water or Wastewater Services. Pursuant to its CCN No. 11157,
Aqua Utilities shall have the right and obligation to provide retail water service to the
Development; however, at any time after (a) 17 years after the Effective Date or (b) fifteen (15)
years after the Effective Date, if the City annexes the Development between fifteen (15) and
seventeen (17) years after the Effective Date or(c) at an earlier date if agreed by Aqua Utilities,
the City may in its sole discretion seek to become the retail provider of water and/or wastewater
service to the Development. To effectuate the transfer of retail water or wastewater service from
Aqua Utilities to the City,the Parties will enter into the Buy-Out Contract attached as Exhibit G.
Aqua Utilities, Owner, and the District agree not to contest any applications filed by the City at
the TCEQ for a new or amended water and/or wastewater CCN to effectuate the transfer of retail
water and/or wastewater service rights for the Development to the City, and finther agree that
they shall cooperate and assist the City to the extent reasonably necessary in obtaining any
regulatory approvals required to effectuate such transfer of water or wastewater utility service
rights from Aqua Utilities to the City.
7.02 Lease Termination. Any District lease covering all or any part of the
Infrastructure shall terminate upon transfer of any Infrastructure covered by such lease to the
City pursuant to the Buy-Out Contract, and each such lease shall contain a provision expressly
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 10
providing for such termination. Likewise, upon transfer of any Infrastructure pursuant to the
Buy-Out Contract, Aqua Utilities shall not have any obligations of any kind whatsoever to
provide water or wastewater service to the Development and the"Agreement for Sale of Treated
Water by and between the City and Aqua Utilities"pursuant to Section 4.01 and the "Agreement
for Wastewater Service by and between the City and Aqua Utilities" pursuant to Section 4.02
shall terminate in accordance with their terms.
7.03 Effect of Transfer. Once the City becomes the retail provider of water and/or
wastewater service to the Development, Aqua Utilities will cease providing water and/or
wastewater utility service to that area, and the City shall have no further obligations to Aqua
Utilities or Owner with regard to the costs, operation, equipment removal or site restoration of
Aqua Utilities' water and/or wastewater system operations at the Development, or any portion of
the Development that may have been served by such facilities. All costs of dismantling,
decommissioning and removal of the then-existing water and/or wastewater system facilities not
utilized by the City shall be borne by the owner of such facilities.
7.04 Utility Service Plans and Prior Contractual Commitments. The City agrees not to
contest the Denton-Wise County CCN Area identified in Exhibit D so long as Aqua Utilities
submits water and wastewater utility service plans to the City for its review and approval for
those Denton-Wise County CCN areas within the City's ETJ. To obtain the City's approval, the
plans must show that the water and wastewater service facilities will meet all City Utility
Standards, except to the extent Aqua Utilities has a contractual commitment dated January 16,
2004 or earlier calling for or allowing water or wastewater utility Infrastructure that does not
comply with City Utility Standards ("Prior Contractual Commitment"). Exhibit H attached
hereto identifies all developments within the Denton-Wise County CCN Area for which Aqua
Utilities has a contractual commitment dated January 16, 2004 or earlier calling for or allowing
water or wastewater utility Infrastructure that does not comply with City Utility Standards. Aqua
Utilities has identified the locations of the developments identified in Exhibit H on Exhibit H-1
attached hereto. As development occurs, and at the time that Aqua Utilities submits each of
Exhibit H subdivision water and wastewater utility service plan to the City for its review and
approval, Aqua Utilities also will demonstrate to the City the existence of the Prior Contractual
Commitment for that subdivision. The City reserves its right to protest any new developments
within the Denton-Wise County CCN Area within the City's ETJ that do not conform to City-
approved water and wastewater utility service plans.
7.05 Service to Walsh Ranch. Aqua Utilities, Owner and the District agree not to
protest any water or wastewater CCN application, or any sale-transfer-merger application, filed
by the City to serve the area west of the existing City limits known as Walsh Ranch in Tarrant
and Parker Counties as identified in Exhibit I to this Agreement. Aqua Utilities and Owner
further agree not to serve areas which will be served by the main water or wastewater lines
connecting the area known as Walsh Ranch to the City's water or wastewater systems.
Superseding Agreement Regarding
Water and Wastewater Utility Service Page l 1
ARTICLE VIII
INDEMNIFICATION
8.01 Indemnity. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
AQUA UTILITIES, THE DISTRICT, AND OWNER AGREE TO INDEMNIFY AND DEFEND THE CITY,
ITS OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS,
CONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "INDEMNITEES") WITH REGARD
TO ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS,
ADMINISTRATIVE PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS,
ENFORCEMENT ACTIONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION
THEREWITH (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES, COSTS OF INVESTIGATION
AND EXPENSES, INCLUDING THOSE INCURRED BY CITY IN ENFORCING THIS INDEMNITY),
DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY OR RESULTING FROM(IN WHOLE OR IN
PART) ANY BREACH OF THIS AGREEMENT OR ANY CONSTRUCTION, OPERATION, OR
MAINTENANCE OF THE INFRASTRUCTURE, (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH
LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO STRICT LIABILITY OR TO THE SOLE OR
CONCURRENT NEGLIGENCE OF ANY INDEMNITEE.
8.02 Insurance and Indemnityby Contractors. If any Party engages a Contractor to
construct, reconstruct, repair or maintain Infrastructure, such Party shall include in the contract
requirements that the Contractor must provide adequate insurance protecting the City as an
additional insured. Such contract must also provide that the Contractor covenant to indemnify,hold
harmless and defend the City against any and all suits or claims for damages of any nature arising
out of the performance of such contract, even if such Liabilities arise from or are attributed to
strict liability or to the sole or concurrent negligence of any Indemnitee.
ARTICLE IX
MISCELLANEOUS
9.01 Governing Law; Jurisdiction and Venue. THIS AGREEMENT MUST BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS
THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD
TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES
ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND
HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARR.ANT COUNTY, AND HEREBY
AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY
DISPUTE ARISING HEREUNDER.
9.02 Conspicuous Provisions. The City, Aqua Utilities, the District, and Owner
acknowledge that the provisions of this Agreement set out in bold, CAPITALS (or any
combination thereof) satisfy the requirements for the express negligence rule and/or are
conspicuous.
9.03 Notice. Any notices, approvals, or other communications required to be given by
one Party to another under this Agreement(a"Notice") shall be given in writing addressed to the
Party to be notified at the address set forth below and shall be deemed given: (a)when the Notice
is delivered in person to the person to whose attention the Notice is addressed; (b) when received
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 12
if the Notice is deposited in the United States Mail, certified or registered mail, return receipt
requested, postage prepaid; (c) when the Notice is delivered by Federal Express, UPS, or another
nationally recognized courier service with evidence of delivery signed by any person at the
delivery address; or (d) five business days after the Notice is sent by FAX (with electronic
confirmation by the sending FAX machine) with a confirming copy sent by United States mail
within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on
a Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be
extended to the first business day following the Saturday, Sunday, or legal holiday. For the
purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may
change the information set forth below by sending Notice of such changes to the other Party as
provided in this section.
To the City:
City of Fort Worth, Texas
Attn: City Secretary
1000 Throckmorton Street
Fort Worth, Texas 76102
FAX: (817) 392-6196
City of Fort Worth, Texas
Attn: City Manager
1000 Throckmorton Street
Fort Worth, Texas 76102
FAX: (817) 392-6134
City of Fort Worth, Texas
Attn: Water Director
1000 Throckmorton Street
Fort Worth, Texas 76102
FAX: (817) 392-2398
To the District:
Fort Worth Municipal Utility District No. 1 of Denton County
c/o: Coats Rose
Attn: Timothy G. Green
3 Greenway Plaza, Suite 2000
Houston, TX 77046
FAX: 713-890-3924
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 13
To Owner:
Aperion Communities, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
FAX: 480-951-8414
Eladio Properties, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
FAX: 480-951-8414
Drooy Properties, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale,Arizona 85260
FAX: 480-951-8414
To Aqua Utilities:
1421 Wells Branch Pkwy., Ste. 105
Pflugerville, TX 78660
Attn: Vice President
FAX: (512) 989-9891
762 West Lancaster Ave.
Bryn Mawr,Pennsylvania 19010
Attn: Chief Legal Officer
FAX: (610) 520-9127
9.04 City Consent and Approval. In any provision of this Agreement that provides for
the consent or approval of the City staff or City Council, such consent or approval may be
withheld or conditioned by the staff or City Council at its sole discretion.
9.05 Assignment.
(a) Neither the District nor the City may assign this Agreement without the written
consent of the other Parties.
(b) Aqua Utilities may not assign this Agreement without the prior written consent of
the City; provided, however, that Aqua Utilities' rights hereunder may be assigned
or transferred upon Notice, but without the City's consent to (i) any subsidiary or
affiliate of Aqua Utilities (i.e., any entity with respect to which 50% or more of the
voting and economic interests are owned by Aqua Utilities or its parent) so long as
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 14
Aqua Utilities shall remain liable to the City for any and all liabilities or obligations
arising out of this Agreement, or (ii)to any entity acquiring all or substantially all of
the assets or common stock of Aqua Utilities. Any assignee must assume all
obligations of Aqua Utilities and any liability that may result from acts or omissions
by assignee under this Agreement that may arise or accrue from and after the
effective date of the assignment. If this Agreement is assigned to any entity by
Aqua Utilities, then the Buy-Out Contract must be assigned at the same time and to
the same extent as this Agreement.
(c) Owner has the right, from time to time, to assign this Agreement, in whole or in
part, and including any obligation, right, title, or interest of Owner under this
Agreement, to the District (after the District Confirmation Date) and to any person
or entity (an "Assignee") without the consent of the City, provided that the
following conditions are satisfied: (i) if not the District, Assignee is a successor
owner of all or any part of the Development or is a lender to a successor owner of
all or any part of the Development; (ii) if not the District, Assignee has a contractual
right to be reimbursed for water, sewer, or drainage improvements and/or the Road
Project from District Bonds (or has a lien or other security interest in such
reimbursements); (iii)the assignment is in writing executed by Owner and Assignee
in the form of assignment attached as Exhibit J; (iv) Assignee expressly assumes in
the assignment any assigned obligations and expressly agrees in the assignment to
observe, perform, and be bound by this Agreement to the extent this Agreement
relates to the obligations, rights, titles, or interests assigned; and (v) a copy of the
executed assignment is provided to all Parties within 15 days after execution.
Provided the foregoing conditions are satisfied, from and after the date the
assignment is executed by Owner and Assignee, the City agrees to look solely to
Assignee for the performance of all obligations assigned to Assignee and agrees that
Owner shall be released from performing the assigned obligations and from any
liability that results from the Assignee's failure to perform the assigned obligations.
No assignment by Owner shall release Owner from any liability that resulted from
an act or omission by Owner that occurred prior to the effective date of the
assignment. Owner shall maintain written records of all assignments made by
Owner (including, for each Assignee, the Notice information required by this
Agreement, and including a copy of each executed assignment) and, upon written
request from any Party or Assignee, shall provide a copy of such records to the
requesting person or entity. It is specifically intended that this Agreement, and all
terms, conditions and covenants herein, shall survive a transfer, conveyance, or
assignment occasioned by the exercise of foreclosure of lien rights by a creditor or a
Party, whether judicial or non judicial. This Agreement shall be binding upon and
insure to the benefit of the Parties and their respective successors and Assignee.
Notwithstanding the foregoing, however, Owner shall not have the right to assign
this Agreement, or any right, title, or interest of Owner under this Agreement, until
the District has become a Party.
9.06 No Third Party Beneficiary. This Agreement is solely for the benefit of the
Parties, and neither the City, the District, Aqua Utilities nor Owner intends by any provision of
this Agreement to create any rights in any third-party beneficiaries or to confer any benefit upon
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 15
or enforceable rights under this Agreement or otherwise upon anyone other than the City, the
District, Aqua Utilities and Owner.
9.07 Amendment. This Agreement may be amended only with the written consent of
all Parties and with approval of the governing body of the City.
9.08 No Waiver. Any failure by a Party to insist upon strict performance by the other
Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the
Party shall have the right at any time thereafter to insist upon strict performance of any and all
provisions of this Agreement. No provision of this Agreement may be waived except by writing
signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes
for which it is given. No waiver by any Party hereto of any term or condition of this Agreement
shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver
of the same term or condition.
9.09 Severability. The provisions of this Agreement are severable and, in the event
any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held or determined to be
invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or
unenforceability does not cause substantial deviation from the underlying intent of the Parties as
expressed in this Agreement, then such provision shall be deemed severed from this Agreement
with respect to such person, entity or circumstance, without invalidating the remainder of this
Agreement 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.
9.10 Ca tions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
9.11 Interpretation. The Parties acknowledge that each party and, if it so chooses, its
counsel have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments or exhibits hereto. As used in this
Agreement, the term "including" means "including without limitation" and the term "days"
means calendar days, not business days. Wherever required by the context, the singular shall
include the plural, and the plural shall include the singular. Each defined term herein may be
used in its singular or plural form whether or not so defined.
9.12 Section 13.248 Agreement. The Parties agree that the designation under this
Agreement of areas and customers to be served by water and wastewater utility providers is valid
and enforceable and may be submitted to the TCEQ for approval at the appropriate time pursuant
to Section 13.248 of the Texas Water Code regarding contracts designating areas to be served by
retail public utilities.
9.13 No Joint Venture. No provision of this Agreement shall be construed to create
any type of joint or equity ownership of any property or any partnership or joint venture. By
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 16
entering into this agreement, the City has no obligation to provide water or wastewater treatment
services to any area within Tradition or any other area in the CCN except the services to the
Development as set forth in this Agreement.
9.14 Counterpart Originals. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
9.15 Effect of Agreement. This Agreement supersedes any prior understandings or
written or oral agreements among the Parties and their affiliates, including without limitation
Recorp Partners, Ltd., concerning the subject matter hereof and the Original Utility Service
Agreement is hereby terminated as of the Effective Date of this Agreement.
9.16 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement
are incorporated into this Agreement by reference for the purposes set forth herein, as follows:
Exhibit A Map of Tradition showing the Development
Exhibit B Legal description of the Development
Exhibit C Legal description of Tradition
Exhibit D Map of "Denton&Wise County CCN Area"
Exhibit E Agreement for Sale of Treated Water
Exhibit F Agreement for Wastewater Service
Exhibit G Buy-Out Contract
Exhibit H List of developments with a Prior Contractual Commitment
Exhibit H-1 Map of developments within the Denton-Wise County CCN Area
with a Prior Contractual Commitment pursuant to Section 7.04
Exhibit I Map of the area west of the existing City limits known as Walsh
Ranch in Tarrant and Parker Counties
Exhibit J Assignment and Assumption Agreement
9.17 The Effective Date of this Agreement is , 2005.
ATTEST: CITY OF FORT WORTH
By:
Marty Hendrix
City Secretary (print name)
Title:
APPROVED AS TO FORM AND
LEGALITY:
Assistant City Attorney
Superseding Agreement Regarding omcli l HC O I"D
Water and Wastewater Utility Service a c, Pae 17
ATTEST: AQUA UTILITIES, INC.
By:
Corporate Secretary
(print name)
Title:
APERION COMMUNITIES, LLLP
By:
David P. Maniatis, General Partner
ELADIO PROPERTIES LLLP
By:
David P. Maniatis, General Partner
DROOY PROPERTIES, LLLP
By:
David P. Maniatis, General Partner
ATTEST: FORT WORTH MUNICIPAL UTILITY
DISTRICT NO. 1 OF DENTON COUNTY
By:
(print name)
Title:
Superseding;Agreement Regarding {
Water and Wastewater Utility Service Page 18
Exhibit A
Map of Tradition Showing the Development
Exhibit A to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
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THENCE S OOE07'20" E along the east line of said Aperion Tract One-A and the west line of
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8" iron pin found;
THENCE N 47EI5'51" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8" iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No.114;
THENCE S 89E4736" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set;
THENCE N 00E V12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOEI I'l2" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and
containing 16,728,840 square feet or 384.041 acres of land, more or less.
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
Exhibit B to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 2
Exhibit B
Legal description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT (Aperion Tract One-A and Aperion Tract One-B) and a portion of that tract conveyed
to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8" iron pin found;
THENCE N 89E3959" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52E34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44E08'03" E, a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65E58'36" E, a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped
1/2" iron pin set also being on the east line of said Aperion Tract One-A and the west line of that
tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
Exhibit B to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
way line of State Highway No. 114, said brass monument also being on the west line of a tract
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE0709" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land, more or less.
Exhibit Bto
Superseding Agreement Regarding yQ^ !o h
Water and Wastewater Utility Service �gg9 tl ll rye Q' U. Page 3
Exhibit C
Legal Description of Tradition
BEING 2,663.040 total acres of land described in three tracts in the G. Cardinas Survey,
Abstract No. 214, the James Chesier Survey, Abstract No. 225, the W.D. Reed Survey, Abstract
No. 1125, the W.C. Brookfield Survey, Abstract No. 34, and the W.A. Ferris Survey, Abstract
No. 419 situated in Denton County, Texas and being a combination of that tract conveyed to
Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property
Records of Denton County, Texas (RPRDCT), those tracts conveyed to Aperion Communities,
L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract
One-A and Aperion Tract One-B), that tract conveyed to Nancy Talley Reynolds, et al, by deed
recorded in Volume 2301, Page 223 RPRDCT, that tract conveyed to Aperion Communities,
L.L.L.P. by deed recorded under County Clerk's File No. 2003-190652 RPRDCT (Aperion
Tract Two), that tract conveyed to Trail Creek Acres, Inc. by deed recorded in Volume 1912,
Page 979 RPRDCT, that tract recorded in Volume 5128, Page 3102 RPRDCT, and that tract
recorded in Volume 5119,Page 715 RPRDCT and being more particularly described as follows:
TRACT 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al,by deed recorded in Volume 2906, Page 363 RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8" iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1397.33
feet to a capped 1/2" iron pin set, said capped iron pin set also being on the west line of said
Nancy Reynolds Talley, et al tract;
THENCE N 57E46'29" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, the east line of a tract conveyed to Peggy Jeannine Eaton and Betty
Marie McIntyre by deed recorded under County Clerk's File No. 2003-203215 and the west line
of said Nancy Reynolds Talley, et al tract, a distance of 253.45 feet to a 1/2" iron pin found;
THENCE N OOE21'32" E along the east line of said Peggy Jeannine Eaton and Betty Marie
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
McIntyre tract and the west line of said Nancy Reynolds Talley, et al tract, a distance of 1364.27
feet to a railroad spike found, said railroad spike also being on a west line of said Aperion Tract
One-A, said railroad spike also being in Sam Reynolds Road;
THENCE N OOE12'20" W along the east line of said Peggy Jeannine Eaton and Betty Marie
McIntyre tract and the west line of said Aperion Tract One-A and in Sam Reynolds Road, a
distance of 2791.88 feet to a railroad spike found;
THENCE S 89E52'16" W along the north line of said Peggy Jeannine Eaton and Betty Marie
McIntyre tract and the west line of said Aperion Tract One-A and in Sam Reynolds Road, a
distance of 1909.29 feet to a 5/8" iron pin found, said iron pin also being on the east line of
Indian Trails Phase 1, an addition to Denton County, Texas as recorded in Cabinet G, Page 311
of the Plat Records of Denton County, Texas (PRDCT);
THENCE N 00E09'l5" W along the west line of said Aperion Tract One-A, the east line of said
Indian Trails Phase 1, the east line of a tract conveyed to Avondale Ranch by deed recorded in
Volume 5289, Page 4253 RPRDCT and in Sam Reynolds Road, a distance of 1437.47 feet to a
60d nail in asphalt found, said 60d nail also being the southwest comer of a tract conveyed to
Milton High by deed recorded in Volume 501,Page 248 RPRDCT;
THENCE N 76E15'28" E along the west line of said Aperion Tract One-A and the south line of
said High tract, a distance of 381.87 feet to a 1/2" iron pin found;
THENCE N OOE18'58" W along the west line of said Aperion Tract One-A and the east line of
said High tract, a distance of 307.76 feet to a 1/2" iron pin found;
THENCE S 89E55'09" W along the west line of said Aperion Tract One-A and the north line of
said High tract, a distance of 370.41 feet to a 60d nail found, said 60d nail also being on the east
line of said Avondale Ranch tract and in Sam Reynolds Road;
THENCE N OOE12'09" W along the west line of said Aperion Tract One-A, the east line of said
Avondale Ranch tract, the east line of a tract conveyed to W.E. Wilkerson by deed recorded in
Volume 960, Page 35 RPRDCT, the east line of a tract conveyed to Edward Zelnik, et ux Janet
by deed recorded in Volume 4062, Page 1905 RPRDCT, the east line of a tract conveyed to J.
Lloyd Barksdale, et ux Dorthy by deed recorded in Volume 829, Page 271 RPRDCT, the east
line of a tract conveyed to J. Lloyd Barksdale, et ux Dorthy by deed recorded in Volume 829,
Page 275 RPRDCT, the east line of a tract conveyed to Gary Lynn Barksdale, et ux Toni Gayle
by deed recorded in Volume 1545, Page 427 RPRDCT, the east line of a tract conveyed to
Bobby J. Henry by deed recorded in Volume 5028, Page 3683 RPRDCT, and in Sara Reynolds
Road, a distance of 3495.34 feet to a railroad spike found, said railroad spike also being on the
south line of a tract conveyed to Margaret DiNapoli, et al, by deed recorded in Volume 4522,
Page 2063 RPRDCT;
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 2
THENCE S 89E57'51" E along the west line of said Aperion Tract One-A and the south line of
said Margaret DiNapoli, et al tract, a distance of 509.83 feet to a 5/8" iron pin found, said iron
pin also being on the west line of a tract conveyed to Archie Eddleman by deed recorded in
Volume 2322, Page 824 RPRDCT;
THENCE S OOE 14'31" E along the west line of said Aperion Tract One-A and the west line of
said Eddleman tract, a distance of 226.43 feet to a 1/2" iron pin found;
THENCE N 89EO5'10" E along the west line of said Aperion Tract One-A and the south line of
said Eddleman tract, a distance of 870.61 feet to a 5/8" iron pin found, said iron pin also being
the southwest corner of a tract conveyed to Ricky Iverson by deed recorded in Volume 4718,
Page 362 RPRDCT;
THENCE N 88E48'54" E along the west line of said Aperion Tract One-A and the south line of
said Iverson tract and the south line of a tract conveyed to Carol Theis by deed recorded in
Volume 1038, Page 887 RPRDCT, a distance of 1598.77 feet to a 1/2" iron pin found;
THENCE N OOE24'54" W along the west line of said Aperion Tract One-A and the east line of
said Theis tract and the east line of a tract conveyed to S.R. Harper by deed recorded in Volume
1726, Page 31 RPRDCT, a distance of 907.14 feet to a 1/2" iron pin found, said iron pin also
being the southeast corner of a tract conveyed to Roy Chastain by Contract of Sale recorded
under County Clerk's File No. 97-ROO21328 RPRDCT;
THENCE N OOE43'24" W along the west line of said Aperion Tract One-A and the east line of
said Chastain tract, a distance of 423.43 feet to a 1/2" iron pin found, said iron pin also being the
southeast corner of said Aperion Tract Two;
THENCE S 88E53'01" W along the south line of said Aperion Tract Two and the north line of
said Chastain tract, a distance of 1193.21 feet to a capped 1/2" iron pin found, said iron pin also
being on the east line of a tract conveyed to Wayne Harris by deed recorded in Volume 976,
Page 42 RPRDCT;
THENCE N OOE35'15" W along the west line of said Aperion Tract Two and the east line of said
Harris tract, the east line of a tract conveyed to John McCurry by deed recorded in Volume 971,
Page 697 RPRDCT, the east line of a tract conveyed to Samuel Haynes by deed recorded in
Volume 962, Page 43 RPRDCT, and the east line of a tract conveyed to Howell Choate by deed
recorded in Volume 924,Page 921 RPRDCT, a distance of 2336.13 feet to a 1/2" iron pin found,
said iron pin also being the southwest corner of a tract conveyed to The Pennington Family Trust
by deed recorded in Volume 4833, Page 525 RPRDCT;
THENCE S 88EO3'05" E along the north line of said Aperion Tract Two and the south line of
said Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT, a distance of
1190.05 feet to a 1/2" iron pin found, said iron pin also being on the north line of Aperion Tract
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 3
One-A;
THENCE N 89E00'24" E along the north line of said Aperion Tract One-A, the south line of said
Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT and the south line
of a tract conveyed to The Pennington Family Trust by deed recorded in Volume 4833, Page 521
RPRDCT, a distance of 1146.79 feet to a 1/2" iron pin found, said iron pin also being on the
southerly right-of-way line of Farm-to-Market Road No.407 (F.M. 407) (90'ROW);
THENCE S 50E10'01" E along the north line of said Aperion Tract One-A and the southerly
right-of-way line of F.M. 407, a distance of 682.19 feet to a capped 1/2" iron pin set, said iron
pin also being the Point of Curvature of a circular curve to the left having a radius of 617.96 feet,
a central angle of 39E44'46" and being subtended by a chord which bears S 70E02'24" E , 420.13
feet;
THENCE along said curve to the left and the north line of said Aperion Tract One-A and the
southerly right-of-way line of F.M. 407, a distance of 428.68 feet to a capped 1/2" iron pin set;
THENCE S 89E54'47" E tangent to said curve and along the north line of said Aperion Tract
One-A and the southerly right-of-way line of F.M. 407, a distance of 1464.51 feet to a 1/2" iron
pin found, said iron pin also being the Point of Curvature of a circular curve to the left having a
radius of 617.96 feet, a central angle of 45E20'00" and being subtended by a chord which bears
N 67E25'13" E, 476.29 feet;
THENCE along said curve to the left and the north line of said Aperion Tract One-A and the
southerly right-of-way line of F.M. 407, a distance of 488.94 feet to a capped 1/2" iron pin set;
THENCE N 44E45'13" E tangent to said curve and along the north line of said Aperion Tract
One-A,the north line of a tract conveyed to Trail Creek Acres, Inc. by deed recorded in Volume
1912, Page 979 RPRDCT and the southerly right-of-way line of F.M. 407, a distance of 225.73
feet to a capped 1/2" iron pin set, said iron pin also being the Point of Curvature of a circular
curve to the right having a radius of 527.96 feet, a central angle of 44E35'06" and being
subtended by a chord which bears N 67E02'46"E ,400.55 feet;
THENCE along said curve to the right and the north line of said Trail Creek Acres, Inc. tract and
the southerly right-of-way line of F.M. 407, a distance of 410.84 feet to a capped 1/2" iron pin
set;
THENCE N 89E20'19" E tangent to said curve and along the north line of said Trail Creek
Acres, Inc. tract and the southerly right-of-way line of F.M. 407, a distance of 1406.17 feet to a
capped 1/2" iron pin set;
THENCE N 89E26'19" E along the north line of said Trail Creek Acres, Inc. tract and the
southerly right-of-way line of F.M. 407, a distance of 749.30 feet to a 1/2" iron pin found, said
iron pin also being the northwest corner of a tract conveyed to Margaret DiNapoli, et al, by deed
recorded in Volume 4522,Page 2063 RPRDCT;
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 4
THENCE S OOE08'41" E departing the southerly right-of-way line of F.M. 407 and along the
east line of said Trail Creek Acres, Inc. tract, the west line of said Margaret DiNapoli, et al tract,
and the west line of a tract conveyed to Olen N. Range, et ux, Myrtie by deed recorded in
Volume 670, Page 29 RPRDCT, a distance of 3454.30 feet to a fence corner found;
THENCE S 89EIO'l8" W along the south line of said Trail Creek Acres, Inc. tract,the north line
of said Olen N. Range tract and the north line of a tract conveyed to Patricia Malloy by deed
recorded in Volume 769, Page 965 RPRDCT, a distance of 2598.90 feet to a 1/2" iron pin found,
said iron pin also being on the east line of said Aperion Tract One-A;
THENCE S 88E57'42" W along the east line of said Aperion Tract One-A and the north line of
said Patricia Malloy tract, a distance of 2342.10 feet to a 5/8" iron pin found;
THENCE S OOE10'33" E along the east line of said Aperion Tract One-A and the west line of
said Patricia Malloy tract, a distance of 3748.38 feet to a 5/8" iron pin found, said iron pin also
being the northwest corner of Riggs Place, an addition to Denton County, Texas as recorded in
Cabinet E, Page 359 PRDCT;
THENCE S 00EIT37" E along the east line of said Aperion Tract One-A, the west line of said
Riggs Place and the west line of a remainder tract conveyed to James Riggs, Jr., et ux Deborah,
by deed recorded in Volume 870, Page 444 RPRDCT, a distance of 4211.11 feet to a 1/2" iron
pin found, said iron pin also being in Sam Reynolds Road;
THENCE N 89E56'15" E along the east line of said Aperion Tract One-A, the south line of said
James Riggs, Jr. remainder tract, the south line of said Riggs Place, the south line of Sunflower
Meadows, an addition to Denton County, Texas as recorded in Cabinet O, Page 122 PRDCT, the
south line of Sage Meadows, Phase One, an addition to Denton County, Texas as recorded in
Cabinet M, Page 208 PRDCT; the south line of a tract conveyed to Locust Thorn, L.P., by deed
recorded in Volume 4009, Page 321 RPRDCT, the south line of Foxbane Estates, an addition to
Denton County, Texas as recorded in Cabinet H, Page 24 PRDCT and in Sam Reynolds Road, a
distance of 3409.24 feet to a capped 1/2" iron pin set, said iron pin also being the original
northwest corner of Peyton Place, Phase One, an addition to Denton County, Texas as recorded
in Cabinet M,Page 266 PRDCT;
THENCE S OOE 15'21" E along the east line of said Aperion Tract One-A, the west line of said
Peyton Place, Phase One and the west line of Peyton Place, Phase Two, an addition to Denton
County, Texas as recorded in Cabinet P, Page 50 PRDCT , a distance of 1482.19 feet to a 1/2"
iron pin found, said iron pin also being the northeast corner of a tract conveyed to Ferbro
Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT;
THENCE S OOE03'07" E along the east line of said Ferbro Investments tract, a distance of
503.35 feet to a 1/2" iron pin found, said iron pin also being on the northwesterly line of a tract
conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under
County Clerk's File No. 93-ROO20408 RPRDCT; said iron pin also being the Point of Curvature
of a non-tangent circular curve to the left having a radius of 5829.65 feet, a central angle of
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 5
19E1523" and being subtended by a chord which bears S 54E00'43" W, 1950.06 feet;
THENCE along said curve to the left and the northwesterly line of said Atchison, Topeka and
Santa Fe Railway Company tract, a distance of 1959.27 feet to a 1/2" iron pin found;
THENCE S 44E23'02" W along the northwesterly line of said Atchison, Topeka and Santa Fe
Railway Company tract, a distance of 27.66 feet to a 5/8" iron pin found;
THENCE N 45E36'58" W along the northwesterly line of said Atchison, Topeka and Santa Fe
Railway Company tract, a distance of 50.00 feet to a 5/8" iron pin found;
THENCE S 44E23'02" W along the northwesterly line of said Atchison, Topeka and Santa Fe
Railway Company tract, a distance of 3702.51 feet to a 5/8" iron pin found;
THENCE N 47E15'51" W along the northwesterly line of said Atchison, Topeka and Santa Fe
Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found;
THENCE S 44E27'42" W along the northwesterly line of said Atchison, Topeka and Santa Fe
Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said
brass monument also being on the said north right-of-way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 28 6.3 3 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set;
THENCE N OOE11'12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S 00E 11'12" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and
containing 89,976,698 square feet or 2065.581 acres of land, more or less.
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 6
TRACT 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
way line of State Highway No. 114, said brass monument also being on the west line of a tract
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44E26'3I" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
TRACT 3
BEING a 550.197 acre tract of land in the W.C. Brookfield Survey, Abstract No. 34, situated in
Denton County, Texas and being that same tract of land as described in deeds recorded in
Volume 5128, Page 3102 and Volume 5119, Page 715 of the Real Property Records of Denton
County, Texas (RPRDCT) and being more particularly described as follows:
BEGINNING at a point in the north line of F.M. 407 at the southeast corner of the herein
described tract of land, said point lying in the west line of a tract of land as described in deed to
Bill Pennington, recorded in Volume 572, Page 131, RPRDCT;
THENCE along the north line of said F.M. 407, as follows:
Northwesterly, along a curve to the left,having a radius point that bears
S 18°06'28" W, 624.31 feet, an arc distance of 204.03 feet, a central angle of 18°43'31" and
being subtended by a chord which bears N 819 5'18" W, 203.13 feet;
S 89°22'57" W, a distance of 1876.49 feet;
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 7
S 89°18'36" W, a distance of 1931.01 feet;
THENCE N 00°04'03" W, departing the north line of said F.M. 407, a distance of 2834.59 feet;
THENCE N 00°00'51" E, a distance of 1161.59 feet;
THENCE N 00004'13" E, a distance of 1244.99 feet to the northwest corner of the herein
described tract of land;
THENCE, being adjoined to the north by a tract of land as described in deed to Orville Rogers,
recorded in Document No. 94-R0029773, RPRDCT, along the north line of the herein described
tract of land, as follows:
S 89°37'03" E, a distance of 5409.41 feet;
S 00°32'35" W, a distance of 352.79 feet;
N 89046'56" E, a distance of 651.45 feet;
THENCE S 00044'37" E, being adjoined to the east by a tract of land as described in deed to
Laura Carter Johnson, recorded in Volume 3038, Page 713, RPRDCT, a distance of 1372.47
feet;
THENCE N 85016'40" W, a distance of 2099.00 feet;
THENCE S 00024'45" E, being adjoined to the east by the aforementioned Pennington tract, a
distance of 3642.68 feet to the POINT OF BEGINNING and containing 550.197 acres, more or
less.
The above described three tracts of land totaling 2663.040 acres of land,more or less.
Exhibit C to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 8
Exhibit D
Map of"Denton & Wise County CCN Area"
Exhibit D to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
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Exhibit E
Agreement for Sale of Treated Water
Exhibit E to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
AGREEMENT FOR SALE OF TREATED RATER
This Agreement for Sale of Treated Water ("Agreement's is entered into by and between
Aqua Utilities, Inc., formerly known as Aqua Source Utility, Inc., a Texas corporation(and/or its
corporate successors and assigns) ("Aqua Utilities") and the City of Fort Worth, a Texas home
rule municipality(the
ARTICLE I
RECITALS
A. Aqua Utilities wishes to provide retail water utility service to the land shown on
Exhibit A and more particularly described in Exhibit B to this Agreement, and.
consisting of approximately 431.303 acres in Denton County, Texas (the
"Development', located entirely within the City's extraterritorial jurisdiction
("ETJ'�:
B. The City and Aqua Utilities are parties to the"Superseding Agreement Regarding
Water and Wastewater Utility Service," dated December 21, 2005, City Secretary
Contract No. 32899, ("Superseding Utility Agreement'% which sets forth the
rights and obligations of the parties to that agreement with respect to the provision
of retail and wholesale water and wastewater service to the Development, and
provides, among other things, for the City and Aqua Utilities to enter into a
contract for the provision of wholesale water service to the Development.
C. The Development is located within Certificate of Convenience and Necessity No.
11157 issued to Aqua Utilities by the Texas Commission on Environmental
Quality, pursuant to which Aqua Utilities is to be the retail provider of a
continuous and adequate supply of water to the Development.
D. The City has obtained at its own expense, and now owns, operates and maintains
facilities for processing and distributing a supply of surface water, and is
authorized to furnish and deliver treated water, both inside and outside its
corporate boundaries.
E. Aqua Utilities has considered its various alternatives for obtaining a water supply
for its retail water service to the Development under its CCN and has elected to
seek to obtain water from the City.
F. Aqua Utilities has independently obtained a water utility engineering study
describing facilities and equipment needed for retail water service to the
Development, including the Storage Tank.
G. The City and Aqua Utilities have reached a mutually satisfactory agreement by
which Aqua Utilities may purchase a supply of treated water from City to serve
the Development.
Agreement for Sale of Treated Water ^ C-,'�''�` a Cr=�o 1
� �if��� �f� �:�C�l�ll� Page 1
NOW, THEREFORE, for and in consideration of the mutual agreements, covenants, and
conditions hereinafter set forth,the Parties contract and agree as follows:
ARTICLE H
DEFINITIONS
"Agreement" means this Agreement for Sale of Treated Water between the City and Aqua
Utilities.
"Annual Consumption" means the total quantity of waxer purchased under the terms of this
Agreement by Aqua Utilities during the City's Fiscal Year as determined by the difference in the
annual October Meter readings.
"Aqua. Utilities"means Aqua Utilities, Inc., a Texas corporation (and/or its corporate successors
and assigns).
"Average Daily Use"means the total Annual Consumption divided by 365 days.
" ff'means the City of Fort Worth, Texas, a home-rule municipality.
"City Council"means the City Council of the City.
"Cure Period"means the period of time to cure a material breach, as defined in Section 9.04.
"Customer System" means all water mains and distribution facilities (whether owned by Aqua
Utilities or third parties) within the Development and on Aqua Utilities' side of the Meter shown
on Exhibit C,from and beyond the Point of Delivery of treated water by the City.
"Development" means that certain 431.303-acre tract located in Denton County, Texas shown on
Exhibit A and more particularly described in Exhibit B, which Development is located entirely
within the ETJ of the City.
"Director"means the City Water Department Director or designee.
"Effective Date"means the effective date as defined in Section 9.03.
"ETJ"means the extraterritorial jurisdiction of a city as defined by the Texas 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.
"Fiscal Year"means the City's fiscal year from October 1 through September 30.
"Fort Worth System"means the City's water treatment and distribution system.
R
Agreement for Sale of Treated Water Page 2
"Maximum Day Demand" means the maximum quantity of water used by Aqua Utilities during
one calendar day of the City's Fiscal Year.
"Maximum Hour Demand" means the maximum quantity of water used by Aqua Utilities during
the one hour of the year that more water passed through the Meter serving Aqua Utilities than
during any other hour of the City's Fiscal Year multiplied by 24 hours.
"Metering Facilities" means all facilities associated with metering the water provided hereunder,
excluding Meters, and including without limitation continuous flow chart recording devices and
telemetering equipment connected with the City's SCADA control center.
"Meter"means the six-inch(6')meter located at the Point of Delivery shown on Exhibit C.
"MGD"means million gallons per day.
"Notice"means notice as defined in Section 11.02 of this Agreement.
"Parties" means, all of the City and Aqua Utilities, their successors and their assigns, as
permitted by this Agreement.
"RgIlf means, individually, the City or Aqua Utilities, their successors and their assigns, as
permitted by this Agreement.
"Point of Delivery" means the meter vault connection to Aqua Utilities' side of the Meter
installed by Aqua Utilities in accordance with Article IV, as shown on Exhibit C.
"Rate of Use Charge" means the charge determined for the Maximum Day Demand in excess of
Average Daily Use and the Maximum Hour Demand in excess of Maximum Day Demand rates
of use.
"Raw Water Charge" means the rate per 1,000 gallons for out-of-district raw water charged to
the City by the Tarrant Regional Water District, as such rate may be adjusted, plus eight percent
(8%) of said rate,representing the City's system losses of four percent (4%), and the street rental
charge of 4%.
"Storage Tank"means the 600,000 gallon storage tank owned and/or operated by Aqua Utilities,
as shown on Exhibit C.
"Superseding Utility Aueement"means the agreement defined in Recital B.
"System Cost" means the operating expense and capital related cost incurred by the City
pursuant to the provision of water treatment and transmission to the wholesale class of water
customers. Such costs are to be collected by the City as a component of the annual cost of
providing wholesale water service.
Agreement for Sale of Treated Water Page 3
"Temporary Emergency Condition" means a situation created by unforeseeable mechanical
failure or by unprecedented high rate of water usage such as might result from a major fire or a
major water main break. This term does not include events that are foreseeable or preventable
by the exercise of due diligence.
"Treatment. Pumping and Transmission Charge" means that part of the rate charged for 1,000
gallons used, regardless of rate of use. This charge shall include the maintenance and operation
costs and the capital facilities cost on the part of the production and transmission system related
to annual use.
"Volume Charge" means the combined Treatment, Pumping and Transmission Charge and the
Raw Water Charge.
ARTICLE III
WATER SUPPLY,USE AND STORAGE
3.01 Supply of Treated Water. The City agrees to furnish and sell to Aqua Utilities
treated water of potable quality meeting all applicable governmental standards, delivered under
the normal operating pressure prevailing in the Fort Worth System at the Point of Delivery.
Aqua Utilities agrees to accept delivery under the conditions of this Agreement and to pay for
such water in accordance with the terms herein. Aqua Utilities' sole connection to the Fort
Worth System shall be at the Point of Delivery.
3.02 Rate of Withdrawal, Construction of Storage Tank and Pressure. The rate at which
water is withdrawn from the Fort Worth System by Aqua Utilities shall be limited by system design
based on a six-inch(6)Meter. Aqua Utilities shall install and maintain or cause to be installed and
maintained a 600,000 gallon Storage Tank at the location shown on Exhibit C; all construction
costs for the storage tank, including, but not limited to, site acquisition and preparation, design
and engineering and rights-of-way, and all maintenance costs shall be paid by Aqua Utilities. In
addition, Aqua Utilities shall maintain a minimum pressure of 35 pounds per square inch ("PSI')
at the Meter.
3.03 Extension of Facilities. The City's water supply line is approximately 8,000 feet
from the Development. In order for Aqua Utilities to receive treated water from the City
pursuant to this Agreement, the City's water supply line will have to be extended to the
Development. The City has no obligation to extend such line.
3.04 Backflow Prevention. Prior to the delivery of any water by the City pursuant to
this Agreement, Aqua Utilities, at its sole expense, shall install and maintain a backflow
prevention device approved by the Texas Commission on Environmental Quality immediately
after the Meter on Aqua Utilities' side, as reflected in Exhibit C.
3.05 Sale and Use Within Development Only. Aqua Utilities may not sell or transfer
any water furnished by the City under this Agreement to any connections or for any use outside
of the Development, except that Aqua Utilities may (a) serve a maximum of 10 retail residential
connections outside the Development with City's written consent and (b) serve outside the
Agreement for Sale of Treated Water Page 4
Development as provided in Section 3.08. The City is under no obligation to sell or otherwise
deliver any treated water to Aqua Utilities except pursuant to all of the terms and conditions this
Agreement.
3.06 Tarrant Reizional Water District Contract. In accordance with the terms of City
Secretary Contract No. 12720 between the City, City of Arlington, City of Mansfield, Trinity
River Authority and the Tarrant County Water Control and Improvement District No. 1, a Water
Control and Improvement District created under authority of Article XVI, Sec. 59 of the Texas
Constitution and now named the Tarrant Regional Water District, this Agreement shall be
deemed subordinate in all respects to the water requirements of the contracting parties as
specified in Section 3 of that Contract No. 12720.
3.07 Conservation. If the City shall ration the use of water throughout its corporate
limits or issue water conservation measures or restrict the use of waxer in any way,the City shall
notify Aqua Utilities, who shall immediately impose and enforce the same rationing,
conservation measures, or restrictions to the use of water within the Development
3.08 Delivery of Water by Aqua Utilities Outside the Development. At the request of the
Director, Aqua Utilities agrees to furnish water to areas and premises situated adjacent to the
Development and within the City's ETJ. The metered quantity of water used in such area each
month by the City shall be the total of all individual customer meter readings. The metered quantity
of such water furnished by Aqua Utilities to the City shall be deducted from the total quantity of
water withdrawn from the Fort Worth System by Aqua Utilities before the charge for waxer service
to Aqua Utilities is computed as provided in this Agreement. No adjustment will be made to the
Rate of Use Charge for water furnished pursuant to this Section 3.08; however, at the option of
Aqua Utilities or the City, a master meter may be installed where practicable at the City's expense
to meter and deduct from the Rate of Use Charge calculation all water used by the City under the
terms of this section.
ARTICLE IV
METER AND METERING FACILITIES
4.01 Construction and Title. All water furnished by the City under this Agreement
shall be measured by a six-inch (6") Meter equipped with continuous flow, chart-recording
devices, and telemetering equipment connected with the City's control center. Aqua Utilities
shall construct and install or cause to be constructed and installed the Meter, Metering Facilities
and appurtenances. All construction shall be in accordance with Article V of the Superseding
Utility Agreement, which requires, among other things, that all construction of water
infrastructure shall be in accordance with plans and specifications meeting City standards and
shall be approved in advance by the City. All construction costs, including, but not limited to,
site acquisition and preparation, design and engineering and rights-of-way, shall be paid for by
Aqua Utilities. Upon acceptance of the Meter, Metering Facilities and appurtenances, the City
shall own and have title to such equipment, along with the exclusive right to use, operate and
maintain such equipment.
Agreement for Sale of Treated water Page 5
4.02 Operation and Maintenance. Upon acceptance of the Meter, Metering Facilities
and appurtenances, the City shall pay all costs associated with the operation and maintenance of
such equipment and shall pay for the repair and replacement of such equipment as necessary,
excluding upsizing of the Meter. Such costs, as well as charges for repair and replacement of the
telelink line and microwave transmitter and the power to operate same, shall be a System Cost.
The Meter will be properly sealed, and the seal shall not be broken unless representatives of both
Parties have been notified and given a reasonable opportunity to be present.
4.03 Service and Calibration. City shall test for accuracy, and service and calibrate if
necessary, the Meter no less than once during each twelve (12) month period. Copies of the
results of such calibration and all related information shall be provided to Aqua Utilities.
4.04 Access to Facilities. Aqua Utilities shall have access to the Meter and Metering
Facilities at all reasonable times; provided, however, that any reading, calibration or adjustment
to such equipment shall be done by employees or agents of City, or other mutually approved
third party calibration agent, in the presence of representatives of Aqua Utilities and City, if so
requested by Aqua Utilities. The City shall notify Aqua Utilities at least seventy-two (72)hours in
advance of the date and time for any calibration and Aqua Utilities may observe the calibration.
4.05 Corrections. Upon any calibration, if it is determined that the accuracy envelope
of the Meter is found to be lower than ninety-five percent(95%) or higher than one hundred five
percent (105%) expressed as a percentage of the full scale of the Meter, the registration of the
flow as determined by the defective Meter shall be corrected for a period extending back to the
time such inaccuracy began, if such time is ascertainable; or, if such time is not ascertainable,
then for a period extending back one-half(1/2) of the time elapsed since the date of the last
calibration,but in no event further back than a period of six (6)months.
4.06 Out of Service Meter. If the Meter used to determine the flow of treated water to
Aqua Utilities is out of service or out of repair so that the amount of water metered cannot be
ascertained or computed from the reading thereof, the water delivered during the period the
Meter is out of service or out of repair shall be estimated upon the extrapolation of past patterns
of flow for that Meter location under similar conditions.
ARTICLE V
METER READING,BILLING AND PAYMENT
5.01 Meter Readinje and Access. City will read the Meter at monthly intervals. City
and Aqua Utilities shall have free access to read the Meter daily, if either so desires. It shall be
the duty of City and Aqua Utilities to give immediate Notice, each to the other, should the Meter
or Metering Facilities be found not functioning properly and, upon such Notice, City shall
promptly repair such equipment.
5.02 Access to Records. All data obtained from Meter readings will be maintained by
the City in its usual and customary manner. Aqua Utilities shall have access to such records
during reasonable business hours and shall be furnished with monthly readings for the Meter.
Agreement for Sale of Treated Water Page 6
5.03 Billing. Bills for water service shall be rendered to Aqua Utilities monthly by the
City. All such bills shall be due and payable by Aqua Utilities not more than thirty(30) days from
the billing date. The bills will show current charges, as well as past-due charges, if any. Past-due
charges shall be the total amount unpaid from all prior billings as of the current billing date.
Payments received by the City shall first be applied to the past-due charges, if any, and thereafter to
the current charges. A review of water usage amounts by Aqua Utilities for the past twelve (12)
months shall be made during the presentation of the October bill each year. The October statements
shall be prepared so as to reflect any and all Rates of Use Charges that have not been previously
billed and paid. A copy of the rate of flow charts or other records showing the Maximum Day
Demand and the Peak Hour Rate of the year shall be furnished to Aqua Utilities with the October
billing.
5.04 Di uses. If Aqua Utilities disputes a bill and is unable to resolve the difference
informally, Aqua Utilities shall notify the Director in writing. The Director and Aqua Utilities shall
use their best efforts to resolve the disputed bill; however, dispute of a bill is not grounds for non-
payment. In the event a payment is not paid as specified in this Agreement, a finance charge of ten
percent (10%) per annum will be calculated from the date which the payment was required to be
made.
ARTICLE VI
OWNERSM,LIABILITY AND INDENMFICATION
6.01 Water Quality; Additional Water Sources. The City shall deliver water that meets
all state and federal water quality requirements to the Point of Delivery. If Aqua Utilities
obtains water from any source other than the City, the City makes no representation that the
treated water to be delivered to Aqua Utilities will properly mix with water that Aqua Utilities
obtains from other sources. Aqua Utilities assumes all responsibility and liability for any
combining or mixing of water delivered by the City that is combined or mixed with water from
Aqua Utilities' other sources. The City's sole responsibility is to provide to Aqua Utilities water
of a quality that meets state and federal drinking water standards at the Point of Delivery. From
the Point of Delivery on, Aqua Utilities is solely responsible for meeting state and federal
drinking water quality standards. Aqua Utilities shall notify the Director in writing before
obtaining water for the Development from any source other than the City.
6.02 Liability and Ownership. Ownership of and liability for the water shall remain
with the City until the water passes through the Point of Delivery. Aqua Utilities assumes all
liability and responsibility for, together with ownership of, the water after it passes through the
Point of Delivery, including but not limited to liability for mixing, transportation and quality of
water. In addition, repair and maintenance of the Customer System shall be Aqua Utilities'
responsibility and the City has no liability or responsibility for maintenance and operation of the
Customer System. No provision of this Agreement shall be construed to create any type of joint
or equity ownership of any property or any partnership or joint venture, and Aqua Utilities'
payments (whether past, present, or future) shall not be construed as granting Aqua Utilities
partial ownership of,pre-paid capacity in, or equity in the Fort Worth System.
Agreement for Sale of Treated Water Page 7
6.03 Indemnity. To THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AQUA
UTILITIES AGREES TO INDEMNIFY AND DEFEND THE CITY, ITS OFFICERS, ELECTED OFFICIALS,
EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS, CONTRACTORS, SUCCESSORS AND ASSIGNS
(COLLECTIVELY, "INDEMNITEES") WITH REGARD TO ANY AND ALL CLAIMS, LOSSES,
DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS, ADMINISTRATIVE PROCEEDINGS,
REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS, ENFORCEMENT ACTIONS, AND ALL
COSTS AND EXPENSES INCURRED IN CONNECTION THEREWITH (INCLUDING, BUT NOT LIMITED
TO, REASONABLE ATTORNEYS' FEES, COSTS OF INVESTIGATION AND EXPENSES, INCLUDING
THOSE INCURRED BY CITY IN ENFORCING THIS INDEMNITY), DIRECTLY OR INDIRECTLY
ARISING OUT OF, CAUSED BY OR RESULTING FROM (IN WHOLE OR IN PART) ANY BREACH OF
THIS AGREEMENT OR ANY CONNECTION OF THE CUSTOMER SYSTEM TO THE FORT WORTH
SYSTEM (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE
ATTRIBUTED TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY
INDEMNITEE.
ARTICLE VII
REPORTS AND AUDIT
7.01 Required Records. Aqua Utilities shall provide the following data to the City
upon 30 days Notice:
A. Actual number of customer accounts consuming directly or indirectly from the
Customer System;
B. Classification of domestic and nondomestic accounts within the Development
by number and percentage of accounts consuming directly or indirectly from
Customer System; and
C. Aqua Utilities' water usage from all sources other than the Fort Worth System,
including, but not limited to, ground water, other surface water, and water
supply agreements with other entities.
7.02 Inspection and Audit. The City and Aqua Utilities shall maintain all records and
accounts related to this Agreement for a period of five (5) years. Each Party shall at all times,
upon Notice, have the right at reasonable times to examine and inspect said records and accounts
during normal business hours; and finther, if required by any law, rule or regulation, make said
records and accounts available to federal and/or state auditors.
ARTICLE VIII
RATES AND CHARGES
8.01 Rates Charged Pursuant to this Agreement The Parties agree that the rates charged
pursuant to this Agreement will be calculated using the methodology set forth in Exhibit D. which
also serves as the basis for the wholesale water rates that the City charges to each municipality that
is a wholesale water customer of the City,pursuant to each of their separate contracts. The majority
of the City's contracts with its municipal wholesale customers will expire in 2010 and the City
Agreement for Sale of Treated Water Page 8
expects to enter into negotiations for new wholesale contracts with such customers. The City shall
provide Aqua Utilities at least ten (10) days prior Notice of the commencement of the negotiations
between the City and the Water System Advisory Committee. If this Agreement is renewed
pursuant to Section 9.02(A), and if the renegotiated contracts with the City's wholesale customers
who are municipalities include a rate methodology that differs from Exhibit D,then Aqua Utilities
and the City expressly understand and agree that for the renewal term of this Agreement the rate
methodology described in Exhibit D will be automatically superceded and replaced with a new
Exhibit D that adopts the same rate methodology used to calculate the rates for those wholesale
customers of the City who are municipalities, and such Exhibit D will then be used to calculate
rates charged pursuant to this Agreement.
8.02 Initial Rate. The initial rates for this Agreement shall be those adopted by the City
Council and effective on October 1,2005,which are as follows:
Treatment,Pumping and $0.6829 per 1,000 gallons
Transmission Charge withdrawn by Aqua Utilities
Raw Water Charge $0.6775 per 1,000 gallons
Annual charge per MGD of $104,348 per MGD
Maximum Day Demand in
excess of Average Daily Use
Maximum Hour Demand in excess $27,043 per MGD
of the Maximum Day Demand
Service Charge $25.00 per month per meter
8.03 Annual Payment The annual payment to the City for water used by Aqua Utilities
will be computed based on all water delivered by the City to Aqua Utilities during the current Fiscal
Year using rates charged pursuant to this Agreement. For purposes of calculating the annual
payment,the current year will be the Fiscal Year during which the water usage occurred. However,
the minimum annual payment will be the greater of the following:
(a) The charges calculated by applying the current Volume Charge to Annual
Consumption, the appropriate Meter reading and billing charge, and the
Rate of Use Charge for the current Fiscal Year; or
(b) The current Fiscal Year Volume Charge, the appropriate Meter reading and
billing charge, and the current Fiscal Year Rate of Use Charge applied to the
average of the Maximum Day Demand above Average Daily Use and the
average of the Maximum Hour Demand above Maximum Day Demand for
the most recently completed three Fiscal Years. The most recently
completed three Fiscal Years will include the current Fiscal Year;or
(c) Twelve thousand dollars($12,000).
Agreement for Sale of Treated Water Page 9
8.04 Monthly P@ meat. Except as provided for in Section 8.05 below, the monthly
payment will be the greater of either one thousand dollars ($1,000) or a sum equal to the Volume
Charge for the actual volume of water taken plus one twelfth(1/12)of the sum of the estimated Rate
of Use Charges and the appropriate Fiscal Year charges for meter reading and billing. For purposes
of estimating the rate of use payments, the current Fiscal Year Rate of Use Charges will be applied
to the prior Fiscal Year's Maximum Day Demand, Maximum Hour Demand and Average Daily
Use.
8.05 Adiustment of Rates. Aqua Utilities agrees that the City shall have the right to
unilaterally adjust the rates charged for the water services provided pursuant to this Agreement,
from time to time, so long as the adjustment is based on the agreed methodology set forth
Exhibit D and in effect pursuant to Section 8.01, and otherwise in compliance with this Agreement.
Aqua Utilities' agreement that the City has the right to unilaterally adjust the rates charged
pursuant to this Agreement is an essential part of the consideration given by Aqua Utilities in
exchange for the City's entering into this Agreement to provide wholesale water service to the
Development, which is in the City's ETJ and in Aqua Utilities' CCN, and without which
consideration the City would not have provided wholesale water service to Aqua Utilities, either
by entering into this Agreement or otherwise. Furthermore, in exchange for the City's right to
unilaterally adjust the rates charged hereunder, in addition to other rights under this Agreement,
should Aqua Utilities object to any unilateral rate adjustment, Aqua Utilities shall have the right
to terminate this Agreement with one year's Notice and the following rate relief. Upon any rate
adjustment pursuant to this Article VIII and Exhibit D,Aqua Utilities has the following options:
A. Agree to pay the adjusted rate; or
B. Give Notice (i) that it wishes to terminate this Agreement one year after the
effective date of the proposed rate adjustment and (ii) that it rejects the rate
change, in which case the City will continue to charge Aqua Utilities the contract
rates that were in effect immediately prior to the proposed rate adjustment.
If Aqua Utilities elects to terminate this Agreement under this Section 8.05, then the Agreement
will expire at the earlier of the one-year Notice period or the Section 9.01 expiration date. If
Aqua Utilities continues to accept delivery of treated water and has not disconnected the
Customer System from the Fort Worth System on the date this Agreement is to expire pursuant
to this Section 8.05, then the Agreement shall not expire pursuant to this Section 8.05 and Aqua
Utilities shall immediately pay the City the difference between the amount that would have been
charged pursuant to this Agreement under the rate Aqua Utilities rejected, and the amount
actually charged to Aqua Utilities during the preceding year, with interest, and subject to any
other rate adjustment, past or future, pursuant to this Article VIII and Exhibit D. Aqua Utilities
agrees that the remedy provided by this Section 8.05 provides its sole and exclusive remedy, in
law and equity, for any rate adjustments pursuant to this Agreement, and that it will not pursue a
wholesale rate appeal of such rates at any regulatory agency.
8.06 Minimum Revenue Collection. Aqua Utilities agrees, throughout the term of this
Agreement,to fix and collect such rates and charges for water service to be supplied as will produce
Agreement for Sale of Treated Water Page 10
revenues in an amount equal to at least all of its operation and maintenance expenses of the
Customer System,including specifically its payments and obligations under this Agreement.
ARTICLE IX
TERM AND RELATED PROVISIONS
9.01 Term of Agreement. This Agreement shall expire upon the sooner of: (i)the date
upon which Aqua Utilities ceases to be the retail water provider for the Development; (ii)
termination in accordance with this Article IX; or(iii)December 31, 2011.
9.02 Extension. Where expiration of this Agreement occurs pursuant to Section 9.01(iii),
the City will offer to continue to sell wholesale waxer to Aqua Utilities under one of two options,to
be chosen by the City in its sole discretion:
A. A renewal of this Agreement, in its entirety, amending only Section 9.01(iii)to
state"December 31,2025"and Section 8.02 to state initial rates that are those in
effect on the first day of the renewal term for the City's wholesale customers
who are municipalities.
B. A wholesale water agreement with terms that are the same as the terms of the
renegotiated contracts with the City's wholesale customers whose contracts now
expire in 2010, and subject to all the terms and conditions of those contracts,
except that the expiration date of the wholesale agreement with Aqua Utilities
shall not extend beyond the earlier of the date on which Aqua Utilities ceases to
be the retail water provider for the Development or December 31,2025.
The City will advise Aqua Utilities of the City's selected option by providing Notice one hundred
eighty (180) days before the Section 9.01(iii) expiration date. Aqua Utilities can then either (i)
agree to accept the option offered by the City in its Notice,in which case Aqua Utilities and the City
will execute the documents necessary to formalize the terms of such agreement within 60 days of
Aqua Utilities' receipt of Notice; or (ii) elect not to continue to purchase water from the City, in
which case this Agreement terminates on the Section 9.01(iii)expiration date and thus the City shall
have no further service obligation thereafter. If the City's wholesale customers' 2010 expiration
dates are extended,then the Section 9.01(iii)expiration date of this Agreement will be extended for
the same number of years or months,but in no event beyond December 31,2025.
9.03 Effective Date. This Agreement, together with all terms and conditions and
covenants, shall be effective December 21, 2005.
9.04 Termination. In addition to termination pursuant to this Article IX and Section
8.05, this Agreement may be terminated in whole or in part by the mutual consent of Aqua
Utilities and the City, and the Agreement shall expire on any such mutually agreed date.
Notwithstanding anything contained herein to the contrary, any material breach by Aqua Utilities in
the performance of any of the duties or the obligations assumed by Aqua Utilities hereunder, or to
faithfully keep and perform any of the terms, conditions and provisions hereof, shall be cause for
termination of this Agreement by the City in the manner set forth in this Section 9.04. If Aqua
Agreement for Sale of Treated Water Page 11
Utilities commits a material breach, then, except as provided in Sections 9.06 and 9.07, the City
shall deliver to Aqua Utilities ninety (90) days Notice of its intention to terminate this
Agreement, including in such Notice a reasonable description of the breach. Aqua Utilities shall
commence curing such breach within fourteen (14)calendar days after receipt of such Notice and
shall diligently pursue and complete such cure without unreasonable cessation of activities
within ninety (90) days from the date of the Notice; however, if the breach is not reasonably
susceptible to cure by Aqua Utilities within such ninety (90) day period, the City agrees that it
will not terminate this Agreement so long as Aqua Utilities has diligently pursued such cure
within the foregoing ninety (90) days and diligently completes the work, without unreasonable
cessation, within a reasonable time thereafter. The time authorized by this Agreement to cure the
breach is the "Cure Period." If Aqua Utilities shall fail or refuse to cure such material breach to
the satisfaction of the City within the Cure Period,then and in such event,the City shall have the
right with additional sixty (60) days advance Notice to Aqua Utilities and without any liability
whatsoever on the part of the City to declare this Agreement terminated, and the Agreement will
immediately expire at the end of such Notice period. The City shall give Notice to Aqua Utilities
immediately upon acceptance of the cure of any breach. A material breach of this Agreement
includes,but is not limited to:
(a) Failure to pay any bill,charge or fee as provided for in this Agreement;
(b) Making any connection to the Fort Worth System at any point except the
Point of Delivery;
(c) Failure to provide City ingress and egress for purposes of operation and
maintenance of any Metering Facility;
(d) Failure to comply with Sections 3.02, 3.05, 4.01, or 8.05; and
(e) Failure to comply with Article X.
9.05 Non-Material Breach. In the event of any non-material breach, default or failure
to perform duties under this Agreement, the City shall deliver to Aqua Utilities sixty (60) days
Notice of such default. If Aqua Utilities fails to cure such breach, default or failure within said
sixty (60) days, then the City shall give Aqua Utilities Notice of such failure to cure and may
surcharge Aqua Utilities Five Thousand Dollars ($5,000) per month until such time as Aqua
Utilities cures such non-material breach.
9.06 Failure to Impose Conservation Measures. If the City rations the use of water
throughout its corporate limits, issues water conservation measures or restricts the use of water in
any way pursuant to Section 3.07, and Aqua Utilities fails or refuses to impose and enforce the
same rationing, conservation measures or restrictions, Aqua Utilities shall be in material breach
of this Agreement. The 90-day Notice provision contained in Section 9.04 shall not apply and
the Director, in his or her sole discretion, shall provide Notice to Aqua Utilities of the deadline
for curing such breach. If Aqua Utilities fails or refuses to cure such breach within the stated
time, the City shall have the right,,with six (6) months additional advance Notice to Aqua
Utilities, and without any liability whatsoever on the part of the City, to declare this Agreement
Agreement for Sale of Treated Water Page 12
terminated, and the Agreement will immediately expire at the end of such Notice period,
notwithstanding the expiration or rescission of the rationing, conservation measures or
restrictions during such six-month period. The City shall give Notice to Aqua Utilities
immediately upon acceptance of the cure of any breach.
9.07 Failure to Prevent Backflow. The Notice and cure provisions set out in Section
9.04 do not apply to a breach of Section 3.04. The City shall have the right to terminate this
Agreement without further Notice if Aqua Utilities commits a breach of Section 3.04 and fails to
cure such breach after reasonable Notice and opportunity to cure.
9.08 Obligation to Develop Alternative Sources. Aqua Utilities shall develop
alternative or replacement water supplies prior to the expiration of this Agreement.
9.09 Effect of Termination. In event of termination of this Agreement, except to the
extent provided in Section 9.10, all rights, powers, and privileges of Aqua Utilities hereunder
shall cease and immediately terminate upon the expiration date, and Aqua Utilities shall not
assert any claim of any kind whatsoever against the City, its agents, or representatives, by reason
of such termination or any act incident thereto, provided City acted reasonably and such
termination was not unreasonable, arbitrary and capricious.
9.10 Surviving Provisions. As part of, or in addition to, survival rights to which the
Parties may be entitled in law or equity, the following provisions shall survive following
termination or expiration of this Agreement for any reason: (a) any payment obligation of any
Party under the terms of this Agreement; (b) Section 6.03 (Indemnity); (c) Article VII (Reports
and Audit); Article X(Construction Standards) and(d)Article XI (Miscellaneous).
ARTICLE X
PERFORMANCE PURSUANT TO SUPERSEDING UTILITY AGREEMENT
This Agreement is executed pursuant to, and shall be performed consistent with the terms
of, the Superseding Utility Agreement. Accordingly, all construction, operation and
maintenance activities undertaken pursuant this Agreement shall be performed in compliance
with the Superseding Utility Agreement, including the standards for construction, operation and
maintenance set forth in Article V of that agreement. In the event of a conflict between this
Agreement and the Superseding Utility Agreement, the Superseding Utility Agreement shall
control.
Agreement for Sale of Treated Water �„ ',,� N J old, Page 13
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ARTICLE XI
MISCELLANEOUS
11.01 Governing Law: Jurisdiction and Venue. THIS AGREEMENT MUST BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS
THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD
TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES
ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND
HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, AND HEREBY
AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY
DISPUTE ARISING HEREUNDER.
11.02 Notice. Any notices, approvals, or other communications required to be given by
one Parry to another under this Agreement(a"Notice") shall be given in writing addressed to the
Parry to be notified at the address set forth below and shall be deemed given: (a)when the Notice
is delivered in person to the person to whose attention the Notice is addressed; (b)when received
if the Notice is deposited in the United States Mail, certified or registered mail, return receipt
requested, postage prepaid; (c)when the Notice is delivered by Federal Express, UPS, or another
nationally recognized courier service with evidence of delivery signed by any person at the
delivery address; or (d) five business days after the Notice is sent by FAX (with electronic
confirmation by the sending FAX machine) with a confirming copy sent by United States mail
within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on
a Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be
extended to the first business day following the Saturday, Sunday, or legal holiday. For the
purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may
change the information set forth below by sending Notice of such changes to the other Party as
provided in this section.
To the City:
City of Fort Worth, Texas
1000 Throclmorton Street
Attn: City Secretary
Fort Worth, Texas 76102
FAX: (817)392-6196
City of Fort Worth, Texas
1000 Throclmorton Street
Attn: City Manager
Fort Worth, Texas 76102
FAX: (817) 392-6134
City of Fort Worth, Texas
1000 Throckmort6n Street
Attn: Water Director
Fort Worth, Texas 76102
Agreement for Sale of Treated Water Page 14
FAX: (817) 392-2398
To AQua Utilities:
1421 Wells Branch Pkwy., Ste. 105
Pflugerville,TX 78660
Attn: Vice President
FAX: (512) 989-9891
762 West Lancaster Ave.
Bryn Mawr,Pennsylvania 19010
Attn: Chief Legal Officer
FAX: (610) 520-9127
11.03 Consent Required for Assignment and Binding on Successors and Assigns. All of
the terms of this Agreement shall be binding upon, shall inure to the benefit of, and shall be
severally enforceable by and against each Party to this Agreement, individually, and such Party's
respective personal representatives, successors, trustees, receivers, and assigns. However, no
Party shall assign this Agreement without the written consent of each of the other Party. It is
specifically intended that this Agreement and all terms, conditions and covenants herein shall
survive a transfer, conveyance or assignment occasioned by the exercise of foreclosure of lien
rights by a creditor or a Party hereto,whether judicial or non judicial.
11.04 Amendment. This Agreement may be amended only with the written consent of
all Parties and with approval of the governing body of the City.
11.05 No Waiver. Any failure by a Party to insist upon strict performance by the other
Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the
Party shall have the right at any time thereafter to insist upon strict performance of any and all
provisions of this Agreement. No provision of this Agreement may be waived except by writing
signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes
for which it is given. No waiver by any Party hereto of any term or condition of this Agreement
shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver
of the same term or condition.
Agreement for Sale of Treated Water Page 15
11.06 Severability. The provisions of this Agreement are severable and, in the event
any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held or determined to be
invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or
unenforceability does not cause substantial deviation from the underlying intent of the Parties as
expressed in this Agreement, then such provision shall be deemed severed from this Agreement
with respect to such person, entity or circumstance, without invalidating the remainder of this
Agreement 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.
11.07 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
11.08 InterRretation. The Parties acknowledge that each Party and, if it so chooses, its
counsel have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments or exhibits hereto. As used in this
Agreement, the term "including" means "including without limitation" and the term "days"
means calendar days, not business days. Wherever required by the context, the singular shall
include the plural, and the plural shall include the singular. Each defined term herein may be
used in its singular or plural form whether or not so defined.
11.09 Conspicuous Provisions. The Parties acknowledge that the provisions of this
Agreement that are set out in bold, CAPITALS (or any combination thereof) satisfy the
requirements for the express negligence rule and/or are conspicuous.
11.10 No Third Parly Beneficiary. This Agreement is solely for the benefit of the
Parties, and neither the City nor Aqua Utilities intends by any provision of this Agreement to
create any rights in any third-party beneficiaries or to confer any benefit upon or enforceable
rights under this Agreement or otherwise upon anyone other than the City and Aqua Utilities.
11.11 Force Majeure. No Party shall be considered to be in default in the performance of
any of the obligations hereunder(other than obligations of either Party to pay costs and expenses)if
such failure of performance shall be due to an uncontrollable force beyond the control of the Parties,
including, but not limited to, the failure of facilities, flood, earthquake, tornado, storm, fire,
lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material
shortage, sabotage, or restraint by a court order or public authority, which by the exercise of due
diligence and foresight such Party could not have reasonably been expected to avoid. Either Party
rendered unable to fulfill any obligation by reason of an uncontrollable force shall exercise due
diligence to remove such inability with all reasonable dispatch. In the event the proper operation of
the Fort Worth System, as a result of the above,requires the City to temporarily interrupt all or part
of the services to Aqua Utilities,no claims for damage shall be made by Aqua Utilities against the
City.
Agreement for Sale of Treated Water Page 16
11.12 Emergencies. In the event of a Temporary Emergency Condition, it may be
necessary for Aqua Utilities to withdraw water from the Fort Worth System at a rate of usage in
excess of that required for Aqua Utilities' usual peak requirements. If a Temporary Emergency
Condition occurs and Aqua Utilities provides Notice to the Director within 48 hours of the onset of
the Temporary Emergency Condition describing the unforeseeable mechanical failure or
unprecedented high rate of water usage, obtains the Director's written concurrence that the
situation constitutes a Temporary Emergency Condition, and exercises due diligence in ending the
Temporary Emergency Condition, then the City shall not consider the Rate of Use Charge
established during the Temporary Emergency Condition for billing purposes. Volume charges for
all water delivered during the Temporary Emergency Condition shall be due and payable as
described elsewhere herein.
11.13 Applicable Laws. This Agreement is subject to all applicable federal and state
laws and any applicable permits, amendments, orders, or regulations of any state or federal
governmental authority having or asserting jurisdiction, but nothing contained herein shall be
construed as a waiver of any right to question or contest any such law, order,rule or regulation in
any fontm having jurisdiction.
11.14 Access to Facilities. Upon prior Notice to Aqua Utilities by the City, any
employee of City bearing proper credentials and identification shall be given access to the
Development as may be necessary for the purpose of inspections and observation,measurements,
sampling and testing and/or auditing, in accordance with the provisions of this Agreement. Aqua
Utilities may elect to accompany the City's representative.
11.15 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement
are incorporated into this Agreement by reference for the purposes set forth herein, as follows:
Exhibit A map of the Development
Exhibit B legal description of the Development
Exhibit C map showing the Development's Point of Delivery into the Fort
Worth System, Storage Tank, Meter, and backflow prevention
device
Exhibit D Rate Methodology
Each Party has caused this Agreement to be executed by its duly authorized
representative in multiple copies on the date or dates indicated below.
ATTEST: CITY OF FORT WORTH
By:
Marty Hendrix
City Secretary (print name)
Title:
Agreement for Sale of Treated Water Page 17
APPROVED AS TO FORM AND
LEGALITY:
Assistant City Attorney
ATTEST: AQUA UTILITIES,INC., a Texas Corporation
By:
Corporate Secretary
Print Name:
Title:
Agreement for Sale of Treated Water Page 18
Exhibit A
Map of the Development
Exhibit A to
Agreement for Sale of Treated Water Page 1
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Exhibit B
Legal Description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT (Aperion Tract One-A and Aperion Tract One-B) and a portion of that tract conveyed
to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3 701.24 feet to a 3/8" iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52E34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44E08'03"E, a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65E58'36"E, a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped
1/2" iron pin set also being on the east line of said Aperion Tract One-A and the west line of that
tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
Exhibit B to
Agreement for Sale of Treated Water Page 1
THENCE S OOE07'20" E along the east line of said Aperion Tract One-A and the west line of
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-ROO20408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8" iron pin found;
THENCE N 47E1551" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8" iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E4848" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set;
THENCE N OOE 11'12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114,a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E4848" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOEI I'l2" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and
containing 16,728,840 square feet or 384.041 acres of land, more or less.
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
Exhibit B to
Agreement for Sale of Treated Vater Page 2
way line of State Highway No. 114, said brass monument also being on the west line of a tract
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-ROO20408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit B to
Agreement for Sale of Treated Water Page 3
Exhibit C
Map Showing the Development's Point of Delivery into the Fort
Worth System, Storage Tank,Meter, and Backflow Prevention Device
Exhibit C to
Agreement for Sale of Treated Water Page 1
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Exhibit D
Wholesale Rate Methodology
1. Wholesale water rates will be based upon cost-of-service rate studies performed by
independent utility rate consultants. The independent utility rate consultant shall be selected
by the Director from a list of five qualified firms submitted to the Director by the Fort Worth
"Water System Advisory Committee." The cost of such studies shall be a System Cost. All
cost-of-service studies shall be conducted utilizing the utility cost basis of determining
revenue requirements applicable to the wholesale customer class.
2. A detailed wholesale cost-of-service water rate study was performed by an independent
utility rate consultant for the Fiscal Year beginning October 1,2005. An additional detailed
wholesale cost-of-service water rate study will be performed in accordance with this Exhibit
D for the Fiscal Year beginning October 1, 2008, using the same methodology of the
previous rate study, subject to modifications recommended by a majority of the Water
System Advisory Committee and approved by the Fort Worth City Council. In the Fiscal
Years between detailed rate studies,the City will perform a wholesale water rate study using
the same methodology as the last detailed rate study, and will utilize the actual operating
data for the twelve month period ending September 30th of the prior year, adjusted for all
known and measurable changes in cost data that may have occurred since the last audited
financial statement. Such adjustments should allow for year-end trending and the spreading
Of non-recurring expenses over an appropriate benefit period
3. The cost-of-service for the wholesale class shall include allocated reasonable and necessary
operation and maintenance expense, depreciation expense and a fair and reasonable return
on allocated capital facilities. To determine the allocation and distribution of costs to the
wholesale customer class, the independent utility rate consultant shall consider at least the
following factors: total volume, rate of flow, metering, and customer-related costs such as
accounting, billing, and monitoring. Capital-related costs will consist of depreciation
expense and return on original cost rate base. The rate base shall consist of all allocated
capital facilities, net of depreciation and contributions, and shall include construction work
in progress, a reasonable allowance for working capital, and a reasonable inventory of
materials and supplies necessary for the efficient operation of the Fort Worth System.
Records of the original cost and the accumulated depreciation of all capital facilities shall be
maintained in the Fort Worth Fixed Asset Tracking System. These records shall be
available for inspection at the City's Water Department during reasonable business hours
upon request by Aqua Utilities.
4. The City shall be allowed an adequate opportunity to earn a reasonable rate of return. The
return shall be sufficient to assure confidence in the financial soundness of the City's utility,
shall be adequate to maintain and support its credit, shall enable it to raise the money
necessary for the proper discharge of its public duties, and shall be equal to the weighted
average imbedded cost of outstanding debt plus one and one-half percent(1-1/2%).
5. The Raw Water Charge shall be equal to the rate per 1,000 gallons for out-of-district raw
water charged to the City by the Tarrant Regional Water District, plus eight percent(8%)
Exhibit D to
Agreement for Sale of Treated Water Page 1
��eu� , TES,
of said rate, representing the City's system losses of four percent (4%) and the street
rental charge of four percent (4%), and shall be charged for the amount of water
furnished by the City at the Point of Delivery. Adjustments to the Raw Water Charge
shall made whenever the rate per 1,000 gallons charged to the City is adjusted by the
Tarrant Regional Water District.
6. The rates set forth in Article 8.02 shall be automatically adjusted to equal those adopted
by the City Council based on the foregoing rate studies, and shall become effective on the
effective date as determined by the City Council.
7. The total annual payment for water by Aqua Utilities shall be related to the annual and peak
volumes used by Aqua Utilities during the Fiscal Year, as determined by the Meter, flow
recording devices or other approved methods, subject to the annual payment provisions set
forth above. The October bill for September usage shall reflect any necessary adjustment to
the annual payment due to actual rates of withdrawal from the Fort Worth System.
Example: The rate used in the example is based on Aqua Utilities not being in Tarrant
Regional Water District and water being withdrawn at one metering station. The Volume Charge
and Rate of Use Charges are those that were in effect until September 30,2005.
Usage Monthly Rate Service
Month Consumption Volume of Use Charge Total
Oct. 1,000,000 $ 1,223.90 $ 1,466.93 $25 $2,715.83
Nov. 1,000,000 1,223.90 1,466.93 25 2,715.83
Dec. 1,000,000 1,223.90 1,466.93 25 2,715.83
Jan. 1,000,000 1,223.90 1,466.93 25 2,715.83
Feb. 1,000,000 1,223.90 1,466.93 25 2,715.83
March 2,000,000 2,447.80 1,466.93 25 3,939.73
April 3,000,000 3,671.70 1,466.93 25 5,163.63
May 3,000,000 3,671.70 1,466.93 25 5,163.63
June 3,000,000 3,671.70 1,466.93 25 5,163.63
Usage Monthly Rate Service
Month Consumption Volume of Use Charge Total
July 3,000,000 3,671.70 1,466.93 25 5,163.63
August 4,000,000 4,895.60 1,466.93 25 6,387.53
Subtotal 23,000,000 $28,149.70 $16,136.23 $275 $44,560.93
Sept. 3,000,000 3,671.70 3,214.32 25 6,911.02
26,000,000 $31,821.40 $19,350.55 $300 $51,471.95
Exhibit D to
Agreement for Sale of Treated Water Page 2
Prior Year Rate Of Use Calculation(for use in estimated monthly Rate of Use Charge)
Average Daily Use for the prior year = 60,000 gallons
Maximum Day Demand for the prior year = 175,000 gallons
Maximum Hour Demand for the prior year = 480,000 gallons
Maximum Day Demand above Average Daily Use = 115,000 gallons
Maximum Hour Demand above Maximum Day Demand = 305,000 gallons
Monthly Excess Maximum Day and Hour Payment Calculation
.115 mg X $108,262 = $12,450.13 (Maximum day)
.305 mg X $16,895 = 5.152.98 (Maximum hour)
Total $17,603.11
Monthly Rate of Use Payment(Total Divided by 12)_$1,466.93
A. The annual payment calculation will be computed on the basis of the current year maximum
usage rates or the average of the maximum usage rates of the most recent three Fiscal Years,
whichever is greater. In Example A, the current year exceeds the average of the most recent three
Fiscal Years.
Current Year Rate Of Use Calculation
Average Daily Use for the year = 71,233 gallons
Maximum Day Demand for the current year = 200,000 gallons
Maximum Hour Demand for the current year = 520,000 gallons
Maximum Day Demand above Average Daily Use = 128,767 gallons
Maximum Hour Demand above Maximum Day Demand = 320,000 gallons
Fiscal Year Average of Most Recent Three Years
CURRENT FY FY
FY 2004 2003
Maximum Day Demand
above Average Daily Use 128,767 115,000 130,000
Maximum Hour Demand
above Maximum Day Demand 320,000 305,000 325,000
Three year average of Maximum Day Demand
above Average Daily Use 124,589
Three year average of Maximum Hour Demand
above Maximum Day Demand 316,667
Exhibit D to
Agreement for Sale of Treated Water Page 3
Aqua. Utilities' annual payment will be based on the greater of the current year maximum usage
rates or the average of the maximum usage rates of the most recent three Fiscal Years.
Annual Payment Calculation FY 2005 Rates
(Based on Current Year Data)
26,000 X $ 1.2239 $31.821.40
.1288 mg X $108,262 13,944.15
.3200 mg X $16,895 5,406.40
12X 1 X$25 300.00
Total Annual Payment $51,471.95
Previous Billings for
October through August Usage 44.560.93
October Billing for September
Usage $ 6,911.02
B. Example of computation When the average of the maximum usage rates of the most recent
three Fiscal Years is greater than the current Fiscal Year rate of use:
Current Year Rate of Use Calculation
Average Daily Use for the current year = 71,233 gallons
Maximum Day Demand for the current year = 200,000 gallons
Maximum Hour Demand for the current year = 520,000 gallons
Maximum Day Demand above Average Daily Use = 128,767 gallons
Maximum Hour Demand above Maximum Day Demand = 320,000 gallons
Fiscal Year Average of Most Recent Three Years
CURRENT FY FY
FY 2004 2003
Maximum Day Demand
above Average Daily Use 128,767 130,234 130,000
Maximum Hour Demand
above Maximum Day Demand 320,000 323,010 325,000
Three year average of Maximum Day Demand
above Average Daily Use 129,667
Three year average of Maximum Hour Demand
above Maximum Day Demand 322,670
Aqua Utilities' annual payment will be based on the greater of the current Fiscal Year maximum
Exhibit D to
Agreement for Sale of Treated Water Page 4
Exhibit F
Agreement for Wastewater Service
k
Exhibit F to
Superseding Agreement Regarding page 1
Water and Wastewater Utility Service
WHOLESALE WASTEWATER SERVICE AGREEMENT
This Wholesale Wastewater Service Agreement ("Agreement") is entered into by and
between Aqua Utilities, Inc., formerly known as Aqua Source Utility, Inc., a Texas corporation
(and/or its corporate successors and assigns) ("Aqua Utilities") and the City of Fort Worth, a
Texas home rule municipality(the"Ciff").
RECITALS
A. Aqua Utilities wishes to provide retail wastewater utility service to the land
shown on Exhibit A and more particularly described in Exhibit B to this
Agreement, and consisting of approximately 431.303 acres in Denton County,
Texas (the "Development"), located entirely within the City's extraterritorial
jurisdiction("ETT').
B. The City and Aqua Utilities are parties to the "Superseding Agreement Regarding
Water and Wastewater Utility Service," dated December 21, 2005, City Secretary
Contract No. 32899, ("Superseding Utility Agreement'), which sets forth the
rights and obligations of the parties to that agreement with respect to the provision
of retail and wholesale water and wastewater service to the Development, and
provides, among other things, for the City and Aqua Utilities to enter into a
contract for the provision of wholesale wastewater service to the Development.
C. The City and the Trinity River Authority of Texas ("TRA") are parties to the
"Trinity River Authority of Texas - Denton Creek Regional Wastewater
Treatment System Contract,"dated October 28, 1987, City Secretary Contract No.
16054, attached as Exhibit C, as amended from time to time ("TRA Contract"),
pursuant to which the City may obtain certain services from TRA for the
transportation, treatment and disposal of sanitary sewage, industrial waste and
other wastes generated in the drainage area of Denton Creek through the Denton
Creek Regional Wastewater System (the"TRA System").
D. The Development is located in the drainage area of Denton Creek.
E. Aqua Utilities has considered its various alternatives for treatment of the
Development's wastewater and has elected to seek to obtain such services from
the City.
F. Aqua Utilities and the City have reached a mutually satisfactory agreement by
which Aqua Utilities will purchase from the City certain collection and treatment
services for wastewater generated within the Development to be collected and
transported from sewer lines within the Development,to sewer lines owned by the
City, to the City's point of entry into the TRA System as authorized by the TRA
Contract and subject to the Superseding Utility Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements, covenants and
conditions hereinafter set forth,the Parties contract and agree as follows:
Wholesale Wastewater Service Agreement Page 1
ARTICLE I
DEFINITIONS
"Advisory Committee"means the Advisory Committee of the TRA.
"Agreement" means this Wholesale Wastewater Service Agreement between the City and Aqua
Utilities.
"Aqua Utilities" means Aqua Utilities, Inc., a Texas corporation(and/or its corporate successors
and assigns).
"Biochemical Oxygen Demand" ("BOD") means the quantity of oxygen utilized in the
biochemical oxidation of organic matter under standard laboratory procedure in five days at 20
degrees Centigrade, expressed in milligrams per liter.
"Lijff'means the City of Fort Worth, Texas,a home rule municipality.
"City Council"means the City Council of the City.
"Cure Period"means the period of time to cure a material breach, as defined in Section 9.04.
"Development"means that certain 431.303-acre tract located in Denton County, Texas as shown
on Exhibit A and more particularly described in Exhibit B, which Development is located
entirely within the ETJ of the City.
"Development's Capacity" means the wastewater capacity that the City has allocated to serve the
Development pursuant to Section 2.01.
"Development's System" means the wastewater collection facilities (whether owned by Aqua
Utilities or third parties) located on the Development, or those facilities located outside the
Development but constructed and operated to serve the Development, and on the Development's
side of the Point of Entry into the Fort Worth System shown on Exhibit D.
"Director"means the City Water Department Director or designee.
"Discharize'means any solid or liquid waste, regardless of its source, nature or composition, that
enters a wastewater collection or treatment system.
"Effective Date"means the effective date as defined in Section 9.03.
"EPA"means the U.S. Environmental Protection Agency.
"ETJ" means the extraterritorial jurisdiction of a city as defined by the Texas 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 extraterritorial jurisdictions.
Wholesale Wastewater Service Agreement
Page 2
"Fort Worth System"means those sewer lines and associated facilities owned by the City.
"General Benefit Capital Facilities" means wastewater facilities that provide utility services and
benefits common to all City customers, including but not limited to wastewater treatment
facilities, Metering and Sampling Facilities, control systems and appurtenances, and all major
collectors and interceptors that are eighteen inches (18'� and greater in diameter.
"Infiltration"means water that has migrated from the ground into a wastewater system.
"Inflow" means water other than wastewater that enters a wastewater system (including sewer
service connections)from sources such as,but not limited to,roof leaders, cellar drains,yard drains,
area drains, drains from springs and swampy areas, manhole covers, cross connections between
storm sewers and sanitary catch basins, cooling towers, storm waters, surface runoff, street wash
waters or drainage. Inflow does not include, and is distinguished from,Infiltration.
"Metering and Sampling Facilities"means the meter, meter vault, and all metering and telemetry
equipment required to measure and/or sample wastewater flows from the Development at the
Point of Entry.
'Notice"means notice as defined in Section 11.02 of this Agreement.
"Pa1 ff'means, individually,the City or Aqua Utilities, and each of its successors and its assigns,
as permitted by this Agreement.
"Point of Entry" means the location where Discharge from the Development's System enters the
Fort Worth System, as reflected on the attached Exhibit D.
"Prohibited Discharge" means a Discharge from outside the Development's System or otherwise
not in compliance with this Agreement, as defined in Section 2.02.
"Significant Industrial User" ("SN") means any User connected to the Development's System
that meets at least one of the following criteria:
a. Average industrial wastewater discharge rate greater than 50,000 gallons per day.
b. Biochemical Oxygen Demand and/or suspended solids concentrations in
industrial wastewater greater than 250 mg/L.
C. Meets any of the criteria used by the Environmental Protection Agency ("EPA")
to define SILT in 40 C.F.R. § 403.3(t) as amended from time to time (for purposes
of the EPA definition of SIU relating to the "Control Authority," the Control
Authority currently refers to the TCEQ).
"Superseding Utility Agreement"means the agreement defined in Recital B above.
"System Cost" means operating expenses and capital related costs incurred by the City pursuant
to the provision of wastewater collection and treatment service to the wholesale class of sewer
customers. Such costs are to be collected by the City as a component of the annual cost of
providing wholesale wastewater service.
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Page 3
"TCEQ"means the Texas Commission on Environmental Quality or its successor state agency.
"TRA"means the Trinity River Authority of Texas.
"TRA Contract"means that agreement defined in Recital C above and attached as Exhibit C, as
it may be amended from time to time.
"TRA System" means the Denton Creek Regional Wastewater System owned and operated by
the TRA, including the Denton Creek Regional Wastewater System treatment plant as well as
those sewer lines and associated facilities owned by TRA which transport wastewater to that
plant.
"TSS" (also referred to as Total Non-Filterable Residue)means total suspended solids, measured
in mg/L, that either float on the surface of, or are in suspension in, water, wastewater or other
liquids, and which are largely removable by a laboratory filtration device.
"User"means any person or entity that owns or operates any facility or other point from which a
Discharge enters the Development's System, either directly or indirectly.
ARTICLE II
GENERAL
2.01 Development's Capacity. The City has allocated to the Development a portion of
its available TRA Contract treatment capacity sufficient to accept the wastewater from the
Development's System pursuant to this Agreement. Aqua Utilities shall have the right, in
accordance with the terms and conditions of this Agreement, to deliver wastewater collected by
the Development's System, in volumes not to exceed the Development's Capacity, to the Point
of Entry for further transport by the City and TRA and treatment at the TRA System plant
pursuant to the City's rights under the TRA Contract. The Development's Capacity shall not
exceed a peak flow of 1,357 gallons per minute and an average daily flow of 430 gallons per
minute. Thus, the combined maximum rate of discharge from the Development's System into
the Fort Worth System may riot exceed a rate which, if continued for a period of twenty-four
hours would equal 3.16 times the 430 gallon per minute average daily flow.
2.02 Prohibited Discharges. Any waste generated outside the Development or any
Discharge not in compliance with this Agreement is a Prohibited Discharge that is not authorized
to enter the Development's System pursuant to this Agreement. The City shall be under no
obligation to accept,transport or treat any Prohibited Discharge.
2.03 TRA Approvals and TRA Contract. The TRA Contract requires approval of this
Agreement by both�the TRA and by a majority vote of the Advisory Committee and is not valid
until such required approvals are obtained. The Agreement is subject to the TRA Contract, as
amended from time to time, and all standards contained therein. This Agreement is a
"subcontract"as that term is used in, and for purposes of, Section 9(c) of the TRA Contract.
Wholesale Wastewater Service Agreement
Page 4
2.04 Connection to the Fort Worth System. The City hereby grants to Aqua Utilities,
upon compliance with the terms and conditions of this Agreement, permission to connect the
Development's System to the Fort Worth System at the Point of Entry as agreed to and designated
on Exhibit D. Other Point(s)of Entry may be mutually agreed upon at a later date.
2.05 Construction and Maintenance of Development's System. Aqua Utilities agrees that
the Development's System,including all sewer connections, shall be constructed in accordance with
the standards set forth in the Superseding Utility Agreement. Aqua Utilities agrees to maintain the
Development's System in good condition and to make repairs in a timely manner, and in the
manner it determines in its sole discretion, so as to comply with this Agreement, the Superseding
Utility Agreement and applicable federal, state and local laws. The City shall not have any
responsibility or liability for the maintenance and operation of the Development's System, unless
and until the City takes title to the Development's System. Aqua. Utilities shall not have any
responsibility or liability for the maintenance and operation of the Fort Worth System, except as
otherwise expressly provided herein.
2.06 Extension of Facilities. The City's wastewater collection line is approximately
5,000 feet from the Development. In order for Aqua Utilities to receive wastewater service from
the City pursuant to this Agreement, the City's wastewater collection line will have to be
extended to the Development. The City has no obligation to extend such line.
2.07 Prevention of Sewer System Overflows. Aqua Utilities agrees to develop, and to
implement upon commencement of operation of the Development's System, an ongoing capacity
management, operation and maintenance plan for the prevention of sewer system overflows.
The plan shall include rehabilitation, operation and maintenance for the Development's System
and shall comply with any written directives from TRA applicable to the Fort Worth System.
2.08 Compliance with Laws. Aqua Utilities shall operate the Development's System
in compliance with all applicable federal, state and local laws, including but not limited to the
regulations, permits and orders adopted or issued by EPA, TCEQ or other regulatory authorities
with jurisdiction over the Development's System. Aqua Utilities shall send to the City, pursuant
to the procedures required for Notice, copies of any reports or other communications to or from
the TCEQ, the EPA, Denton County or other political subdivisions of the State of Texas, that
contain data from or analyses of, or otherwise expressly discuss, the Development's System. In
addition, upon request from TRA or the City, Aqua Utilities shall provide copies of any
documents or data, to the extent that they are not legally privileged, that are necessary for the
operation of the TRA System or the Fort Worth System.
ARTICLE III
WASTEWATER QUALITY,STANDARDS and ENFORCEMENT
3.01 Influent Quality and Pretreatment Standards. Aqua Utilities agrees that all
Discharge into the Development's System shall comply with influent quality and pretreatment
standards contained in both Section 4 of the TRA Contract, as amended from time to time, and
Article VI of Chapter 12.5 of the Fort Worth City Code, as amended from time to time,
excluding standards that do not apply to the TRA System. Aqua Utilities further agrees to
impose and reasonably enforce, through its tariff or otherwise, these influent quality and
Wholesale Wastewater Service Agreement
Page 5
pretreatment standards within the Development's System. In addition to compliance at the point
of discharge into the Development's System, any Discharge shall comply with these influent
quality and pretreatment standards at the Point of Entry into the Fort Worth System.
3.02 Industrial Wastewater. Aqua Utilities shall obtain the written consent of the City
prior to any Discharge into the Development's System generated by an SN. Consent will not be
granted unless (i) the proposed Discharge will meet all influent quality and pretreatment
standards of Section 3.01 and (ii) the SIU submits a permit application ninety (90) days prior to
commencing discharge in accordance with Article VI of Chapter 12.5 of the Fort Worth City
Code, as amended from time to time, and such permit is granted. As a condition for granting the
permit,the City may require the pretreatment of the Discharge as specified in relevant sections of
the Fort Worth City Code.
3.03 Infiltration and Inflow. Connections that allow surface drainage (including storm
water run-off from rainwater spouts, rainwater collection areas, streets and gutters), abnormal
seepage, and Infiltration or Inflow to enter the Development's System are prohibited. Aqua
Utilities will supervise and maintain the Development's System using best management practices
to prevent such Prohibited Discharges and, if any are discovered within the Development's
System, shall, to the extent permitted by law, immediately take the necessary steps to disconnect
them.
3.04 Compliance with Permit Conditions, Aqua Utilities acknowledges that both the
City and TRA are holders of Texas Pollutant Discharge Elimination System permits issued by the
State of Texas and subject to oversight by EPA. Aqua Utilities agrees that it will comply with all
permit conditions that relate in any way to the Development's System and to any Discharge into the
Development's System that ultimately enters the Fort Worth System. Aqua Utilities agrees that, in
the event a fine is assessed against the City or TRA for any violation of any permit condition, and
the violation is directly attributable, in whole or in part, to the Development's System or to a
Prohibited Discharge, then such fine is included in the matters indemnified by Aqua Utilities
pursuant to Article VII.
3.05 Fort Worth City Code. Aqua Utilities agrees to abide by all other provisions
contained in Article VI of Chapter 12.5 of the Fort Worth City Code that apply to customers or
other users in the City's ETJ, as amended from time to time, including, but not limited to, those
provisions that relate to influent quality or pretreatment standards.
3.06 City's Right to Revise Wastewater Quality Standards. The City reserves the right
to revise influent quality and pretreatment standards contained in the Fort Worth City Code, and
shall provide Notice to Aqua Utilities of the adoption of such revision within a reasonable time
after revision thereof. Aqua Utilities shall be responsible for integrating such changes into its
agreements with Users and for notifying all affected Users of the change within sixty (60) days
following such Notice.
3.07 Enforcement. Aqua Utilities will reasonably inspect all connections at the time
made and will routinely monitor the Development's System as a whole as reasonably necessary
to detect and prevent any Prohibited Discharge. If any Prohibited Discharge is discovered, Aqua
Utilities shall immediately take actions necessary to eliminate the Prohibited Discharge or,
Wholesale Wastewater Service Agreement
Page 6
following notice and to the extent permitted by law, to disconnect the User from the
Development's System. In addition to Aqua Utilities' obligation to enforce influent quality and
pretreatment standards under this Article III, the City has the right, within the Development's
System, to enforce the same using methods including, but not limited to, those enforcement
procedures contained in Chapter 12.5, Article I, Division 3 of the Fort Worth City Code, as
amended from time to time, and the Enforcement Response Plan agreed to by the City and the
TRA, as amended from time to time; however, such enforcement by the City does not relieve
Aqua Utilities of its enforcement obligations under this Agreement.
ARTICLE IV
RATES and CHARGES
4.01 Calculation of Rates Pursuant to this Agreement. The Parties agree that the rates to
be charged pursuant to this Agreement will be calculated using the methodology set forth in
Exhibit E. This methodology also serves as the basis for the wholesale wastewater rates that the
City charges to each municipality that is a wholesale wastewater customer of the City, pursuant to
each of their separate contracts. The City will send Aqua Utilities a copy of any finally adopted
wastewater rate study performed pursuant to this methodology,. The majority of those separate
contracts with the City's wholesale customers who are municipalities will expire in 2017 and the
City expects to enter into negotiation for new wholesale contracts with those wholesale customers
who are municipalities. The City shall provide Aqua Utilities at least ten (10) days prior Notice
of the commencement of the negotiations between the City and the Wastewater Advisory
Committee. If this Agreement is renewed pursuant to Section 9.02(A), and if the renegotiated
contracts with the City's wholesale customers who are municipalities include a rate methodology
that differs from Exhibit E,then Aqua Utilities and the City expressly understand and agree that for
the renewal term of this Agreement the rate methodology described in Exhibit E will be
automatically superseded and replaced with a new Exhibit E that adopts the same rate methodology
used to calculate the rates for those wholesale customers of the City who are municipalities, subject
to the provisions of Articles IV and IX herein.
4.02 Initial Rate. The initial rates for this Agreement shall be those adopted by the City
Council on effective October 1,2005,which are as follows:
Volume Charge $0.8296 per 1000 gallons
BOD Strength Charges $0.2906 per pound of BOD
TSS Strength Charges $0.1871 per pound of TSS
Monthly Billing Charges $75.00
4.03 Adjustment of Rates. Aqua Utilities agrees that the City shall have the right to
unilaterally adjust the rates charged for the wastewater services provided pursuant to this
Agreement, from time to time, so long as the adjustment is based on the agreed methodology set
forth Exhibit E and in effect pursuant to Section 4.01, and otherwise in compliance with this
Agreement. Aqua Utilities' agreement that the City has the right to unilaterally adjust the rates
charged pursuant to this Agreement is an essential part of the consideration given by Aqua
Utilities in exchange for the City's entering into this Agreement to provide wholesale wastewater
service to the Development, which is in the City's ETJ, and without which consideration the City
would not have provided wholesale sewer services to Aqua Utilities, either by entering into this
Wholesale Wastewater Service Agreement
Page 7
Agreement or otherwise. Furthermore, in exchange for the City's right to unilaterally adjust the
rates charged hereunder, in addition to other rights under this Agreement, should Aqua Utilities
object to any unilateral rate adjustment, Aqua Utilities shall have the right to terminate this
Agreement with one year's Notice and the following rate relief. Upon any rate adjustment
pursuant to this Article IV and Exhibit E,Aqua Utilities has the following options:
A. Agree to pay the adjusted rate; or
B. Give Notice (i) that it wishes to terminate this Agreement one year after the
effective date of the proposed rate adjustment and (ii) that it rejects the rate
change, in which case the City will continue to charge Aqua Utilities the contract
rates that were in effect immediately prior to the proposed rate adjustment.
If Aqua Utilities elects to terminate this Agreement under this Section 4.03, then the Agreement
will expire at the earlier of the one-year Notice period or the Section 9.01 expiration date. If
Aqua Utilities continues to deliver wastewater to the City at the Point of Delivery and has not
disconnected the Development's System from the Fort Worth System on the date this Agreement
is to expire pursuant to this Section 4.03, then the Agreement shall not expire pursuant to this
Section 4.03 and Aqua Utilities shall immediately pay the City the difference between the
amount that would have been charged pursuant to this Agreement under the rate Aqua Utilities
rejected, and the amount actually charged to Aqua Utilities during the preceding year, with
interest, and subject to any other rate adjustment, past or future, pursuant to this Article IV and
Exhibit E. Aqua Utilities agrees that the remedy provided by this Section 4.03 provides its sole
and exclusive remedy, in law and equity, for any rate adjustments pursuant to this Agreement,
and that it will not pursue a wholesale rate appeal of such rates at any regulatory agency.
4.04 Payment and Finance Charge. Bills for services provided pursuant to this
Agreement shall be rendered to Aqua Utilities monthly by the City. All such bills shall be due and
payable by Aqua Utilities not more than thirty(30) days from the billing date. The bills will show
current charges, as well as past-due charges, if any. Current charges shall be the amount due for
wastewater collection, treatment and disposal service provided since the prior billing period. Past-
due
astdue charges shall be the total amount unpaid from all prior billings as of the current billing date.
Payments received by the City shall first be applied to the past-due charges,if any, and thereafter to
the current charges. Any payment required herein not made within thirty (30) days of the billing
date shall be subject to a finance charge of ten percent (10%) per annum to be calculated from the
date which the payment was required to be made.
4.05 Billing_Disputes. If Aqua Utilities disputes a bill and is unable to resolve the
difference informally, Aqua Utilities shall give Notice to the Director. The Director and Aqua
Utilities shall use their best efforts to resolve the disputed bill; however, dispute of a bill is not
grounds for non-payment. In the event a payment is not paid as specified in this Agreement, a
finance charge of ten percent(10%)per annum will be calculated from the date which the payment
was required to be made.
4.06 Minimum Revenue Collection. Aqua Utilities agrees, throughout the term of this
Agreement, to fix and collect'such rates and charges for wastewater service to be supplied to the
Development as will produce revenues in an amount equal to at least all of operation and
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Page 8
maintenance expenses of the Development's System, including specifically the payments under this
Agreement.
ARTICLE V
METERING AND SAMPLING FACILITIES
5.01 Construction and Title. Aqua Utilities or its agents or assigns shall construct or
cause to be constructed the Metering and Sampling Facilities. All construction shall be in
accordance with plans and specifications meeting City standards and shall be approved in advance
by the City. All construction costs, including, but not limited to, site acquisition and preparation,
design and engineering, construction and equipment for such facilities, together with the costs of
necessary easements and rights-of-way, and including any and all necessary modifications to
accommodate a complete initial installation satisfactory to the City, shall be provided free of charge
to the City and be paid for pursuant to the Superseding Utility Agreement. Upon acceptance of the
Metering and Sampling Facilities, the City shall own and have title to the Metering and Sampling
Facilities along with the exclusive right to use, operate, and maintain such facilities; however, such
metering and sampling facilities shall serve the Development only and no Discharge from
outside the Development will,be connected to the Fort Worth System in a manner that would
allow it to pass through such facilities.
5.02 Operation and Maintenance. The City shall become solely responsible for the
operation and maintenance responsibilities associated with the Metering and Sampling Facilities.
Aqua Utilities, to the extent that access is under its control, will continuously provide a route of
ingress and egress to said Metering and Sampling Facilities for the City. The City shall have the
discretion to construct improvements, expansions, and replacements to said facilities as a System
Cost and at the timing of the City's needs. Aqua Utilities will also grant and provide to the City
such permits or easements as are necessary for the continuous operation and maintenance of all
Metering and Sampling Facilities. All costs incurred by the City for operation, maintenance, or
replacement of the Metering and Sampling Facilities shall be considered a System Cost.
5.03 Expenses. Expenses incurred by the City for the operation and maintenance of the
_Metering and Sampling Facilities shall be a System Cost and shall include, but not necessarily be
limited to,the following:
A. Cost of electricity at the facility;
B. Cost of the initial installation of the telemetry service at the facility and to the control
center and cost of monthly lease charge for the telephone line;
C. Cost of calibration;
D. Cost of parts, materials and supplies required for repairs, calibrations and upgrading
of the facilities;
E. Labor cost plus fringe benefits and indirect costs for repairs, calibrations and
upgrading of the facilities; and
F. Maintenance of ingress and egress and meter facility site.
5.04 Replacement Facilities. Replacement of the Metering and Sampling Facilities
described in this Article V or the equipment therein, occasioned as a result of obsolescence due to
age, excessive maintenance, growth or other reasons as determined by the Director, shall be a
Wholesale Wastewater Service Agreement ��'���� ��' �
System Cost. Any replacement facility or equipment therein shall comply with the City's standards
and specifications.
ARTICLE VI
METERING AND SAMPLING
6.01 Requirement of Metering_and Sampling. Any Discharge into the Fort Worth System
from the Development's System shall be metered and sampled as set forth in this Article VI.
6.02 Access to Facilities. Aqua Utilities shall have access to the Metering and Sampling
Facilities at all reasonable times; provided, however, that any reading, calibration or adjustment to
such metering equipment shall be done by employees or agents of the City, or other mutually
approved third party calibration agent, in the presence of representatives of Aqua Utilities and the
City, if so requested by Aqua Utilities. Notice of any proposed tests shall be provided to Aqua
Utilities at least seventy-two (72)hours prior to such tests being conducted.
6.03 Access to Records. All readings of meters will be maintained by the City in its usual
and customary manner. Aqua Utilities shall have access to such records during reasonable business
hours and shall be furnished with monthly totalizer readings for each Point of Entry metering and
sampling facility.
6.04 Service and Calibration. The City shall calibrate and routinely service the meters no
less than once during each six (6) month period. Copies of the results of such calibration and all
related information shall be provided to Aqua Utilities. The City shall notify Aqua Utilities at least
seventy-two (72) hours in advance of the date and time for any calibration and Aqua Utilities may
observe the calibration.
6.05 Corrections. Upon any calibration, if it is determined that the accuracy envelope of
such meter is found to be lower than ninety-five percent (95%) or higher than one hundred five
percent(105%) expressed as a percentage of the full scale of the meter, the registration of the flow
as determined by such defective meter shall be corrected for a period extending back to the time
such inaccuracy began, if such time is ascertainable; or, if such time is not ascertainable, then for a
period extending back one-half(1/2) of the time elapsed since the date of the last calibration,but in
no event further back than a period of six(6)months.
6.06 Out of Service Meter. If any meter used to determine volume from the
Development's System is out of service or out of repair so that the amount of wastewater metered
cannot be ascertained or computed from the reading thereof, the wastewater delivered through the
period such meter is out of service or out of repair shall be estimated and agreed upon by the Parties
hereto upon the basis of the best data available. The basis for estimating such flow includes, but is
not limited to, extrapolation of past patterns of flow for said metering station under similar
conditions.
6.07 Monitoring_of Quantity and Quality. All Discharge from the Development's System
shall be monitored for volume. In addition,the City shall periodically determine the quality of the
Discharge from the Development's System at the Metering and Sampling Facilities or other agreed
upon sampling points for the purposes of billing for the strength of the wastewater. The sampling
Wholesale Wastewater Service Agreement
Page 10
and testing shall be performed up to two times per year until build-out of the Development and
thereafter one time per year. To determine the quality of the wastewater, the City shall collect
twenty-four (24) hour flow-weighted composite samples for a period of not less than five (5)
consecutive twenty-four (24) hour periods. The City will provide Aqua Utilities with a Notice at
least seven (7) days in advance of its intent to sample, or sufficiently in advance of the sampling to
allow Aqua Utilities to arrange the services of a qualified laboratory. If, at the request of Aqua
Utilities or at the request of the Director, more extensive monitoring is desired, such additional
monitoring shall be paid for by the Party making the request and shall be done in compliance with
this Article VI. If Aqua Utilities requests such additional monitoring, the City shall invoice Aqua
Utilities and payment shall be made within thirty(30)days after receipt of invoice. The Notice shall
include the planned dates, times, and location(s) of sampling. The City shall analyze the samples
collected in accordance with standard methods. Aqua Utilities may be present during the initial
setup of sampling equipment and at the time of pickup for each twenty-four (24) hour composite
sample. The City agrees,if requested,to split the wastewater samples with Aqua Utilities.
6.08 Compliance Monitoring. If,in the opinion of the Director,compliance monitoring is
required, the Director may order that additional monitoring be performed with or without prior
Notice to Aqua Utilities. Such compliance monitoring is to be in addition to the routine monitoring
and periodic sampling set forth in Section 6.07. All information obtained as a result of this
compliance monitoring shall be provided to Aqua. Utilities upon request. The City will provide
Notice of such compliance monitoring to Aqua Utilities within a reasonable time thereafter.
ARTICLE VII
OWNERSHIP,LIABILITY and INDEMNIFICATION
7.01 Liability and Ownership. Liability for damages arising out of the transportation,
delivery, receipt, treatment, or disposal of any Discharge into the Development's System shall
remain in Aqua Utilities, together with ownership of the Discharge, until such Discharge passes
through the Point of Entry to the Fort Worth System,at which point ownership of the Discharge and
any liability arising thereafter shall pass to the City, save and except that liability arising out of and
ownership of any Prohibited Discharge shall not pass to the City, and shall remain with Aqua
Utilities. No provision of this Agreement shall be construed to create any type of joint or equity
ownership of any property, any partnership or any joint venture. Payments by Aqua Utilities
(whether past,present, or future)will not be construed as granting Aqua Utilities partial ownership
of,pre-paid capacity in,or equity in the Fort Worth System or the TRA System.
7.02 Indernnily. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AQUA
UTILITIES AGREES TO INDEMNIFY AND DEFEND CITY, TRA, AND EACH OF THEIR RESPECTIVE
OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS,
CONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "INDEMNITEES") WITH REGARD
TO ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS,
ADMINISTRATIVE PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS,
ENFORCEMENT ACTIONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION
THEREWITH (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, COSTS OF
INVESTIGATION AND EXPENSES, INCLUDING THOSE INCURRED BY CITY IN ENFORCING THIS
INDEMNITY), DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY OR RESULTING FROM(IN
WHOLE OR IN PART) ANY BREACH OF THIS AGREEMENT, ANY PROHIBITED DISCHARGE, OR
Wholesale Wastewater Service Agreement
Page 11
ANY CONNECTION OF THE DEVELOPMENT'S SYSTEM TO THE FORT WORTH SYSTEM,
(COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED
TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNITEE. -
ARTICLE VIII
REPORTS AND RECORDS
8.01 Required Records. As required by the City's agreement with TRA, Aqua Utilities
shall provide the following data upon 30 days Notice from the City:
A. Actual number of customer accounts discharging into the Development's System;
B. Classification of domestic and non-domestic accounts within its service area by
number and percentage of accounts discharging directly or indirectly into the
Development's System;
C. The number of SIU connections subject to Section 3.02 of this Agreement to be
served by the Development's System,with name and location of each,and
D. Additional data which may assist the City in developing methodology for cost of
service studies,planning studies for analyzing federal grants, and system access fees;
provided,however,that the City shall not request data that will require Aqua Utilities
to incur unreasonable expenses in providing such data.
8.02 Inspection and Audit. Complete records and accounts required to be maintained by
each Party hereto shall be kept for a period of five (5) years. Each Party shall at all times, upon
Notice, have the right at reasonable times to examine and inspect said records and accounts during
normal business hours; and fii then,if required by any law,rule or regulation,make said records and
accounts available to federal and/or state auditors.
ARTICLE IX
TERM and RELATED PROVISIONS
9.01 Term of Agreement. This Agreement shall expire upon the sooner of (i) the date
upon which Aqua Utilities ceases to be the retail wastewater provider for the Development; (ii)
termination in accordance with this Article IX; or(iii)April 30,2018.
9.02 Extension. Where expiration of this Agreement occurs pursuant to Section 9.01(iii),
the City will offer to continue to sell wholesale water to Aqua Utilities under one of two options,to
be chosen by the City in its sole discretion:
A. A renewal of this Agreement, in its entirety, amending only Section 9.01(iii) to
state"December 31,2025"and Section 4.02 to state initial rates that are those in
effect on the first day of the renewal term for the City's wholesale customers
who are municipalities.
B. A wholesale wastewater agreement with terms that are the same as the terms of
the renegotiated contracts with the City's wholesale customers whose contracts
now expire in 2017, and subject to all the terms and conditions of those
contracts, except that the expiration date of the wholesale agreement with Aqua
Utilities shall not extend beyond the earlier of the date on which Aqua Utilities
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Page 12
ceases to be the retail wastewater provider for the Development or December 31,
2025.
The City will advise Aqua Utilities of the City's selected option by providing Notice one hundred
eighty (180) days before the Section 9.01(iii) expiration date. Aqua Utilities can then either (i)
agree to accept the option offered by the City in its Notice,in which case Aqua Utilities and the City
will execute the documents necessary to formalize the terms of such agreement within 60 days of
Aqua Utilities' receipt of Notice; or(ii) elect not to continue to purchase wastewater from the City,
in which case this Agreement terminates on the Section 9.01(iii) expiration date and thus the City
shall have no further service obligation thereafter. If the City's wholesale customers' 2017
expiration dates are extended, then the Section 9.01(iii) expiration date of this Agreement will be
extended for the same number of years or months,but in no event beyond December 31,2025.
9.03 Effective Date. This Agreement, together with all terms and conditions and
covenants, shall be effective December 21,2005.
9.04 Termination. In addition to termination pursuant to Article IX and Section 4.03,
this Agreement may be terminated in whole or in part by the mutual consent of Aqua Utilities and
the City. Notwithstanding anything contained herein to the contrary, any material breach by Aqua
Utilities in the performance of any of the duties or the obligations assumed by Aqua Utilities
hereunder, or to faithfully keep and perform any of the terms, conditions and provisions hereof;
shall be cause for termination of this Agreement by the City in the manner set forth in this Section
9.04. If Aqua Utilities commits a material breach, then the City shall deliver to Aqua Utilities
ninety (90) days prior Notice of its intention to so terminate this Agreement, including in such
Notice a reasonable description of the breach. Aqua Utilities shall commence curing such breach
within fourteen (14) calendar days after receipt of such Notice and shall diligently pursue and
complete such cure without unreasonable cessation of activities within ninety (90) days from the
date of the Notice; however, if the breach is not reasonably susceptible to cure by Aqua Utilities
within such ninety (90) day period, the City agrees that it will not terminate this Agreement so
long as Aqua Utilities has diligently pursued such cure within the foregoing ninety(90) days and
diligently completes the work, without unreasonable cessation, within a reasonable time
thereafter. The time authorized by this Agreement to cure the breach is the "Cure Period." If
Aqua Utilities shall fail or refuse to cure such material breach to the satisfaction of the City
within the Cure Period,then and in such event,the City shall have the right with additional sixty
(60) days advance Notice to Aqua Utilities and without any liability whatsoever on the part of the
City to declare this Agreement terminated,and the Agreement will immediately expire at the end of
such Notice period. The City shall give Notice to Aqua Utilities immediately upon acceptance of
the cure of any default. A material breach of this Agreement includes,but is not limited to:
a. Failure to comply with and enforce any wastewater quality or pretreatment
standards required by this Agreement;
b. Failure to make any payment of any bill,charge or fee as provided for in this
Agreement;
C. Making any connection to the Fort Worth System at any point other than
those authorized by this Agreement;
d. Failure to permit any sampling of wastewater as provided for herein;
e. Failure to disconnect a Prohibited Discharge pursuant to Section 3.07;
Wholesale Wastewater Service Agreement
Page 13
f. Failure of Aqua Utilities to comply with Sections 2.01,2.05,2.07,2.08,4.03
or 5.01 or Article X hereof.
9.05 Non-Material Breach. In the event of any nonmaterial breach, default or failure to
perform duties under this Agreement, the City shall deliver to Aqua Utilities thirty (30) days
advance Notice of such default. If Aqua Utilities fails to cure such breach, default or failure, then
the City shall give Aqua Utilities Notice of such failure to cure and may surcharge Aqua Utilities
Five Thousand Dollars ($5,000)per month until such time as Aqua Utilities cures such nonmaterial
default.
9.06 Effect of Termination. In the event of termination of this Agreement, except to the
extent provided in Section 9.07, all rights, powers, and privileges of Aqua Utilities hereunder shall
cease and terminate and Aqua Utilities shall make no claim of any kind whatsoever against the City,
its agents or representatives, by reason of such termination or any act incident thereto, provided the
City acted reasonably and such termination was not unreasonable,arbitrary and capricious.
9.07 Surviving Provisions. As part of, or in addition to, survival rights to which the
Parties may be entitled in law or equity, the following provisions shall survive the termination of
this Agreement for any reason: (a) any payment obligation of any Party under the terms of this
Agreement that has accrued prior to such termination; (b) Section 7.02 (Indemnity); (c) Article
VIII(Reports and Records); and(d)Article XI(Miscellaneous).
9.06 Effect of Opportunily to Cure. The opportunities provided in the Agreement to cure
a material or non-material breach do not relieve or diminish any obligation of Aqua Utilities to
indemnify the City pursuant to Article VII for any Liabilities.
ARTICLE X
PERFORMANCE PURSUANT TO SUPERSEDING UTILITY AGREEMENT
This Agreement is executed pursuant to, and shall be performed consistent with the terms
of, the Superseding Utility Agreement. Accordingly, all construction, operation and
maintenance activities undertaken pursuant this Agreement shall be performed in compliance
with the Superseding Utility Agreement, including the standards for construction, operation and
maintenance set forth in Article V of that agreement. In the event of a conflict between this
Agreement and the Superseding Utility Agreement, the Superseding Utility Agreement shall
control.
ARTICLE XI
MISCELLANEOUS
11.01 Governing Law. Jurisdiction and Venue. THIS AGREEMENT MUST BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS
THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD
TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES
ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND
HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, TEXAS, AND
Wholesale Wastewater Service Agreement
Page 14
HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION
OF ANY DISPUTE ARISING HEREUNDER.
11.02 Notice. Any notices, certifications, approvals, or other communications required
to be given by one Party to another under this Agreement (a "Notice") shall be given in writing
addressed to the Party to be notified at the address set forth below and shall be deemed given: (a)
when the Notice is delivered in person to the person to whose attention the Notice is addressed;
(b) when received if the Notice is deposited in the United States Mail, certified or registered
mail, return receipt requested, postage prepaid; (c) when the Notice is delivered by Federal
Express, UPS, or another nationally recognized courier service with evidence of delivery signed
by any person at the delivery address; or (d) five business days after the Notice is sent by FAX
(with electronic confirmation by the sending FAX machine) with a confirming copy sent by
United States mail within 48 hours after the FAX is sent. If any date or period provided in this
Agreement ends on a Saturday, Sunday, or legal holiday,the applicable period for calculating the
Notice shall be extended to the first business day following the Saturday, Sunday, or legal
holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below.
The Parties may change the information set forth below by sending Notice of such changes to the
other Party as provided in this section.
To the City:
City of Fort Worth, Texas
1000 Throckmorton Street
Attn: City Secretary
Fort Worth, Texas 76102
FAX: (817) 392-6196
City of Fort Worth, Texas
1000 Throckmorton Street
Attn: City Manager
Fort Worth, Texas 76102
FAX: (817) 392-6134
City of Fort Worth, Texas
1000 Throckmorton Street
Attn: Water Director
Fort Worth, Texas 76102
FAX: (817) 392-2398
To Aqua Utilities:
1421 Wells Branch Pkwy., Ste. 105
Pflugerville,TX 78660
Attn: Vice President
FAX: (512) 989-9891
Wholesale Wastewater Service Agreement
Page 15
762 West Lancaster Ave.
Bryn Mawr,Pennsylvania 19010
Attn: Chief Legal Officer
FAX: (610) 520-9127
11.03 Consent Required for Assignment & Binding on Successors and Assigns. All of
the terms of this Agreement shall be binding upon, shall inure to the benefit of, and shall be
severally enforceable by and against each Parry to this Agreement, individually, and such Parry's
respective personal representatives, successors, trustees, receivers, and assigns. However, no
Parry shall assign this Agreement without the written consent of the other Party. It is specifically
intended that this Agreement and all terms, conditions and covenants herein shall survive a
transfer, conveyance or assignment occasioned by the exercise of foreclosure of lien rights by a
creditor or a party hereto,whether judicial or non judicial.
11.04 Amendment. This Agreement may be amended only with the written consent of
all Parties and with approval of the governing body of the City.
11.05 No Waiver. Any failure by a Party to insist upon strict performance by the other
Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the
Party shall have the right at any time thereafter to insist upon strict performance of any and all
provisions of this Agreement. No provision of this Agreement may be waived except by writing
signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes
for which it is given. No waiver by any Party hereto of any term or condition of this Agreement
shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver
of the same term or condition.
11.06 Severability. The provisions of this Agreement are severable and, in the event
any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held or determined to be
invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or
unenforceability does not cause substantial deviation from the underlying intent of the Parties as
expressed in this Agreement, then such provision shall be deemed severed from this Agreement
with respect to such person, entity or circumstance, without invalidating the remainder of this
Agreement 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.
11.07 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
11.08 Interpretation. The parties acknowledge that each party and, if it so chooses, its
counsel have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments or exhibits hereto. As used in this
Agreement, the term "including" means "including without limitation" and the term "days"
means calendar days, not business days. Wherever required by the context, the singular shall
Wholesale Wastewater Service Agreement
Page 16
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.
11.9 Conspicuous Provisions. The City and Aqua Utilities acknowledge that the
provisions of this Agreement that are set out in bold, CAPITALS (or any combination thereof)
satisfy the requirements for the express negligence rule and/or are conspicuous.
11.10 No Third Party Beneficiary. This Agreement is solely for the benefit of the
Parties, and neither the City nor Aqua Utilities intends by any provision of this Agreement to
create any rights in any third-party beneficiaries or to confer any benefit upon or enforceable
rights under this Agreement or otherwise upon anyone other than the City and Aqua Utilities.
11.11 Force Majeure. No Party shall be considered to be in default in the performance of
any of the obligations hereunder(other than obligations of either Party to pay costs and expenses)if
such failure of performance shall be due to an uncontrollable force beyond the control of the Parties,
including but not limited to, the failure of facilities, flood, earthquake, tornado, storm, fire,
lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material
shortage, sabotage, or restraint by a court order, or public authority, which by the exercise of due
diligence and foresight such Party could not have reasonably been expected to avoid. Either Party
rendered unable to fulfill any obligation by reason of an uncontrollable force shall exercise due
diligence to remove such inability with all reasonable dispatch. In the event the proper operation of
the Fort Worth System, as a result of the above, requires the City to temporarily interrupt all or part
of the services to Aqua Utilities, no claims for damage shall be made by Aqua Utilities against the
City. The City will exercise its best efforts to insure that such interruptions will not adversely affect
the health and welfare of the Users.
11.12 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement
are incorporated into this Agreement by reference for the purposes set forth herein, as follows:
Exhibit A Map of the Development
Exhibit B Legal Description of the Development
Exhibit C Original TRA Contract
Exhibit D Map showing the Development's Point of Entry into the Fort
Worth System and Fort Worth's Point of Entry to the TRA System
Exhibit E Rate Methodology
Wholesale Wastewater Service Agreement
Page 17
ATTEST: CITY OF FORT WORTH
By:
Many Hendrix
City Secretary (print name)
Title:
APPROVED AS TO FORM AND
LEGALITY:
Assistant City Attorney
ATTEST: AQUA UTILITIES,INC., a Texas Corporation
By:
Corporate Secretary
(print name)
Title:
Wholesale Wastewater Service Agreement
Page 18
Exhibit A
Map of the Development
Exhibit A to
Wholesale Wastewater Service Agreement Page 1
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Exhibit B
Legal Description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT (Aperion Tract One-A and Aperion Tract One-B) and a portion of that tract conveyed
to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al,by deed recorded in Volume 2906;Page 363 RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8"iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 86E14'27" E, a distance of 222.13 feet to a napped 1/2" iron pin set;
THENCE S 52E3422" E,a distance of 867.86 feet to a capped 1/2"iron pin set;
THENCE S 44E08'03" E,a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65E58'36" E, a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped
1/2" iron pin set also being on the east line of said Aperion Tract One-A and the west line of that
tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
THENCE S OOE07'20" E along the east line of said Aperion Tract One-A and the west line.of
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin
Exhibit B to
Wholesale Wastewater Service Agreement Page 1
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8" iron pin found;
THENCE N 47E 15'51" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8" iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set;
THENCE N OOE11'12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114,a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114,a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOEI 1'12" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114,a distance of 15.00 feet to a capped 1/2"iron pin set;
THENCE S 89E4848" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and
containing 16,728,840 square feet or 384.041 acres of land,more or less.
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
way line of State Highway No. 114, said brass monument also being on the west line of a tract
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
Exhibit B to
Wholesale Wastewater Service Agreement
Page 2
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract One-B and the west'line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land, more or less.
Exhibit B to
Wholesale Wastewater Service Agreement
Page 3
Exhibit C
Original TRA Contract
t
Exhibit C to
Wholesale Wastewater Service Agreement Page I
TRINITY RIVER AUTHORITY OF TEXAS -
DENTON CREEK REGIONAL WASTEWATER TREATMENT SYSTEM CONTRACT
THE STATE OF TEXAS
TRINITY RIVER AUTHORITY OF TEXAS
THIS TRINITY RIVER AUTHORITY OF TEXAS - DENTON CREEK
REGIONAL WASTEWATER TREATMENT SYSTEM CONTRACT (the "Contract")
made and entered into as of the 28th day of OCTOBER, 1987 (the
"Contract Date") , by and among TRINITY RIVER AUTHORITY OF TEXAS
(the "Authority") , an agency and political subdivision of the
State of Texas, being a conservation and reclamation district
created and functioning under Article 16, Section 59, of the
Texas Constitution, pursuant to Chapter 518, Acts of the 54th
Legislature of the State of Texas, Regular Session, 1955, as
amended (the "Authority Act") , and the following:
CITY OF FORT WORTH, IN TARRANT COUNTY, TEXAS,
CITY OF HASLET, IN TARRANT COUNTY, TEXAS, and
CITY OF ROANOKE, IN DENTON COUNTY, TEXAS,
(collectively the. "Initial Contracting Parties") .
W I T N E S S E T H:
'WHEREAS, each of the Initial Contracting Parties is a duly
created city and political subdivision of the State of Texas
operating under the Constitution and laws of the State of
Texas; and
WHEREAS, the Authority and the Initial Contracting Parties
are authorized to enter into this Contract pursuant to the
DFFIC, RECORD
z
CITY SECRETARY
, TEX.
CITY 1*1��,R--IVTAkff
Authority Act, Chapter 30, Texas Water Code, Vernon's Ann. Tex.
Civ. St. Article 4413 (32c) (the "Interlocal Cooperation Act") ,
and other applicable laws; and
WHEREAS, the Authority proposes to acquire and construct a
regional Wastewater treatment system to serve the Initial Con-
tracting Parties within the watershed or drainage area of
Denton Creek, a tributary of the Trinity River, located in
Denton and Tarrant Counties, Texas (the "System") ; and
WHEREAS the System initially proposed to be acquired and
constructed is described in an engineering report of Rady &
Associates, Fort Worth, Texas, entitled "Comprehensive
Feasibility Study on Denton Creek Regional Wastewater System",
dated August, 1987; and
WHEREAS, such report, including all amendments and supple-
ments thereto made prior to the execution of acquisition and
construction contracts for the System and as changed by change
orders entered after acquisition and construction contracts for
the System have been executed, is hereinafter called the
"Engineering Report"; and
WHEREAS, it is expected by the parties hereto that as soon
as practicable after the execution of this Contract the Author-
ity will issue an installment of Bonds to provide part of the
money to acquire and construct the System, and thereafter will
issue a subsequent installment or installments of Bonds to
complete the acquisition and construction of the System, with
2
i
F
all of said Bonds to be payable from and secured by Annual
Payments made under this Contract by the Initial Contracting
Parties.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained, the Authority agrees to
provide Wastewater treatment services of the System to the
Initial Contracting Parties under this Contract, and to issue
its Bonds and to acquire and construct the System, upon and
subject to the terms and conditions hereinafter set forth,
to-wit:
Section 1. DEFINITION OF TERMS. The following terms and
expressions as used in this Contract, unless the context
clearly shows otherwise, shall have the following meanings:
(a) "Additional Contracting Party" means any party not
defined as one of the Initial Contracting Parties with which
the Authority makes a contract similar to this Contract for
providing services of the System, provided that after execution
of any such contract such, party shall become one of the Con-
tracting Parties for all purposes of this Contract, unless
otherwise specifically provided herein.
(b) "Adjusted Annual Payment" means the Annual Payment,
as adjusted during or after each Annual Payment Period, as
provided by this Contract.
3
(c) "Advisory Committee" means the committee to be
created to consult with and advise the Authority with respect _
to the System as provided in Section 10 of this Contract.
(d) "Annual Payment" means the amount of money to be paid
to the Authority by each of the Contracting Parties during each
Annual Payment Period as its proportionate share of the Annual
Requirement.
(e) "Annual Payment Period" means the Authority's Fiscal
Year, which currently begins on December 1 of each calendar
year and ends on the last day of November of the next calendar
year, and the first Annual Payment Period under this Contract
is estimated to be the period of December 1, 1989, through
November 30, 1990.
(f) "Annual Requirement" means the total amount of money
required for the Authority to pay all Operation and Maintenance
Expenses of the System, to pay the debt service on its Bonds,
to pay or restore any amounts required to be deposited in any.
special, contingency, or reserve funds required to be estab-
lished and/or maintained by the provisions of the Bond Resolu-
tions, all as further described in Section 11 (a) of this
Contract.
(g) "B.O.D. " (denoting Biochemical oxygen Demand) means
the quantity of oxygen utilized in the biochemical oxidation of
organic matter under standard laboratory procedure in five days
at 20" C. , expressed in milligrams per liter.
4
(h) "Bond Resolution" means any resolution of the Author-
ity which authorizes any Bonds.
(i) "Bonds" means all bonds hereafter issued by the
Authority, expected to be in two or more series or issues, and
the interest thereon, to acquire and construct the System
(including all bonds issued to complete the acquisition and
construction of the System) , and/or all bonds issued subse-
quently to improve and/or extend the System, and any bonds
issued to refund any Bonds or to refund any such refunding
bonds.
(j) "Contracting Parties" means the "Initial Contracting
Parties", as defined in the' first paragraph of this Contract,
together with any other party or parties which hereafter
becomes one of the Contracting Parties by becoming an Addi-
tional Contracting Party.
(k) "Contracting Party" means any one of the Contracting
Parties.
(1) "Engineering Report" means the "Engineering Report"
as defined in the preamble to this Contract.
(m) "Garbage" means solid wastes from the preparation,
cooking, and dispensing of food, and from handling, storage,
and sale of produce.
(n) "Grease" means fats, waxes, oils, and other similar
nonvolatile materials in Wastewater, which are extracted by
5
freon from an acidified sample using the Partition-Gravimetric
method.
(o) "Industrial User (III) " means any person, including
but not limited to, any individual, firm, partnership,
corporation, association, or any other group or combination
acting as a unit, or any other legal entity, who discharges or
desires to discharge industrial wastes into the System.
(p) "Infiltration water" means the water which leaks into
a sewer.
(q) "Operation and Maintenance Expenses" means all costs
and expenses' of operation and maintenance of the System and the
Wastewater Interceptor System, including (for greater certainty
but without limiting the generality of the foregoing) repairs
and replacements for which no special fund is created in the
Bond Resolutions, operating personnel, the cost of utilities,
the costs of supervision, engineering, accounting, auditing,
legal services, supplies, services, administration of the
System and the Wastewater Interceptor System, including the
Authority's general overhead expenses attributable to the
System and the Wastewater Interceptor System, insurance
premiums, equipment necessary for proper operation and
maintenance of the System and the Wastewater Interceptor
System, and payments made by the Authority in satisfaction of
judgments resulting from claims not covered by the Authority's
6
insurance arising in connection with the operation and mainte-
nance of the System and the Wastewater Interceptor System. The
term does not include depreciation.
(r) "pH" means the common logarithm of the reciprocal of
the weight of hydrogen ions in grams per liter of solution.
(s) "Project" means the "Project" as defined in the
preamble to this Contract, and as generally described in the
Engineering Report.
(t) "POTW" means Publicly Owned Treatment Works as
defined in 40 CFR 403.
(u) "Properly Shredded Garbage" means garbage that has
been shredded to such degree that all particles will be carried
freely under the flow conditions normally prevailing in public
sewers, with no particle greater than 1/2 inch in any dimen-
sion.
(v) "Significant Industrial User (SIU) " means any indus-
trial user who is connected or desires to connect to the Cityfs
domestic wastewater collection system and meets at least one of
the following criteria:
(1) Average industrial wastewater discharge
rate greater than 50,000 gpd.
(2) BOD and/or suspended solids concentrations
in industrial wastewater greater than 250 mg/1.
(3) Industrial category regulated by National
Pretreatment Standards as promulgated by the United
States Environmental Protection Agency.
7
(w) "Suspended Solids" means solids that either float on
the surface or are in suspension in water, sewage, or other
liquids, and which are removable by laboratory filtering,
expressed in milligrams per liter.
(x) "System" means the regional wastewater treatment
system described in the preamble to this Contract and in the
Engineering Report, and all improvements and additions to and
extensions, enlargements, and replacements of such facilities
which are deemed necessary and feasible by the Authority in
order to receive, treat, and dispose of Wastewater from Con-
tracting Parties and to comply with the requirements of the
Wastewater regulatory agencies of the State of Texas and the
United States of America. Said term does not include any
facilities acquired or constructed by the Authority with the
proceeds from the issuance of "Special Facilities Bonds", which-
are
hichare hereby defined as being revenue obligations of the Author-
ity which are not secured by or payable from Annual Payments
made under this Contract and similar contracts with Additional
Contracting Parties, and which are payable solely from other
sources.
(y) "Total Toxic Organics" means the sum of all detected
concentrations greater than 10 micrograms per liter for all
organic compounds classified as priority pollutants by the
United States Environmental Protection Agency.
8
(z) "Trunk Sewer" means any sewer in which sewage from
collecting and lateral sewers is concentrated and conveyed to
the System.
(aa) "Wastewater" means Sewage, Industrial Waste, Munici-
pal Waste, Recreational Waste, and Agricultural Waste, as
defined in the Texas Water Code, together with Properly Shred-
ded Garbage and such Infiltration Water that may be present.
(bb) "Wastewater Interceptor System" means the
"Interceptor' System" as defined in the "Trinity River Authority
of Texas - Denton Creek Wastewater Interceptor System
Contract", dated October 28, 2987, executed by the parties to
this Contract concurrently with the execution hereof (the
"Interceptor Contract") , and being facilities intended to
collect and transport Wastewater into the "System", as defined
in this Contract, together with any other Wastewater collection
and transporation facilities which are not part of the System
as herein defined, and which are intended to collect and
transport the Wastewater of any Additional Contracting Party
into the System as herein defined.
Section 2. CONSULTING ENGINEERS; CONSTRUCTION OF SYSTEM.
The Authority and the Contracting Parties agree that the
Authority will choose the Consulting Engineers for the System,
provided that the Consulting Engineers may be changed at the
option of the Authority. The Authority agrees to issue its
Bonds, payable from and secured by Annual Payments made under
9
this Contract, to acquire and construct the System, and agrees
that the System will be acquired and constructed in general
accordance with the Engineering Report. It is anticipated that
such acquisition and construction will be financed by the
Authority through the issuance of two or more series or issues
of its Bonds payable from and secured by Annual Payments made
under this Contract, and the Authority agrees to issue its
Bonds for such purpose. The proceeds from the sale and de-
livery of such Bonds also will be sufficient to fund to the
extent deemed advisable by the Authority a debt service reserve
fund, a contingency fund, and interest on the Bonds during
construction; and such proceeds also will be used for the
payment of the Authority's expenses and costs in connection
with the System (including all engineering and design costs and
expenses, and the cost of the land and interests therein
related to the System) and the . Bonds, including, without
limitation, all financing, legal, printing, and other expenses
and costs related to the issuance of such Bonds and the System.
It is now estimated that such Bonds to acquire and construct
the initial System will be issued in an aggregate amount of
approximately $2,800, 000 (whether actually more or less) , which
sum is now estimated to be sufficient to cover all the
aforesaid costs, expenses, and other amounts. Each Bond
Resolution of the Authority shall specify the exact principal
amount of the Bonds issued thereunder, which shall mature
10
within the maximum period, and shall bear interest at not to
exceed the maximum rates, then permitted by law, and each Bond
Resolution shall create and provide for the maintenance of a
revenue fund, an interest and sinking fund, a debt service
reserve fund, and any other funds deemed advisable, all in the
manner and amounts as provided in such Bond Resolution. Each
Contracting Party agrees that if and when such Bonds are
actually issued and delivered to the purchaser thereof, either
-for the purpose of initially acquiring and constructing the
System, or subsequently for improving and/or extending the
System, the Bond Resolution authorizing the Bonds shall for all
purposes be deemed to be in compliance with this Contract in
all respects, and the Bonds issued thereunder will constitute
Bonds as defined in this Contract for all purposes.
Section 3. QUANTITY AND POINTS OF ENTRY. (a) In con-
sideration of the payments to be made by each Contracting Party
under this Contract, each such Contracting Party is entitled,
during each Annual Payment Period while the System is in
operation, to discharge into' the System at its Point or Points
of Entry hereinafter described, all of the Wastewater which is
generated within its boundaries which are within the watershed
or drainage area of Denton Creek, subject to the restrictions
hereinafter stated; and provided that each such Contracting
Party must transport such Wastewater to its Point or Points of
Entry. Further, each Initial Contracting Party shall be
11
obligated to transport and discharge into the System at its
Point or Points of Entry all Wastewater which is generated
within its boundaries which are within the watershed or
drainage area of Denton Creek, except for reasonably small
fringe areas which could be more cost effectively served by
other means, and which are approved by a majority vote of the
Advisory Committee and approved by the Authority.
(b) The combined maximum rate at which Wastewater is dis-
charged by each Contracting Party at all of its Points of Entry
shall not exceed a rate which, if continued for a period of
twenty-four hours would equal 3.50 times such Contracting
Party's estimated average daily contributing flow of Wastewater
for the then current Annual Payment Period. The total quantity
of Wastewater discharged into the System shall never exceed the
amount which the System is capable of receiving, treating, and
disposing, unless approved by a majority vote of the Advisory
Committee and approved by the Authority, subject to terms and
conditions to be established by the Authority. Notwithstanding
the foregoing, no Contracting Party shall ever make any dis-
charge into the System which would cause it to be overloaded or
be in violation of its permits from the State of Texas and/or
the United States of America.
(c) Wastewater meeting the quality requirements of
Section 4 of ,this Contract will be received into the System at
the Points of Entry, respectively, shown for each Initial
12
Contracting Party, respectively, in the Engineering Report, or
at such other or additional Points of Entry that may be estab-
lished by mutual agreement between the Authority and a Con-
tracting Party in the future, if such other or additional
Points of Entry are determined by the Authority to be econom-
ical and beneficial to the System, and such Contracting Party
pays any costs related thereto which the Authority determines
should be paid by such contracting Party.
(d) It is the intention of the parties hereto that the
System shall be acquired, constructed, extended, and improved
so that at all reasonable times it will be capable of receiv-
ing, transporting, treating, and disposing of all eligible
Wastewater generated within the boundaries of each Contracting
Party which are within the watershed or drainage area of Denton
Creek and which such Contracting Party delivers to its Point or
Points of Entry, and that the Authority will from time to time
issue its Bonds in such amounts as are, within its judgment and
discretion, sufficient to achieve such results.
Section 4. QUALITY. The obligation of the Authority to
receive into the System such Wastewater depends upon compliance
by each Contracting Party with the provisions of this Section.
General Objectives of Quality Requirements.
In order to permit the Authority to properly treat and
dispose of each Contracting Party's Wastewater; to protect the
public health; and to permit cooperation with other agencies
13
which have requirements for the protection of the physical,
chemical, and bacteriological quality of public water and water
courses, and to protect the properties of the System, each
Contracting Party agrees:
(a) Admissible Dischagges into Authority"s System.
Discharges into the System shall consist only of Wastewater and
other waste free from the prohibited constituents listed in
Subsection (b) and limited in B.O.D. , Suspended Solids, dis-
solved sulfides, and pH as hereinafter provided.
(b) Wastes Not Admissible. Gasoline; cleaning solvents;
non emulsified oils and greases; mineral oils; ashes; cinders;
sand; gravel ; tar; asphalt; ceramic wastes; plastics; other
viscous substances; feathers; hair; rags; metal; metal filings;
glass; wood shavings; sawdust; unshredded garbage; toxic,
corrosive, explosive or malodorous gases; acetylene generation
sludge; cyanides or cyanides or cyanogen compounds capable of
liberatling hydrocyanic gas on acidification in excess of 2
mg/1 by weight as CN; radioactive materials which will permit a
transient concentration higher than 100 microcuries per liter;
emulsified oil and grease, exclusive of soaps, exceeding on
analysis an average of 100 mg/1 of ether-soluble matter; acids
or alkalis having a pH value lower than 6. 0 or higher than
10.0; and Wastewater containing specific pollutant concentra-
tions in excess of any of the numerical limitations named
hereunder be prohibited from discharge to the System:
14
Maximum Allowable
Pollutant Concentration fuall)
Arsenic 100
Barium 1,000
Cadmium 100
Chromium 1,000
Copper 1,500
Lead 1,000
Manganese 1,500
Mercury 5
Nickel 1,000
Selenium 50
Silver 100
zinc 2,000
Total Toxic Organics 1, 000
(c) Biochemical Oxygen Demand (B.0.D. ) . B.O.D. of
Wastewater delivered to the System, as determined by standard
methods, shall not exceed 250 mg/1.
(d) Total Suspended Solids. Total Suspended Solids
delivered to the System, as determined by Standard methods,
shall not exceed 250 mg/1.
(e) Hydrogen Ion Concentration (PH) . The pH of Waste-
water delivered to the System shall be not lower than 6. 0 nor
higher than 10.0. No acids- shall be discharged into the
Authority's System unless neutralized to a pH of 6.0 or more.
(f) Hydrogen Sulfide Concentration. Dissolved sulfides
in Wastewater at the point of delivery to the System shall not
exceed 0.1 mg/l.
(g) Prohibited Discharge Limitations Subject to Change.
Notwithstanding the foregoing provisions of this Section, the
15
parties hereto agree and understand that Federal and State
Regulatory Agencies periodically modify standards on prohibited
discharges; therefore, revisions to, additions to, or deletions
from the items listed in this Section may become necessary in
the future to comply with these latest standards. It is the
intention of this Contract that prohibited discharge require-
ments be reviewed periodically by the Authority and revised in
accordance with the latest standards of any Federal or State
Agency having regulatory powers. Any required revisions shall
be made and written notice thereof given to each Contracting
Party. Each Contracting Party shall be responsible for inte-
grating such changes into the local industrial waste ordinance
and notifying- all affected users of the change within ninety
days following written notice to the Contracting Party of such
changes.
(h) To determine normal quality of Wastewater, the
Authority will collect twenty=four hour composite samples of
Wastewater at each Point of Entry and cause same to be analyzed
in accordance with testing procedures as set forth in the
latest edition of Standard Methods of Examination of Water and
Wastewater, published by American Public Health Association,
Inc. Composite samples will normally be taken once a month, or
at more frequent intervals if necessary to determine Wastewater
quality. As provided above, such Wastewater shall not exceed
16
the limits of concentration specified for Normal Wastewater as
follows:
Normal Wastewater Concentration
BOD 250 mg/1
TSS 250 mg/1
pH, not less than 6 nor greater than 10
Hydrogen Sulfide 0.1 mg/1
Should the analysis disclose concentrations higher than
those listed, the Authority immediately will inform the Con-
tracting Party which made the discharges resulting in the
violation of this Section, and such discharges shall cease
immediately. However, with the approval of the Authority,
Wastewater with concentrations of BOD and TSS greater than
specified above may be discharged by a Contracting Party into
the System on an emergency and temporary basis, subject to the
payment of a surcharge (in addition to all other payments
required by this Contract) , which surcharge shall be determined
by the Authority and shall be in an amount sufficient to cover
and pay for all additional costs of transportation, treatment,
and disposal related to such discharges.
Section 5. METERING OF WASTEWATER. The Authority will
furnish, install, operate, and maintain at its expense the
necessary equipment and devices of standard type required for
measuring properly all Wastewater discharged into the System by
each Contracting Party, respectively, through its Point or
Points of Entry, respectively. Such meters and other equipment
shall remain the property of the Authority. Each Contracting
17
WK-JA,l ".R"'^,UU
CITY � r
'I
��;G U
Party shall have access to such metering equipment at all
reasonable times for inspection and examination, but the
reading, calibration, and adjustment thereof shall be done only
by employees or agents of the Authority in the presence of a
representative of the affected Contracting Party or Parties if
requested by such Contracting Party or Parties. All readings
of meters will be entered upon proper books of record main-
tained by the Authority. Upon written request any Contracting
Party may have access to said record books during reasonable
business hours. Not more than three times in each year of
operation, the Authority shall calibrate its meters, if re-
quested in writing by the affected Contracting Party or Parties
to do so, in the presence of a representative of such Contract-
ing Party or Parties, and such parties shall jointly observe
any adjustments which are made to the meters in case any
adjustment is found to be necessary. If, for any reason, any
meters are out of service or out of repair, or if, upon any
test, the percentage of inaccuracy of any meter is found to be
in excess of five (5%) per cent, registration thereof shall be
corrected for a period of time extending back to the time when
such inaccuracy began, if such time is ascertainable, and if
not ascertainable, then for a period extending back one-half
(1/2) of the time elapsed since the date of the last calibra-
tion, but in no event further back than a period of six (6)
months. Any Contracting Party may, at its option and its own
18
expense, install and operate a check meter to check each meter
installed by the Authority, but the measurement for the purpose
of this agreement shall be solely by the Authority's meters,
except as in this Section specifically provided to the con-
trary. All such check meters shall be of standard make, shall
be installed in a location approved by the Authority, and shall
be subject at all reasonable times to inspection and examina-
tion by any employee or agent of the Authority, but the read-
ing, calibration, and adjustment thereof shall be made only by
the Contracting Party or Parties, except during any period when
a check meter may be used under specific written consent by the
Authority for measuring the amount of Wastewater delivered into
the System, in which case the reading, calibration, and adjust-
ment thereof shall be made by the Authority with like effect as
if such check meter or meters had been furnished or installed
by the Authority.
Section 6. UNIT OF MEASUREMENT. The unit of measurement
for Wastewater discharged into the System hereunder shall be
1,000 gallons, U. S. Standard Liquid Measure.
Section 7. LIABILITY FOR DAMAGES AND RESPONSIBILITY FOR
TREATMENT AND DISPOSAL OF WASTEWATER. Liability for damages
arising from the transportation, delivery, reception, treat-
ment, and/or disposal of all Wastewater discharged into the
System hereunder shall remain in each Contracting Party to its
Point or Points of Entry, respectively, and title to such
19
Wastewater shall be in such Contracting Party to such Point or
Points, and upon passing through Points of Entry liability for
such damages shall pass to the Authority. As between the
Authority and each Contracting Party, each party agrees to
indemnify and to save and hold the other party harmless from
any and all claims, demands, causes of action, damages, losses,
costs, fines, and expenses, including reasonable attorney's
fees, which may arise or be asserted by anyone at any time on
account of the transportation, delivery, reception, treatment,
and/or disposal while title to the Wastewater is in such party,
or on account of a prohibited discharge by a Contracting Party.
The Authority has the responsibility as between the parties for
the proper reception, transportation, treatment, and disposal
of all Wastewater discharged into the System, but not for
prohibited discharges discharged by any party at any Point of
Entry.
Section B. REPORTING REQUIREMENTS. (a) Approximately
thirty days after the end of each Annual Payment Period each
Contracting Party, respectively, shall furnish in writing to
the Authority the following information with respect to such
Contracting Party:
(1) The number of active domestic sewer connections
tributary to the System and which will be served by the System;
(2) The number of commercial and business swver connec-
tions to be served by the System;
20
(3) The number of industrial connections to be served by
the System, with name and location of each.
The purpose of this provision is to permit the Authority
to accumulate statistical data which will enable it to render
better service and facilitate plans for betterment and future
facilities expansion.
(b) Industrial Waste. The effects of certain types of
Industrial Waste upon sewers and sewage treatment processes are
such as to require that careful consideration be made of each
industrial connection. This is a matter of concern both to the
Authority and to the Contracting Parties. Accordingly, each
Contracting Party shall regulate the discharge of Industrial
Waste generated by a SIU into its sewer system, and will
authorize discharge of Industrial Waste into its sewers subject
to the general provision that no harm will result from such
discharge and subject to the filing by applicant industry of a
statement, copy of which shall be forwarded to the Authority,
containing the following information:
(1) Name and address of applicant;
(2) Type of industry;
(3) Quantity of plant waste;
(4) Typical analysis of the waste;
(5) Type of pre-treatment proposed.
To facilitate inspection and control of Industrial Waste, each
Contracting Party will require industries to separate
21
Industrial Waste from Sanitary Sewage until such Industrial
Waste has passed through a monitoring portal which shall be
located so as to be accessible at all times to inspectors of
such Contracting Party. If inspection indicates that damage
might result from the discharge the permit shall be revoked
unless and until the industry promptly establishes acceptable
remedial measures. At regular intervals the Authority will
collect twenty-four hours composite samples of all Wastewater
at each Point of Entry and cause same to be analyzed by
American Public Health Association Standard Methods. Such
Wastewater shall not exceed the limits of concentration
specified in Section 4 of this Contract. Should the analysis
disclose concentrations higher than those stipulated the
Authority immediately will inform the affected Contracting
Party of such disqualification. It shall be the obligation of
such Contracting Party to require the offending originator of
said highly concentrated materials to immediately initiate and
undertake remedial pre-treatment or other legal means before
discharge into such Contracting Party's sewers.
(c) Ordinances. Each Contracting Party, respectively,
agrees that it has enacted or will enact ordinances as neces-
sary to include the following provisions:
(1) For each existing and future SIU, the Contracting
Party shall require said user to complete and submit a permit
application containing that information specified" in the sample
22
application form which is attached hereto as Exhibit 1 immedi-
ately following this Section 8 (c) . The Authority shall be
provided a copy of the permit application within thirty days
after receipt by the Contracting Party. The Authority shall
provide comments on said application within thirty days of
receipt and return comments to the Contracting Party. Failure
to comment shall be construed as concurrence by the Authority.
After approval of the Permit Application by both the
Contracting Party and the. Authority, the Contracting Party
shall issue a permit to discharge containing the requirements
as shown on the form which is attached hereto as Exhibit 2
immediately following Exhibit 1 at the end of this Section 8
(c) . Said permit to discharge shall be required of all SIUs
before said user will be allowed to discharge industrial wastes
into the sewage system. A copy of the permit to discharge
shall be forwarded to the Authority for approval prior to the
issuance to the SIU.
(2) The Contracting Party shall require significant
industrial users to comply with applicable Federal Categorical
Pretreatment Standards as well as any applicable state and
local standards.
(3) The Contracting Party shall maintain certain informa-
tion contained in permit applications as confidential at SIU's
request.
23
(4) The Contracting Party shall disallow dilution as a
means of reducing pollutant concentrations in an SIU's waste
stream.
(5) The Contracting Party shall be authorized to enter
SIU premises at any time for independent monitoring, inspec-
tion, or review of applicable records to determine compliance.
(6) The Contracting Party shall develop and require
adherence to SIU compliance schedules.
(7) The Contracting Party shall require self-monitoring
and reporting at SIU's expense.
(8) The Contracting Party shall choose or approve labora-
tory to analyze industrial wastes.
(9) The Contracting Party shall require SIU's to pay
applicable fees for:
(i) sampling and testing to determine compliance
(ii) disconnection/reconnection of service resulting
from noncompliance
(iii) abnormal strength wastes
(iv) additional costs incurred by Contracting Party
or POTW in transporting or treating wastes
(v) filing, revision, or renewal of Permit
Application
(10) The Contracting Party shall provide public notifica-
tion for instances of violation.
24
(11) The Contracting Party shall deny/revoke permit,
disallow/disconnect service, assess civil or criminal penal-
ties, and seek other available legal and equitable remedies
against SIU for:
(i) discharge to sewerage system resulting in
violation of POTW's discharge permit conditions
(ii) hazard to health or life of POTW personnel or
users of receiving waters
(iii) violation of any applicable ordinance or
regulation
(iv) false information transmitted to approving
authority through Permit Application, monitoring
reports, etc.
The Contracting Party shall furnish to the Authority all
documents and records, in addition to those outlined herein, as
necessary to demonstrate compliance by all industries.
25
EXHIBIT I
PERMIT APPLICATION
CITT OF
Date:
To: Significant Industrial Users
From:
Subject: Application for a Permit to Discharge Industrial Wastewaters to the
Sanitary Suer System.
Ordinance number has been adopted for the purpose of regulating the
wte
quality of industria rwaters contributed to the sanitary sewer. The
objectives of the Ordinance are to prevent damage or obstruction to the sewer.
to avoid interference with the regional wastewater treatment plant operated by
the Trinity River Authority, and to comply with state and federfl regulations
regarding pretreatment of. industrial wastes.
Significant industrial users must obtain a Permit to discharge industrial
wastewaters to the sewer. The Permit authorizes your discharge and sets forth
criteria for discharge quality and requirements for reporting.
The attached application for a Permit must be completed and returned to the
Mailing address shown below within 180 days. A fee of must
accompany this Application. The City and the Trinity River thorny will
review your application. Additional information such as evidence of
treatabflity may be requested from either entity. The City wilt return a
Permit to you upon approval of your application and will either approve or
deny said application within 90 days of its receipt by City.
Please address questions concerning the Industrial Wastewater Ordinance Permit
to: '
f
i
EXHIBIT I (CONT-0)
APPLICATION FOR A PERMIT TO DISCHARGE
INDUSTRIAL WASTEWATER TO THE SANITARY SEWER
Note to Signing Official: Please complete and return this appl7cation within
IBO days. Signing officials must have authorization to provide information on
behalf of the company. Information considered confidential by your company
should be clearly marked so that this information can be maintained in
separate, limited access files.
SECTION A. GENERAL INFORMATION
1. Company name
2. Mailing address lip e
3. Facility address a ep one Number
(address where sewer service Is requested
4. Is company currently in operation at facility address? YES _ NO
SECTION S. PRODUCTS DR SERVICE INFORMATION
1. Brief description of manufacturing processes or service activity at the
facility including rate of production, if applicable:
2. Principal raw materials, including chemicals. catalysts. solvents, etc.,
used in any phase of the manufacturing process or service activity:
3. Number of employees Hours per day of operation
Days per week of operatTon
4. Standard Industrial Code Number (4 digits).
S. List other environmental control permits held at this time.
I6. Attach a property plat prepared by an engineer or architect showing
i locations of water and sewer connections. manholes. traps, etc. Also
indicate the locations of an acceptable monitoring station for Coliecting
samples and measuring flows of the industrial wastewater streams prior to
` discharge to the sanitary sewer.
I '
EXHIBIT 2
PERMIT FORM
CITY OF
PEPX IT TO DISCHARGE INDUSTRIAL WASTEWATERS
TO THE SANITARY SEWER
Nave of Industry (Permittee)
Address
(location of sewer service
Permit No. Account No.
s
Tne above named Permittee is authorized to discharge industrial wastewaters to
the sanitary sewerage system according to the provisions of this Permit.
Avthorization is granted for a period begfnnfng until
Authorized epresentatjre -Date
City of
a
EXHIBIT 2 (C0NT'D)
A. EFFLUENT LIMITATIUKS
Tne quality of permittee's industrial discharges rill be limited by the
provisions of City Drdinance No. and the National Pretreatment
Regulations which Include the following numerical limitations:
STANDARDS
Average Concentration
Pollutant or Maximum Allowable and/or Load
Pollutant Property Concentration, mg/l mg/l or lb/day
The discharge of any pollutant at a level to excess of that identified and
authorized by this permit. shall constitute a violation of the terms and
conditions of this permit. Such a violation may result in permit
revocation and/or the imposition of civil and/or criminal penalties.
B. MDNITDRING AND REPORTING
1. Permittee shall collect representative samples of the wastewater
discharge and analyze these waters for the pollutants Indicated in
Section A. where feasible, samples shall be obtained using flow
proportional composite sampling techniques specified in the applicable
Categorical Pretreatment Standard. Inhere composite sampling is not
feasible. grab sampling is acceptable. The permittee shall collect and
analyze sample(s) during a period.
nu-Ter) interval)
2. Permittee shall sumaarize monitoring information on a copy of the
attached 'Significant Industrial User Self Monitoring Report' form.
i Duplicates of this form shall be submitted during the months of
and of each year to:
City Engineer
City of
with copy to:
Pretreatment Program Manager
Trinity River Authority of Texas
P. 0. Box 240
Arlington. Texas 760I0
EXHIBIT 2 (CONT-D)
3. Failure to submit any report or information required by this permit
shall constitute a violation.
4. Any changes in the characteristics of the industrial discharges as a
result of modifications to the industrial processes must be reported.
modifications to the permit may then be made to reflect any necessary
changes in process conditions. including any necessary effluent
limitations for any pollutants not identified and limited herein.
This permit is not transferrable to companies or processes other than
those to which it is originally issued.
S. Permittee shall immediately notify the treatment plant manager at
(214) 22S-3462 in the event of a slug loading of pollutants as a
result of an operational failure of pretreatment facilities or
accidental spills.
6. Pemittee must maintain records of all information resulting from any
monitoring activities for a minimum period of 3 years. Such records
rill include for all samples:
(i) The date, exact place, method, and time of sampling and the names
of the person or persons taking the samples;
(ii) The dates the analyses were performed;
(iii) Who performed the analyses;
(iv) The analytical techniques/methods used; and
(v) The results of such analyses.
Records shall be made available for inspection and copying by the
city. or its representatives.
7. Compliance Schedule:
Activity Date
8. Permittee is advised that he may need to comply with additional
regulations listed as follows:
EXHIBIT 1 (CONT'D)
SECTION C. WASTEWATER DISCHARGE INFORUTIDN
I. Indicate the types and quantity of industrial wastewater by completing the
table below;
Check Industrial Flow Flow Flow
Appropriate Flow Metered Estimated Proposed
Bot For Average Daily/ (check (check For New
Type Of Maximum Daily if yes) if yes) Industry
Wastewater (check if
yes)
(a) Process
Wastewater;
Continuous
Discharge
Batch
Discharge
(b) Boiler Blowdown
(c) Cooling Water
Release
(d) Plant and
Equipment
Washdown
(e) Other
sped y
For each wastewater stream attach a schematic of water flow that depicts
the water source, industrial units where water is used and pretreatment
units.
2. Wastewater Quality. The applicant must present information on the quality
of industrial wastewaters. Samples collected from wastewater streams
should be representative of daily operations. Analytical 'procedures
should follow those in Standard Methods for the Examination of Water and
Yastewater. APKA-kWWk-WPCF. 14th Ldition. 191b.
EXHIBIT 1 (COHT'D)
(a) Conventional Pollutants - in the spaces below. indicate the average
and maximum value of each constituent in the discharge.
Maximum Average
Wastewater Constituent Value value
Biochemical Oxygen Demand (5 day) 09/1
Total Suspended Solids mig/1
PH PH units
Temperature of
1'
EXHIBIT I (COMT'D)
(b) Prlarlty Peitetaat tafarmatleal Please loeltate by placlal Y 'I' la the
appropriate bet by each listed chemical whether It Is 'Sel►ected to be
Abseat% 'Lme.■I to be .►seat'. 'Srspected to be hetemte. or 'Mewl to be
Presses' In year ■aaefocterla1 or lerelce activity or Isaerated as a
b3-prodect.
hen■ s �
s- .3
i°• tK■ruc m.ro■41y a s '59 + c+sawt t a■eee.o s 8
t. owheur (rl.r..a) 1 1 1 1 1 K. t,ldicblxlal►re
L ),MIM (tatall y { fit. s,l jlc\larrther
3. ebtlr., (tet•l) t ; i 1 ( a+. t..t.l.3.dlca►aratt\tr
ea (total) 1 1 1
4. ora►e so. L"Itbleroebvbol 1 1 1
s. 1er7111r (tarot) /d. I.2-0Ichlerebrww
t• ca�tme tato) n. (cit 6 swept l.3-elc\lxeerq.r ((
1. crrl.at(taLa1) tt. slalarla 1
4 wo.r (taull t1. amort pµa.lote
t. AY (total) la. 1,adleetylPrrl
• 14 a.c.rr (total) R. atrtbrl phthelote l 1
1L. '.Ictal (total) 1 rt. el+rwt/l Pbthelatb l 1
" 11. Swiveled, (tatal1 31. a{r.acttl Pktrtate
l '
Lt. tier, (totall 3e. 4.ldleltPa-1s 0riraa.ai ,}!
L4, eballled, (tlaall re. Z,a.omtlrevbwrl
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EXHIBIT 1 (CONT'D)
For Oemical compounds which are indicated to be 'Known Present' please list and
provide the following data for each (attach additional sheets if needed).
Estimated Average Kasimum
Annual Loss To Concentration Concentration
Item Usage Sewer In Discharge In Discharge
NO. Chemical Compound (lbs) (lbs/year) (m9/1)
EXHIBIT I (CONT'D)
]. is your discharge subject to national Pretreatment Standards established
under 4D CFR, Chapter 1. Subchapter R.
TES RD
The above question must be answered with certainty. For additional
information regarding Rational Pretreatment Standards. applicant should
contact Region Y1 of the Environmental Protection Agency at 214) 767-2610
or the Trinity River Authority, Rorthern Region Dffice at (Eli) 467-4221.
4. For existing significant industrial users, if the answer to the above
Question is yes. please indicate the applicable pretreatment standards in
the space provided below and attach a statement reviewed by applicant's
authorized representative and certified by a qualified. professional.
indicating whether applicable pretreatment standards are being met on a
consistent basis. If applicable pretreatment standards are not being met
on a consistent basis. certified statement should indicate the following;
A. Whether additional. operation and maintenance (06M) and/or additional-
pretreatment is required for applicant to meet pretreatment standards;
and
b. The shortest schedule by which applicant will provide aiditional DLM
or pretreatment. The completion date in this schedule must not be
later than compliance date established for applicable pretreatment
standard.
Applicable Standards
Constituent Limit(&)
i
EXHIBIT I (CDHT-D)
S. For new significant industrial users describe the pretreatment processes
proposed for your facility to meet the requirements listed in item 4.
(Examples: neutralization. materials recovery. grease traps. sand traps.
etc.}
I Lhe undersigned applicant. being the authorized representative of the herein
named company, do hereby request a Permit to continue to use or to establish an
industrial serer connection at the location indicated herein and do agree to
comply with provisions of City Ordinance
Signature of Applicant Date
Race of Si ghee
(PleasePrint)
Kame and phone number of person to contact regarding Permit information.
CORPORATE ACKNOWI.EDGKEKT
THE STATE OF TEXAS.
COUKTY OF
Before me. the undersigned authority. on this day personally appeared
of
a corporation. known to me to be the person whose name is subscribed to the
foregoing instrument. and acknowledged to me that he executed the same for
Purposes and Considerations therein expressed. in the capacity therein stated
and as the act and deed of said corporation.
Given under my hand and seal of office on this day of
. 19
Notary Public in and for
County. Texas
Ky Commission Expires: '
Section 9. OTHER CONTRACTS. (a) The Authority reserves
the right, with the approval of a majority vote of the Advisory
Committee, to enter into contracts to provide the Wastewater
services of the System to Additional Contracting Parties under
contracts similar to this Contract, subject to the requirements
concerning "minimums" as hereinafter provided. Each contract
with any Additional Contracting Party shall comply with the
requirements of this Contract, shall substantially restate the
essential provisions of this Contract, and shall be structured
to be similar hereto to the fullest extent applicable and
practicable, with such additions or changes as are necessary to
meet the actual circumstances, with the effect that each
Additional Contracting Party will substantially adopt the
provisions of this Contract, as supplemented and necessarily
changed by its contract. However, the Authority shall not
obligate itself to receive Wastewater into the System from any
future Additional Contracting Party if, in the judgment and
discretion of the Authority, such obligation would jeopardize
the Authority's ability to meet its obligation to receive,
transport, treat, and dispose of Wastewater discharged into the
System by prior Contracting Parties, including specifically the
Initial Contracting Parties.
(b) It is further recognized and agreed that in the
future the Authority may provide services of the System to
parties which are not Additional Contracting Parties, provided
26
that all such services of the System to parties which are not
Additional Contracting Parties shall in all respects be sub-
ordinate to the prior rights of the Contracting Parties, and
all contracts or other arrangements relating to such services
shall recognize, and be made subordinate to, such prior rights.
(c) Each Contracting Party shall have the right, with the
approval of a majority vote of the Advisory Committee and the
approval of the Authority, to negotiate and enter into subcon-
tracts with any other city or other entity under which such
other city or entity may discharge Wastewater generated within
the drainage area of Denton Creek, but outside the boundaries
of such Contracting Party, into such Contracting Party's
sewers, to be transported into the System at such Contracting
Party's Point or Points of Entry along with such Contracting
Party's Wastewater generated within the drainage area of Denton
Creek. In such case such additional Wastewater shall be
regarded as being the Wastewater of such Contracting Party for
all purposes of this Contract. The consideration as between or
among such cities or other entities may be determined by such
parties, but no such transaction shall relieve the Contracting
Party of its obligations to the Authority under the terms of
this contract.
Section 10. ADVISORY COMMITTEE. (a) The governing body
of each of the Contracting Parties annually shall appoint one
of the members of its governing body or one of its employees as
27
a voting member of the Advisory Committee for the System, which
Advisory Committee is hereby created and established. The
Advisory Committee, at its first meeting, shall elect a
Chairman, a vice Chairman, and a Secretary. The Advisory
Committee may establish bylaws governing the election of
officers, meeting dates, and other matters pertinent to the
functioning of the Advisory Committee. The Advisory Committee
shall consult with and advise the Authority, through its
General Manager or his designated representative, with regard
to the following matters pertaining to the System:
(i) The issuance of Bonds;
(ii) The operation and maintenance of the System;
(iii) Additional Contracting Parties and the terms and
conditions of the contracts with such parties,
consistent with the provisions of this Contract;
(iv) Contracts for services to entities which are not
Additional Contracting Parties, and the prices,
terms, and conditions of such contracts consistent
with the provisions of this Contract;
(v) The Authority's Annual Budget, prior to its
submission by the Authority's General Manager to the
Authority's Board;
(vi) Review of the Authority's Annual Audit;
(vii) All other pertinent matters relating to the
management of the System; and
28
(viii) Improvements and extensions of the System.
The Advisory Committee shall have access to and may inspect at
any reasonable times all physical elements of the System and
all records and accounts of the Authority pertaining to the
System. A copy of the minutes of the meetings of the Advisory
Committee and all other pertinent data, shall be provided to
the members of the Advisory Committee.
(b) The term of membership on the Advisory Committee
shall be at the pleasure of each governing body represented,
respectively, and each member shall serve until replaced by
such governing body. All expenses of the Advisory Committee in
discharging its duties under this Section shall be considered
as an Operation and Maintenance Expense of the System.
Section 11. FISCAL PROVISIONS. (a) Subject to the terms
and provisions of this Contract, the Authority will provide and
pay for the cost of the acquisition and construction of the
System and all System facilities, by issuing its Bonds in
amounts which will be sufficient to accomplish such purposes,
and the Authority will own and operate the System. It is
acknowledged and agreed that payments to be made under this
Contract and similar contracts with Additional Contracting
Parties, if any, will be the primary source available to the
Authority to provide the Annual Requirement, and that, in
compliance with the Authority's statutory duty to fix and from
time to time revise the rates of compensation or charges for
29
services of the System rendered and made available by the
Authority, the Annual Requirement will change from time to
time, and that each such Annual Requirement shall be allocated
among the Contracting Parties as hereinafter provided, and that
the Annual Requirement for each Annual Payment Period shall be
provided for in each Annual Budget and shall at all times be
not less than an amount sufficient to pay or provide for the
payment of:
(A) An "operation and Maintenance Component" equal to the
amount paid or payable for all operation and Mainte-
nance Expenses of the System and the Wastewater
Interceptor System. It is understood and agreed that
although the Wastewater Interceptor System will not
be a part of the System as defined in this Contract,
it will consist of facilities which are ancillary to
and integrated into the operation of the System, and
therefore will be operated and maintained in effect
as a part of the System under the provisions of this '
Contract, consistent with the terms of the
Interceptor Contract; and
(B) A "Bond Service Component" equal to:
(1) the principal of, redemption premium, if any,
and interest on, its Bonds, as such principal,
redemption premium, if any, and interest become
due, less interest to be paid out of Bond
proceeds or from other sources if permitted by
30
any Bond Resolution, and all amounts required to
redeem any Bonds prior to maturity when and as
provided in any Bond Resolution, plus the fees,
expenses, and charges of each Paying
Agent/Registrar for paying the principal of and
interest on the Bonds, and for authenticating,
registering, and transferring Bonds on the
registration books; and
(2) the proportionate amount of any special,
contingency, or reserve funds required to be
accumulated and maintained by the provisions of
any Bond Resolution; and
(3) any amount in addition thereto sufficient to
restore any deficiency in any of such funds
required to be accumulated and maintained by the
provisions- of any Bond Resolution.
Section 12. ANNUAL BUDGET. Each Annual Budget for the
System shall always provide for amounts sufficient to pay the
Annual Requirement. The Annual Budget for the System for all
or any part of the Annual Payment Period during which the
System is first placed into operation shall be prepared by the
Authority based on estimates made by the Authority after
consultation with the Advisory Committee. on or before August
1 of each year after the System is first placed in operation,
the Authority shall furnish to each Contracting Party a
31
preliminary estimate of the Annual Payment required from each
Contracting Party for the next following Annual Payment Period.
Not less than forty days before the commencement of the Annual
Payment Period after the System is first placed into operation,
and not less than forty days before the commencement of each
Annual Payment Period thereafter, the Authority shall cause to
be prepared as herein provided its preliminary budget for the
System for the next ensuing Annual Payment Period, which budget
shall specifically include the Operation and Maintenance
Component and the Bond Service Component. A copy of such
preliminary budget shall be filed with each Contracting Party.
The preliminary budget shall be subject to examination, at
reasonable times during business hours, at the office of the
City Secretary of' 'each Contracting Party. If no protest or
request for a hearing on such preliminary budget is presented
to the Authority within ten days after such filing of the
preliminary budget by one or more Contracting Parties or by the
owners of a minimum of 251 in principal amount of the Bonds
then outstanding, the preliminary budget for the System shall
be considered for all purposes as the "Annual Budget" for the
next ensuing Annual Payment Period. But if protest or request
for a hearing is duly filed, it shall be the duty of the
Authority to fix the date and time for a hearing on the prelim-
inary budget, and to give not less than ten days notice thereof
to the Contracting Parties. An appropriate committee of the
32
Authority shall consider the testimony and showings made in
such hearing and shall report its findings to the Board of
Directors of the Authority. The Board of Directors may adopt
the preliminary budget or make such amendments thereof as to it
may seem proper. . The budget thus approved by the Board of
Directors of the Authority shall be the Annual Budget for the
next ensuing Annual Payment Period. The Annual Budget (includ-
ing the first Annual Budget) may be amended by the Authority at
any time to transfer from one division thereof to another funds
which will not be needed by such division. The amount for any
division, or the amount for any purpose, in the Annual Budget
may be increased through formal action by the Board of Direc-
tors of the Authority even though such action might cause the
total amount of the Annual Budget to be exceeded; provided that
such action shall be taken only in the event of an emergency or
special circumstances which shall be clearly stated in a
resolution at the time such action is taken by the Board of
Directors. Certified copies of the amended Annual Budget and
resolution shall be filed immediately by the Authority with
each Contracting Party.
Section 13. PAYMENTS BY CONTRACTING PARTIES. (a) For
the Wastewater services to be provided to the Contracting
Parties under this Contract, each of the Contracting Parties
agrees to pay, at the time and in the manner hereinafter
provided, its proportionate share of the Annual Requirement,
33
which shall be determined as herein described and shall consti-
tute a Contracting Party's Annual Payment. Each of the Con-
tracting Parties shall pay its part of the Annual Requirement
for each Annual Payment Period directly to the Authority, in
monthly installments, on or before the 10th day of each month,
in accordance with the schedule of payments furnished by the
Authority, as hereinafter provided.
(b) For each Annual Payment Period each Contracting
Party's proportionate share of the Annual Requirement shall be
a percentage obtained by dividing the number of gallops of
contributing flow of Wastewater estimated to be discharged into
the System by such Contracting Party during such Annual Payment
Period, as determined by the Authority after consultation with
such Contracting Party, by the aggregate total number of
gallons of contributing flow of Wastewater estimated to be
discharged into the System by all Contracting Parties during
such period, as determined by the Authority after consultation
with all of the Contracting Parties. It is provided, however,
that in estimating costs for services the Authority is specifi-
cally authorized, in its discretion, to estimate such costs
based on an arbitrary assumption that the Annual Payment Period
for which the calculation is being made will be an extremely
dry year, rather than a normal or average year, and that
accordingly the contributing flow of Wastewater discharged into
the System will be less than expected normally or on an
34
average, all with the result that the monthly payments made by
the Contracting Parties may be higher than would have been
required on the basis of a normal or average year, and with the
further result that the total amount required to meet the then
current Annual Budget for the System may be collected by the
Authority before the end of the then current Annual Payment
Period. This result is expressly approved by the Contracting
Parties and is deemed by the parties hereto to be beneficial in
the fiscal management of the System, and will assure the timely
availability of funds even under unexpected circumstances.
However, upon receipt during any Annual Payment Period of an
amount sufficient to meet the then current Annual Budget of the
System for the remainder of the then current Annual Payment
Period, the Authority immediately shall notify the Contracting
Parties, and they shall not be obligated to make further
payments under this Section for the remainder of that Annual
Payment Period, unless otherwise specifically hereinafter
provided in the event of unexpected or additional Annual Budget
requirements. It is further provided that the Authority may
revise its estimates of contributing flow either monthly or for
any other period within an Annual Payment Period, as determined
by the Authority, and such revised estimates may be made on the
basis of actual metered contributing flow during the preceding
month or other period, to the end that the Authority may use
its best efforts to avoid to the extent practicable unnecessary
35
final adjustments among the Contracting Parties for each Annual
Payment Period. All such payments for each Annual Payment
Period shall be made in accordance with a written schedule of
payments for the appropriate Annual Payment Period which will
be supplied to each of the Contracting Parties by the
Authority. Such schedule of payments may be revised by the
Authority periodically based on any changes in its estimates of
contributing flow as provided above, and each revised schedule
of payments shall be supplied to each Contracting Party before
the beginning of the period to which it is applicable. At the
close of each Annual Payment Period the Authority shall
determine the actual metered number of gallons of contributing
flow of Wastewater discharged into the System by each
Contracting Party during said period and determine each
Contracting Party's actual percentage of the Annual Requirement
by dividing such Contracting Party's actual metered
contributing flow by the actual metered contributing flow of
all Contracting Parties. Each Contracting Party's Adjusted
Annual Payment shall be calculated by multiplying each such
Contracting Party's redetermined percentage times the actual
Annual Requirement. The difference between the amounts which
actually have been paid by each Contracting Party and the
amounts actually due from such Contracting Party hereunder
shall be applied as a credit or a debit to such Contracting
Party's account with the Authority and shall be credited or
36
debited to such Contracting Party's next monthly payment, or as
otherwise agreed between the Authority and the affected Con-
tracting Party, provided that all such credits and debits shall
be made in a timely manner not later than the end of the next
following Annual Payment Period.
(c) Notwithstanding the provisions of (b) , above, and as
an exception thereto, it is agreed that if, during any Annual
Payment Period, the estimated and/or actual metered contribut-
ing flow of Wastewater into the System of any Contracting Party
is, for any reason whatsoever, less than the minimum amount
hereinafter prescribed and provided for it, such Contracting
Party shall pay its share of each Annual Requirement as if its
estimated and/or actual metered contributing flow of Wastewater
into the System were such minimum amount. However, if such
Contracting Party's estimated and/or actual metered contribut-
ing flow of Wastewater into the System is equal to or in excess
of such minimum amount, its share of all of each Annual Re-
quirement shall be calculated on the basis of estimated and
actual contributing flow as provided in (b) , above. All
contracts with Additional Contracting Parties shall provide for
equitable minimums similar to those provided for below. Such
minimums shall be fixed in amounts at least sufficient, as
determined by the Authority, to assure an initial annual
payment by such Additional Contracting Party for not less than
the amount of its estimated contributing flow of Wastewater
37
into the System during the first year of service under such
contract. For the purpose of calculating the minimum per-
centage of each Annual Requirement for which each Initial
Contracting Party is unconditionally liable, without offset or
counterclaim (also see Section 16 hereof) , the contributing
flow of Wastewater into the System of each Initial Contracting
Party, during each Annual Payment Period, shall be deemed to be
not less than the minimum amount (regardless of whether or not
such amount was actually discharged into the System) specified
for such Initial Contracting Party as follows:
City of Fort Worth: 43, 158,695 gallons
City of Haslet: 22,082,500 gallons
City of Roanoke: 40, 150,000 gallons.
(d) Notwithstanding the foregoing, the Annual Require-
ment, and each Contracting Party's share thereof, shall be
redetermined, after consultation with each of the Contracting
Parties, at any time during any Annual Payment Period, to the
extent deemed necessary or advisable by the Authority, if:
(i) The Authority commences furnishing services of the
System to an Additional Contracting Party or Parties;
(ii) Unusual, extraordinary, or unexpected expenditures
for Operation and Maintenance Expenses are required
which are not provided for in the Authority's Annual
Budget for the System or in any Bond Resolution;
(iii) Operation and Maintenance Expenses are substantially
38
less than estimated;
(iv) The Authority issues Bonds which require an increase
in the Bond Service Component of the Annual Payment;
or
(v) The Authority receives either significantly more or
significantly less revenues or other amounts than
those anticipated.
(e) During each Annual Payment Period all revenues
received by the Authority from providing services of the System
to parties which are not Contracting Parties, and all sur-
charges collected from any Contracting Party under Section 4,
above, shall (i) first be credited to the operation and Mainte-
nance Component of the Annual Requirement, and (ii) then any
remainder credited to the Bond Service Component of the Annual
Requirement, with the result that such credits under (i) and
(ii•) , respectively, shall reduce, to the extent of such
credits, the amounts of such Components, respectively, which
otherwise would be payable by the Contracting Parties pursuant
to the method prescribed in (b) and (c) , above. The Authority
may estimate all such credits which it expects to make during
each Annual Payment Period in calculating each Annual Payment.
(f) Each Contracting Party hereby agrees that it will
make payments to the Authority required by this Section on or
before the 10th day of each month of each Annual Payment
Period. If any Contracting Party at any time disputes the
39
amount to be paid by it to the Authority, such complaining
Party shall nevertheless promptly make such payment or pay-
ments, but if it is subsequently determined by agreement or
court decision that such disputed payments made by such com-
plaining party should have been less, or more, the Authority
shall promptly revise and reallocate the charges among all
Contracting Parties in such manner that such complaining party
will recover its overpayment or the Authority will recover the
amount due it. All amounts due and owing to the Authority by
each Contracting Party or due and owing to any Contracting
Party by the Authority shall, if not paid when due, bear
interest at the rate of ten (10) percent per annum from the
date when due until paid. The Authority shall, to the extent
permitted by law, discontinue the services of the System to any
Contracting Party which remains delinquent in any payments due
hereunder for a period of sixty days, and shall not resume such
services while such Contracting Party is so delinquent. It is
further provided and agreed that if any Contracting Party
should remain delinquent in any payments due hereunder for a
period of one hundred twenty days, and if such delinquency
continues during any period thereafter, such Contracting
Party's minimum amount of gallons of Wastewater specified and
described in (c) , above, shall be deemed to have been zero
gallons during all periods of such delinquency, for the purpose
of calculating and redetermining the percentage of each Annual
40
Payment to be paid by the non-delinquent Contracting Parties,
and the Authority shall redetermine such percentage on that
basis in such event so that the non-delinquent Contracting
Parties collectively shall be required to pay all of the Annual
Requirement. However, the Authority shall pursue all legal
remedies against any such delinquent Contracting Party to
enforce and protect the rights of the Authority, the other
Contracting Parties, and the holders of the Bonds, and such
delinquent Contracting Party shall not be relieved of the
liability to the Authority for the payment of all amounts which
would have been due .hereunder, in the absence of the next
preceding sentence. It is understood that the foregoing
provisions are for the benefit of the holders of the Bonds so
as to insure that all of the Annual Requirement will be paid by
the non-delinquent Contracting Parties during each Annual
Payment Period regardless of the delinquency of a Contracting
Party. If any amount due and owing by any Contracting Party to
the Authority is placed with an attorney for collection, such
Contracting Party shall pay to the Authority all attorneys
fees, in addition to all other payments provided for herein,
including interest.
(g) If, during any Annual Payment Period, any Contracting
Party's Annual Payment is redetermined in any manner as pro-
vided or required in this Section, the Authority will promptly
41
furnish such Contracting Party with an updated schedule of
monthly payments reflecting such redetermination.
Section 14. SPECIAL PROVISIONS. (a) The Authority will
continuously operate and maintain the System in an efficient
manner and in accordance with good business and engineering
practices, and at reasonable cost and expense.
(b) The Authority agrees to carry fire, casualty, public
liability, and other insurance (including self-insurance to
the extent deemed advisable by the Authority) on the System for
purposes and in amounts which ordinarily would be carried by a
privately owned utility company, owning and operating such
facilities, except that the Authority shall not be required to
carry liability insurance except to insure itself against risk
of loss due to claims for which it can, in the opinion of the
Authority's legal counsel, be liable under the Texas Tort
Claims Act or any similar law or judicial decision. Such
insurance will provide, to the extent feasible and practicable,
for the restoration of damaged or destroyed properties and
equipment, to minimize the interruption of the services of such
facilities. All premiums for such insurance shall constitute
an Operation and Maintenance Expense of the System.
(c) It is the intent of the parties that the System will
be placed in operation in 1989, and the Authority agrees to
proceed diligently with the design and construction of the
System to meet such schedule, subject to the other terms and
42
conditions in this Contract. It is expressly understood and
agreed, however, that any obligations on the part of the
Authority to acquire, construct, and complete the System and to
provide the services of the System to the Contracting Parties
shall be conditioned (i) upon the Authority's ability to obtain
all necessary permits, material, labor, and equipment, (ii)
upon the ability of the Authority to finance the cost of the
System through the actual sale of the Authority's Bonds, and
(iii) ,subject to all present and future valid laws, orders,
rules, and regulations of the United States of America, the
State of Texas, and any regulatory body having jurisdiction.
(d) The Authority shall never have the right to demand
payment by any Initial Contracting Party of any obligations
assumed by it or imposed on it under and by virtue of this
Contract from funds raised or to be raised by taxes, and the
obligations under this Contract shall never be construed to be
a debt of such kind as to require any of the Initial Contract-
ing Parties to levy and collect a tax to discharge such obli-
gation.
(e) Each of the Initial Contracting Parties, respect-
ively, represents and covenants that all payments to be made by
it under this Contract shall constitute reasonable and neces-
sary "operating expenses" of its combined waterworks and sewer
system, as defined in Vernon's Ann. Tex. Civ. St. Article 1113,
and that all such payments will be made from the revenues of
43
its combined waterworks and sewer system. Each of the Con-
tracting Parties, respectively, represents and has determined
that the services to be provided by the System are necessary
and essential to the present and future operation of its
aforesaid system, and that the System constitutes the only
available and adequate method for discharging, receiving,
treating, and disposing of its Wastewater from the Denton Creek
drainage area, and, accordingly, all payments required by this
Contract to be made by each Contracting Party shall constitute
reasonable and necessary operating expenses of its systems,
respectively, as described above, with the effect that the
obligation to make such payments from revenues of such systems,
respectively, shall have priority over any obligation to make
any payments from such revenues of principal, interest, or
otherwise, with respect to all bonds or other obligations
heretofore or hereafter issued by such Contracting Party.
(f) Each of the Contracting Parties agrees throughout the
term of this Contract to continuously operate and maintain its
combined waterworks and sewer system, and to fix and collect
such rates and charges for water and sewer services and/or
sewer services to be supplied by its system as aforesaid as
will produce revenues in an amount equal to at least -(i) all of
the expenses of operation and maintenance expenses of such
system, including specifically its payments under this Con-
tract, and (ii) all other amounts as :required by law and the
44
provisions of the ordinances or resolutions authorizing its
revenue bonds or other obligations now or hereafter outstand-
ing, including the amounts required to pay all principal of and
interest on such bonds and other obligations.
(g) The Authority covenants and agrees that neither the
proceeds from the sale of the Bonds, nor the moneys paid to it
pursuant to this Contract, nor any earnings from the investment
of any of the foregoing, will be used for any purposes except
those directly relating to the System, the Wastewater
Interceptor System, and the Bonds as provided in this Contract;
provided that the Authority may rebate any excess arbitrage
earnings from such investment earnings to the United States of
America in order to prevent any Bonds from becoming "arbitrage
bonds" within the meaning of the IRS Code of 1986 or any
amendments thereto in effect on the date of issue of such
Bonds: Each of the Contracting Parties covenants and agrees
that it wil not use or permit the use of the System in any
manner that would cause the interest on any of the Bonds to be
or become subject to federal income taxation under the IRS Code
of 1986 or any amendments thereto in effect on the date of
issue of such Bonds.
Section 15. FORCE MAJEURE. If by reason of force majeure
any party hereto shall be rendered unable wholly or in part to
carry out its obligations under this Contract, other than the
obligation of each Contracting Party to make the payments
45
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required under Section 13 of this contract, then if such party
shall give notice and full particulars of such force majeure in
writing to the other parties within a reasonable time after
occurrence of the event or cause relied on, the obligation of
the party giving such notice, so far as it is affected by such
force majeure, shall be suspended during the continuance of the
inability then claimed, but for no longer period, and any such
party shall endeavor to remove or overcome such inability with
all reasonable dispatch. The term "Force Majeure" as employed
herein shall mean acts of God, strikes, lockouts, or other
industrial disturbances, acts of public enemy, orders of any
kind of the Government of the United States or the State of
Texas, or any Civil or military authority, insurrection, riots,
epidemics, landslides, lightning, earthquake, fires, hurri-
canes, storms, floods, washouts, droughts, arrests, restraint
of government and people, civil disturbances, explosions,
breakage or accidents to machinery, pipelines or canals,
partial or entire failure of water supply, or on account of any
other causes not reasonably within the control of the party
claiming such inability.
Section 16. UNCONDITIONAL OBLIGATION TO MAKE PAYMENTS.
Recognizing the fact that the Contracting Parties urgently
require the facilities and services of the System, and that
such facilities and services are essential and necessary for
actual use and for standby _purposes, and recognizing the fact
46
that the Authority will use payments received from the Con-
tracting Parties to pay and secure its Bonds, it is hereby
agreed that each of the Contracting Parties shall be uncon-
ditionally obligated to pay, without offset or counterclaim,
its proportionate share of the Annual Requirement, as provided
and determined by this Contract (including the obligations for
paying for "minimums" as described in Section 13 hereof) ,
regardless of whether or not the Authority actually acquires,
constructs, or completes the System or is actually operating or
providing services of the System to any Contracting Party
hereunder, or whether or not any Contracting Party actually
uses the services of the System whether due to Force Majeure or
any other reason whatsoever, regardless of any other provisions
of this or any other contract or agreement between any of the
parties hereto. This covenant by the Contracting Parties shall
be for the benefit of and enforceable by the holders of the
Bonds and/or the Authority.
Section 17. TERM OF CONTRACT; MODIFICATION; NOTICES;
STATE OR FEDERAL LAWS, RULES, ORDERS, OR REGULATIONS. (a)
This Contract shall be effective on and from the Contract Date,
subject to its execution by all of the Initial Contracting
Parties and the Authority, and this Contract shall continue in
force and effect until the principal of and interest on all
Bonds shall have been paid, and thereafter shall continue in
force and effect during the entire useful life of the System.
47
This Contract constitutes the sole agreement between the
parties hereto with respect to the System.
(b) Modification. No change, amendment, or modification
of this Contract shall be made or be effective which will
affect adversely the prompt payment when due of all moneys
required to be paid by each Contracting Party under the terms
of this Contract and no such change, amendment, or modification
shall be made or be effective which would cause a violation of
any provisions of any Bond Resolution.
(c) Addresses and Notice. Unless otherwise provided
herein, any notice, communication, request, reply, or advice
(herein severally and collectively, for convenience, called
"Notice") herein provided or permitted to be given, made, or
accepted by any party to any other party must be in writing and
may be given or be served by depositing the same in the United
States mail postpaid and registered or certified and addressed
to the party to be notified, with return receipt requested, or
by delivering the same to an officer of such party, or by
prepaid telegram when appropriate, addressed to the party to be
notified. Notice deposited in the mail in the manner herein-
above described shall be conclusively deemed to be effective,
unless otherwise stated herein, from and after the expiration
of three days after it is so deposited. Notice given in any
other manner shall be effective only if and when received by
the party to be notified. For the purposes of notice, the
48
addresses of the parties shall, until changed as hereinafter
provided, be as follows:
If to the Authority, to:
Trinity River Authority of Texas
5300 S. Collins
P. O. Box 240
Arlington, Texas 76010
If to the Initial Contracting Parties, as follows:
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
City of Haslet
P. O. Box 8
Haslet, Texas 76052
City of Roanoke
P. O. Box 386
Roanoke, Texas 76262
The parties hereto shall have the right from time to time and
at any time to change their respective addresses and each shall
have the right to specify as its address any other address by
at least fifteen (15) days' written notice to the other parties
hereto.
(d) State or Federal Laws, Rules. Orders, or Recrulations.
This Contract is subject to all applicable Federal and State
laws and any applicable permits, ordinances, rules, orders, and
regulations of any local, state, or federal governmental
authority having or asserting jurisdiction, but nothing con-
tained herein shall be construed as a waiver of any right to
question or contest any such law, ordinance, order, rule, or
regulation in any forum having jurisdiction.
49
Section 18. SEVERABILITY. The parties hereto specifical-
ly agree that in case any one or more of the sections, subsec-
tions, provisions, clauses, or words of this Contract or the
application of such sections, subsections, provisions, clauses,
or words to any situation or circumstance should be, or should
be held to be, for any reason, invalid or unconstitutional,
under the laws or constitutions of the State of Texas or the
United States of America, or in. contravention of any such laws
or constitutions, such invalidity, unconstitutionality,_ or
contravention shall not affect any other sections, subsections,
provisions, clauses, or words of this Contract or the applica-
tion of such sections, subsections, provisions, clauses, or
words to - any other situation or circumstance, and it is in-
tended that this Contract shall be severable and shall be
construed and applied as if any such invalid or unconstitu-
tional section, subsection, provision, clause, or word had not
been included herein, and the rights and obligations of the
parties hereto shall be construed and remain in force accord-
ingly.
Section 19. REMEDIES UPON DEFAULT. It is not intended
hereby to specify (and this Contract shall not be considered as
specifying) an exclusive remedy for any default, but all such
other remedies (other than termination) existing at law or in
equity may be availed of by any party hereto and shall be
cumulative. Recognizing however, that the Authority's
56
undertaking to provide and maintain the services of the System
is an obligation, failure in the performance of which cannot be
adequately compensated in money damages alone, the Authority
agrees, in the event of any default on its part, that each
Contracting Party shall have available to it the equitable
remedy of mandamus and specific performance in addition to any
other legal or equitable remedies (other than termination)
which may also be available. Recognizing that failure in the
performance of any Contracting Party's obligations hereunder
could not be adequately compensated in money damages alone,
each Contracting Party agrees in the event of any default on
its part that the Authority shall have available to it the
equitable remedy of mandamus and specific performance in
addition to any other legal or equitable remedies (other than
termination) which may also be available to the Authority.
Notwithstanding anything to the contrary contained in this
Contract, any right or reanedy or any default hereunder, except
the right of the Authority to receive the Annual Payment which
shall never be determined to be waived, shall be deemed to be
conclusively waived unless asserted by a proper proceeding at
law or in equity within two (2) years plus one (1) day after
the occurrence of such default. No waiver or waivers of any
breach or default (or any breaches or defaults) by any party
hereto or of performance by any other party of any duty or
obligation hereunder shall be deemed a waiver thereof in the
51
future, nor shall any such waiver or waivers be deemed or
construed to be a waiver of subsequent breaches or defaults of
any kind, character, or description, under any circumstances.
Section 20. VENUE. All amounts due under this Contract,
including, but not limited to, payments due under this Contract
or damages for the breach of this Contract, shall be paid and
be due in Tarrant County, Texas, which is the County in which
the principal administrative offices of the Authority are
located. It is specifically agreed among the parties to this
Contract that Tarrant County, Texas, is the place of perfor-
mance of this Contract; and in the event that any legal pro-
ceeding is brought to enforce this Contract or any provision
hereof, the same shall be brought' in Tarrant County, Texas.
IN WITNESS WHEREOF, the parties hereto acting under
authority of their respective governing bodies have caused this
Contract to be duly executed in several counterparts, each of
which shall constitute an original, all as of the day and year
first above written, which is the date of this Contract.
TRINITY R AUT O TY OF TEXAS
BY
Gene)4 Manager
ATTEST:
C,
Sec_etary, Board of Directors
(AU'T'HORITY SEAL)
52
CITY OF FORT WORTH, TEXAS
BY
� ity Man ger
ATTEST:
City Secretary
(CITY SEAL)
APPROVED AS TO FORM AND LEGALITY
City Attorney, City of Fort Worth,
50atra.ct A- thMization 'C' Texas
Date CITY OF HASLET,- TEXAS
Mayor
ATTEST:
0444"t
City Secretary
ICITY SEAL)
CITY OF ROANOKE, TEXAS
BY
Mayor
ATTEST:
City ecx ary
(CITY SEAL)
53
Exhibit D
Points of Entry
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Exhibit D to
Wholesale Wastewater Service Agreement Page 1
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EXIIIBIT E
WHOLESALE RATE METHODOLOGY
1. Wholesale wastewater rates will be based upon cost-of-service rate studies performed by
independent utility rate consultants. The independent utility rate consultant shall be
selected by Director from a list of five qualified firms submitted to the Director by the
Fort Worth "Wastewater Advisory Committee." The cost of such studies will be a
System Cost. All cost of service studies shall be conducted utilizing the utility cost basis
of determining revenue requirements applicable to the wholesale customer class.
2. Every three (3)years, a detailed wholesale revenue requirement shall bt developed on an
actual historical cost test year basis allowing for reasonable and necessary expenses of
providing such wastewater service and allowing for known and measurable adjustments.
Such adjustments should allow for year end trending and the spreading of non recurring
expenses over an appropriate benefit period. The test year for the initial rate set forth in
Section 4.02 is October 1, 2003, through September 30, 2004, and'the next detailed cost
of service study shall be performed by an independent utility rate consultant during the
first two (2)calendar quarters of 2007, based on audited data for the immediate past fiscal
year ended September 30, 2006. On a three (3) year cycle thereafter, a complete detailed
rate study will be performed with the same methodology used in the previous rate study
by an independent utility rate consultant, subject to modifications recommended by a
majority of the Wastewater Advisory Committee and approved by the Fort Worth City
Council. In the interim period between complete detailed rate studies, wholesale
wastewater rates shall be adjusted by Fort Worth using the same methodology adopted at
the time of the last complete detailed rate study, utilizing the actual operating data for the
twelve month period ending September 30th of the prior year, adjusted for known and
measurable changes in cost data which may have occurred since the last audited
statement.
3. The cost of service for the wholesale class shall include allocated reasonable and
necessary operation and maintenance expense, depreciation expense and a fair and
reasonable return on allocated capital facilities. To determine the allocation and
distribution of costs to the wholesale customer class, the independent utility rate
consultant shall consider at least the following factors: total volume, rate of flow,
wastewater quality, metering, and customer related costs such as accounting, billing, and
monitoring. Capital related costs will consist of depreciation expense and return on
original cost rate base. On a periodic basis as determined by the Director the depreciation
rates on all General Benefit Capital Facilities shall be studied, and new salvage values,
useful lives, and annual rates of depreciation shall be developed from such studies. The
rate base shall consist of all allocated capital facilities,net of depreciation and appropriate
contributions, and shall include construction work in progress, a reasonable allowance for
working capital, and a reasonable inventory of materials and supplies necessary for the
efficient operation of the Fort Worth System. On a periodic basis as determined by the
Director, a cash "lead lag" study shall be conducted to determine the appropriate level of
working capital at the same time as the above depreciation rate study is done. Records
of the original cost and the accumulated depreciation of all capital facilities shall be
maintained in the Fort Worth Fixed Asset Tracking System. These records shall be
Exhibit E to
Wholesale Wastewater Service Agreement Page I
available for inspection at the Fort Worth Water Department during reasonable business
hours upon request by Aqua Utilities.
4. The City shall be allowed an adequate opportunity to earn a reasonable rate of return,
sufficient to assure confidence in the financial soundness of the utility, adequate to
maintain and support its credit, enable it to raise the money necessary for the proper
discharge of its public duties. The rate of return is equal to the weighted average
imbedded cost of outstanding debt plus one and one half percent(1-1/2%).
5. The rates set forth in Article 4.02 shall be automatically adjusted to equal those adopted
by the City Council based on the foregoing rate studies, and shall become effective on the
effective date established by the City for those rates.
Exhibit E to
Wholesale Wastewater Service Agreement
Page 2
V
Exhibit G
Buy-Out Contract
Exhibit G to &a N
Superseding Agreement Regarding
Water and Wastewater Utility Service P � � �pJ
BUY-OUT OPTION CONTRACT
This Buy-Out Option Contract ("Contract") is entered into by and between the City of
Fort Worth, Texas (the �ff% a home-rule municipal corporation situated in Tarrant, Denton,
and Wise Counties, Texas, acting by and through its duly authorized Assistant City Manager;
Aqua Utilities, Inc., formerly known as AquaSource Utility, Inc., a Texas corporation ("Aqua
Utilities'); Aperion Communities, LLLP, Eladio Properties, LLLP and Drooy Properties, LLLP,
Arizona limited liability limited partnerships (individually and collectively, "Owner"); and the
City of Fort Worth Municipal Utility District No. 1 of Denton County, a municipal utility district
created pursuant to Article XVI, Section 59,of the Texas Constitution, Chapters 49 and 54 of the
Texas Water Code and the applicable Special District Local Law (the "District"), which District,
after the District Confirmation Date,will become a Party to this Contract.
RECITALS
A. The Parties to this Contract are also parties to that "Superseding Agreement regarding
Water and Wastewater Utility Service", City Secretary Contract No. 32899 (the "Utility
Agreement").
B. The Utility Agreement governs the provision of water and wastewater utility service to
approximately 431.303 acres in Denton County, Texas, as shown on Exhibit A and more
particularly described in Exhibit B attached to this Contract(the"Development").
C. Article VII of the Superseding Utility Agreement provides that the Parties will enter into
this Contract to "effectuate the future transfer of retail water or wastewater service from Aqua
Utilities to the City,"at the City's option and under the conditions set forth in that 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
SELLER AND PURCHASER
1.01 "Effective Date"means the effective date of this Contract as defined in Section
6.12.
1.02 "Purchaser"means the City.
1.03 "FarV'means, individually, the City, Owner,District or Aqua Utilities, and any
permitted successors and assigns.
1.04 "Seller" means Aqua Utilities, Owner or District, and each of their permitted
assigns, to the extent that each of those Parties or such assigns owns all or any interest in the
Property, as defined in Section 2.02, at the time the Option is exercised under this Contract.
Buy-Out Option Contract Page 1
1.05 Other Defined Terms. Unless otherwise defined below, capitalized terms in this
Contract shall have the same respective meanings as are ascribed to them in the Superseding
Utility Agreement.
ARTICLE II
PROPERTY, GRANT AND EXERCISE OF OPTION
2.01 Grant of Option. Subject to the terms and conditions set forth in this Contract,
Seller GRANTS to Purchaser an Option to purchase and accept from Seller, for the Purchase
Price, all of Seller's right, title and interest in and to the Property, as it may now exist, or be
acquired or constructed by Seller at any time during the Option Period, and consisting of the
following:
a. all water distribution facilities, including meters, above ground tanks, pump
stations and other equipment, fixtures, improvements or appurtenances used to
provide water service to the Development, and located inside the Development
(collectively,"Water Facilities");
b. all wastewater collection facilities, including meters, lift stations, and other
equipment, fixtures, improvements or appurtenances used to provide wastewater
service to the Development, and located inside the Development (collectively,
"Wastewater Facilities");
C. all easements and rights-of-way inside the Development associated with the
Water or Wastewater Facilities(the"Easements");
d. any tract of land within the Development owned by Seller and in use for the
operation of the Water or Wastewater Facilities(the"Land");
e. account records and information for existing customers served by the Wastewater
and Water Facilities(the"Account Information"); and
f. surveys,plans and specifications in Seller's possession or control that relate to the
Water Facilities or Wastewater Facilities (the"Documents").
2.02 Prop The items listed in Section 2.01 above are collectively called the
"Propert ."
2.03 Exercise of Option. Unless the Parties agree in writing to an earlier date,
Purchaser may exercise the Option to purchase the Property at any time after the earlier of: (a)
seventeen (17) years after the Effective Date; (b) 90 days before the date of annexation of the
Development by the City, such that Closing will occur upon or after annexation, if the City
annexes the District within fifteen (15) to seventeen (17) years after the Effective Date; but in
any event Purchaser must exercise the Option(if at all) on or before the earlier of the date that is
thirty(30) years from the Effective Date or the twenty-first (21) anniversary of the death of the
last descendant of Queen Elizabeth II, the queen of the United Kingdom, who is living as of the
Effective Date of this Contract ("Option Period"). The Option, if exercised, must be exercised
Buy-Out Option Contract Page 2
simultaneously for both the Water and the Wastewater Facilities (and the Land, Easements,
Account Information and Documents related thereto).
2.04 Exercise Notice. Whenever Purchaser desires to exercise the Option as to the
Property, Purchaser must provide Notice to Seller during the Option Period of its desire to
exercise the Option("Exercise Notice"). The date on which Purchaser sends the Exercise Notice
is called the"Option Exercise Date."
2.05 Information to Purchaser. Within thirty (30) days following the Option Exercise
Date, both Aqua Utilities and the District shall provide to Purchaser true and complete copies of
all written information that either of them possesses (other than privileged communications or
attorney work-product) with regarding to the Property, including by not limited to:
environmental studies and reports; any permits required for the Water Facilities and Wastewater
Facilities; all agreements granting or conveying the Easements; the Documents; and a complete
and itemized inventory of any of the Property that is not described in or shown on the
Documents.
2.06 Prohibited Encumbrance. Seller may not enter into any agreement to sell,
transfer, mortgage, lease, or grant any preferential right to purchase (including but not limited to
any option, right of first refusal, or right of first negotiation) with respect to, or otherwise
encumber all or any portion of, the Property before Closing ("Prohibited Encumbrance'), unless
such Prohibited Encumbrance is cured and removed at or before Closing.
2.07 Memorandum of Option. Seller and Purchaser shall execute and record, in the
form attached as Exhibit C to this Contract, a "Memorandum of Buy-Out Option Contract" in
the Real Property Records of Denton County, Texas within thirty (30) days after the District
confirmation date.
ARTICLE III
PURCHASE PRICE AND OPTION CONSIDERATION
3.01 Purchase Price. When the Option is exercised pursuant to this Contract, the
consideration ("Purchase Price") for the entirety of the Property purchased pursuant to that
Option is TEN DOLLARS ($10.00).
3.02 Time of Payment. The Purchase Price is payable in cash at the Closing.
3.03 Consideration. As consideration for Seller's holding the Property available for
purchase during the Option Period, Purchaser has paid Seller $100 ("Independent Option
Consideration"), which Seller may retain, even if this Contract is terminated. The Independent
Option Consideration does not apply to the Purchase Price.
ARTICLE IV
SURVEY,INSPECTION AND TITLE COMMITMENT
4.01 Survey during Option Period. From time to time during the Option Period,
Purchaser shall have the right to obtain, at Purchaser's expense, a current, on-the-ground land
Buy-Out Option Contract Page 3
title survey ("Surve Y ') of all or any portion of the Property made by a duly licensed surveyor
reasonably acceptable to the Seller.
4.02 Inspection duringQption Period. From time to time during the Option Period,
Purchaser shall have the right to obtain an inspection, including an appraisal of real and personal
property ("Inspection'), of all or any portion of the Property, for purposes of assessing the
physical and operational condition of the Property.
4.03 Title Examination during the Option Period. During the Option Period,Purchaser
shall have the right to obtain, at Purchaser's expense, an examination of any or all of the real
property records related to the Land and the Easements ("Title Commitment"), including any and
all instruments constituting an exception or restriction upon the title or easement rights of Seller.
4.04 Approval Period and Title. If Purchaser chooses to have a Survey, Inspection or
Title Commitment of all or any portion of the Property during the Option Period, Purchaser may,
after it has delivered its Exercise Notice, deliver to Seller a Notice of its written objections to
anything contained therein. Seller shall, in good faith, attempt to satisfy such objections before
Closing; but Seller shall not be required to incur any cost to do so, except with respect to any
Prohibited Encumbrance, which must be removed or cured before Closing. For all objections
except the Prohibited Encumbrances, if Seller is unable to satisfy such other objections on or
before the Closing date, or if, for any reason, Seller is otherwise unable to convey title in
accordance with Section 5.02(b) below, then Purchaser, as its sole and exclusive remedy
hereunder may (a) waive such objections and accept the Property in its condition at the time of
Closing, with such title to the Property as Seller is able to convey, (b) elect to exclude from the
purchase any portion of the Property that it deems to be affected by its objections and accept
such title to the remainder of the Property as Seller is able to convey or(c) withdraw the Exercise
Notice in its entirety, and its corresponding exercise of the Option, but preserve its right to
exercise the Option at a later date within the Option Period. The Purchaser may enforce by
specific performance the Seller's obligation under Section 2.05 to remove any Prohibited
Encumbrance.
ARTICLE V
CLOSING
5.01 Time of Closing. The closing ("Closin ') of the sale of the Property by Seller to
Purchaser will occur on or before ninety (90) days after the Option Exercise Date, or at such
other time or place as the Parties may mutually determine("Closing Date").
5.02 Requirements of Seller. For all of the Property that is the subject of the Option
Notice, unless excluded by Purchaser pursuant to Section 4.04, Seller shall deliver or cause to be
delivered to Purchaser at Closing all of the following: (a) a Bill of Sale and Assignment, fully
executed and acknowledged by each Seller as its interests may appear, conveying, transferring,
and assigning to Purchaser all of Seller's right, title, and interest in and to the Water Facilities,
the Wastewater Facilities, the Account Information, and the Documents; (b) a Special Warranty
Deed executed and acknowledged by each Seller as its interests may appear, conveying to
Purchaser good and indefeasible fee simple title to the Land and subject to all matters of record;
(c) an Assignment of Easements, executed and acknowledged by each Seller as its interests may
appear, conveying, transferring, and assigning to Purchaser all of Seller's right, title, and interest
Buy-Out Option Contract Page 4
in and to the Easements; (d) evidence reasonably satisfactory to Purchaser that the person(s)
executing the Closing documents on behalf of Seller has full right,power, and authority to do so;
and (e) any other document reasonably necessary to consummate the transaction.
5.03 Requirements of Purchaser. Purchaser shall deliver or cause to be delivered to
Seller at Closing all of the following: (a) immediately available funds in an amount equal to the
Purchase Price; and (b) evidence reasonably satisfactory to Seller the person executing any
Closing documents on behalf of Purchaser has full right,power, and authority to do so.
5.04 Termination of Leases. Upon completion of the Closing, Seller shall terminate, as
of the Closing Date, any and all leases and operating agreements between Aqua Utilities and the
District or the Owner covering any portion of the Property purchased.
5.05 Purchaser's Remedies. If Seller fails or refuses to sell the Property at the Closing,
then the Purchaser, at its sole option, is entitled to (ii) enforce specific performance of Seller's
obligations under this Contract; or (ii) withdraw its Exercise Notice and its corresponding
exercise of the Option, but preserve its right to exercise the Option at a later date within the
Option Period; or (iii) to exercise any other right or remedy available to Purchaser at law or in
equity.
ARTICLE-U
MISCELLANEOUS
6.01 Form of Easement within the Development. Before entering into any Easement,
Seller shall_submit to Purchaser for its review and approval (which approval by Purchaser shall
not be unreasonably withheld) Seller's proposed forms of Easement for water and wastewater
lines and related facilities and appurtenances. Among other things, the Easement forms must
provide that the underlying land owner of the servient tenement consents in advance to any
future assignment of such Easement by Seller to Purchaser. After Purchaser has approved the
forms of water and wastewater Easements, Purchaser's prior written consent will not be required
for any new Easement that Seller enters into under the approved forms. Nevertheless, Seller
must send to Purchaser copies of each fully executed and recorded Easement within thirty (30)
days after such Easement is executed.
6.02 Other Forms. In case of a dispute as to the form of any document required by this
Contract, unless otherwise required by the Superseding Utility Agreement, the current form
prepared by the State Bar of Texas shall be conclusively deemed reasonable.
6.03 Notice. Any notices, approvals, or other communications required to be given by
one Party to another under this Contract (a "Notice") shall be given in writing addressed to the
Party to be notified at the address set forth below and shall be deemed given: (a) when the Notice
is delivered in person to the person to whose attention the Notice is addressed; (b) when received
if the Notice is deposited in the United States Mail, certified or registered mail, return receipt
requested,postage prepaid; (c)when the Notice is delivered by Federal Express, UPS, or another
nationally recognized courier service with evidence of delivery signed by any person at the
delivery address; or (d) five business days after the Notice is sent by FAX (with electronic
confirmation by the sending FAX machine) with a confirming copy sent by United States mail
within 48 hours after the FAX is sent. If any date or period provided in this Contract ends on a
Buy-Oat Option Contract Page 5
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 6.03.
To the City:
City of Fort Worth,Texas
Attn: City Secretary
1000 Throckmorton Street
Fort Worth,Texas 76102
FAX: (817) 392-6196
City of Fort Worth, Texas
Attn: City Manager
1000 Throckmorton Street
Fort Worth,Texas 76102
FAX: (817) 392-6134
City of Fort Worth, Texas
Attn: Water Director
1000 Throckmorton Street
Fort Worth,Texas 76102
FAX: (817)392-2398
To the District:
Fort Worth Municipal Utility District No. 1 of Denton County
c%: Coats Rose
Attn: Timothy G. Green
3 Greenway Plaza, Suite 2000
Houston,TX 77046
FAX: 713-890-3924
To Owner:
Aperion Communities, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale,Arizona 85260
FAX: 480-951-8414
Eladio Properties, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale,Arizona 85260
FAX: 480-951-8414
Buy-Out Option Contract Page 6
Drooy Properties, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale,Arizona 85260
FAX: 480-951-8414
To Aqua Utilities:
1421 Wells Branch Pkwy., Ste. 105
Pflugerville, TX 78660
Attn: Vice President
FAX: (512) 989-9891
762 West Lancaster Ave.
Bryn Mawr,Pennsylvania 19010
Attn: Chief Legal Officer
FAX: (610) 520-9127
6.04 City Consent and Approval. Except as provided by Section 6.01 of this
Agreement, in any provision of this Contract that provides for the consent or approval of the City
staff or City Council, such consent or approval may be withheld or conditioned by the staff or
City Council at its sole discretion.
6.05 Binding Effect and Assigginient. This Contract, and the Option granted herein,
shall inure to the benefit of and bind the Parties hereto and their respective heirs,representatives,
successors and assigns. Assignment of this Contract is permitted only under the same terms, and
to the same extent as assignment of the Superseding Utility Agreement. Further, this Contract
must be assigned at the same time and to the same entity as the Superseding Utility Agreement.
6.06 Amendment. This Contract may be amended only with the written consent of all
Parties and with approval of the governing body of the City and the District.
6.07 Severability. The provisions of this Contract are severable and, in the event any
word, phrase, clause, sentence, paragraph, section, or other provision of this Contract, 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
Contract, then such provision shall be deemed severed from this Contract with respect to such
person, entity or circumstance, without invalidating the remainder of this Contract 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.
6.08 Interpretation. The Parties acknowledge that each party and, if it so chooses, its
counsel have reviewed and revised this Contract 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 Contract or any amendments or exhibits hereto. As used in this
Buy-Out Option Contract Page 7
Contract, 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.
6.09 Survival. Any portion of this Contract not otherwise consummated at the Closing
will survive the Closing of this transaction as a continuing agreement by and between the Parties.
6.10 Counterpart Originals. This Contract may be executed in multiple counterparts,
each of which shall be deemed to be an original.
6.11 Incorporation of Exhibits by Reference. All exhibits attached to this Contract are
incorporated into this Contract by reference for the purposes set forth herein, as follows:
Exhibit A Map of Tradition showing the Development
Exhibit B Legal description of the Development
Exhibit C Memorandum of Buy-Out Option Contract
6.12 Effective Date. The Effective Date of this Contract is December2005.
SELLER
AQUA UTILITIES,INC.,
a Texas corporation
By:
Robert L. Laughman,President
Date:
CITY OF FORT WORTH MUNICIPAL
UTILITY DISTRICT NO. 1 OF DENTON
COUNTY, a municipal utility district created
Pursuant to Article XVI, Section 59, of the Texas
Constitution,Chapters 49 and 54 of the Texas
Water Code, and Chapter 8129, Special District
Local Laws Code
By-
Name:
President, Board of Directors
Date:
Buy-Out Option Contact Page 9
APERION COMMUNITIES,LLLP
By:
David P. Maniatis, General Partner
ELADIO PROPERTIES LLLP
By:
David P. Maniatis, General Partner
DROOY PROPERTIES,LLLP
By:
David P. Maniatis, General Partner
PURCHASER
ATTEST: THE CITY OF FORT WORTH,
a Texas home-rule municipal corporation of
Tarrant,Denton,and Wise Counties
Printed Name: By:
City Secretary
Name:
APPROVED AS TO FORM Title:
AND LEGALITY:
Date:
Assistant City Attomey
Buy-Out Option Contract Page 9
STATE OF TEXAS §
COUNTY OF §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of AQUA UTILITIES, INC., a
corporation, on behalf of said corporation, known to me to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or
she executed the same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
STATE OF TEXAS §
COUNTY OF §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of CITY OF FORT WORTH
MUNICIPAL UTILITY DISTRICT NO. 1 OF DENTON COUNTY, on behalf of said District,
known to me to be the person and officer whose name is subscribed to the foregoing instrument,
and acknowledged to me that he or she executed the same for the purposes and consideration
therein expressed, in the capacity therein stated, and as the act and deed of said District.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
,20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
Buy-Out Option Contract Page 10
STATE OF §
COUNTY OF §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of APERION COMMUNITIES,
LLLP, a , on behalf of said partnership,known to me to be the person
and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that
he or she executed the same for the purposes and consideration therein expressed,in the capacity
therein stated, and as the act and deed of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
,20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
STATE OF §
COUNTY OF §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of ELADIO PROPERTIES
LLLP, a , on behalf of said partnership, known to me to be the person
and officer whose name is subscribed to the,foregoing instrument, and acknowledged to me that
he or she executed the same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
,20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
Buy-Out Option Contract Page 11
STATE OF §
COUNTY OF §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of DROOY PROPERTIES,
LLLP, a partnership, on behalf of said partnership, known to me to be the
person and officer whose name is subscribed to the foregoing instrument, and acknowledged to
me that he or she executed the same for the purposes and consideration therein expressed, in the
capacity therein stated, and as the act and deed of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE thin the day of
,20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of THE CITY OF FORT WORTH, a
municipal corporation, on behalf of said City, known to'me to be the person and officer whose
name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed
the same for the purposes and consideration therein expressed, in the capacity therein stated, and
as the act-and deed of said City.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
Buy-Out Option Contract Page 12
Exhibit A
Map Showing the Development
Exhibit A to
Buy-Out Option Contract Page 1
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Exhibit B
Legal Description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT (Aperion Tract One-A and Aperion Tract One-B) and a portion of that tract conveyed.
to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" ironpin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8"iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N 002244" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page.363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 86E14'27" E,a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52E34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44EO8'03" E, a distance of 999.82 feet to a capped 1/2"iron pin set;
THENCE.S,65E58'36" E,a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped
1/2" iron pin set also being on the east line of said Aperion Tract One-A and the west line of that
tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
Exhibit B to
Buy-Out Option Contract Page 1
THENCE S 000720" E along the east line of said Aperion Tract One-A and the west line of
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-ROO20408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8" iron pin found;
THENCE N 47E 15'51" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8" iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2"iron pin set;
THENCE N OOEI F12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2"iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2"iron pin set;
THENCE S OOEI F12" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2"iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and
containing 16,728,840 square feet or 3 84.041 acres of land,more or less.
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
way line of State Highway No. 114, said brass monument also being on the west line of a tract
Exhibit B to
Buy-Out Option Contract Page 2
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract'One-13 and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44E26'3 I" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5%8"iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S 000709" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit B to
Buy-Out Option Contract Page 3
Exhibit C
Memorandum of Buy-Out Option Contract
STATE OF TEXAS §
§ KNOW ALL BY THESE PRESENTS:
COUNTY OF DENTON §
This Memorandum of Buy-Out Option Contract ("Memorandum") is effective as of
20_, by and among APERION COMMUNITIES, LLLP, ELADIO
PROPERTIES, LLLP AND DROOY PROPERTIES, LLLP, Arizona limited liability limited
partnerships; AQUA UTILITIES, INC., a Texas corporation, and CITY OF FORT WORTH
MUNICIPAL UTILITY DISTRICT NO. 1 OF DENTON COUNTY, a municipal.utility district
created pursuant to Article XVI, Section 59,of the Texas Constitution, Chapters 49 and 54 of the
Texas Water Code, and Chapter 8129, Special District Local Laws Code (collectively, "Seller"),
and THE CITY OF FORT WORTH, a home-rule corporation of Tarrant, Denton, and Wise
Counties;Texas ("Purchaser").
A. Under that certain Buy-Out Option Contract dated as of December 21, 2005, 2005
("Contract"), Seller has granted Purchaser the option ("0 tion") to purchase certain land,
improvements, easements, account records, plans, and other associated property ("ProI2
related to the provision of water and wastewater utility service to, and located within,that certain
real property development consisting of approximately 431.303 acres of land in Denton County,
Texas, as more particularly described on EXHIBIT "A" attached hereto ("Development'). The
period during which Purchaser may exercise the Option begins at any time (and from time to
time) after the earlier of (i) December 21, 2022; or(ii) 90 days before the date of annexation of
the Development by the City, such that Closing will occur upon or after annexation, if the City
annexes the Development during the period between December 21, 2020 and December 21,
2022, but in any event, Purchaser must exercise the Option (if at all) on or before December 21,
2035 ("Option Period"). Purchaser's exercise of the Option is governed by the terms and
conditions of the Contract.
B. Seller and Purchaser are executing, acknowledging, and recording this
Memorandum to provide public notice of the existence of the Contract and of the Option that
exists in Purchaser's favor to purchase the Property in the Development under the terms and
conditions of the Contract.
C. Seller and Purchaser do not intend by this Memorandum — and nothing in this
Memorandum may be deemed—to alter, amend or otherwise affect the terms or conditions of the
Contract.
Exhibit C to
Buy-Out Option Contract Page I
EFFECTIVE as of the date set forth above.
SELLER
APERION COMMUNITIES, LLLP
By:
David P. Maniatis, General Partner
ELADIO PROPERTIES LLLP
By:
David P. Maniatis, General Partner
DROOY PROPERTIES, LLLP
By:
David P. Maniatis, General Partner
AQUA UTILITIES, INC.,
a Texas corporation
By:
Name:
Title:
CITY OF FORT WORTH MUNICIPAL
UTILITY DISTRICT NO. 1 OF DENTON
COUNTY
By:
Name:
Title:
Exhibit C to
Buy-Out Option Contract � 1 � �
PURCHASER
ATTEST: THE CITY OF FORT WORTH,
Printed Name: By
City Secretary
Name:
APPROVED AS TO FORM Title:
AND LEGALITY:
Assistant City Attorney
Exhibit C to
Buy-Out Option Contract Page 3
STATE OF §
COUNTY OF §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of APERION COMMUNITIES,
LLLP, a , on behalf of said partnership,known to me to be the person
and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that
he or she executed the same for the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
,20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
STATE OF §
COUNTY OF §
BEFORE.ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of ELADIO 'PROPERTIES
LLLP, a , on behalf of said partnership, known to me to be the person
and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that
he or she executed the same for the purposes and consideration therein expressed;in the capacity
therein stated, and as the act and deed of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
Exhibit C to
Buy-Out Option Contract Page 4
STATE OF §
COUNTY OF §
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared
as of DROOY PROPERTIES,
LLLP, a partnership, on behalf of said partnership, known to me to be the
person and officer whose name is subscnbed to the foregoing instrument, and acknowledged to
me that he or she executed the same for the purposes and consideration therein expressed, in the
capacity therein stated,and as the act and deed of said partnership.
GWEN UNDER MY HAND AND SEAL OF OFFICE this the day of
20
Notary Public, State of Texas
Notary's Typed or Printed Name
My Commission expires:
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME,the undersigned, a Notary Public in and for the said County and State, on
this day personally appeared known to me
to be the person and officer whose name is subscribed to the foregoing Memorandum of Option;
and acknowledged.to me that the same was the act of Aqua Utilities,.Inc., a Texas corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
20
Notary Public in and for the State of Texas
My Commission expires:
Exhibit C to
Buy-Out Option Contract Page 5
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned, a Notary Public in and for the said County and State, on
this day personally appeared , known to me
to be the person and officer whose name is subscribed to the foregoing Memorandum of Option
and acknowledged to me that the same was the act of City of Fort Worth Municipal Utility
District No. 1 of Denton County.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,
20—.
Notary Public in and for the State of Texas
My Commission expires:
STATE OF TEXAS §
COUNTY OF TARRANT §
This Memorandum of Option was acknowledged before me on the day' of
20___, by , the Assistant City Manager of The City of Fort
Worth, a Texas home-rule municipal corporation of Tarrant, Denton, and Wise Counties, on
behalf of that municipal corporation.
Notary Public for the State of Texas
Notary's Printed Name:
My Commission Expires:
Exhibit C to
Buy-Out Option Contract Page 6
Exhibit A
Legal Description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT (Aperjon Tract One-A and Aperion Tract One-B) and a portion of that tract conveyed
to Nancy Talley Reynolds, et a1, by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE3216" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8" iron pin found;
THENCE,N 89E39'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 861314'27" E, a distance of 222.13 feet to a capped 1/2"iron pin set;
THENCE S 52E3422"E, a distance of 867.86 feet to a capped 1/2"iron pin set;
THENCE S 441308'03"E, a distance of 999.82 feet to a capped 1/2"iron pin set;
THENCE S 65E5836" E, a distance of 1029.92 feet to a capped 1/2"iron pin set;
THENCE N 901300'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped
1/2"iron pin set also being on the east line of said Aperion Tract One-A and the west line of that
tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
Exhibit A to Exhibit C
Buy-out option Contract Page I
THENCE S OOE0720" E along the east line of said Aperion Tract One-A and the west line of
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8"iron pin found;
THENCE N 47E15'51" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8"iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2"iron pin set;
THENCE N OOE11'12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2"iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2"iron pin set;
THENCE S OOE11'12" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to -the Point of Beginning and
containing 16,728,840 square feet or 384.041 acres of land,more or less.
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being the north n t-of-
way line of State Highway No. 114, said brass monument also being on tlti, � t
Exhibit to Exhibit C
Buy-Out Option Contract &N1re 3F"-l'7 L� lk
e
`r ,
,^
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
THENCE S 89E4648" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E2944" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison,Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
A 518" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit A to Exhibit C
Buy-Out Option Contract Page 3
Exhibit H
List of Developments With a Prior Contractual Commitment
Exhibit H to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
Exhibit "Hf"
System Name PWS ID# County
1 Diamond Midge—W 2490052 Wise
2 Er¢abeth Creek Estates—W&WW Denton
3 Justin Ranch#1 —W&WW Denton
4 Lexington—W 2490040 Wise
5 Sage Meadows W 2 agreements) 0610222 Denton
6 Shale Creek W&WW 0610238 Denton
7 Sunshine Meadows/By Well—W 2490040 Wise
8 Willow Springs—W 0610237 Denton
9 Scenic Ridge-W 0610245 Denton
W—Water
W&WW—Water&Wastewater
Exhibit H-1
Map of Developments Within the Denton-Wise County CCN Area
With a Prior Contractual Commitment Pursuant to Section 7.04
Exhibit H-1 to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
Exhibit I
Map of Area West of Existing City Limits
Known as Walsh Ranch in Tarrant and Parker Counties
Exhibit I to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
Walsh Ranch
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Fort Worth City Limits
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September 2004
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City of Fort Worth, Texas FCC, EM
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Exhibit J
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT("Assignment") is made and
entered into as of the day of between
a ("Assignor"), and
' a ("Assignee")
(Assignor and Assignee are hereinafter sometimes collectively referred to as the "Parties" and
singularly as a"Party").
RECITALS:
A. Assignor is the owner of the rights of the Owner under that certain "Superseding
Agreement Regarding Water and Wastewater Utility Service" (City Secretary Contract No.
, M & C - (the "Agreement") effective as of ,
among Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP,
collectively and individually as Owner, the City of Fort Worth, Texas, as the City, and the City
of Fort Worth Municipal Utility District No. 1 of Denton County, as the District, relating to the
creation and operation of the District, to the extent that the Agreement covers, affects, and relates
to the lands described on Exhibit A attached to and made a part hereof of this Assignment for all
purposes(the"Transferred Premises").
B. Assignor desires to assign certain of its rights under the Agreement as it relates to
the Transferred Premises to Assignee, and Assignee desires to acquire such rights,on and subject
to the terms and conditions of this Assignment.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
obligations set forth herein, and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged,the Parties hereby agree and act as follows:
1. Certain Defined Terms. Unless indicated otherwise herein, capitalized terms in
this Assignment shall have the same respective meanings as are ascribed to them in the
Agreement.
2. Assignment. Subject to all of the terms and conditions of this Assignment,
Assignor hereby assigns all [or describe specifically assigned rights if partial] of its rights
under the Agreement, insofar as the Agreement covers, affects, and relates to the Transferred
Premises.
3. Assumption. Assignee hereby assumes all obligations of Assignor and any
liability that may result from acts or omissions by Assignee under the Agreement as it relates to
the Transferred Premises that may arise or accrue from and after the effective date of this
Assignment, 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
Exhibit J to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 1
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.
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. Counteruart/Facsimile Execution. This Assignment has been prepared in
multiple counterparts, each of which shall constitute an original hereof, and the execution of any
one of such counterparts by any signatory shall have the same force and effect and shall be
binding upon such signatory to the same extent as if the same counterpart were executed by all of
the signatories. Facsimile copies of signatures may be appended hereto with the same force and
effect as legally delivered original signatures.
6. Notice to City. A copy of this Assignment shall be provided to the City within
fifteen(15) days after execution.
7. Binding Effect. This Assignment shall be binding upon and shall inure to the
benefit of Assignor and Assignees and their respective heirs, personal representatives,
successors, and assigns.
EXECUTED as of the day and year first above written.
ASSIGNOR:
I 1
By:
Printed Name:
Title:
ASSIGNEE:
I 1
By:
Printed Name:
Title:
Exhibit J to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 2
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of ,
2005,by
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of ,
2005, by
Notary Public, State of Texas
[Add Acknowledgments]
Exhibit J to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 3
EXHIBIT "A"
The Transferred Premises
Exhibit A to Exhibit J to
Superseding Agreement Regarding
Water and Wastewater Utility Service Page 4
Exhibit D
Development Agreement
Exhibit D to
Agreement Concerning Creation and Operation Page 1
DEVELOPMENT AGREEMENT
THE STATE OF TEXAS §
COUNTY OF DENTON §
This Development Agreement (this "Agreement") is entered into by the City of Fort
Worth, Texas, a home-rule municipal corporation situated in Tarrant, Denton and Wise Counties,
Texas (the "C "), acting by and through its duly authorized Assistant City Manager, and
Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, Arizona
limited liability limited partnerships(individually and collectively, "Owner").
RECITALS
A. Owner has represented to the City that Owner is the owner of approximately
431.303 acres in Denton County, Texas, as shown on Exhibit A and described in Exhibit B
attached to this Agreement (the "Development"). The Development lies entirely within the
City's extraterritorial jurisdiction ("ETF'). Owner intends the Development to be the first phase
of the master-planned community known as "Tradition," depicted for informational purposes
only on the attached Exhibit A.
B. The Texas legislature approved the creation of City of Fort Worth Municipal
Utility District No. 1 of Denton County containing the Development by Act of May 25, 2005,
79th Legislature, Regular Session, Chapter 1330, Special District Local Laws Code, Chapter
8129, effective September 1, 2005 (the "District" and the "District Legislation"); provided,
however, the District Legislation provides that the election to confirm creation of the District
may not be held unless the City adopts a resolution after September 1, 2005, consenting to the
creation of the District.
C. Owner has submitted to the City a petition requesting the City's consent to the
creation of the District.
D. On December 13, 2005, the City Council of the City adopted Resolution No.
3299-12-2005 consenting to the creation of the District(the"Consent Resolution").
E. On December 13, 2005, the City Council of the City approved that certain
"Agreement Concerning Creation and Operation of City of Fort Worth Municipal Utility District
No. 1 of Denton County" by and among the City, the District, and Owner (City Secretary
Contract No. 32896, M&C C-21197) (the "Consent Agreement').
F. The Development is located in an area for which Aqua Utilities, Inc., formerly
known as AquaSource Utility, Inc. a Texas corporation ("Aqua Utilities"), holds Certificate of
Convenience and Necessity ("CCN") No. 11157 issued by the Texas Commission on
Environmental Quality(the"TCEQ") to provide retail water service.
Development Agreement Page 1
G. The Development is located in an area for which the TCEQ has not issued a CCN
for retail sewer service.
H. Retail water service to the Development will be provided by Aqua Utilities
pursuant to: (i) that certain " Agreement for Sale of Treated Water " between Aqua Utilities and
the City executed to be effective December 21, 2005 (City Secretary Contract No. 32902),
pursuant to which agreement the City will provide treated water to Aqua Utilities; (ii)that certain
lease and/or operating agreement between Aqua Utilities, Owner, and the District pursuant to
which agreement: (A) Owner will construct or cause to be constructed (on behalf of or in the
name of the District) water infrastructure improvements to serve the Development; (B) the
District will lease the water infrastructure improvements to Aqua Utilities and/or enter into an
operating agreement with Aqua Utilities; and (C) Aqua Utilities will operate and maintain the
water infrastructure improvements and provide retail water service to the Development; and (iii)
that certain"Superseding Agreement Regarding Water and Wastewater Utility Service"between
Aqua Utilities, Owner, the District and the City executed to be effective December 21, 2005
(City Secretary Contract No. 32899 ), pursuant to which agreement: (A) Aqua Utilities has the
right to provide retail water service to the Development until the City exercises its right to
become the retail water provider in accordance with such agreement; (B) upon becoming the
retail provider, the City has an option to purchase (for a nominal amount) the water
infrastructure improvements serving the Development and to become the retail provider of water
service to the Development; and (C) Aqua Utilities will cooperate with the City's efforts to
obtain the CCN and any other regulatory approvals required to provide retail water service to the
Development.
I. Retail wastewater service to the Development will be provided by Aqua Utilities
pursuant to: (i) that certain "Wholesale Wastewater Service Agreement" between Aqua Utilities
and the City executed to be effective December 21, 2005 (City Secretary Contract No. 32903)
pursuant to which agreement the City will provide wastewater treatment service to Aqua
Utilities; (ii) that certain lease and/or or operating agreement between Aqua Utilities, Owner,
and the District pursuant to which agreement (A) Owner will construct or cause to be
constructed (on behalf of or in the name of the District) wastewater infrastructure improvements
to serve the Development; (B) the District will lease the wastewater infrastructure improvements
to Aqua Utilities and/or enter into an operating agreement with Aqua Utilities; and (C) Aqua
Utilities will operate and maintain the wastewater infrastructure improvements and provide retail
wastewater service to Development; and (iii) that certain "Superseding Agreement Regarding
Water and Wastewater Utility Service"between Aqua Utilities, Owner,the District and the City
executed to be effective December 21, 2005 (City Secretary Contract No. 32899) pursuant to
which agreement: (A) Aqua Utilities has the right to provide retail wastewater service to the
Development until the City exercises its right to become the retail wastewater provider in
accordance with such agreement; (B) upon becoming the retail provider, the City has an option
to purchase (for a nominal amount) the wastewater infrastructure improvements serving the
Development and to become the retail provider of wastewater service to the Development; and
(C) Aqua Utilities will cooperate with the City's efforts to obtain the CCN and/or any other
regulatory approvals required to provide retail wastewater service to the Development.
Development Agreement Page 2
J. The Development is located in a rapidly growing area of the City's ETJ, and
development of the Development will impact the future character of the City.
K. The purposes of this Agreement include encouraging innovative and
comprehensive master-planning of the Development, providing a level of certainty of regulatory
requirements throughout the term of this Agreement, and providing assurances that the
Development will remain in the City's ETJ for the term of this Agreement, except for any
commercial property annexed for limited purposes for the collection of sales and use tax.
L. 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 I
DEFINITIONS
"Agreement"means this Development Agreement between the City and Owner.
"Aqua Utilities" means Aqua Utilities, Inc., formerly known as AquaSource Utility, Inc, a Texas
corporation.
"Assignee" means a successor to Owner as defined in Sections 9.02(b) and 9.03 of this
Agreement.
"Builder" means a person or entity that constructs, alters, or repairs improvements (other than
Infrastructure), specifically including without limitation Structures, within any part of the
Development.
"Building Codes" means the following City codes in effect on the Effective Date, including any
amendments thereto that are in effect on the Effective Date, except as modified by Section 2.14:
(i) 2003 International Building Code, Ordinance Nos. 15948 and 16162 Sections 7-46
through 7-49 of the City Code;
(ii) 2003 International Residential Code, Ordinance No. 15949, Sections 7-61 through 7-
64 of the City Code;
(iii) 2002 National Electrical Code, Ordinance Nos. 15994, 16028 and 16165; Sections
11-1 through 11-4 of the City Code;
(iv) 2003 International Plumbing Code and 2003 International Fuel Gas Code, Ordinance
Nos. 15951 and 16164, Sections 26-1 through 26-4 of the City Code;
Development Agreement Page 3
(v) 2003 International Mechanical Code, Ordinance Nos. 15950 and 16163, Sections 7-
166 through 7-169 of the City Code; and
(vi) The following chapters/sections of the 2003 International Fire Code, (Ordinance
Nos. 16027 and 16252, Sections 13-1 and 13-2 of the City Code, and excluding all
other chapters and sections:
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#1, and Section 105.6 (Required Operational Permits);
a. Chapter 2 (Definitions);
b. Chapter 5 (Fire Service Features), excluding Section 506 (Key Boxes) and
Section 509 (Fire Command Center);
C. Chapter 6 (Building Services and Systems);
d. Chapter 7 (Fire Resistance Rated Construction);
e. Chapter 8 (Interior Finish, Decorative Materials and Furnishings), Section 806
only;
f. Chapter 9 (Fire Protection System);
g. Chapter 22 (Service Stations and Repair Garages), excluding Section 2205
(Operational Requirements);
h. Chapter 23 (High-Piled Combustible Storage), excluding Section 2305
(Housekeeping and Maintenance);
i. Chapter 45 (Referenced Standards); and
j. Appendix I (Installation of Fire Service Features, Fire Protection Systems and
Tanks).
(vii) 2003 International Energy Conservation Code (Ordinance No. 15952), Sections 7-41
through 7-44 of the City Code
(viii) The following sections of the Environmental Protection and Compliance Code
(Ordinance No. 12274):
(a) Article 1, Divisions 1-3 (Administration and Enforcement), Sections 12.5-100
through 12.5-123 of the City Code;
Development Agreement Page 4
(b) Article II (Air Quality), Sections 12.5-200 through 12.5-211 of the City Code;
and
(c) Article III (Stormwater Protection), Sections 12.5-300 through 12.5-321 of the
City Code.
(ix) The following sections of the City Code relating to the review of construction plans
for food establishments, day care centers, and public swimming pools:
(a) Sections 16-114(a), (b), and (c) and Section 16-115 (Food Establishments),
Ordinance No. 12553;
(b) Sections 16-421, 16-428, and 16-437 (Day Care Centers), Ordinance No.
11209; and
(c) Sections 16-456, 16-458, 16-460(b)(1) and (f)(3), and 16-462(a), (b), (c), and
(d) (Public Swimming Pools), Ordinance No. 12156.
(x) The Sign Code, as hereinafter defined.
"Building_ Permit" means a written certification issued pursuant to Section 2.16 of this
Agreement that plans and specifications for the construction of a Structure are in substantial
compliance with the Building Codes and with the applicable provisions of Article II of this
Agreement and requiring that the Structure be constructed in compliance with such regulations.
"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.
"Certificate of Substantial Comyletion' means a written certification issued pursuant,to Section
2.17 of this Agreement that a Structure has been constructed in substantial compliance with the
Building Codes and with the applicable provisions of Article II of this Agreement.
"Certified Inspector' means an independent, certified, and state-licensed inspector who has been
approved by the Development Director,the District, and Owner and who has agreed in writing to
be bound by Sections 2.16, 2.17, 2.19 and 2.20 and applicable definitions in Article I of this
Agreement.
"CFA Policy" means the City's"Policy for the Installation of Community Facilities" as amended
March 20, 2001 (M & G-13181) and in effect on the Effective Date, including any amendments
thereto that are in effect on the Effective Date.
"City"means the City of Fort Worth, Texas, a home-rule municipality located in Tarrant, Denton
and Wise Counties, Texas.
"Cily Code"means the Code of the City.
Development Agreement Page 5
"City Council"means the City Council of the City.
"City Facilitv" means a facility reasonably related to the provision of a municipal service by the
City.
"City Manager"means the City Manager of the City.
"City Review Fees"means: (i)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 (ii) 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.
"Cluster"means one-family homes on lots clustered around a common access road or cul-de-sac.
"Commercial Tracts"means Tracts 1 and 14 shown on the Development Plan.
"Community Facilities Tracts"means Tracts 4 and 7 shown on the Development Plan.
"ConsentAgreement' means the Agreement Concerning Creation and Operation of City of Fort
Worth Municipal Utility District No. 1 of Denton County by and among the City,the District and
Owner, which was approved by the City Council on December 13, 2005 (City Secretary
Contract No. 32896, M& C -21197) and executed as of December 21, 2005.
"Consent Resolution" means Resolution No. 3299-12-2005approved by the City Council on
December 13, 2005, consenting to the creation of the District.
"Contractor" means a person or entity that constructs, alters, or repairs Infrastructure required to
serve the Development, whether located within or outside the Development.
"Coon "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
date of submittal of such plans.
"Coup Road" means any road located within the County but not within the District or a
municipality.
"Development" means that certain 431.303-acre tract located in Denton County, Texas as
depicted in Exhibit A and described in Exhibit B.
"Development Director" means the Director of the City's Development Department.
Development Agreement Page 6
"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 C attached to this Agreement identifying various tracts
within the Development , including a description of the uses permitted within each tract, which
tracts are described in Exhibit D.
"District" means City of Fort Worth Municipal Utility District No. 1 of Denton County, to be
renamed in accordance with Article X of the Consent Agreement, created over the Development
by the District Legislation.
"District Confirmation Date" means the date on which the Board of Directors of the District
canvasses the results of the election held within the District confirming the creation of the
District.
"District Legislation" means Act of May 25, 2005, 79th Legislature, Regular Session, Chapter
1330, Special District Local Laws Code, Chapter 8129, effective September 1, 2005 creating the
District.
"Effective Date"means the date this Agreement is fully executed by the City and Owner.
"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.
"Gas Drilling Ordinance" means the City's "Gas Drilling Ordinance," Ordinance No. 14880, in
effect on the Effective Date,including any amendments in effect on the Effective Date.
"Governing Regulations" means the following (and only the following) that are in effect on the
Effective Date, including any amendments thereto that are in effect on the Effective Date, except
as modified by Section 2.14:
(i) Subdivision Regulations;
(ii) CFA Policy;
(iii) All City fire protection requirements for water line sizing,number of connections,
minimum water pressure, and number of fire hydrants;
(iv) All City standards for design, location, construction, operation and maintenance
of water and wastewater infrastructure and expressly including, without
limitation, the Policy and Procedure for Processing Water and Wastewater
Projects for Design and Construction (1999) and General Contract Documents
and Specifications for Water Department Projects;
Development Agreement jF age7
(v) Utility location standards;
(vi) Transportation & Public Works Department, 2005 Pavement Design Standards
Manual;
(vii) Public Works Department Storm Drainage Criteria and Design Manual;
(viii) City's Standard Specifications for Street and Storm Drain Construction;
(ix) Transportation and Public Works Department Traffic Engineering Design
Standards and Policy Guidelines;
(x) Roadway Standards and Master Thoroughfare Plan approved by the City Council
on February 19, 2002;
(xi) Denton County standards for the construction of drainage and stormwater
improvements contained in Denton County Subdivision Rules and Regulations
(September, 2003), Section VIII, IX and XI.
(xii) Denton County Regulations for Floodplain Management;
(xiii) Gas Drilling Ordinance;
(xiv) Building Codes; and
(xv) Special Regulations.
"Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure
improvements installed or constructed to serve the Development, whether located within or
outside the Development.
"Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of
Infrastructure according to the fee schedule adopted by the City Council and in effect on the date
of the inspection.
"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 inspections.
"Kiosk" means a freestanding presentation station in a public place for displaying static or
interactive information on products, events, directions or locations
"Large Retail Store" means a store for the retail sale of merchandise with a footprint exceeding
50,000 square feet, including without limitation a general merchandise store, home improvement
Development Agreement Page 8
store, antique shop, appliance sales or supply store, new or used clothing store, new or used
furniture store, greenhouse or plant nursery, grocery store, or facility for general retail sales. A
large retail store that sells to members only or that also offers merchandise at wholesale is not
excluded from this definition.
"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 Development or in any Owner's or
Assignee's rights under this 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
Development 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 Agreement in accordance with
Section 9.04.
"Mixed-Use Tracts"means Tracts 3 and 5 shown on the Development Plan.
"Non-Owner Assignee"is defined in Section 9.02(c)of this Agreement.
"Notice"means notice as defined in Section 9.01 of this Agreement.
"One-Family Residential Tracts" mean Tracts 6, 8, 9, 10, 11, 12 and 13 shown on the
Development Plan.
"Open Space" means areas that are open to the sky, unpaved and at least six feet wide,
provided, however, rooftop terraces and other common spaces within Tracts 3 and 5 that are at
least six feet wide and outdoor paved areas designed and used for active recreation shall also be
considered open space.
"Owner" means, individually and collectively, Aperion Communities, LLLP, Eladio Properties,
LLLP and Drooy Properties, LLLP, Arizona limited liability limited partnerships. The term
"Owner" also includes any Assignee permitted by this Agreement, but does not include a Lot
Owner.
"Early" means, individually, the City, Owner, or Owner's successors and assigns (including any
Assignee) as permitted by this Agreement.
"Sign Code" means the following sections of Chapter 29 of the City Code in effect as of the
Effective Date, except to the extent the Sign Code is inconsistent with Section 2.02(3), in which
case Section 2.02(3)prevails:
(i) Section A02.3 (Maintenance)
(ii) Section A02.4 (Additions, Alterations, and Repairs)
Development Agreement Page 9
(iii) Section A04.5(a)(Unsafe Sign or Sign Structure)
(iv) Section 3.01 (Construction and Maintenance, General)
(v) Section 3.04 (Electrical)
(vi) Section 3.06 (Maintenance)
(vii Section 4.01.1 (Encroachments;Requirements)
(viii) Sections 4.02.1 and 4.02.2 (Traffic Hazards)
(ix) Section 4.03 (Prohibited Signs)
(x) Section 5.02.2 (Construction of Off-Premises Signs Prohibited in
Extraterritorial Jurisdiction)
"Sign, Monument" means a permanent sign with at least seventy-five percent (75%) of the
structure's width in contact with the ground.
"Sign, Off-Premises" means a sign that advertises businesses, commodities, activities, services
or persons that are not usually available or present upon the premises upon which such sign is
located, or that directs persons to any location not on the premises. Any sign with more than ten
percent (10%) of the sign devoted to such use shall be deemed to be an off-premises sign. For
purposes of this definition, "premises"means a platted lot.
"Sign, On-Premises" means a sign that advertises the business name, owner and/or commodities,
activities or services offered on the premises where such sign is located and where at least ninety
percent (90%) of the sign is devoted to the advertisement of such business name, owner,
commodities, activities or services. . For purposes of this definition, "premises"means a platted
lot.
"Significant Industrial Discharge" means any discharge of industrial waste that meets at least one
of the following criteria: (1) the average discharge rate is greater than 50,000 gallons per day; or
(2) biochemical oxygen demand (i.e., the quantity of oxygen used in the biochemical oxidation
of organic matter under standard laboratory procedure in five days at 20 degrees Centigrade,
expressed in milligrams per liter) and/or suspended solids concentrations exceed 250 mg/l; or (3)
the waste falls within an industrial category regulated by National Pretreatment Standards as
promulgated by the United States Environmental Protection Agency.
"Special Re ations" means regulations concerning street, right-of-way and sidewalk width,
block length and minimum street centerline off-sets described in Exhibit E attached to this
Agreement.
Development Agreement Page 10
"Strategic Partnership Agreement" means the Strategic Partnership Agreement attached as
Exhibit E to the Consent Agreement to be executed by the City and the District providing for the
limited purpose annexation of portions of the Development designated for commercial uses for
the sole purpose of imposing a sales and use tax, pursuant to Section 43.0751 of the Local
Government Code.
"Structure" means any permanent building or structure that is intended for human occupancy
and any other structure (including signs) over four (4) feet in height, except for fences, which
shall not be considered to be Structures unless six (6) feet in height or greater.
"Subdivision Regulations" means the City's Subdivision Ordinance No. 7234 and Plan
Commission Rules and Regulations in effect on the Effective Date, including any amendments
thereto in effect on the Effective Date.
"TCEO'means the Texas Commission on Environmental Quality or its successor state agency.
"Townhouse/Cluster Tract"means Tract 2 shown on the Development Plan.
"Tradition" means the proposed master-planned community containing approximately 2,660
acres that may include residential, commercial, and recreational uses as generally depicted for
informational purposes only in Exhibit A.
"Zoning Ordinance"means Ordinance No. 13896,together with any amendments thereto that are
in effect on the Effective Date, codified as Appendix"A"to the City Code.
ARTICLE II
DEVELOPMENT REGULATIONS
2.01 Applicable Regulations. The Development shall be developed solely in compliance
with: (1)this Agreement including, but not limited to, the Development Plan and the Governing
Regulations; (2) ordinances that the City is required to adopt by state or federal laws or
regulations that impose requirements applicable to the Development (whether such laws or
regulations are in effect on the Effective Date or enacted after the Effective Date); provided,
however, if such state or federal laws or regulations allow the City to grant exemptions to such
laws or regulations for which the Development qualifies, then the Development shall be exempt
from such laws and regulations to the extent permitted by law, and the City shall take all action
necessary to evidence such exemptions upon a showing made by Owner that the Development
qualifies for such exemption; and (3) state or federal laws or regulations that impose
requirements applicable to the Development (whether such laws or regulations are in effect on
the Effective Date or enacted after the Effective Date); provided, however, if such state or
federal laws or regulations allow the City to grant exemptions to such laws or regulations for
which the Development qualifies, then the Development shall be exempt from such laws and
regulations to the extent permitted by law, and the City shall take all action necessary to
evidence such exemptions upon a showing made by Owner that the Development qualifies for
such exemption. Notwithstanding the foregoing, however, nothing in this Section 2.01
constitutes a waiver of Owner's right to claim that the ordinances, laws, regulations, or rules
Development Agreement Page 11
described in the preceding clauses "(2)" and "(3)" adopted after the Effective Date (i) do not
apply to the Development based on the"vested rights" of Owner, whether such rights arise under
Chapter 43, as amended, or Chapter 245, as amended, Local Government Code, or under any
other existing or future common-law or statutory rights, or (ii) constitute an illegal exaction or a
"taking" without compensation. Nothing in this Section 2.01 constitutes a waiver of the City's
right to rebut or defend against any such claim by Owner.
2.02 Permitted Uses and Development Regulations. All property within the
Development will be developed in accordance with the following requirements:
1. Permitted Uses. Uses are permitted in accordance with the chart attached as
Exhibit F to this Agreement. In addition, accessory uses that are customarily incidental to any
main use on a lot are permitted. The categories of uses listed in Exhibit F correspond to the
tracts shown on the Development Plan attached as Exhibit C and described in Exhibit D, as
follows:
Tract 1 Commercial
Tract 2 Townhouse/Cluster
Tract 3 Mixed-Use
Tract 4 Community Facilities
Tract 5 Mixed-Use
Tract 6 One-Family Residential: 5,000 square foot minimum lot size
Tract 7 Community Facilities: Reserved for City Facility (see Article VII)
Tract 8 One-Family Residential: 6,000 square foot minimum lot size
Tract 9 One-Family Residential: 7,500 square foot minimum lot size
Tract 10 One-Family Residential: 10,000 square foot minimum lot size
Tract 11 One-Family Residential: 6,000 square foot minimum lot size
Tract 12 One-Family Residential: 7,500 square foot minimum lot size
Tract 13 One-Family Residential: 5,000 square foot minimum lot size
Tract 14 Commercial
2. Off-Street Parking and Loading.
(a) Except as otherwise provided in this Section 2.02, the following uses shall
have the minimum number of off-street parking spaces stated in the table below. Parking
for non-residential uses shall not exceed 125% of the minimum number of required off-
street parking spaces. For any permitted use in the Development not expressly listed
below,the parking requirements for the most similar use shall apply.
Development Agreement Page 12
USE REQUIREMENT
RESIDENTIAL
1 space per bedroom plus 1 space per 250 square feet of common areas,
Multifamily offices and recreation(less laundry rooms and storage).Two spaces may
be tandem if assigned to the same unit and restricted from use for storage.
2 spaces per dwelling unit,located behind the front building line.No more
than one garage and one carport or porte cochere shall be allowed per
Single family and townhouse dwelling unit on a single residential lot unless the additional garages or
porte cocheres are an integral part of the main residential structure with the
same roofline and driveway as the residential structure.
PUBLIC AND CIVIC
Medical clinic,health services, 1 space per doctor plus 1 space per 4 employees plus 4 spaces per 1000
facility,assisted living facility square feet of gross floor area
1 space per 4 seats in sanctuary or worship area in One-Family Residential
Place of worship Tracts and Townhouse/Cluster Tract;1 space per 5 seats in sanctuary or
worship area in all other tracts
School,elementary and junior 1 space per 16 students
high(public or private)
School,high school(public or 1 space per 1.75 students plus 1 space per 5 stadium seats(may be
private) double counted)
COMMERCIAL
A minimum of one parking space per 250 square feet of gross floor area or
Large retail store fraction thereof shall be provided.Additional parking may be provided,with
a maximum of one space per 200 square feet of gross floor area or fraction
thereof.
Commercial business,retail
sales and service(other than 4 spaces per 1000 square feet
big box retail)
Hotel 1 space per bedroom unit plus 1 space per 4 patron seats in rooms open to
public plus 5 spaces per 1000 square feet of display/ballroom area
1 space per guest room or suite plus 1 space per 4 seats plus 5 spaces per
Private club,cocktail lounge 1000 square feet of ballroom available to nonresidents plus 1 space per 4
employees
Office,professional building 2.5 spaces per 1000 square feet of gross floor area
Restaurant,cafeteria 1 space per 100 square feet
Theater,auditorium,place of 1 space per 4 seats in main auditorium plus 5 spaces per 1000 square feet
public assembly of ballroomisimilar area plus 1 space per 4 employees
Walkup business 4 spaces per 1000 square feet
(b) Standard parking spaces shall be a minimum of nine (9) feet in width and
18 feet in length. Parallel parking spaces shall be a minimum of eight (8) feet in width
and 22 feet in length.
(c) Maneuvering space shall be located on private property.
(d) For Tracts 3 and 5,the following additional parking requirements apply:
Development Agreement Page 13
(1) For mixed-use buildings and projects, the total parking
requirement shall be the sum of the individual requirements for all uses. A joint
use parking agreement, if executed according to the standards set forth below,
would allow a reduction in the total requirement for a mixed-use building or
project.
(2) The required parking for any use may be located off-site, provided
that such parking is located within 500 feet of the subject site.
(3) Adjacent on-street parking may be applied toward the minimum
parking requirements, but shall not reduce the pertinent maximum parking
limitations.
(4) Joint use parking facilities are permitted. Joint use of required
parking spaces may occur where two or more uses on the same site or on separate
sites are able to share the same parking spaces because their parking demands
occur at different times. Joint use of required parking spaces is allowed if the
following documentation is submitted with the building permit application:
(A) The names and addresses of the uses and of the owners or tenants
that are sharing the parking;
(B) The location and number of parking spaces that are being shared;
(C) An analysis showing that the peak parking demands for the
different uses occur at different times, and that the parking area
will supply at least the minimum number of required spaces for
each use during its respective peak parking times; and,
(D) A legal instrument such as an easement or deed restriction that
guarantees access to the joint parking for all uses.
(5) Surface parking shall not be permitted between a building front
and the street.
(6) Surface parking is prohibited in side yards.
3. Ste.
(a) Signs shall be constructed and maintained in accordance with the Sign
Code.
(b) Off-Premises Signs are prohibited unless expressly permitted by this
Section 2.02(3).
(c) The following signs are permitted within all tracts in the Development:
(1) Temporary decorative flags;
Development Agreement Page 14
(2) Temporary public interest signs, including portable signs and
banners, announcing activities or events, subject to the following
requirements:
(A) Signs shall be a maximum size of 60 square feet;
(B) No temporary sign shall be located within 100 feet of
another temporary sign;
(C) Temporary signs shall be maintained for no more than 30
days;
(D) Temporary signs may not be erected on a platted lot more
than twice in a calendar year.
(3) Warning, security and directional signs for parking or vehicle
access;
(4) Government signs, including without limitation informational,
directional and traffic signs;
(5) Political signs erected in accordance with state law;
(6) Window signs displaying commercial messages, provided no sign
may exceed 25% of the glass area. "Window signs" include signs
displayed on the exterior side of the window and signs displayed
within ten (10) feet of the interior side of the window that are
visible from outside the building.
(7) Nameplate and street address signs not exceeding one square foot
in area;
(8) One temporary non-illuminated real estate sign advertising the sale
or lease of real property on which the sign is located. Such sign
shall not exceed eight (8) square feet in area in any One-Family
Residential Tract or Townhouse/Cluster Tract or 60 square feet in
area and eight(8) feet in height on any other tract; and
(9) Other non-commercial signs as permitted by Owner.
(d) A maximum of six(6)kiosks are permitted within the Development along
and visible from (but not necessarily adjacent to) Community Parkway, as shown on the
Development Plan. Content is limited to:
(11) Name and logos of the Tradition project;
(2) Names and logos of builders within the Tradition project;
Development Agreement Page 15
(3) Information concerning non-business destinations within the Tradition
project;or
(4) Any combination of the foregoing.
No kiosk may exceed eight(8) feet in height and five (5) feet in width.
(e) Subdivision entry signs are permitted at each main entrance to a
residential subdivision. These signs may be located on private property or in parkways,
medians, or common areas. Content is limited to the name and logo of the subdivision or
any combination thereof. All signs must be monument signs, and may not exceed eight
(8) feet in height and 16 feet in width.
(f) One multi-tenant sign is permitted anywhere within Tract 14. The sign
may not exceed 40 feet in height above the perpendicular driving grade of State
Highway 114 or 80 feet in height, whichever is less. The maximum width of the sign
may not exceed 24 feet. Twenty-five percent (25%) of the width of the sign structure
must be in contact with the ground. Content is limited as follows:
(1) Name, trade name, logo (or any combination thereof) of any
owner,tenant,business, or occupant of property within Tract 14;;
(2) Identification of any property within Tract 14;
(3) Accommodations, services, or activities offered or conducted
within Tract 14;
(4) Products sold or leased within Tract 14;
(5) Sale, lease, development, or construction of property within Tract
14; or
(6) Any combination of the foregoing.
Development Agreement Page 16
(g) The following detached On-Premise Signs are permitted in Tracts 1, 3, 5 and
14:
Sign Type Business Structure Structure Location on property Minimum
And Listing Maximum Maximum ground
Tract Height Width contact
Monument Single or 8 feet 16 feet 0' setback to the right 75%of the
multi of way line; one foot sign
tenants setback from adjacent structure's
located property lines for each width must
within the foot in height be in contact
business with the
complex ground
Pylon Single or 25 feet 16 feet Maximum height of 8 50%of the
Sign multi feet at the right of way sign
tenants line with one foot structure's
located setback from right of width must
within the way line for each be in contact
business additional foot in with the
complex height; one foot ground
setback from adjacent
property lines for each
foot in height
Advertising message area on the sign structure shall not exceed the street frontage of the
platted lot on which the sign is located (one square foot of message area for each foot of
frontage) or 1.5 times the right-of-way width,whichever is less,up to a maximum of 75%
of the sign structure. Areas that do not include advertising message must be
unilluminated and constructed with materials similar to the building associated with the
sign.
(h) Signs erected pursuant to Subsections (f) and (g) shall be at least 100 feet
apart.
(i) Attached on-premise signs are permitted in Tracts 1, 3 5 and 15 as long as the
cumulative area of all attached on-premise signs on a building fagade does not exceed ten
percent (10%) of the area of the fagade. "Fagade" is equal to the building length times
building height; provided, however, for purposes of such calculation, building height
shall be a maximum of 15 feet despite the fact that the actual building height may exceed
15 feet. Doors and windows shall be included in the calculation of the fagade area. The
length of an attached sign may not exceed 75% of the length of the building to which it is
attached.
Development Agreement Page 17
(j) Any sign authorized to contain commercial copy may contain noncommercial
copy in lieu of commercial copy.
4. Outdoor Storage or Display— Large Retail Stores . Outdoor storage and display
by Large Retail Stores is permitted in Tracts 1, 3, 5, and 14 subject to the following restrictions:
(a) No merchandise displayed outdoors may be stacked to exceed six (6) feet
in height(except Christmas trees displayed in vertical position).
(b) No single item may exceed 12 feet in height.
(c) Merchandise may be displayed and carts may be stored within 20 feet
from the front wall of the building.
(d) A clearly delineated pedestrian walkway at least four (4) feet in width
shall be provided contiguous to the 20-foot display and cart storage area to provide
unimpeded pedestrian access to the building. An unobstructed walkway must be
provided between the curb, fire lane, maneuvering aisle or parking space and any stored
and/or displayed merchandise.
(e) Stored merchandise, goods, or products shall not obstruct visibility of
motor vehicle traffic lanes.
(f) An area the width of the customer entrance and exit door(s) plus 15 feet on
either side of the door(s) shall be maintained clear of merchandise and carts to allow
unimpeded pedestrian access to the building.
(g) Areas for customer loading of merchandise shall be clearly delineated and
shall not be located in front of any customer entrance or exit door(s) or within 15 feet of
either side of the door(s).
(h) Outdoor storage, display and sales of plumbing fixtures and large household
appliances, including without limitation hot tubs, washers, dryers, refrigerators,
dishwashers and trash compactors, is prohibited.
(i) No area used for the outside storage or display of merchandise shall be
located within 25 feet of the rear or side of a One-Family Residential Tract or
Townhouse/Cluster Tract.
0) No area designated for off-street parking may be used for outside storage
or display of merchandise (except Christmas trees).
(k) Areas devoted to permanent outdoor storage shall be screened by a solid
wall that is a minimum of eight (8) feet in height consisting of the same materials as the
principal building.
Development Agreement Page 18
5. Outdoor Storage and Display—Other Commercial Uses. Outdoor storage and
display by commercial uses, with the exception of Large Retail Stores, is permitted in Tracts 1,
3, 5, and 14 subject to the following restrictions:
(a) The following items may be displayed and/or stored outside the main building
subject to the conditions contained in this Section 2.02:
(1) Bagged grass seed;
(2) Bagged fertilizer;
(3) Bagged mulch;
(4) Bagged bark chips;
(5) Bagged play sand;
(6) Bagged potting soil;
(7) Bundled firewood;
(8) Cut Christmas trees; and
(9) A maximum of ten (10) portable boxes, bins or other such containers, not
to exceed 96-gallon capacity each, for the purpose of collecting aluminum cans,
glass, grocery bags or plastic bottles.
(b) Outside storage and/or display of the above listed items is subject to the following
conditions:
(1) No merchandise may be stored or stacked to exceed four (4) feet in height
(except Christmas trees displayed in vertical position).
(2) No merchandise may extend more than five (5) feet from the front wall of
the building.
(3) A four-foot wide unobstructed walkway must be provided between the
curb, fire lane, maneuvering aisle or parking space and any stored and/or
displayed merchandise.
(4) No stored merchandise, goods or products may be situated such that
visibility of motor vehicle traffic lanes is obstructed.
(5) No area used for the outside storage or display of merchandise shall be
located within 25 feet of the rear or side of a One-Family Residential Tract or
Townhouse/Cluster Tract.
Development Agreement Page 19
(6) No area designated for off-street parking may be used for outside storage
or display of merchandise (except Christmas trees).
6. Oven Space and Parkland. A minimum of 63 acres of Open Space shall be
provided as shown on the Development Plan. Such Open Space shall include the following park
facilities, at a minimum:
(1) A community park with a minimum area of 5.5 acres with sports fields
and gazebo;
(2) A district park with a minimum area of 2.3 acres; and
(3) At least seven(7)pocket parks, each with a minimum area of .8-acres.
2.03 Tracts 1. 14 — Commercial. Tracts 1 and 14 as shown on the Development Plan
will be developed as follows:
Front Yard None required.
Rear Yard 10 feet minimum unless adjacent to residential use,where 15 feet minimum required
Side Yard
Interior lot 5 feet minimum adjacent to One-Family Residential Tract or Townhouse/Cluster
Tract, none otherwise. If provided,side yard must be 3 feet minimum.
Comer lot None required unless through lot,then 10 feet minimum required
Height 3 stories or 45 feet maximum.
2.04 Tract 2—Townhouse/Cluster. Tract 2 as shown on the Development Plan will be
developed as follows:
Units per Acre Maximum number of 12 units per gross acre on average
Units per Bldg. 10 maximum
Front Yard 10 feet minimum
Side Yard 10 feet minimum adjacent to street,otherwise no setback is required;for comer lots,
orches may be located in the side yard adjacent to a street
Height 35 feet maximum
Bldg,Separation 10 feet minimum
2.05 Tract 3, 5 — Mixed Use. Tracts 3 and 5 as shown on the Development Plan will
be developed as follows:
Front Yard 14 feet minimum; 16 feet maximum
Side Yard No setback unless(i)required by the Building Codes,or(ii)an abutting property
with an existing building has windows facing to the side,in which case a minimum
10-foot separation between the existing building and new building is required
Rear Yard 5 feet minimum
Maximum Height 45 feet,or 3 stories,whichever is less,except that the maximum height shall be 60
feet or 5 stories,whichever is less,if(i)residential uses constitute 20 percent or
more of a building's gross floor area,and(ii)office,eating and entertainment,
and/or retail sales and service use constitute 10 percent or more of the building's
Development Agreement Page 20
gross floor area.
Maximum Residential 40 units per gross acre,except that a maximum of 60 units per gross acre are
Units Per Acre permitted if the project includes office,eating and entertainment, and/or retail sales
and services uses that constitute at least 10 percent of gross floor area.
Entrances A rinci al building must have its main entrance from a public sidewalk or plaza
2.06 Tracts 4, 7—Community Facilities. Tracts 4 and 7 as shown on the Development
Plan will be developed as follows.
Lot Width 50 feet minimum
Front Yard 20 feet minimum
Rear Yard 5 feet minimum reduced to 0 feet where adjacent to an alley at least 10 feet wide
Side Yard
Adjacent to residential 5 feet minimum
use
Across street from a side 10 feet minimum
and in a residential tract
Height 35 feet maximum
2.07. Tracts 6, 13 — One-Family Residential 5,000. Tracts 6 and 13 as shown on the
Development Plan will be developed as follows:
Lot Area 5,000 square feet minimum
Lot Width 50 feet minimum at building line,60 feet minimum for corner lots
Lot Coverage 50 percent maximum
Front Yard 15 feet minimum, 10 feet for porches
Rear Yard 5 feet minimum
Side Yard
Interior lot 5 feet minimum
Corner lot 10 feet minimum adjacent to side street and 5 feet minimum for interior lot line;
orches may be located in the side yard adjacent to a street
Height 35 feet maximum
2.08 Tracts 8, 11 — One-Family Residential 6,000. Tracts 8 and 11 as shown on the
Development Plan will be developed as follows:
Lot Area 6,000 square feet minimum
Lot Width 60 feet minimum at building line,70 feet minimum for corner lots
Lot Coverage 50 percent maximum
Front Yard 15 feet minimum, 10 feet for porches
Rear Yard 5 feet minimum
Side Yard
Interior lot 5 feet minimum
Comer lot 10 feet minimum adjacent to side street and 5 feet minimum for interior lot line;
orches may be located in the side yard adjacent to a street
Height 35 feet maximum
Development Agreement Page 21
2.09 Tracts 9, 12 — One-Family Residential 7,500. Tracts 9 and 12 as shown on the
Development Plan will be developed as follows:
Lot Area 7,500 square feet minimum
Lot Width 75 feet minimum at building line, 85 feet minimum for comer lots
Lot Coverage 45%percent maximum
Front Yard 20 feet minimum, 15 feet for porches
Rear Yard 5 feet minimum
Side Yard
Interior lot 5 feet minimum
Comer lot 10 feet minimum adjacent to side street and 5 feet minimum for interior lot line;
orches may be located in the side yard adjacent to a street
Height 35 feet maximum
2.10 Tract 10 — One-Family Residential 10,000. Tract 10 as shown on the
Development Plan will be developed as follows:
Lot Area 10,000 square feet minimum
Lot Width 90 feet minimum at building line, 100 feet minimum for comer lots
Lot Coverage 40%maximum
Front Yard 25 feet minimum,20 feet for porches
Rear Yard 10 feet minimum
Side Yard
Interior lot 5 feet minimum
Comer lot 10 feet minimum adjacent to side street,5 feet minimum for interior lot line;porches
may be located in the side yard adjacent to a street
Height 35 feet maximum
2.11 Exclusive Requirements. The requirements set forth in Sections 2.02 through
2.10 of this Agreement are exclusive with regard to the subject matter of the sections. For
example, Section 2.02(1) sets forth the only off-street parking and loading requirements that
apply to the Development. The Development Director (with the consent of Aperion
Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP) may
administratively approve minor revisions to Sections 2.02 through 2.10 of this Agreement. A
"minor revision" means the following: (a) an increase in the height of structures of five (5)
percent or less; (b) a setback reduction of ten (10) percent or less; (c) an increase in ground
coverage by a structure of five (5) percent or less; (d) a reduction in off-street parking of five (5)
percent or less; (e) an increase in the number, height or area of signs of five (5) percent or less;
and (f)an increase in outdoor storage or display area of five (5)percent or less
2.12 Amendment of Development Plan. The Development Plan is incorporated as part
of this Agreement; however,the interior boundaries of the tracts shown on the Development Plan
(including the boundaries of the Open Space)may be adjusted, from time to time, as provided by
this Section 2.12. In no event shall the exterior boundaries of the Development be adjusted.
Owners of the property affected by any boundary change, with the prior written consent of
Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, shall have
the right, concurrently with the filing of any preliminary plat, to adjust the boundaries of the
Development Agreement Page 22
tracts so long as the cumulative effect of all adjustments does not change the area within any
tract by more than ten (10) percent (based on the areas that existed on the Effective Date) and
does not reduce Open Space or parkland to less than the requirements set out in Section 2.03(6).
Owners of the property affected by any boundary change, with the prior written consent of
Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and the
written approval of the Development Director, shall have the right, concurrently with the filing
of any preliminary plat, to further adjust the boundaries of the tracts so long as the cumulative
effect of all adjustments does not change the area within any tract by more than 15% (based on
the areas that existed on the Effective Date) and does not reduce Open Space or parkland to less
than the requirements set out in Section 2.03(6). All other changes to the Development Plan
shall require the consent of Owners of the property affected by the change, the prior written
consent of Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP,
and the approval of the City Council. If the interior boundaries of the tracts shown on the
Development Plan are adjusted pursuant to this Section 2.12, the amended Development Plan
and revised legal descriptions for the affected tracts will be attached to this Agreement as
Exhibit C and Exhibit D. respectively, and the City will cause the amended exhibits to be
attached to the official version of this Agreement on file in the City Secretary's Office. Owner
will cause the amended Agreement to be recorded in the Real Property Records of Denton
County, Texas, in accordance with Section 9.04.
2.13 Plat Approval. Subdivision of the Development or any portion thereof shall
require approval of plats by the City's Plan Commission. The conveyance by metes and bounds
of any portion of the Development to any person for the purpose of qualifying such person to be
a member of the board of directors of the District shall not be considered a subdivision of land
requiring a plat or otherwise requiring the approval of the City; provided, however, no Structure
shall be constructed on any portion of the Development conveyed for such purpose unless and
until a plat of such portion has been approved by the City's Plan Commission. Subdivision of
the Development shall not require the approval by the City's Plan Commission of a "Concept
Plan"as defined in the Subdivision Regulations.
2.14 Modification of Governing Regulations.
(a) If a preliminary plat for the entire 431.303 acres comprising the Development is
approved by the City's Plan Commission before January 1, 2007, the development of all
portions of the Development for which the Plan Commission approves final plats shall be in
accordance with the Governing Regulations, as defined in Article I.
(b) If a preliminary plat for the entire 431.303 acres comprising the Development is
approved by the City's Plan Commission between January 1, 2007 and September 30, 2007,
the Governing Regulations that are in effect on January 1, 2007, including amendments in effect
on January 1, 2007, shall apply to development of all portions of the Development for which a
final plat is approved by the Plan Commission, and the definition of"Governing Regulations"
shall be deemed to be amended accordingly.
(c) If a preliminary plat for all or any portion of the Development is approved by the
Plan Commission on or after October 1, 2007, the Governing Regulations that are in effect on
Development Agreement y HIC-111kiAHNNr. 23
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the date of submittal of the preliminary plat shall apply to development of all portions of the
Development for which a final plat is approved by the Plan Commission, and the definition of
"Governing Regulations" shall be deemed to be amended accordingly.
2.15 Water Wells. No water wells may be drilled within the Development for the
purpose of providing potable water; however, wells may be drilled for the purpose of providing
irrigation water. All water wells will be permitted through the Denton County Department of
Environmental Services.
2.16 Building Permits. No Structure shall be constructed on the Development without
a Building Permit issued to the Builder by a Certified Inspector hired and paid for by the Builder.
Except for model homes, no Building Permit shall be issued for a Structure unless located on a
lot for which a final plat has been recorded. Building permits may be issued for model homes
prior to the recordation of final plats for the lots if the Infrastructure to serve the lots has been
completed (including fire protection); however, no model home may be sold to an end-user
homeowner until a final plat has been recorded. If requested by the District, Building Permits
shall be issued through the administrative control of the District pursuant to procedures adopted
by the District, provided such procedures are not inconsistent with this Agreement, and each
Builder and each Certified Inspector agrees to be bound by such procedures.
2.17 Certificates of Substantial Completion. Except for model homes, no Structure
shall be occupied within the Development until a Certificate of Substantial Completion has been
issued to the Builder by a Certified Inspector hired and paid for by the Builder. Model homes
may be occupied for the sole purpose of sales and marketing; however, no model home may be
occupied by an end-user homeowner until a Certificate of Substantial Completion has been
issued. If requested by the District, each Certificate of Substantial Completion shall be issued
through the administrative control of the District pursuant to procedures adopted by the District,
provided such procedures are not inconsistent with this Agreement, and each Builder and each
Certified Inspector agrees to be bound by such procedures.
2.18 Builder Status Reports. Each Builder shall maintain a permanent record of all
Building Permits and Certificates of Substantial Completion issued to the Builder, which records
shall be available for inspection and copying by the City, the District, and Owner during normal
business hours. In addition, each Builder shall provide weekly written status reports to the
District and monthly written status reports to the Development Director identifying the addresses
of Structures for which Building Permits and Certificates of Substantial Completion were issued
to the Builder during the preceding week or month,respectively.
2.19 Certified Inspector Status Reports. Each Certified Inspector shall maintain a
permanent record of all Building Permits and Certificates of Substantial Completion issued by
such Certified Inspector, which records shall be available for inspection and copying by the City,
the District, and Owner during normal business hours. In addition, each Certified Inspector shall
provide weekly written status reports to the District and monthly written status reports to the
Development Director identifying the addresses of Structures for which Building Permits and
Certificates of Substantial Completion were issued during the preceding week or month,
respectively.
Development Agreement Page 24
2.20 Inspection Rights. The City, Owner, and the District shall have the right, but not
the obligation, to inspect, from time to time, any Structure under construction to determine
substantial compliance with the Building Codes and with Sections 2.01 through 2.10 of this
Agreement and to "red-tag" any Structure for non-compliance. If any inspection conducted
pursuant to this Section 2.20 results in the"red-tagging" of a Structure, and if the Builder fails to
correct the non-compliance within a reasonable time period to the satisfaction of the Parry that
red-tagged the Structure and the Certified Inspector, any of the City, Owner, and the District
will be entitled to enforce compliance and to prevent the occupancy of the Structure by the
issuance through the Certified Inspector of a "stop-work order" (or through the Party that red-
tagged the Structure if the Certified Inspector refuses to issue a"stop-work order") until the non-
compliance is corrected to the reasonable satisfaction of the Certified Inspector and the Parry that
red-tagged the Structure. All costs and expenses paid or incurred by the City, Owner, or the
District in exercising their rights under this Section 2.20 shall be paid by the Builder.
Substantial compliance of all Structures with the requirements of the Building Codes and
Article II of this Agreement shall be the responsibility of the Builder. Notwithstanding the
foregoing, if the Builder of the non-complying Structure is not also the Owner of the underlying
property, then such Owner will also be responsible for correcting such non-compliance and
paying any costs and expenses paid or incurred by the City or the District in exercising their
rights under this Section 2.20. Nothing in this Agreement is intended to create any liability of
the City or the District to inspect or otherwise determine whether Structures are constructed in
accordance with this Agreement.
2.21 Contracts with Builders. If a Builder is not an Owner, then the Owner who
contracts with such Builder shall incorporate the requirements of this Article II into a written
construction contract with the Builder. All contracts with such non-Owner Builders shall
provide that the City is a third-party beneficiary of, and may enforce, the contracts against the
Builder.
2.22 Prohibited Uses. No portion of the Development shall be used in a manner that
produces a Significant Industrial Discharge.
2.23 Temporary Manufactured Housing. A maximum of five temporary HUD-
certified manufactured homes shall be permitted on the Development at any given time for
occupancy by qualified voters that are necessary for the creation and administration 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. All manufactured homes will be removed from the
Development within 180 days after the District Confirmation Date. Placement of manufactured
homes on the Development for such purpose shall not require a Building Permit or Certificate of
Substantial Completion; shall not be considered a subdivision of land requiring a plat or other
approval of the City; and shall not otherwise be subject to the Governing Regulations or the
requirements of Sections 2.02 through 2.10 of this Agreement; provided, however, utilities shall
be provided to the homes in accordance with all applicable regulations of Denton County.
Development Agreement Page 25
2.24 Conflicts. In the event of a conflict between the Special Regulations and any
other provisions of this Agreement, the Special Regulations shall control.
2.25 Landscape Standards. Within 180 days after the Effective Date, Owner shall
cause to be recorded against the Development mandatory deed restrictions that include, among
other provisions, minimum landscape standards for commercial and residential development.
The landscape standards recorded against the Development shall meet or exceed the material
landscape standards that are applicable to comparable development within the City based on the
Zoning Ordinance in effect on the Effective Date, specifically including, without limitation, the
material landscape standards for Large Retail Stores contained in Section 5.133 of the Zoning
Ordinance. Owner shall provide a draft copy of the proposed deed restrictions to the City at
least 60 days prior to recordation and the City shall have 30 days during which to review and
provide written comments to such restrictions. Owner shall use reasonable efforts to incorporate
the City's comments prior to recordation. If the City fails to provide written comments within
such 30-day period, the City shall be deemed to have approved the restrictions submitted by
Owner. If there is a dispute between Owner and the City as to whether a City standard is
"material" or whether the proposed deed restrictions "meet or exceed" a material standard,
Owner and the City shall each name a licensed landscape architect (who shall, in turn, select a
third), which three architects shall then resolve the dispute as quickly as possible (which
resolution shall be binding upon Owner and the City). The cost of the architects shall be shared
equally by Owner and the City.
2.26 Enforcement of Environmental Regulations.
(a) City. 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 that are in effect on the Effective Date, including any
amendments in effect on the Effective Date. The Parties also agree to any enforcement authority
regarding environmental regulations set forth in the Agreement for Sale of Treated Water, the
Wholesale Wastewater Service Agreement, and the Superseding Agreement Regarding Water
and Wastewater Utility Service, all as described in the Recitals to this Agreement.
(b) Coup . The Environmental Services Department for Denton County will be
responsible for permitting any and all water wells and septic systems within the boundary of the
District. All required systems will be installed per the guidelines as outlined by the
Environmental Services Department in Denton County.
2.27 Approval by Denton County: No Road or Drainage Maintenance by County.
Execution of this Agreement by the Parties is subject to approval of this Agreement by the
Denton County Commissioners Court. Upon approval of this Agreement by the Commissioners
Court, Denton County and the Parties agree that all plan review, inspection, plat review and
approval, and all other actions and approvals relating to development of the Development shall
be performed solely by the City in accordance with this Agreement, with the exception of any
flood control structures, floodplain improvements and connections to County Roads. All roads
and drainage improvements within the Development shall be maintained by the District or one or
more homeowners' associations. Denton County shall have no duty to maintain any roads within
Development Agreement Page 26
the Development. At the discretion of the Denton County Commissioners Court, a request for
maintenance may be made to the District in writing for areas that may directly impact upstream
or downstream constituents of Denton County.
2.28 Removal of Certified Inspector. The Development Director may revoke his or her
approval of a Certified Inspector who issues a Building Permit or a Certification of Substantial
Completion that does not comply with all provisions of this Article II.
ARTICLE III
CONSTRUCTION AND INSPECTION OF INFRASTRUCTURE
3.01 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; (c) the rules and regulations of TCEQ; and (d) the rules and regulations, if any, of the
holder of any CCN for retail water or retail wastewater service to all or any portion of the
Development. In the event of any conflict between the Governing Regulations and either the
rules or regulations of the District or the rules and regulations of any CCN holder, the Governing
Regulations shall control unless otherwise agreed in writing by the Development Director.
3.02 Additional Construction Standards for Water Utility Infrastructure. The water
utility Infrastructure serving the Development must be constructed using the same type, or a
compatible type, of meters, valves, meter boxes and service lines used by the City for its
municipal water system; provided, however, that automated meter reading ("AMR")-compatible
may be used.
3.03 Plan Review; Payment of Fees; and Pre-Construction Conference. Construction
of Infrastructure shall not commence until the plans and specifications have been reviewed and
accepted by the City for compliance with the Governing Regulations; a pre-construction
conference has been held by the Contractor, the District's engineer and representatives of the
City's Department of Engineering; and the applicable City Review Fees have been paid. At such
pre-construction conference, the Department of Engineering shall designate City employees to
serve as the project inspector (the "City Inspector")for purposes of Sections 3.05, 3.07 and 3.10
and the project manager.
3.04 Community Facilities Agreements. Construction of Infrastructure shall not
commence until a Communities Facilities Agreement has been executed in accordance with the
CFA Policy. Notwithstanding the Governing Regulations, the City shall not participate in the
cost of construction of any Infrastructure unless the City requires the construction of
Infrastructure that exceeds that which is roughly proportionate to the impact of the Development.
3.05 Insuections by Third Party Inspectors. Except as otherwise provided in this
Section 3.05, inspectors retained by the Owner or Contractor and approved by the City (which
approval shall not be unreasonably withheld or delayed) shall perform or cause to be performed
all inspections and testing of the construction of Infrastructure for compliance with this Article
III. The Owner or Contractor, as applicable, shall submit the names, addresses and phone
numbers of such inspectors simultaneously with submittal of plans in accordance with Section
3.03. Construction of Infrastructure shall not commence until such inspectors have been
Development Agreement Page 27
approved by the City. Owner or Contractor shall cause the inspectors to provide copies of all
inspection and testing reports to the City Inspector. All costs of such third parry inspectors shall
be paid by Owner and Contractor.
3.06 Termination of Third Party Inspectors. The City has the right to terminate any
third party inspector retained by the Owner or Contractor pursuant to Section 3.05 if the
inspector: (i) fails to properly perform inspections and testing to ensure construction in
compliance with this Article III; or(ii) fails to provide copies of inspection and testing reports to
the City's Department of Engineering. Upon termination of any third party inspector,the City, at
its option, may allow the use of another approved third party inspector or perform all necessary
inspections and testing. Should the City elect to perform inspections and testing for compliance
with this Article III pursuant to this Section 3.06, the City shall perform such inspections and
testing in a timely manner (which inspections shall satisfy all applicable requirements of the
TCEQ) and the Owner and Contractor shall pay Infrastructure Inspection Fees in accordance
with Section 4.02(a).
3.07 Inspections
(a) Com. The City has the right, but not the obligation, to inspect and test the
Infrastructure at any time. Further,the City has the right 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 final inspection and correction of any punch list items, written certification by the
City Inspector that Infrastructure has been constructed in compliance with the Governing
Regulations shall constitute compliance with Sections 3.01(a), 3.02, 3.03, 3.04, 3.05 and 3.09.
Notwithstanding anything contained herein, the City shall have the right to charge Infrastructure
Inspection Fees for such inspections and testing only if the City performs inspections and testing
pursuant to Section 3.06.
(b) Coggly. The County will inspect all flood control structures and connections to
County Roads. The County Public Works Department will be responsible for conducting these
inspections and agrees to do so within a timely manner in accordance with the Denton County
Subdivision Rules and Regulations.
3.08 Contracts with Contractors. If a Contractor is not an Owner,then the Owner shall
incorporate the requirements of this Article III into a written construction contract with the
Contractor. All contracts with such non-Owner Contractors shall provide that the City is a
third-party beneficiary of, and may enforce,the contracts against the Contractor.
3.09 Access by City Employees. Upon prior Notice by the City, any duly authorized
employee of the City bearing proper credentials and identification shall be granted access to any
property within the Development as the City may determine necessary for the purpose of
inspection and testing of Infrastructure.
3.10 As-Built Drawings. Owner and Contractor shall deliver mylar as-built drawings
for all Infrastructure to the City Inspector within 30 days after final inspection.
Development Agreement Page 28
ARTICLE IV
DEVELOPMENT FEES
4.01 Review Fees.
(a) City Review Fees. Subdivision of the Development and review of construction plans
for Infrastructure will be subject to the payment of City Review Fees. City Review Fees shall
not exceed the same or similar fees charged for development in other parts of the City's
corporate limits or ETJ.
(b) County Review Fees. County Review Fees will be applied to the areas as
identified in Section 3.07(b). All floodplain, flood control structures and connections to County
Roads will be reviewed by the Denton County Department of Public Works. The fees will be in
accordance with the County Subdivision Rules and Regulations.
4.02 Infrastructure Inspection Fees.
(a) City Infrastructure Inspection Fees. If the City elects to perform Infrastructure
inspections in accordance with Section 3.06 of this Agreement, such inspections shall be subject
to the payment of Infrastructure Inspection Fees.
(b) County Infrastructure Inspection Fees. County inspection of floodplain,
flood control structures, and connections to County Roads be subject to Denton County
Infrastructure Inspection Fees as called out in the County Subdivision Rules and Regulations.
4.03 Other Development Fees. Development of land within the Development may be
subject to fees and charges that are in addition to the City Review Fees and, if applicable under
Section 3.06, Infrastructure Inspection Fees. Such additional fees and charges may include, but
are not limited to, impact fees and other fees necessitated by and attributable to the
Development. The failure of this Agreement to address or identify such additional fees and
charges does not constitute a waiver of such fees and charges.
ARTICLE V
ANNEXATION
5.01 Continuation of ETJ Status. Except as provided in Sections 5.03 and 5.04 of this
Agreement, the Development shall remain in the City's ETJ during the term of this Agreement,
and the City guarantees the continuation of the ETJ status of the Development during such term.
5.02 Immunily from Annexation. Except as provided in Sections 5.03 and 5.04 of this
Agreement, the Development shall be immune from annexation during the term of this
Agreement, and the City guarantees immunity from annexation during such time.
5.03 Full Purpose Annexation. During the term of this Agreement, the City shall have
the right,but not the obligation, to full-purpose annex all of the Development (or a portion of the
Development to the extent permitted by law) on or after the earlier to occur of. (i) the date that
construction of water, sanitary sewer, drainage and road facilities to serve 90% of the
Development Agreement Page 29
Development is complete; or (ii) the dissolution of the District (other than as the result of
annexation by the City). Further, the City may annex all or part of the Development at any time
after termination of this Agreement in accordance with Article VI.
5.04 Limited Puroose Annexation. Owner agrees that the City shall have the right to
annex those portions of the Development that are intended for retail development for the sole and
limited purpose for the City to impose its sales and use tax within the boundaries of such retail
areas pursuant to Section 43.0751 of the Local Government Code. The terms and conditions
upon which such limited purpose annexations may occur are contained in the Strategic
Partnership Agreement.
5.05 Incorporation. In furtherance of the purposes of this 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: (i) seek or support any effort
to incorporate the Development, or any part thereof; or (ii) sign,join in, associate with, or direct
to be signed any petition seeking to incorporate any of the Development or to include any of the
Development within the boundaries of any other incorporated entity.
5.06 Annexation of Portions of Development. Owner agrees to cooperate with and
assist the City in annexing one or more areas in the manner prescribed by law which does not
result in the dissolution of the District, each of which may not exceed 525 feet in width at its
widest point or such other width limitation subsequently imposed by law, as reasonably
necessary for the City to connect areas to the City that are outside the District and that the City
intends to annex. Notwithstanding the zoning designation approved for the annexed area, such
area can be developed and used in accordance with this Agreement.
ARTICLE VI
TERM OF AGREEMENT
This Agreement is a development agreement authorized by Section 212.172 of the Local
Government Code. This Agreement will terminate on the earlier to occur of: (i) fifteen (15)
years from the Effective Date; or (ii) full purpose annexation of the Development pursuant to
Section 5.03. Further, if creation of the District has not been confirmed at an election conducted
on or before November 30, 2006, this Agreement may be terminated by providing Notice to
Owner. The term of this Agreement shall not be affected by the annexations permitted by
Section 5.06 of this Agreement or by the limited purpose annexation of any commercial property
pursuant to the Strategic Partnership Agreement.
ARTICLE VII
DEDICATION OF PROPERTY FOR CITY FACILITY
7.01 Site Reservation. Owner agrees to reserve Tract 4 on the preliminary plat for the
Development for exclusive use for a City Facility (the "City Facility Site"). Until the City
Development Agreement Page 30
Facility Site is conveyed to the City pursuant to Section 7.02, Owner shall have the right to use
the City Facility Site (a) for public or private park or public or private open space purposes
(including, but not limited to, hike and bike trails, park benches, landscaping, fountains, sports
fields, playgrounds and playground equipment, and paved parking areas and (b) for any other
purposes with the prior written consent of the City. After conveyance of the City Facility Site to
the City pursuant to Section 7.02, Owner may landscape, irrigate, mow, and maintain the City
Facility Site and, with the City's written consent, continue to use the City Facility Site for the
foregoing purposes. Owner agrees to mow the City Facility Site and to maintain the City
Facility Site, and all improvements constructed or located thereon, in good condition at all times
until the City Facility Site is conveyed to the City pursuant to Section 7.02 and thereafter while
Owner continues to use the City Facility Site with the City's consent. Owner shall cause all such
improvements to be removed at Owner's cost within sixty(60) days after termination of Owner's
right to use the City Facility Site in accordance with this Section 7.01.
7.02 Conveyance to City. Owner agrees to convey or cause to be conveyed to the City
the City Facility Site by special warranty deed (lien free but otherwise subject to all matters of
record that do not materially adversely affect the use of the property) within ninety (90) days
after receipt of the City's written request. The City may obtain a survey of the City Facility Site
and title insurance at the City's expense. The conveyance documents shall reserve to Owner the
right to approve building elevations and exterior construction materials for the City Facility to be
constructed on the City Facility Site (which elevations and materials shall be compatible with the
elevations and materials of other commercial development within the Development and which
approval by Owner shall not be unreasonably withheld or delayed).
7.03 Reverter. The conveyance shall be subject to an automatic reverter of title in
favor of the Owner unless prior to the 22nd anniversary of the Effective Date of this Agreement,
the City has awarded a contract to construct a City Facility on the City Facility Site, in which
case Owner's possibility of reverter shall automatically terminate as of the date on which the
City awards the construction contract and regardless of when construction of the City Facility
actually commences. This Article VII shall survive the expiration or early termination of this
Agreement.
ARTICLE VIII
BREACH,NOTICE AND REMEDIES
8.01 Notification of Breach. If a Party commits a breach of this Agreement, the non-
breaching Party shall give Notice to the breaching Party that describes the breach in reasonable
detail.
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.
Development Agreement Page 31
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 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 performance, mandamus and injunctive relief; provided,
however, that the non-breaching Party shall not be entitled to monetary damages or to terminate
this Agreement, and each Party specifically waives any right such Party has or in the future may
have to terminate this Agreement (except for the right of the City to terminate as provided in
Article VI of this Agreement). It is understood and agreed that no Party will seek or recover
actual, consequential or any other type of monetary damages or awards, including but not limited
to attorney's fees, in the event that any Party brings suit under or related to this Agreement.
Moreover, Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP,
are jointly and severally liable for the obligations of Owner when it is a breaching Party under
this Agreement, and the City may pursue its remedies for breach against any one or more of
them.
8.04 Governmental Powers; Waiver of Immunity. It is understood that by execution of
this Agreement the City does not waive or surrender any of its governmental powers, immunities
or rights, except as specifically waived pursuant to this Section 8.04. The City waives its
governmental immunity from suit and liability only as to any action brought by a Party to pursue
the remedies available under this Agreement and only to the extent necessary to pursue such
remedies. Nothing in this Section 8.04 shall waive any claims, defenses or immunities that the
City has with respect to suits against the City by persons or entities not a party to this
Agreement.
ARTICLE IX
ADDITIONAL PROVISIONS
9.01 Notice. Any notices, certifications, approvals, or other communications required
to be given by one Party to another under this Agreement (a "Notice") shall be given in writing
addressed to the Party to be notified at the address set forth below and shall be deemed given: (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; (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; and(iv) five business days after the Notice is sent by FAX
(with electronic confirmation by the sending FAX machine) with a confirming copy sent by
United States mail within 48 hours after the FAX is sent. If any date or period provided in this
Agreement ends on a Saturday, Sunday, or legal holiday,the applicable period for calculating the
notice shall be extended to the first business day following the Saturday, Sunday, or legal
holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below.
The Parties may change the information set forth below by sending Notice of such changes to the
other Party as provided in this Section 9.01.
Development Agreement Page 32
To the City:
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: City Manager
FAX: (817) 392-6134
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Development Director
FAX: (817) 392-7985
To Owner:
Aperion Communities, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Atte: Gary Lane
FAX: (480) 951-8414
Eladio Properties, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
FAX: (480) 951-8414
Drooy Properties, LLLP
7835 East Redfield Road, Suite 100
Scottsdale,Arizona 85260
Attn: Gary Lane
FAX: (480)951-8414
9.02 Assignment.
(a) By Owner to the District. Owner has the right(from time to time after the
District Confirmation Date and without the consent of the City) to assign to the District those
portions of this Agreement concerning the provision of retail water and/or wastewater service to
the Development and any Infrastructure related thereto, including any obligation, right, title, or
interest of Owner under this Agreement. Each assignment shall be in writing in the form
attached hereto as Exhibit G, shall be executed by Owner and the District and shall obligate the
District to be bound by this Agreement to the extent this 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 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
Development Agreement Page 33
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 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
Party 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 Agreement.
(b) By Owner to Successor Owners. Owner has the right (from time to time
without the consent of the City, but upon written Notice to the City) to assign this Agreement, in
whole or in part, and including any obligation, right, title, or interest of Owner under this
Agreement, to an Assignee that is an owner of any portion of the Development or will become
an owner of any portion of the Development within 15 days after the assignment (an
"Assignee'). Each assignment shall be in writing in the form attached hereto as Exhibit G, shall
be executed by Owner and the Assignee and shall obligate the Assignee to be bound by this
Agreement to the extent this 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 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 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 Assignees, including a copy
of each executed assignment and the Assignee's Notice information as required by this
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 Agreement, in whole or in part, and
including any obligation, right,title, or interest of Owner under this Agreement,to any person or
entity that is not an owner of any portion of the Development(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 G and shall obligate the Non-Owner Assignee to be bound by this
Agreement to the extent this 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 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
Development Agreement Page 34
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 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 Agreement, in whole or in part,
and including any obligation, right, title, or interest of the City under this 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 Agreement for the benefit of
their respective Lenders without the consent of, but with prompt written Notice to, the City. The
collateral assignment, pledge, grant of lien or security interest, or other encumbrance shall not,
however, obligate any Lender to perform any obligations or incur any liability under this
Agreement: (a) unless the Lender agrees in writing to perform such obligations or incur such
liability; or (b)unless the Lender becomes an Assignee pursuant to this Section 9.03. A Lender
becomes an Assignee with respect to any portion of the Development only when: (a) the Lender
holds fee simple title to such portion of the Development for more than one year; or(b)holds fee
simple title to such portion of the Development and takes any action to develop such portion of
the Development (excluding action ordinarily and customarily taken by lenders to protect the
value of unimproved land and to prepare such unimproved land for sale to prospective
purchasers). Notwithstanding the foregoing, however, this Agreement shall continue to bind the
Development 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 Development shall be
bound by this Agreement and shall not be entitled to the rights and benefits of this Agreement
with respect to the acquired portion of the Development until all defaults under this Agreement
with respect to the acquired portion of the Development 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 Agreement, and all
amendments to this Agreement, in the Real Property Records of Denton County, Texas, and shall
provide a file-marked copy of the recorded Agreement to the Development Director within ten
(10) days after its execution. This Agreement shall be binding upon the Development, the
City, Owner, any Lender that has become an Assignee, and any other Assignee, and their
respective successors and assigns, Builders in accordance with Section 2.21 and
Contractors in accordance with Section 3.08 for the term of this Agreement. The Parties
agree that this Agreement benefits and burdens the Development and touches and concerns the
Development. The rights and obligations under this Agreement are intended to be covenants
Development Agreement Page 35
running with the Development. Notwithstanding the foregoing, this Agreement is not binding
upon, and shall not constitute any encumbrance to title as to any Lot Owner except as follows:
during the term of this Agreement, each Lot Owner is bound by the following: (i) the applicable
definitions contained in Article I of this Agreement; (ii) the Subdivision Regulations; (iii) the
Gas Drilling Ordinance; (iv) the Building Codes; (vi) Articles II, IV, V, VI, and VII of this
Agreement; and(v) Sections 9.01, 9.04, 9.07 and 9.09 of this Agreement.
9.05 No Waiver. Any failure by a Parry to insist upon strict performance by the other
Parry of any material provision of this 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 Agreement. No provision of this Agreement may be waived except by writing
signed by the Parry waiving such provision. Any waiver shall be limited to the specific purposes
for which it is given. No waiver by any Parry hereto of any term or condition of this Agreement
shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver
of the same term or condition.
9.06 Reservation of Rights and Claims. This Agreement constitutes a "permit" as
defined in Chapter 245, Texas Local Government Code, as amended, that is deemed filed with
the City on the Effective Date. Except as expressly provided in this Agreement, Owner does not,
by entering into this Agreement, waive any rights arising under Chapter 245, as amended, or
under Chapter 43 of the Local Government Code, as amended, or under any other provision of
law.
9.07 Governing Law and Venue. THIS AGREEMENT MUST BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY TO
CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO ANY
CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES ACKNOWLEDGE
THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS, AND HEREBY SUBMIT
TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, TEXAS, AND HEREBY AGREE
THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY
DISPUTE ARISING HEREUNDER.
9.08 Performance Requirements; Force Majeure. Time is of the essence in the
performance by the Parties of their respective obligations under this 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 Parry, 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 Agreement are severable and, in the event
any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held or determined to be
invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or
unenforceability does not cause substantial deviation from the underlying intent of the parties as
expressed in this Agreement, then such provision shall be deemed severed from this Agreement
Development Agreement Page 36
with respect to such person, entity or circumstance, without invalidating the remainder of this
Agreement or the application of such provision to other persons, entities or circumstances, and a
new provision shall be deemed substituted in lieu of the provision so severed which new
provision shall, to the extent possible, accomplish the intent of the Parties evidenced by the
provision so severed.
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 Agreement, the Parties will
cooperate to amend this Agreement in such a manner that is most consistent with the original
intent of this Agreement as legally possible.
9.11 Additional Documents and Acts. The Parties agree that at any time after
execution of this Agreement,they will, upon request of the other Party, execute and/or exchange
any other documents necessary to effectuate the terms of this Agreement and perform any further
acts or things as the other Party may reasonably request to effectuate the terms of this
Agreement. Without limiting the foregoing, the Parties agree to substitute one or more revised
Exhibit Ds following approval of a final plat for all or any portion of the Development and to
substitute Exhibit C and Exhibit D if the Development Plan is amended pursuant to Section 2.12.
9.12 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
9.13 Amendment. This 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 Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments or exhibits hereto. As used in this
Agreement, the term "including" means "including without limitation" and the term "days"
means calendar days, not business days. Wherever required by the context, the singular shall
include the plural, and the plural shall include the singular. Each defined term herein may be
used in its singular or plural form whether or not so defined.
9.15 No Third Party Beneficiaries. This Agreement is solely for the benefit of the City
and Owner, and neither the City nor Owner intends by any provision of this Agreement to create
any rights in any third-party beneficiaries or to confer any benefit or enforceable rights under this
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
Agreement.
9.16 Authority to Execute. The City warrants that this Agreement has been approved
by the City Council in accordance with all applicable public meeting and public notice
requirements (including, but not limited to, notices required by the Texas Open Meetings Act)
and that the individual executing this Agreement on behalf of the City has been authorized to do
so. Each Owner warrants that the execution of this Agreement is duly authorized in conformity
with the articles of incorporation, bylaws, partnership agreement or other applicable
Development Agreement Page 37
organizational documents of each Owner and that the individual executing this Agreement on
behalf of such Owner has been authorized to do so. Each Assignee or Lender who becomes a
Party to this Agreement represents and warrants that this Agreement has been approved by
appropriate action of such Assignee or Lender and that the individual executing this Agreement
on behalf of such Assignee or Lender has been authorized to do so.
9.17 Exhibits. All exhibits attached to this Agreement are incorporated as part of this
Agreement for the purposes set forth herein, as follows:
Exhibit A Map of Tradition
Exhibit B Legal description of the Development
Exhibit C Development Plan for the Development
Exhibit D Legal descriptions of 14 tracts shown on Development Plan
Exhibit E Special Regulations
Exhibit F Table of Permitted Uses
Exhibit G 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
Private Real Property Rights Act, Texas Government Code Chapter 2007, as it may apply to this
Agreement or the Development.
9.19 Conspicuous Provisions. The Parties acknowledge that the provisions of this
Agreement set out in bold, CAPITALS (or any combination thereof) satisfy the requirements for
the express negligence rule and/or are conspicuous.
9.20 Counterpart Originals. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original.
ATTEST: CITY OF FORT WORTH
By:
Marty Hendrix, City Secretary Marc Ott,Assistant City Manager
Date:
APPROVED AS TO FORM AND
LEGALITY:
Assistant City Attorney
Development Agreement Page 38
APERION COMMUNITIES, LLLP, an
Arizona limited liability limited partnership.
By:
David P. Maniatis, General Partner
Date:
ELADIO PROPERTIES, LLLP, an
Arizona limited liability limited partnership.
By:
David P. Maniatis, General Partner
Date:
DROOY PROPERTIES,LLLP, an
Arizona limited liability limited partnership.
By:
David P. Maniatis, General Partner
Date:
APPROVED BY DENTON COUNTY
COMMISSIONERS COURT
By:
Title:
h
Date:
Development Agreement Page 39
STATE OF TEXAS §
COUNTY OF T §
This instrume acknowledged before me, on the_day of , 2005,
by Marc Ott, Assistari Manager of the City of Fort Worth, Texas on behalf of said City.
Notary Public, State of Texas
Printed Name:
My Commission Expires:
STATE OF §
COUNTY OF §
This instrument was acknowledged before me on 2005, by David P.
Maniatis, General Partner for Aperion Communities, LLLP, an Arizona limited liability limited
partnership, on beHalf of said limited partnership.
Notary Public in and for the State of
Printed Name:
My Commission Expires:
Development Agreement Page 40
STATE OF §
COUNTY OF §
This instrument was acknowledged before me on _, 2005, by David P.
Maniatis, General Partner for Eladio Properties, LLLP, an Arizona limited liability limited
partnership, on behalf of said limited partnership.
Notary Public in and for the State of
Printed Name:
My Commission Expires:
STATE OF §
COUNTY OF §
This instrument was acknowledged before me on 2005, by David P.
Maniatis, General Partner for DROOY Properties, LLLP, an Arizona limited liability limited
partnership, on behalf of said limited partnership.
Notary Public in and for the State of
Printed Name:
My Commission Expires:
Development Agreement Page 41
STATE OF TEXAS §
COUNTY OF DENTON §
This instrOnent was acknowledged before me, on the,day of ,2005,
by of Denton County, Texas, on behalf of
said County.
Notary Public, State of Texas
Printed Name:
My Commission Expires:
Development Agreement Page 42
Exhibit A
Depiction of the Development and Tradition
Exhibit A to
Development Agreement Page 1
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Exhibit B
Legal Description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT (Aperion Tract One-A and Aperion Tract One-B) and a portion of that tract conveyed
to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
TRACT ONE
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N 00°32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8" iron pin found;
THENCE N 89039'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N 00°22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 86°14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52°34'22"E, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44°08'03"E, a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65°58'36" E, a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90°00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped 1/2"
iron pin set also being on the east line of said Aperion Tract One-A and the west line of that tract
conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
THENCE S 00007'20" E along the east line of said Aperion Tract One-A and the west line of
Exhibit B to
Development Agreement Page 1
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT;
THENCE S 44123'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8" iron pin found;
I Et4CE N 47°15'51" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8" iron pin found;
THENCE S 44°2742" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison,Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No. 114;
THENCE S 89047'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No. 114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84030'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No. 114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89°48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No. 114,a distance of 1249.97 feet to a capped 1/2"iron pin set;
THENCE N 0091'12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No. 114,a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 8904848" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No. 114, a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S 00°11'12" E along the south line of said Aperion Tract One-A and the north right-of-
way line of State Highway No. 114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89048'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No. 114, a distance of 238.28 feet to the Point of Beginning and
containing 16,728,840 square feet or 384.041 acres of land,more or less.
Exhibit B to
Development Agreement Page 2
TRACT 2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
way line of State Highway No. 114, said brass monument also being on the west line of a tract
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
THENCE S 89°46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No. 114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86°29'44" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No. 114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44°26'31" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S 00007'09" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit B to
Development Agreement 1 i.] is a„„am�u Page 3
CS 2�R,2Y
Exhibit C
Development Plan
I
Exhibit C to M Page 1
Development Agreement
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Exhibit D
Legal Description of 14 Tracts
Tract 1
BEING a 12.245 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778,Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), and being more particularly described as follows:
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 534.24 feet to a point;
THENCE N 89E27'24"E,a distance of 337.96 feet to a point;
THENCE N OOE32'36" W,a distance of 409.30 feet to a point;
THENCE N 88E27'04" E, a distance of 110.71 feet to a point, said point also being the Point of
Curvature of a circular curve to the right having a radius of 400.00 feet, a central angle of
26E50'42" and being subtended by a chord which bears S 78EO7'35" E, 185.70 feet;
THENCE along said curve to the right, a distance of 187.41 feet to a point;
THENCE S 64E42'14" E tangent to said curve, a distance of 147.91 feet to a point, said point
also being the Point of Curvature of a non-tangent circular curve to the left having a radius of
1255.00 feet, a central angle of 15E55'19" and being subtended by a chord which bears S
07E25'03" W, 347.63 feet;
THENCE along said curve to the left, a distance of 348.75 feet to a point;
THENCE S OOE32'36" E tangent to said curve, a distance of 501.25 feet to a point, said point
also being on the said proposed north right-of-way line of State Highway No.114;
THENCE S 89E48'48" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 226.72 feet to a capped 1/2" iron pin set;
THENCE N OOE11'12" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the said proposed north right-of-way line of State Highway No.
114 , a distance of 250.00 feet to a capped 1/2" iron pin set;
Exhibit D to
Development Agreement Page 1
THENCE S OOE11'12" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2"iron pin set;
THENCE S 89E49'48" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 238.28 feet to the Point of Beginning and containing 533,394 square feet or
12.245 acres of land,more or less.
Tract 2
BEING a 11.302 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 534.24 feet to the Point of Beginning of the
herein described tract;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 745.61 feet to a point;
THENCE N 89E2724"E,a distance of 58.46 feet to a point;
THENCE N 60E49'43" E,a distance of 68.36 feet to a point;
THENCE N 89E2724" E, a distance of 217.00 feet to a point;
THENCE N OOE32'36" W, a distance of 135.00 feet to a point;
THENCE N 89E27'24" E, a distance of 32.60 feet to a point, said point also being the Point of
Curvature of a circular curve to the right having a radius of 470.00 feet, a central angle of
34E06'03" and being subtended by a chord which bears S 73E29'35" E,275.62 feet;
THENCE along said curve to the right, a distance of 279.73 feet to a point;
THENCE S 56E26'33" E tangent to said curve, a distance of 341.40 feet to a point, said point
also being the Point of Curvature of a non-tangent circular curve to the left having a radius of
1255.00 feet, a central angle of 16E48'33" and being subtended by a chord which bears S
23E46'59" W, 366.87 feet;
Exhibit D to
Development Agreement Page 2
THENCE along said curve to the left, a distance of 368.19 feet to a point;
THENCE N 64E42'14" W, a distance of 147.91 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 400.00 feet, a central angle of
26E50'42" and being subtended by a chord which bears N 78E07'35" W, 185.70feet;
THENCE along said curve to the left, a distance of 187.41 feet to a point;
THENCE S 88E27'04" W tangent to said curve, a distance of 110.71 feet to a point;
THENCE S OOE32'36" E, a distance of 409.30 feet to a point;
THENCE S 89E2724" W, a distance of 337.96 feet to the Point of Beginning and containing
492,326 square feet or 11.302 acres of land,more or less.
Tract 3
BEING a 30.414 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed
recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B) and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 238.28 feet to a capped 1/2" iron pin set;
THENCE N OOE1112" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/21' iron pin set;
THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOE11'12" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 226.72 feet to the Point of Beginning of the herein described tract;
THENCE N OOE32'36" W departing the said proposed north right-of-way line of State Highway
No.114, a distance of 501.25 feet to a point, said point also being the Point of Curvature of a
Exhibit D to
Development Agreement Page 3
circular curve to the right having a radius of 1255.00 feet, a central angle of 44E41'36" and being
subtended by a chord which bears N 21E48'l2" E , 954.33 feet;
T MNCE along said curve to the right, a distance of 978.96 feet to a point;
THENCE N 44E09'00" E tangent to said curve, a distance of 440.50 feet to a point;
THENCE S 45E5 POO" E, a distance of 173.53 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 122.50 feet, a central angle of
44E35'59" and being subtended by a chord which bears S 68E08'59" E, 92.97feet;
THENCE along said curve to the left, a distance of 95.36 feet to a point;
THENCE N 89E33'01" E tangent to said curve, a distance of 276.39 feet to a point;
THENCE S OOE26`59"E,a distance of 768.50 feet to a point;
THENCE S 89E33'O1" W,a distance of 208.99 feet to a point;
THENCE N 42E37'00" W, a distance of 35.75 feet to a point;
THENCE S 89E33'01" W, a distance of 92.01 feet to a point;
THENCE S OOE26'59" E, a distance of 476.50 feet to a point;
THENCE S 89E33'01" W, a distance of 140.19 feet to a point;
THENCE S OOE24'36" E,a distance of 50.00 feet to a point;
THENCE S 89E33'01" W, a distance of 60.58 feet to a point;
THENCE S OOE32`36" E, a distance of 275.42 feet to a point, said point also being on the
proposed north right-of-way line of State Highway No. 114;
THENCE S 89E48`48" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 630.48 feet to the Point of Beginning and containing 1,324,829 square feet
or 30.414 acres of land, more or less.
Tract 4
BEING a 4.207 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed
recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B)and being more particularly described as follows:
Exhibit D to
Development Agreement Page 4
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 1692.60 feet to a point; THENCE N
89E27'24" E departing the said west line of said Alliance 161 Investments tract and the said east
line of said McIntyre tract, a distance of 1387.64 feet to the Point of Beginning of the herein
described tract;
THENCE N 44E09'00" E, a distance of 692.11 feet to a point;
THENCE S OOE26'59" E, a distance of 649.92 feet to a point;
THENCE S 89E33'01" W, a distance of 276.39 feet to a point; said point also being the Point of
Curvature of a circular curve to the right having a radius of 122.50 feet, a central angle of
44E35'59" and being subtended by a chord which bears N 68EO8'59" W, 92.97 feet;
THENCE along said curve to the right, a distance of 95.36 feet to a point;
THENCE N 45E51'00" W tangent to said curve, a distance of 173.53 feet to the Point of
Beginning and containing 183,265 square feet or 4.207 acres of land,more or less.
Tract 5
BEING a 18.269 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 23 8.2 8 feet to a capped 1/2"iron pin set;
THENCE N OOE11'l2" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2"iron pin set;
THENCE N 89E4848" E along the said proposed north right-of-way line of State Highway
No.114 , a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOEI1'12" E along the said proposed north right-of-way line of State Highway
Exhibit D to
Development Agreement Page 5
No.114,a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE N 89E4848" E along the said proposed north right-of-way line of State Highway
No.114,a distance of 226.72 feet to a point;
THENCE N OOE32'36" W departing the said proposed north right-of-way line of State Highway
No.114, a distance of 501.25 feet to a point, said point also being the Point of Curvature of a
circular curve to the right having a radius of 1255.00 feet, a central angle of 32E43'52" and being
subtended by a chord which bears N 15E49'20" E , 707.23 feet;
THENCE along said curve to the right, a distance of 716.94 feet to the Point of Beginning of the
herein described tract;
THENCE N 56E26'33" W, a distance of 341.40 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 470.00 feet, a central angle of
34E06'03" and being subtended by a chord which bears N 73E29'35"W,275.62 feet;
THENCE along said curve to the left, a distance of 279.73 feet to a point;
THENCE S 89E2724" W tangent to said curve, a distance of 32.60 feet to a point;
THENCE N OOE32'36" W, a distance of 537.12 feet to a point, said point also being the Point of
Curvature of a circular curve to the right having a radius of 668.00 feet, a central angle of
45E28'14" and being subtended by a chord which bears N 22EI 1'31" E, 516.33 feet;
THENCE along said curve to the right, a distance of 530.13 feet to a point;
THENCE N 43E51'21" E, a distance of 53.48 feet to a point;
THENCE S 45E51'00" E,a distance of 1146.77 feet to a point;
THENCE S 44E09'00" W, a distance of 440.50 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 1255.00 feet, a central angle of
I IE57'44" and being subtended by a chord which bears S 38E10'08" W, 261.54 feet;
THENCE along said curve to the left, a distance of 262.02 feet to the Point of Beginning and
containing 795,805 square feet or 18.269 acres of land,more or less.
Tract 6
BEING a 20.871 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778,Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
Exhibit D to
Development Agreement Page 6
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 1279.85 feet to the Point of Beginning of the
herein described tract;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 2122.47 feet to a point;
THENCE S 67E393I" E, a distance of 130.13 feet to a point;
THENCE S 45E05'09"E, a distance of 646.65 feet to a point;
THENCE N 44E55'38" E, a distance of 160.00 feet to a point;
THENCE S 45E04'22" E, a distance of 278.50 feet to a point;
THENCE S 44E48'36" W, a distance of 488.90 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 668.00 feet, a central angle of
45E28'14" and being subtended by a chord which bears S 22E11'31" W, 516.33 feet;
THENCE along said curve to the left, a distance of 530.13 feet to a point;
THENCE S OOE3236" E tangent to said curve, a distance of 672.12 feet to a point;
THENCE S 89E27'24" W,a distance of 217.00 feet to a point;
THENCE S 60E49'43" W, a distance of 68.36 feet to a point;
THENCE S 89E27'24" W, a distance of 58.46 feet to the Point of Beginning and containing
909,134 square feet or 20.871 acres of land,more or less.
Tract 7
BEING a 17.770 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County,Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778,Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed
recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B) and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
Exhibit D to
Development Agreement Page 7
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 1692.60 feet to a point;
THENCE N 89E27'24" E departing the said west line of said Alliance 161 Investments tract and
the said east line of said McIntyre tract, a distance of 1387.64 feet to the Point of Beginning of
the herein described tract;
THENCE N 45E51'00" W,a distance of 1146.77 feet to a point;
THENCE N 44E5538" E, a distance of 677.98 feet to a point;
THENCE S 45E49'44" E, a distance of 1137.58 feet to a point;
THENCE S 44E09'00" W, a distance of 677.50 feet to the Point of Beginning and containing
774,062 square feet or 17.770 acres of land,more or less.
Tract 8
BEING a 36.870 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778,Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed
recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B) and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 3402.32 feet to the Point of Beginning of the
herein described tract;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 298.92 feet to a 1/2" iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and a south
line of said McIntyre tract, a distance of 1876.89 feet to a point;
THENCE S OOE26'59" E,a distance of 1509.76 feet to a point;
THENCE S 44E09'00" W, a distance of 14.61 feet to a point;
THENCE N 45E49'44" W, a distance of 1137.58 feet to a point;
Exhibit D to
Development Agreement Page 8
THENCE S 44E55'3 8" W,a distance of 242.56 feet to a point;
THENCE N 45E0472" W, a distance of 278.50 feet to a point;
THENCE S 44E55'38" W,a distance of 160.00 feet to a point;
THENCE N 45E05'09" W, a distance of 646.65 feet to a point;
THENCE N 67E39'31" W, a distance of 130.13 feet to the Point of Beginning and containing
1,606,055 square feet or 36.870 acres of land,more or less.
Tract 9
BEING a 15.160 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et
al,by deed recorded in Volume 2301, Page 223 of the Real Property Records of Denton County,
Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by
deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B)and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract
conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 RPRDCT,
said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by
deed recorded in Volume 2906, Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 2184.61 feet to a point;
THENCE N 89E27'24" E departing the said west line of said Alliance 161 Investments tract and
the said east line of said McIntyre tract, a distance of 1874.41 feet to the Point of Beginning of
the herein described tract;
THENCE N OOE26'59" W, a distance of 1355.71 feet to a point, said point also being the Point
of Curvature of a non-tangent circular curve to the right having a radius of 720.00 feet, a central
angle of 4E05'21" and being subtended by a chord which bears N 87E34'36" E, 51.37 feet;
THENCE along said curve to the right, a distance of 51.39 feet to a point;
THENCE N 89E37'16" E tangent to said curve, a distance of 685.93 feet to a point, said point
also being the Point of Curvature of a non-tangent circular curve to the right having a radius of
1800.00 feet, a central angle of 40E1911" and being subtended by a chord which bears S
23E59'25" W, 1240.70 feet;
THENCE along said curve to the right,a distance of 1266.68 feet to a point;
Exhibit D to
Development Agreement Page 9
THENCE S 44E09'00" W tangent to said curve, a distance of 318.95 feet to the Point of
Beginning and containing 660,385 square feet or 15.160 acres of land,more or less.
Tract 10
BEING a 23.220 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et
al, by deed recorded in Volume 2301, Page 223 of the Real Properly Records of Denton County,
Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by
deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B)and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract
conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 RPRDCT,
said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by
deed recorded in Volume 2906, Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 3701.24 feet; THENCE N 89E39'48" E along
the north line of said Alliance 161 Investments tract and a south line of said McIntyre tract, a
distance of 1826.89 feet to the Point of Beginning of the herein described tract;
THENCE N OOE22'44" W,a distance of 1294.80 feet to a point;
THENCE S 86E14'27"E, a distance of 222.13 feet to a point;
THENCE S 52E34'22" E, a distance of 797.46 feet to a point, said point also being the Point of
Curvature of a non-tangent circular curve to the left having a radius of 1565.00 feet, a central
angle of 15E36'58" and being subtended by a chord which bears S 07E32'15" W,425.23 feet;
THENCE along said curve to the left,a distance of 426.55 feet to a point;
THENCE S OOE16'14" E tangent to said curve, a distance of 392.30 feet to a point, said point
also being the Point of Curvature of a circular curve to the right having a radius of 1800.00 feet,
a central angle of 4E06'03" and being subtended by a chord which bears S 01134648" W, 128.81
feet;
THENCE along said curve to the right, a distance of 128.84 feet to a point;
THENCE S 89133Tl6" W, a distance of 685.93 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 720.00 feet, a central angle of
41305'21" and being subtended by a chord which bears S 87E34'36"W, 51.37 feet;
THENCE along said curve to the left, a distance of 51.39 feet;
Exhibit D to
Development Agreement Page 10
� 'l� K QY
THENCE N OOE26'59" W, a distance of 154.05 feet to a point;
THENCE S 89E39'59" W, a distance of 50.00 feet to the Point of Beginning and containing
1,011,458 square feet or 23.220 acres of land,more or less.
Tract I 1
BEING a 60.972 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et
al,by deed recorded in Volume 2301,Page 223 of the Real Property Records of Denton County,
Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by
deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B)and being more particularly described as follows:
COMvIENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract
conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 RPRDCT,
said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by
deed recorded in Volume 2906, Page 363 RPRDCT;
TIENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 2484.76 feet to a point;
THENCE N 89E27'24" E departing the said west line of said Alliance 161 Investments tract and
the said east line of said McIntyre tract, a distance of 2167.41 feet to the Point of Beginning of
the herein described tract, said Point of Beginning also being the Point of Curvature of a circular
curve to the left having a radius of 1800.00 feet, a central angle of 41E13'12" and being
subtended by a chord which bears N 20E20'22" E, 1267.22 feet;
THENCE along said curve to the left,a distance of 1294.97 feet to a point;
THENCE N OOE16'14" W tangent to said curve, a distance of 392.30 feet to a point,said point
also being the Point of Curvature of a circular curve to the right having a radius of 1565.00 feet,.
a central angle of 15E36'58" and being subtended by a chord which bears N 07E32'15"E, 425.23
feet;
THENCE along said curve to the right, a distance of 426.55 feet to a point;
THENCE S 52E3422" E, a distance of 70.40 feet to a point;
THENCE S 44E08'03"E, a distance of 999.82 feet to a point;
THENCE S 65E58'36" E, a distance of 455.31 feet to a point;
THENCE S 44E23'02" W, a distance of 1146.43 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 222.50 feet, a central angle of
Exhibit D to
Development Agreement Page I I
7E3519" and being subtended by a chord which bears S 40E35'22" W,29.45 feet;
THENCE along said curve to the left, a distance of 29.47 feet to a point;
THENCE S 45E32'18" E, a distance of 560.55 feet to a point;
THENCE S 44E23'02" W, a distance of 147.72 feet to a point;
THENCE S 45E36'58" E, a distance of 165.03 feet to a point;
THENCE N 44E27'42" E, a distance of 608.50 feet to a point,
THENCE S 45E32'1 8" E, a distance of 964.15 feet to a point;
THENCE S 44E23'02" W, a distance of 607.74 feet to a point;
THENCE N 45E36'58" W, a distance of 562.54 feet to a point;
THENCE S 44E27'42" W, a distance of 157.50 feet to a point;
THENCE N 45E32'18" W, a distance of 402.44 feet to a point;
THENCE S 44E27'42" W, a distance of 152.50 feet to a point;
THENCE N 45E32-18" W,a distance of 107.50 feet to a point;
THENCE S 44E27'42" W, a distance of 285.00 feet to a point;
THENCE N 45E32'18" W, a distance of 1068.41 feet to the Point of Beginning and containing
2,655,946 square feet or 60.972 acres of land, more or less.
Tract 12
BEING a 49.290 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et
al, by deed recorded in Volume 2301,Page 223 of the Real Property Records of Denton County,
Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by
deed recorded under County Clerk's File No. 200411913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B)and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract
conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 RPRDCT,
said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by
deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N OOE32'36" W along the said
west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a
Exhibit D to
Development Agreement Page 12
distance of 1822.30 feet to a point; THENCE N 89E27'24" E departing the said west line of said
Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 4531.61
feet to a point on the westerly right-of-way line of the Atchison, Topeka and Santa Fe Railway
Company, said point also being the Point of Beginning of the herein described tract;
THENCE N 45E32'18" W, a distance of 964.15 feet to a point;
THENCE S 44E27'42" W, a distance of 608.50 feet to a point;
THENCE N 45E36'58" W, a distance of 165.03 feet to a point;
THENCE N 44E23102" E, a distance of 147.72 feet to a point;
THENCE N 45E32'18" W, a distance of 560.55 feet to a point, said point also being the Point of
Curvature of a circular curve to the right having a radius of 222.50 feet, a central angle of
7E35'19" and being subtended by a chord which bears N 40E3522" E,29.45 feet;
THENCE along said curve to the right,a distance of 29.47 feet to a point;
THENCE N 44E23'02" E tangent to said curve, a distance of 1146.43 feet to a point;
THENCE S 65E58'36" E, a distance of 574.61 feet to a point;
THENCE S 90E00'00" E, a distance of 773.31 feet to a point;
THENCE S OOE07'20" E, a distance of 857.55 feet to a point;
THENCE S 44E23'02" W, a distance of 846.34 feet to the Point of Beginning and containing
2,147,059 square feet or 49.290 acres of land,more or less.
Tract 13
BEING a 83.456 acre tract of land in the G. Cardinas Survey,Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778,Page 958 of the Real Property Records of Denton County,Texas
(RPRDCT)and a portion of those tracts conveyed to Aperion Communities,L.L.L.P.by deed
recorded under County Clerk's File No. 2004-11913 RPRDCT(Aperion Tract One-A and
Aperion Tract One-B) and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre,et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 238.28 feet to a capped 1/2" iron pin set;
Exhibit D to
Development Agreement Page 13
THENCE N OOE 11'12" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE N 89E48'48"E along the said proposed north right-of-way line of State Highway
No.114 , a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOE 11'12" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE N 89E48'48"E along the said proposed north right-of-way line of State Highway
No.114, a distance of 857.21 feet to the Point of Beginning of the herein described tract;
THENCE N OOE32'36" W, a distance of 275.42 feet to a point;
THENCE N 89E33'01"E, a distance of 60.58 feet to a point;
THENCE N OOE24'36" W,a distance of 50.00 feet to a point;
THENCE N 89E33'01" E, a distance of 140.19 feet to a point;
THENCE N OOE26'59" W,a distance of 476.50 feet to a point;
THENCE N 89E33'01"E,a distance of 92.01 feet to a point;
THENCE S 42E37'00"E, a distance of 35.75 feet to a point;
THENCE N 89E33'01" E,a distance of 208.99 feet to a point;
THENCE N OOE26'59" W, a distance of 1418.42 feet to a point;
THENCE N 44E09'00" E,a distance of 318.95 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 1800.00 feet, a central angle of
3E12'02" and being subtended by a chord which bears N 42E32'59"E, 100.53 feet;
THENCE along said curve to the left, a distance of 100.55 feet to a point;
THENCE S 45E32'18" E,a distance of 1068.41 feet to a point;
THENCE N 44E2742" E, a distance of 285.00 feet to a point;
THENCE S 45E32'18" E,a distance of 107.50 feet to a point;
THENCE N 44E27'42" E,a distance of 152.50 feet to a point;
THENCE S 45E32'1 8" E,a distance of 402.44 feet to a point;
Exhibit D to
Development Agreement Page 14
THENCE N 44E27'42"E, a distance of 157.50 feet to a point;
THENCE S 45E36'58" E, a distance of 562.54 feet to a point;
THENCE S 44E23'02" W,a distance of 802.06 feet to a point;
THENCE N 47E 15'51" W, a distance of 24.73 feet to a point;
THENCE S 44E2742" W, a distance of 1121.43 feet to a point;
THENCE S 89E4736" W, a distance of 286.33 feet to a point;
THENCE S 84E30'09" W, a distance of 703.04 feet to a point;
THENCE S 89E4848" W, a distance of 392.76 feet to the Point of Beginning and containing
3,635,339 square feet or 83.456 acres of land,more or less.
Tract 14
BEING Tract 2 of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded
under County Clerk's File No. 2004-11913 of the Real Property Records of Denton County,
Texas (RPRDCT) and being more particularly described as follows:
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract 2, said brass monument also being on the north right-of-way line
of State Highway No. 114, said brass monument also being on the west line of a tract conveyed
to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT;
THENCE S 89E4648" W along the south line of said Aperion Tract 2 and the north right-of-way
line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found;
THENCE N 86E2944" W along the south line of said Aperion Tract 2 and the north right-of-
way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-ROO20408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract 2 and the southeasterly line
of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a
5/8" iron pin found, said iron pin also being on the west tine of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract 2 and the west line of said
Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit D to
Development Agreement Page 15
Exhibit E
Special Regulations
A. Street, Right-of-Way, and Sidewalk Widths
1. Any portion of a local residential street that abuts a park with an area of .5 acre or greater
shall be a 29-foot back-to-back section in a 42-foot right-of-way. Twenty (20) feet
adjacent to the right-of-way shall be reserved for a sidewalk within a public access
easement. The 7 feet of park area immediately adjacent to the right-of-way shall be
reserved for a utility easement. The sidewalk in the park area may be meandering or
linear. Where'sidewalks abut residential lots, sidewalks shall be physically connected in
accordance with the Americans with Disabilities Act. On all residential lots across from
park areas subject to this section, a 4-foot wide sidewalk shall be located within a 13-foot
wide parkway and shall be separated from the property line by 3 feet.
2. Local residential streets or any portion thereof that are not subject to A(1) shall be a 29-
foot back-to-back section, with a pair of 4-foot wide sidewalks separated from the
property line by 3 feet within a 13-foot wide parkway, all located in a 55-foot right-of-
way. No encroachments shall be allowed in the right-of-way between the sidewalk and
property line.
3. Collector residential streets shall be a 37-foot back-to-back section, with a pair of 5-foot
wide sidewalks separated from the street by 10-foot wide parkways. All will be located
in a 67-foot right-of-way.
4. Minor arterial streets shall contain two 28-foot back-to-back sections, divided by a 51-
foot median, with a 9-foot wide parkway all located within a 125-foot right-of-way. An
8-foot wide sidewalk shall meander within a 22.5-foot landscape buffer and public access
easement that is adjacent to either side of the 125-foot right-of-way.
5. Alleys shall be 12 feet wide and centered within a 15-foot right-of-way, except that those
alleys located adjacent to townhomes or commercial lots that require no minimum rear
yard setback shall be 18 feet wide within a 20-foot right-of-way.
6. All other streets shall be constructed in accordance with the requirements of the City of
Fort Worth.
B. Block Length ,
1. The minimum block length shall be 300 feet.
2. The maximum block length shall be 1,320 feet.
C. Minimum Street Centerline Off-Sets
The minimum street centerline off-set shall be 100 feet for a street that: (1) is located
within a right-of-way that is 67 feet wide or less; and (2) is adjacent to a park with an
area of at least .5 acre but less than 3 acres. For all other internal residential streets a
Exhibit E to
Development Agreement Page 1
minimum 125-foot centerline off-set shall be required. For all streets connecting to a
right-of-way greater than 67 feet a street centerline off-set of 150-feet shall be required.
Exhibit E to
Development Agreement page 2
Exhibit F
Table of Permitted Uses
C T M C O
o a 1 o a
M w z m e
M n e m
e b d ■ F
r o - a a
c a U i m
i c c t i
a e e y I
USES I / F y
C a
1 e
. c 1
e t
c
RESIDENTIAL USES
Cluster housing P P
Multifamily dwelling(apartment) P
One dwelling unit when part of a business P
Oie-family attached dwelling(townhouse,townhouse) P P
One-family detached dwelling P P LIE
PUBLIC AND CIVIC USES
Ambulance dispatch station P P P
Assisted living facility P P
Blood bank P P
Care facility P P P
Center,community recreation or welfare,government operated or P P P P P
controlled
Center,community recreation or welfare,private or non-profit P P P P
College or university P P
Country club (private) P P P P P
Day care center(6 or more children or adults) P P P
Electric power substation P P P
Golf course P P P P P
Golf driving range P P P P
Government maintenance facility P
Exhibit F to
Development Agreement Page 1
C T M C O
0 0 1 0 a
I W : m e
m a e m -
e h d a F
r 0 - a a
C a U i m
i s s t i
a e e y 1
USES t / F y
C a
1 e
u i
s 1
t [
C t
r i
e
s
Government office facility P P P P P
Health services facility,including doctor's office or medical clinic P P P
Hospice P P P P P
Hospital P P P
Kindergarten P P P
Museum,library,or fine arts center,government operated or P P P P P
controlled
Neighborhood recreation center P P P P
Nursing home(with full medical services) P P P
Park or playground P P P P
Place of worship P P P P P
School,elementary or secondary(public or private) P P P P P
Stealth telecommunication towers P P
Telecommunication antenna(on structure) P P P P P
Water supply,treatment or storage facility P P P P P
TEMPORARY USES
Batch plant,concrete or asphalt(temporary) P P P P P
Garage or other occasional sale P P P
Model home P P P
Trailer,(portable)used for sales,construction or storage P P P P P
COMMERCIAL USES
Amusement,indoor P P
Amusement,outdoor P P
Exhibit F to
Development Agreement Page 2
C T Ari C O
0a 1 o a
I W : m e
m n e m -
e h d a F
r 0 - a a
C n U i m
i c c t i
a e e y 1
USES I / F y
C a
1 e
e )
c 1
t i
e t
r 1
e
c
Antique shop P P
Appliance,sales,supply or repair P P
Auto parts supply,retail P P
Automotive repair,paint and body shop P
Bakery P P
Bank,financial institution P P
Bar,tavern,cocktail lounge,club P P
Barber or beauty shop P P
Baseball/softball facility(commercial) P
Boat rental or sales P
Book,stationary stores or newsstand P P
Bowling alley P
Burglar alarm sales or service P
Business college or commercial school P P
Car wash,full or self service P
Caterer or wedding service P P
Clothing/wearing apparel sales,new P P
Clothing/wearing apparel sales,used P P
Club,commercial or business P P
Cold storage plant or ice plant P
Convenience store P P
Copy store or commercial print center without off-set printing P P
Dressmaking,custom,millinery shop P P
Drive-in restaurant or business P P
Exhibit F to
Development Agreement Page 3
C T M C O
0 a 1 o ■
I w I m e
M a e m -
e h d o F
r 0 - o
s v U i m
i t i
a e e y 1
USES 1 / F y
C a
1 e
a i
e 1
t i
e t
r i
e
5
Express office P P
Feed store P
Firewood sales P P
Furniture sales,new(office and residential)in a building P P
Furniture upholstery,refinishing or resale P P
Garage,storage only P
Gasoline sales P P
General merchandise store P P
Greenhouse or plant nursery P P
Grocery store,meat market P P
Gunsmithing,repairs or sales P
Health or recreation club P P
Home improvement store P P
Hotel,motel or inn P P
Interior decorating P P
Large retail store(big box retail) P P
Laundry or dry cleaning collection office P P
Laundry,dry cleaning or washateria P P
Leather goods shop P P
Liquor or package store P P
Locksmith P P
Lodge or civic club P P
Massage therapy P P
Medical supplies or equipment sales or rental P P P
Exhibit F to
Development Agreement Page 4
C T M C O
0 o f o a
m w : m e
M o e m
e h d a F
r o - e a
C o U f m
i c c t i
a e e y i
USES I / F y
C a
1 c
a i
c I
t i
e t
r f
e
c
Mortuary or funeral home P P
Museum or cultural facility P P P
Newspaper distribution center P
Offices P P P
Optician P P
Parking area or garage,commercial P P
Pharmacy(drug store) P P
Photograph,portrait or camera shop or photo finishing P P
Print centers,commercial,with offset printing P P
Recording studio P P
Restaurant,cafd,cafeteria P P
Retail sales,general P P
Saddle or harness,repair or sales P P
Service station P
Shoe shine shop P P
Studio,art or photography P P
Swimming pool,commercial P P
Tailor,clothing or apparel shop P P
Taxidermist shop P P
Theater,movie theater or auditorium P P
Vehicle sales or rental;including automobiles,motorcycles,boats or P
trailers
Veterinary clinic with indoor kennels P P
INDUSTRIAL USES
Exhibit F to
Development Agreement Page 5
C T M C O
0 0 i 0 a
I w i m e
M a e m
e h d n F
r 0 - a a
t a U I m
I c c t I
a e e y I
USES t / F y
C a
1 e
e I
c 1
t I
et
r i
e
6
Passenger station P P
Exhibit F to
Development Agreement Page 6
Exhibit G
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT("Assignment") is made and
entered into as of the day of between
a ("Assignor'), and
a ("AssIoee")
(Assignor and Assignee are hereinafter sometimes collectively referred to as the "Parties" and
singularly as a"Party').
RECITALS:
A. Assignor is the owner of the rights of the Owner under that certain"Development
Agreement" (City Secretary Contract No. 32897, M & C — C-21198) (the "Agreement')
effective as of December 21, 2005, between Aperion Communities, LLLP, Eladio Properties,
LLLP, and Drooy Properties, LLLP, collectively and individually as Owner, and the City of Fort
Worth,Texas, as the City,relating to the development of the Development(as described therein),
to the extent that the Agreement covers, affects, and relates to the lands described on Exhibit A
attached to and made a part hereof of this Assignment for all purposes (the "Transferred
Premises").
B. Assignor desires to assign certain of its rights under the Agreement as it relates to
the Transferred Premises to Assignee, and Assignee desires to acquire such rights, on and subject
to the terms and conditions of this Assignment.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
obligations set forth herein, and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged,the Parties hereby agree and act as follows:
1. Certain Defined Terms. Unless indicated otherwise herein, capitalized terms in
this Assignment shall have the same respective meanings as are ascribed to them in the
Agreement.
2. Assignment. Subject to all of the terms and conditions of this Assignment,
Assignor hereby assigns all [or describe specifically assigned rights if partial] of its rights
under the Agreement, insofar as the Agreement covers, affects, and relates to the Transferred
Premises.
3. Assumption. Assignee hereby assumes all obligations of Assignor and any
liability that may result from acts or omissions by Assignee under the Agreement as it relates to
the Transferred Premises that may arise or accrue from and after the effective date of this
Assignment, and Assignor is hereby released from all such obligations and liabilities from and
after the 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 G to
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.
S. Counterpart/Facsimile Execution. This Assignment has been prepared in
multiple counterparts, each of which shall constitute an original hereof, and the execution of any
one of such counterparts by any signatory shall have the same force and effect and shall be
binding upon such signatory to the same extent as if the same counterpart were executed by all of
the signatories. Facsimile copies of signatures may be appended hereto with the same force and
effect as legally delivered original signatures.
6. Notice to City. A copy of this Assignment shall be provided to the City within
fifteen(IS) days after execution.
7. Binding Effect. This Assignment shall be binding upon and shall inure to the
benefit of Assignor and Assignees and their respective heirs, personal representatives,
successors, and assigns.
EXECUTED as of the day and year first above written.
ASSIGNOR:
I 1
By:
Printed Name:
Title:
ASSIGNEE:
I
By:
Printed Name:
Title:
Exhibit G to
Development Agreement Page 2
EXMIT "A"
The Transferred Premises
Exhibit A to Exhibit G to
Development Agreement
SWORN TO AND SUBSCRIBED before me on the day of ,
2005, by
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of ,
2005,by
Notary Public, State of Texas
[Add Acknowledgments]
Exhibit G to
Development Agreement Page 3
i
Exhibit E
Special Regulations
A. Street,Right-of-Way,and Sidewalk Widths
1. Any portion of a local residential street that abuts a park with an area of .5 acre or
greater shall be a 29-foot back-to-back section in a 42-foot right-of-way. Twenty
(20) feet adjacent to the right-of-way shall be reserved for a sidewalk within a
public access easement. The 7 feet of park area immediately adjacent to the right-
of-way shall be reserved for a utility easement. The sidewalk in the park area
may be meandering or linear. Where sidewalks abut residential lots, sidewalks
shall be physically connected in accordance with the Americans with Disabilities
Act. On all residential lots across from park areas subject to this section, a 4-foot
wide sidewalk shall be located within a 13-foot wide parkway and shall be
separated from the property line by 3 feet.
2. Local residential streets or any portion thereof that are not subject to A(1) shall be
a 29-foot back-to-back section, with a pair of 4-foot wide sidewalks separated
from the property line by 3 feet within a 13-foot wide parkway, all located in a
55-foot right-of-way. No encroachments shall be allowed in the right-of-way
between the sidewalk and property line.
3. Collector residential streets shall be a 37-foot back-to-back section, with a pair of
5-foot wide sidewalks separated from the street by 10-foot wide parkways. All
will be located in a 67-foot right-of-way.
4. Minor arterial streets shall contain two 28-foot back-to-back sections, divided by
a 51-foot median, with a 9-foot wide parkway all located within a 125-foot right-
of-way. An 8-foot wide sidewalk shall meander within a 22.5-foot landscape
buffer and public access easement that is adjacent to either side of the 125-foot
right-of-way.
5. Alleys shall be 12 feet wide and centered within a 15-foot right-of-way, except
that those alleys located adjacent to townhomes or commercial lots that require no
minimum rear yard setback shall be 18 feet wide within a 20-foot right-of-way.
6. All other streets shall be constructed in accordance with the requirements of the
City of Fort Worth.
B. Block Length
1. The minimum block length shall be 300 feet.
2. The maximum block length shall be 1,320 feet.
Exhibit E to
Agreement Concerning Creation and Operation Page 1
C. Minimum Street Centerline Off-Sets
The minimum street centerline off-set shall be 100 feet for a street that: (1) is
located within a right-of-way that is 67 feet wide or less; and (2) is adjacent to a
park with an area of at least .5 acre but less than 3 acres. For all other internal
residential streets a minimum 125-foot centerline off-set shall be required. For all
streets connecting to a right-of-way greater than 67 feet a street centerline off-set
of 150-feet shall be required.
Exhibit E to
Agreement Concerning Creation and Operation Page 2
Exhibit F
Strategic Partnership Agreement
Exhibit F to
Agreement Concerning Creation and Operation Page I
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN
THE CITY OF FORT WORTH, TEXAS AND FORT WORTH MUNICIPAL UTILITY
DISTRICT NO. 1 OF DENTON COUNTY
STATE OF TEXAS §
COUNTY OF DENTON §
This Strategic Partnership Agreement (this "Agreement") is entered into by and between
the City of Fort Worth, a home-rule municipal corporation situated in Tarrant, Denton and Wise
Counties, Texas (the "C "), acting by and through its duly authorized Assistant City Manager,
and City of Fort Worth Municipal Utility District No. 1 of Denton County (the "District'),
acting by and through its duly authorized Board of Directors, under the authority of Section
43.0751 of the Texas Local Government Code("Local Government Code").
RECITALS
A. Local Government Code, Section 43.0751 (the "Act"), authorizes the City and a
municipal utility district to negotiate and enter into a strategic partnership agreement by mutual
consent.
B. This Agreement provides for the limited purpose annexation by the City of certain
tracts of land that have been or may in the future be designated for commercial use for the
purpose of collecting Sales and Use Tax Revenues within such commercial tracts.
C. Pursuant to this Agreement the City will pay to the District an amount equal to a
portion of such Sales and Use Tax Revenues, which may be used to fund the installation and
construction of Infrastructure and for other purposes in accordance with this Agreement.
D. The District and the City acknowledge that this Agreement provides benefits to
each party, including revenue, services and regulatory benefits.
E. The District and the City acknowledge that this Agreement does not require the
District to provide revenue to the City solely for the purpose of obtaining an agreement with the
City to forgo annexation of the District.
NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and
conditions contained in this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are acknowledged,the District and the City agree as follows:
ARTICLE I
FINDINGS
A. The District is a municipal utility district created under Chapter 54 of the Texas
Water Code by Act of May 25, 2005, 79th Legislature, Regular Session, Chapter 1330, Special
Strategic Partnership Agreement Page 1
District Local Laws Code, Chapter 8129, effective September 1,2005.
B. On December 13, 2005, the City Council of the City adopted Resolution No.
3299-12-2005 consenting to the creation of the District and approved that certain Agreement
Concerning Creation and Operation of City of Fort Worth Municipal Utility District No. 1 of
Denton County(City Secretary Contract No. 32896,M& C C-21197).
C. The District encompasses approximately 431.303 acres, more or less, all of which
are located within Denton County, Texas and within the extraterritorial jurisdiction of the City as
shown on Exhibit A and described on Exhibit B attached to this Agreement (the
"Development').
D. Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties,
LLLP, all Arizona limited liability limited partnerships (collectively, "Owner"),have represented
to the City and the District that they own the Development.
E. Owner desires to develop the Development as a master planned community
including residential, commercial and recreational uses. To that end, Owner and the City entered
into that certain Development Agreement (City Secretary Contract No. C-32897, M & C C-
21198), which includes land use and development standards designed to produce a quality
mixed-use development and which provides, among other things, that commercial development
may occur on Tracts 1 and 14, totaling approximately 59 acres, and mixed-use residential and
commercial development may occur on Tracts 3 and 5, totaling approximately 48 acres, as
shown on Exhibit C and described on Exhibit D attached to this Agreement.
F. The City and the District desire to enter into this Agreement providing for limited
purpose annexation of the portions of the Development within which commercial uses may occur
for the purpose of collecting Sales and Use Tax Revenues within the annexed areas in
accordance with Subsection (k) of the Act, and for the sharing of Sales and Use Tax Revenues
between the City and the District.
G. The District provided notice of two public hearings concerning the adoption of
this Agreement and the proposed limited purpose annexation of the Original Commercial
Property,as defined below, in accordance with the procedural requirements of the Act.
H. The Board of Directors of the District conducted two public hearings regarding
this Agreement and the proposed limited purpose annexation of the Original Commercial
Property, at which members of the public who wished to present testimony or evidence regarding
this Agreement and the proposed limited purpose annexation were given the opportunity to do
so, in accordance with the procedural requirements of the Act on , 2006, at
_.m. at and on 2006, at _.m.
at
I. The Board of Directors of the District approved this Agreement on
2006, in open session at a meeting held in accordance with Chapter 551
of the Government Code.
Strategic Partnership Agreement Page 2
J. The City provided notice of two public hearings concerning the adoption of this
Agreement and the proposed limited purpose annexation of the Original Commercial Property, in
accordance with the procedural requirements of the Act.
K. The City Council of the City conducted two public hearings regarding this
Agreement and the proposed limited purpose annexation of the Original Commercial Property, at
which members of the public who wished to present testimony or evidence regarding this
Agreement and the proposed limited purpose annexation were given the opportunity to do so, in
accordance with the procedural requirements of the Act on , 2006, at
_.m.,at the City Council Chambers and on ,_ 2006, at _.m.,at the City
Council Chambers.
L. The City Council of the City approved this Agreement on ,
2006, in open session at a meeting held in accordance with Chapter 551 of the Government Code
(M & C _�, which approval was after the Board of Directors of the District approved
this Agreement.
M. All procedural requirements imposed by law for the adoption of this Agreement
have been met.
N. Pursuant to that certain Agreement for Sale of Treated Water executed by the City
and Aqua Utilities, Inc. ("Aqua Utilities"), the City will sell water to Aqua Utilities on a
wholesale basis to enable Aqua Utilities to provide retail water service to customers within the
District.
O. Pursuant to that certain Wholesale Wastewater Service Agreement executed by
the City and Aqua Utilities, the City will sell wastewater service to Aqua Utilities on a
wholesale basis to enable Aqua Utilities to provide retail wastewater service to customers within
the District.
P. Pursuant to that certain Superseding Agreement Regarding Water and
Wastewater Utility Service executed by the City, the District,Aqua Utilities and Owner(the
"Superseding_ Utility greement"), the City will require Aqua Utilities to comply with
regulatory and operational standards,the enforcement of which will benefit the District.
Q. Pursuant to the Superseding Utility Agreement and the Consent Agreement, the
District shall construct, operate, and maintain or cause to be constructed, operated and
maintained water, wastewater, drainage and road systems within the District in accordance with
City standards.
R. In accordance with the requirements of Subsection (p)(2) of the Act, this
Agreement provides benefits to the City and the District, including revenue, services, and
regulatory benefits which are reasonable and equitable with regard to the benefits provided to the
other.
Strategic Partnership Agreement Page 3
ARTICLE II
DEFINITIONS
Terms used in this Agreement shall have the following meanings:
"Act"means the Texas Local Government Code, Section 43.075 1, and any amendments thereto.
"Additional Commercial Property" means any property within the District Boundaries designated
for commercial use, other than the Original Commercial Property.
"Agreement" means this Strategic Partnership Agreement between the City and the District.
"Board" means the Board of Directors of the District.
"Bond" means (a) any instrument, including a bond, note, certificate of participation, or other
instrument evidencing a proportionate interest in payments, due to be paid by the District, or (b)
any other type of obligation that (1) is issued or incurred by the District under the District's
borrowing power, without regard to whether it is subject to annual appropriation, and (2) is
represented by an instrument issued in bearer or registered form or is not represented by an
instrument but the transfer of which is registered on books maintained for that purpose by or on
behalf of the District. The term shall include obligations issued to refund outstanding bonds but
shall not include reimbursement agreements entered into between the District and a developer of
the Development or bond anticipation notes.
"CiV" means the City of Fort Worth, Texas, a home rule municipality located in Tarrant, Wise,
and Denton Counties.
"City Council"means the City Council of the City.
"City Secretary" means the City Secretary of the City.
"City Manager" means the City Manager of the City.
"City Share" means the City's share of Sales and Use Tax Revenues as defined by Section 4.02
of this Agreement.
"Comptroller" means the Comptroller of Public Accounts of the State of Texas.
"Consent Agreement" means the Agreement Concerning Creation and Operation of City of Fort
Worth Municipal Utility District No. 1 of Denton County by and among the City, the District,
and Owner, which was approved by the City Council on December 13, 2005 (City Secretary
Contract No. 32896, M &C C-32896) and executed as of December 13, 2005.
"Development" means that certain 431.303-acre tract located in Denton County, Texas as shown
on Exhibit A and described on Exhibit B.
Strategic Partnership Agreement Page 4
"Development Agreement" means the Development Agreement between the City and Owner,
which was approved by the City Council on December 13, 2005 (City Secretary Contract No.
32897 ,M& C C-21198) and executed as of December 21,2005.
"District"means the City of Fort Worth Municipal Utility District No. 1 of Denton County,to be
renamed in accordance with Article X of the Consent Agreement, created in the Development by
the District Legislation.
"District Boundaries" means boundaries of the District, consisting of the boundaries of the
431.303-acre tract as shown on Exhibit A and described on Exhibit B.
"District Legislation" means Act of May 25, 2005, 79th Legislature, Regular Session, Chapter
1330, Special District Local Laws Code, Chapter 8129, effective September 1, 2005, creating
the District.
"District Share" means the District's share of Sales and Use Tax Revenues as defined by Section
4.02 of this Agreement.
"ETT" 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.
"Effective Date" means the date on which the City adopted this Agreement.
"Finance Director" means the Director of the City's Finance Department.
"Government Code"means the Texas Government Code, as amended.
"Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure
improvements installed or constructed to serve the Development, whether located within or
outside the Development.
"Limited Purpose Annexation Period" means the period commencing on the effective date of the
limited purpose annexation of any Limited Purpose Property and ending upon the full purpose
annexation or disannexation of such property.
"Limited Purpose Property" means the property in the District that is annexed for limited
purposes pursuant to this Agreement, including the Original Commercial Property and any
Additional Commercial Property.
"Local Government Code"means the Texas Local Government Code, as amended.
"Notice"means notice as defined in Section 7.02 of this Agreement.
Strategic Partnership Agreement Page 5
"Original Commercial Property" means those certain 12.245-acre (Tract 1), 30.414-acre (Tract
3), 18.269-acre (Tract 5) and 47.262-acre (Tract 14) tracts designated for commercial or mixed
commercial and residential use in the Development Agreement, as shown on Exhibit C and
described on Exhibit D. The parties recognize that the legal descriptions for such tracts are
approximate and may require minor adjustments in order to conform with subdivision plats
submitted for the Development.
"Owner" means, individually and collectively, Aperion Communities, LLLP, Eladio Properties,
LLLP and Drooy Properties, LLLP, Arizona limited liability limited partnerships, their
successors and their assigns as permitted by Section 7.11 of this Agreement.
"Party" means, individually, the City or the District, their successors and their assigns as
permitted by Section 7.11 of this Agreement.
"Sales and Use Tax Revenues" means those revenues received by the City from the sales and use
tax authorized to be imposed by the City on sales consummated at locations within the Limited
Purpose Property pursuant to the Act and Chapter 321 of the Tax Code and whose use is not
otherwise controlled or regulated, in whole or in part, by another governmental entity, authority,
or applicable law, ordinance, rule, or regulation. Sales and Use Tax Revenues specifically
exclude those revenues received by the City from the Crime Control District Sales Tax imposed
by the City pursuant to Tax Code Section 323.105 and Local Government Code Section
363.055.
"Sales and Use Tax Account" means the account established pursuant to Section 4.03 in which
the District deposits the District Share.
"Tax Code"means the Texas Tax Code,as amended.
ARTICLE III
ADOPTION OF AGREEMENT AND
LIMITED-PURPOSE ANNEXATION OF ORIGINAL COMIIMRCIAL PROPERTY
AND ADDITIONAL COMMERCIAL PROPERTY
3.01 Public Hearings. The District and the City acknowledge and agree that prior to
the execution of this Agreement, the governing bodies of the District and the City have
conducted public hearings for the purpose of considering the adoption of this Agreement and that
such hearings were noticed and conducted in accordance with the terms of the Act, this
Agreement, Chapter 551 of the Government Code, and the City Charter of the City.
3.02 Effective Date. Pursuant to Subsection(c) of the Act, this Agreement took effect
on ,the date of adoption of this Agreement by the City.
3.03 Filing in Property Records. The City shall file this Agreement in the Real
Property Records of Denton County, Texas.
Strategic Partnership Agreement Page 6
3.04 Limited Purpose Annexation of Original Commercial Property. The District and
the City agree that the City may annex all or any portion of the Original Commercial Property
for the limited purpose of collecting Sales and Use Tax Revenues within the Original
Commercial Property pursuant to Subsection (k) of the Act. The District acknowledges that the
City Council may adopt a limited purpose annexation ordinance at a meeting conducted in
accordance with Chapter 551 of the Government Code and further acknowledges that no
additional notices, hearings, or other procedures are required by law in order to approve such
limited purpose annexation.
3.05 Limited Purpose Annexation of Additional Commercial Property. In the event the
location of proposed commercial development within the District is changed or additional
property designated for commercial development is added, the City Council may annex the
Additional Commercial Property for the limited purpose of collecting Sales and Use Tax
Revenues within the Additional Commercial Property pursuant to Subsection (k) of the Act.
The District acknowledges that the City Council may adopt a limited purpose annexation
ordinance at a meeting conducted in accordance with Chapter 551 of the Government Code and
further acknowledges that no additional notices, hearings, or other procedures are required by
law to approve such limited purpose annexation.
3.06 Connections to the City Limits. In the event the City annexes Additional
Commercial Property, the District consents to the annexation of additional land connecting the
Additional Commercial Property to the City limits. The City may annex property pursuant to
this Section 3.46 for limited purposes as permitted by the Act.
3.07 Consent to Limited Purpose Annexation. THE DISTRICT ON BEHALF OF ITSELF
AND ALL PRESENT AND FUTURE OWNERS OF LAND WITHIN THE DISTRICT BOUNDARIES HEREBY
REQUESTS THAT THE CITY ANNEX THE ORIGINAL COMMERCIAL PROPERTY AND THE
ADDITIONAL COMMERCIAL PROPERTY FOR LIMITED PURPOSES AS PROVIDED IN THIS
AGREEMENT. THE DISTRICT CONSENTS TO SUCH ANNEXATION AND TO THE COLLECTION OF
SALES AND USE TAX REVENUES BY THE CITY WITHIN SUCH LIMITED PURPOSE PROPERTY.
SUCH CONSENT SHALL BIND THE DISTRICT AND EACH OWNER AND FUTURE OWNER OF LAND
WITHIN THE DISTRICT BOUNDARIES.
ARTICLE IV
TAXATION AND PROVISION OF SERVICES
4.01 Collection of Sales and Use Tax Revenues. The City may impose a sales and use
tax within the Limited Purpose Property pursuant to Subsection(k)of the Act. The sales and use
tax shall be imposed on all eligible commercial activities at the rate of one percent or other rate
allowed under future amendments to Chapter 321 of the Tax Code and imposed by the City.
Collection of the Sales and Use Tax Revenues shall take effect on the date described in Section
321.102 of the Tax Code.
4.02 Payment of Sales and Use Tax. In return for the benefits received by the City
pursuant to this Agreement, the City shall pay to the District an amount equal to 50% of the
Sales and Use Tax Revenues during the first nineteen (19) years of the Limited Purpose
Strategic Partnership Agreement Page 7
Annexation Period, and paid to the City as reflected in sales tax reports provided by the
Comptroller to the City. Further, during the nineteenth (19") year of the Limited Purpose
Annexation Period, the City shall retain $300,000 from the 50% payment otherwise due to the
District. The City will use such funds in accordance with Section 4.04 of this Agreement.
Such $300,000 payment shall be retained by the City in addition to the City's 50% share of the
Sales and Use Tax Revenues. Thereafter, the City shall pay to the District an amount equal to
25% of the Sales and Use Tax Revenues collected commencing on the first day of the twentieth
(20th) year of the Limited Purpose Annexation Period, and paid to the City as reflected in sales
tax reports provided by the Comptroller to the City. All amounts payable to the District pursuant
to this Section 4.02 are hereafter referred to as the "District Share". The City shall pay the
District Share within thirty (30) days after the City receives the sales tax report reflecting such
revenues from the Comptroller. Any payment of the District Share not made within such 30-day
period shall bear interest calculated in accordance with Section 2251.025 of the Government
Code. The City shall retain all Sales and Use Tax Revenues that do not constitute the District
Share (the "CityShare").
4.03 District Use of Sales and Use Tax Revenues. The District shall deposit the
District Share in a segregated interest-bearing account(the "Sales and Use Tax Account"). The
District shall use funds in the Sales and Use Tax Account in the following order of priority:
(a) Reimbursement for the construction or installation of Infrastructure.
(b) Funding the construction or installation of Infrastructure.
(c) Funding for any purpose for which the District may legally expend funds
(including such items as District bond debt service, operational costs, and
any contract tax obligations); provided, however, the District shall not
fund any such items if the District's Ad Valorem Tax rate is, or with such
funding of any such items would be, less than 90% of the City's Ad
Valorem Tax rate for the previous year.
(d) Purchasing and retiring any Bond after the tenth anniversary of its
issuance.
4.04 City Use of Sales and Use Tax Revenues. The City may use the City Share for
any lawful purpose; provided, however, it is the City's intent to use the additional 25% share of
the Sales and Use Tax Revenues beginning on the first day of the twentieth (20th) year of the
Limited Purpose Annexation Period to defray the costs of providing municipal services to the
residents of the Development upon full purpose annexation. Further,pursuant to Section 4.02 of
this Agreement, the District has agreed to allow the City to retain $300,000 from the District's
Share during the nineteenth (19th) year of the Limited Annexation Period in order to defray the
cost of maintaining roads within the Development upon full purpose annexation.
Strategic Partnership Agreement Page 8
4.05 Delivery of Sales Tax Reports to District. The City shall include with each
payment of the District Share a condensed version of each sales tax report provided by the
Comptroller relating to Sales and Use Tax Revenues within thirty (30) days of the City's receipt
of such sales tax report
4.06 Notification of Comptroller. The City shall send notice of this Agreement,
together with other required documentation, to the Comptroller in the manner provided by Tax
Code, Section 321.102, after the City Council annexes any portion of the Limited Purpose
Property for limited purposes.
4.07 Termination of Sales and Use Tax Sharing. Upon termination of this Agreement,
the City shall have no further financial obligation to the District pursuant to this Agreement, and
all Sales and Use Tax Revenues shall be retained by the City and may be used for any lawful
purpose.
4.08 City's Maintenance of Records and District's Audit Rights. The District may
audit the Sales and Use Tax Revenues collected by the City to determine whether the District
Share has been paid to the District in accordance with this Agreement. The City shall provide
reasonable accommodations for the District to perform the audit. Any audit shall be made at the
District's sole expense and may be performed at any time during the City's regular business
hours on thirty (30) days Notice to the City. For purposes of any such audits, the City shall
maintain and make available to the District's representatives all books, records, documents and
other evidence of accounting procedures or practices in form sufficiently maintained to reflect
the amount of Sales and Use Tax Revenues received by the City from the Limited Purpose
Property. Notwithstanding the foregoing,however, if any audit conducted by the District reveals
that the District Share has been underpaid by more than two percent (2%), the City shall
reimburse the District for the reasonable cost of the audit.
4.09 District's Maintenance of Records and City's Audit Rights. The City may audit
the Sales and Use Tax Account and the District's expenditures of the District Share to determine
whether the expenditures have been made by the District in accordance with Section 4.03 of this
Agreement. The District shall provide reasonable accommodations for the City to perform the
audit. Any audit shall be made at the City's sole expense and may be performed at any time
during the District's regular business hours on thirty (30) days Notice to the District. For
purposes of any such audits, the District shall maintain and make available to the City's
representatives all books, records, documents and other evidence of accounting procedures or
practices in form sufficiently maintained to reflect deposits to the Sales and Use Tax Account
and expenditures of the District Share. Notwithstanding the foregoing, however, if any audit
conducted by the City reveals that the District has not used the District Share in accordance with
Section 4.03, the District shall reimburse the City for the reasonable cost of the audit.
Furthermore, if such breach is not cured as provided by Article VI, the City may withhold
payments of future Sales and Use Tax Revenues in the amount of the improper expenditures.
Strategic Partnership Agreement Page 9
ARTICLE V
TERM
This Agreement commences on the Effective Date and continues until the City annexes
the Limited Purpose Property (subject to the provisions of the Development Agreement) for full
purposes or disannexes the Limited Purpose Property. This Agreement will automatically
terminate with regard to any portion of the Limited Purpose Property upon disannexation or full
purpose annexation of such property.
ARTICLE VI
BREACH,NOTICE AND REMEDIES
6.01 Notification of Breach. If either Party commits a breach of this Agreement, the
non-breaching Parry shall give Notice to the breaching Parry that describes the breach in
reasonable detail.
6.02 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 without unreasonable cessation of the work.
6.03 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 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 performance, mandamus and injunctive relief; provided,
however, that the non-breaching Party shall not be entitled to terminate this Agreement. The
Parties specifically waive any right that they have or in the future may have to terminate this
Agreement. Damages, if any, to which any non-breaching Party may be entitled shall be limited
to actual damages and shall not include special or consequential damages. In addition, the
prevailing party in any such action shall be entitled to reasonable attorney's fees and costs of
litigation as determined in a final, non-appealable order in a court of competent jurisdiction.
ARTICLE VII
ADDITIONAL PROVISIONS
7.01 Voting. It is anticipated that the Original Commercial Property and the
Additional Commercial Property will predominantly consist of commercial property, but may
also include residential dwellings as part of a mixed-use development. The Parties recognize
that Chapter 43, Subchapter F, of the Local Government Code does not apply to a limited
purpose annexation under a strategic partnership agreement pursuant to Subsection (k) of the
Act. Consequently, the Parties acknowledge that Section 43.130(a) of the Local Government
Code providing that qualified voters of an area annexed for limited purposes may vote in certain
Strategic Partnership Agreement Page 10
municipal elections does not apply to voters in any area annexed for limited purposes pursuant to
this Agreement.
7.02 Notice. Any notices, certifications, approvals, or other communications (a
"Notice") required to be given by one Party to another under this Agreement shall be given in
writing addressed to the Party to be notified at the address set forth below and shall be deemed
given: (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; (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; or(iv) five business days after the Notice is sent by
FAX(with electronic confirmation by the sending FAX machine) with a confirming copy sent by
United States mail within 48 hours after the FAX is sent. If any date or period provided in this
Agreement ends on a Saturday, Sunday, or legal holiday,the applicable period for calculating the
notice shall be extended to the first business day following the Saturday, Sunday, or legal
holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below.
The Parties may change the information set forth below by sending Notice of such changes to the
other Party as provided in this Section 7.02.
To the City:
City of Fort Worth, Texas
1000 Throclmorton Street
Fort Worth, Texas 76102
Attn: City Secretary
FAX: 817-392-6196
City of Fort Worth, Texas
1000 Throckmorton Street
Attn: City Manager
Fort Worth, Texas 76102
Attn: City Manager
FAX: 817-392-6134
City of Fort Worth, Texas
1000 Throclanorton Street
Attn: Finance Director
Fort Worth, Texas 76102
Attn: Finance Director
FAX: 817-392-8966
Strategic Partnership Agreement Page 11
To the District:
Fort Worth Municipal Utility District No. 1 of Denton County
c/o: Coats Rose
3 Greenway Plaza, Suite 2000
Houston, TX 77046
Attn: Timothy G. Green
FAX: 713-890-3924
7.03 Payments. The City shall forward payments of the District Share to the District at
the address set out in Section 7.02 by regular U.S. Mail or other method of delivery mutually
acceptable to the Parties.
7.04 No Waiver. Any failure by a Party to insist upon strict performance by the other
Party of any provision of this Agreement shall not be deemed a waiver thereof, and the Party
shall have the right at any time thereafter to insist upon strict performance of any and all of the
provisions of this Agreement. No provision of this Agreement may be waived except by writing
signed by the Party waiving such provision. Any waiver shall be limited to the specific purpose
for which it is given. No waiver by any Party hereto of any term or condition of this Agreement
shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver
of the same term or condition.
7.05 Governing Law and Venue. THIS AGREEMENT MUST BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY TO
CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO ANY
CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES ACKNOWLEDGE
THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND HEREBY SUBMIT
TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, TEXAS AND HEREBY AGREE
THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE
ARISING HEREUNDER.
7.06 Authority to Execute. The City certifies, represents, and warrants that the
execution of this Agreement is duly authorized and adopted in conformity with the City Charter
and City Ordinances. The District certifies, represents, and warrants that the execution of this
Agreement is duly authorized and adopted by the Board.
7.07 Severability. The provisions of this Agreement are severable and, in the event
any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held or determined to be
invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or
unenforceability does not cause substantial deviation from the underlying intent of the Parties as
expressed in this Agreement, then such provision shall be deemed severed from this Agreement
with respect to such person, entity or circumstance, without invalidating the remainder of this
Agreement 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
Strategic Partnership Agreement Page 12
provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the
provision so severed.
7.08 Changes in State or Federal Laws. If any state or federal law changes so as to
make it impossible for the City or the District to perform its obligations under this Agreement,
the parties will cooperate to amend this Agreement in such a manner that is most consistent with
the original intent of this Agreement as legally possible.
7.09 Additional Documents and Acts. The Parties agree that at any time after
execution of this Agreement,they will,upon request of the other Party, execute and/or exchange
any other documents necessary to effectuate the terms of this Agreement and perform any further
acts or things as the other Party may reasonably request to effectuate the terms of this
Agreement.
7.10 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
7.11 Assignability, Successors, and Assigns. This Agreement shall not be assignable
without the other Party's written consent. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective representatives, successors, and assigns.
7.12 Amendment. This Agreement may be amended only with the written consent of
the Parties and with approval of the governing bodies of the City and the District.
7.13 Interpretation. The Parties acknowledge that each party and, if it so chooses, its
counsel have reviewed and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments or exhibits hereto. As used in this
Agreement, the term "including" means "including without limitation" and the term "days"
means calendar days, not business days. Wherever required by the context, the singular shall
include the plural, and the plural shall include the singular. Each defined term herein may be
used in its singular or plural form whether or not so defined.
7.14 No Third Party Beneficiaries. This Agreement is solely for the benefit of the City
and the District, and neither the City nor the District intends by any provision of this Agreement
to create any rights in any third-party beneficiaries or to confer any benefit or enforceable rights
under this Agreement or otherwise upon anyone other than the City and the District.
7.15 Governmental Powers. It is understood that by execution of this Agreement,
neither the City nor the District waives or surrenders any of their respective governmental
powers, immunities or rights, except as specifically waived pursuant to this Section 7.15. The
City and the District mutually waive their governmental immunity from suit and liability only as
to any action brought by a Party to pursue the remedies available under this Agreement and only
to the extent necessary to pursue such remedies. Nothing in this Section 7.15 shall waive any
claims, defenses or immunities that the City or the District has with respect to suits against the
City or the District by persons or entities not a party to this Agreement.
strategic Partnership Agreement Page 13
7.16 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement
are incorporated into this Agreement by reference for the purposes set forth herein, as follows:
Exhibit A Map of the Development
Exhibit B Legal Description of the Development
Exhibit C Map of Original Commercial Property
Exhibit D Legal Description of Original Commercial Property
7.17 Conspicuous Provisions. The City and the District acknowledge that the provisions
of this Agreement set out in bold, cAPrrALS (or any combination thereof) satisfy the
requirements for the express negligence rule and/or are conspicuous.
7.18 Counterpart Originals. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original.
ATTEST: CITY OF FORT WORTH
By:
Marty Hendrix, City Secretary Marc Ott,Assistant City Manager
Date:
APPROVED AS TO FORM AND
LEGALITY:
Assistant City Attorney
CITY OF FORT WORTH MUNICIPAL
UTILITY DISTRICT NO. I OF DENTON
COUNTY
By:
Printed Name:
President, Board of Directors
Date:
Strategic Partnership Agreement Page 14
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me, on the_day of ,2006,
by Marc Ott,Assistant City Manager of the City of Fort Worth, Texas on behalf of said city.
Notary Public, State of Texas
Printed Name:
My Commission Expires:
[SEAL]
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me, on the day of ,
2006, by , President, Board of Directors of City of Fort Worth
Municipal Utility District No. 1 of Denton County, on behalf of said district.
Notary Public, State of Texas
Printed Name:
My Commission Expires:
[SEAL]
Strategic Partnership Agreement Page 15
Exhibit A
Map of the Development
Exhibit A to
Strategic Partnership Agreement Page 1
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Exhibit B
Legal Description of the Development
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas
Survey,Abstract No. 214, situated in Denton County, Texas and being a combination of that
tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778,Page 958 of the
Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed
to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913
RPRDCT(Aperion Tract One-A and Aperion Tract One-B)and a portion of that tract conveyed
to Nancy Talley Reynolds, et al,by deed recorded in Volume 2301, Page 223 RPRDCT and
being more particularly described as follows:
TRACT ONE
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way
line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
3701.24 feet to a 3/8" iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and the east
line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of
1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion
Tract One-A;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a distance of 1294.80
feet to a capped 1/2" iron pin set;
THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52E34'22" E,a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44E08'03" E, a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65E58'36" E,a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said capped
1/2" iron pin set also being on the east line of said Aperion Tract One-A and the west line of that
tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97-
0003605 RPRDCT;
THENCE S OOE07'20" E along the east line of said Aperion Tract One-A and the west line of
Exhibit B to
strategic Partnership Agreement- Page 1
said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin
being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe
Railway Company by deed recorded under County Clerk's File No. 93-ROO20408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to
a 5/8" iron pin found;
THENCE N 47E 15'51" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a
5/8" iron pin found;
THENCE S 44E27'42" W along the east line of said Aperion Tract One-A and the northwesterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to
a brass monument in concrete found, said brass monument also being on the said north right-of-
way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete
found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete
found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set;
THENCE N OOE 11'12" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOE 11'12" E along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north right-
of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and
containing 16,728,840 square feet or 384.041 acres of land,more or less.
TRACT2
BEGINNING at a brass monument in concrete found, said brass monument also being on the
south line of said Aperion Tract One-B, said brass monument also being on the north right-of-
way line of State Highway No. 114, said brass monument also being on the west line of a tract
Exhibit B to
strategic Partnership Agreement Page 2
conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605
RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in
concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right-
of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-R0020408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly
line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to
a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract One-B and the west line of
said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit B to
Strategic Partnership Agreement Page 3
Exhibit C
Map of Original Commercial Property
Exhibit C to
Strategic Partnership Agreement Page 1
Exhibit C
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Exhibit D
Legal Description of Original Commercial Property
Tract 1
BEING a 12.245 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), and being more particularly described as follows:
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre,et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N OOE32'36" W along the said west line of said Alliance 161 Investments tract and the
said east line of said McIntyre tract, a distance of 534.24 feet to a point;
THENCE N 89E27'24" E,a distance of 337.96 feet to a point;
THENCE N OOE32'36" W, a distance of 409.30 feet to a point;
THENCE N 88E27'04" E, a distance of 110.71 feet to a point, said point also being the Point of
Curvature of a circular curve to the right having a radius of 400.00 feet, a central angle of
26E50'42" and being subtended by a chord which bears S 78E07'35" E, 185.70 feet;
THENCE along said curve to the right,a distance of 187.41 feet to a point;
THENCE S 64E42'14" E tangent to said curve, a distance of 147.91 feet to a point, said point
also being the Point of Curvature of a non-tangent circular curve to the left having a radius of
1255.00 feet,a central angle of 15E55'19" and being subtended by a chord which bears
S 07E25'03" W, 347.63 feet;
THENCE along said curve to the left,a distance of 348.75 feet to a point;
THENCE S OOE32'36" E tangent to said curve, a distance of 501.25 feet to a point, said point
also being on the said proposed north right-of-way line of State Highway No.114;
THENCE S 89E48'48" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 226.72 feet to a capped 1/2" iron pin set;
THENCE N 00E11'12" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 250.00 feet to a capped 1/2" iron pin set;
Exhibit D to
Strategic Partnership Agreement Page 1
THENCE S OOE11'12" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE S 89E48'48" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 238.28 feet to the Point of Beginning and containing 533,394 square feet or
12.245 acres of land,more or less.
Tract 3
BEING a 30.414 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed
recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One-A and
Aperion Tract One-B) and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT;
THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 238.28 feet to a capped 1/2" iron pin set;
THENCE N OOE11'12" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway
No.114 , a distance of 250.00 feet to a capped 1/2" iron pin set;
THENCE S OOE 11'12" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 15.00 feet to a capped 1/2" iron pin set;
THENCE N 89E4848" E along the said proposed north right-of-way line of State Highway
No.114, a distance of 226.72 feet to the Point of Beginning of the herein described tract;
THENCE N OOE32'36" W departing the said proposed north right-of-way line of State Highway
No.114, a distance of 501.25 feet to a point, said point also being the Point of Curvature of a
circular curve to the right having a radius of 1255.00 feet, a central angle of 44E41'36" and being
subtended by a chord which bears N 21E48'12" E , 954.33 feet;
THENCE along said curve to the right, a distance of 978.96 feet to a point;
THENCE N 44E09'00" E tangent to said curve, a distance of 440.50 feet to a point;
Exhibit D to
Strategic Partnership Agreement Page 2
THENCE S 45E51'00" E, a distance of 173.53 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 122.50 feet, a central angle of
44E35'59" and being subtended by a chord which bears S 68E08'59" E, 92.97feet;
THENCE along said curve to the left, a distance of 95.36 feet to a point;
THENCE N 89E33101" E tangent to said curve, a distance of 276.39 feet to a point;
THENCE S OOE26'59"E, a distance of 768.50 feet to a point;
THENCE S 89E33'01" W, a distance of 208.99 feet to a point;
THENCE N 42E37'00" W, a distance of 35.75 feet to a point;
THENCE S 89E33'O1" W, a distance of 92.01 feet to a point;
THENCE S OOE26'59" E, a distance of 476.50 feet to a point;
THENCE S 89E33'01" W, a distance of 140.19 feet to a point;
THENCE S OOE24'36" E, a distance of 50.00 feet to a point;
THENCE S 89E3TO1" W,a distance of 60.58 feet to a point;
THENCE S OOE32'36" E, a distance of 275.42 feet to a point, said point also being on the
proposed north right-of-way line of State Highway No. 114;
THENCE S 89E48'48" W along the said proposed north right-of-way line of State Highway
No.114, a distance of 630.48 feet to the Point of Beginning and containing 1,324,829 square feet
or 30.414 acres of land, more or less.
Tract 5
BEING a 18.269 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in
Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by
deed recorded in Volume 2778,Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), and being more particularly described as follows:
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north
right-of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to
Betty Marie McIntyre, et al,by deed recorded in Volume 2906,Page 363 RPRDCT; THENCE
N 89E48'48" E along the said proposed north right-of-way line of State Highway No.114, a
Exhibit D to
Strategic Partnership Agreement Page 3
distance of 23 8.28 feet to a capped 1/2" iron pin set; THENCE N OOE 11'12" W along the said
proposed north right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped
1/2" iron pin set; THENCE N 89E48'48" E along the said proposed north right-of-way line of
State Highway No.114 , a distance of 250.00 feet to a capped 1/2" iron pin set; THENCE
S OOEI V12" E along the said proposed north right-of-way line of State Highway No.114, a
distance of 15.00 feet to a capped 1/2" iron pin set; THENCE N 89E48'48" E along the said
proposed north right-of-way line of State Highway No.114, a distance of 226.72 feet to a point;
THENCE N OOE32'36" W departing the said proposed north right-of-way line of State Highway
No.114, a distance of 501.25 feet to a point, said point also being the Point of Curvature of a
circular curve to the right having a radius of 1255.00 feet, a central angle of 32E43'52" and being
subtended by a chord which bears N 15E49'20" E , 707.23 feet; THENCE along said curve to
the right, a distance of 716.94 feet to the Point of Beginning of the herein described tract;
THENCE N 56E26'33" W, a distance of 341.40 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 470.00 feet, a central angle of
34EO6'03" and being subtended by a chord which bears N 73E2935" W, 275.62 feet;
THENCE along said curve to the left, a distance of 279.73 feet to a point;
THENCE S 89E27'24" W tangent to said curve, a distance of 32.60 feet to a point;
THENCE N OOE32'36" W, a distance of 537.12 feet to a point, said point also being the Point of
Curvature of a circular curve to the right having a radius of 668.00 feet, a central angle of
45E28'14" and being subtended by a chord which bears N 22E11'31" E, 516.33 feet;
THENCE along said curve to the right, a distance of 530.13 feet to a point;
THENCE N 43E51'21" E, a distance of 53.48 feet to a point;
THENCE S 45E51'00" E, a distance of 1146.77 feet to a point;
THENCE S 44E09'00" W, a distance of 440.50 feet to a point, said point also being the Point of
Curvature of a circular curve to the left having a radius of 1255.00 feet, a central angle of
11 ES T44" and being subtended by a chord which bears S 3 8E 10'08" W, 261.54 feet;
THENCE along said curve to the left, a distance of 262.02 feet to the Point of Beginning and
containing 795,805 square feet or 18.269 acres of land,more or less.
Tract 14
BEING Tract 2 of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded
under County Clerk's File No. 2004-11913 of the Real Property Records of Denton County,
Texas (RPRDCT) and being more particularly described as follows:
BEGINNING at a brass monument in concrete found, said brass monument also being on the
Exhibit D to
Strategic Partnership Agreement Page 4
south line of said Aperion Tract 2, said brass monument also being on the north right-of-way line
of State Highway No. 114, said brass monument also being on the west line of a tract conveyed
to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract 2 and the north right-of-way
line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract 2 and the north right-of-
way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete
found, said brass monument also being on the southeasterly line of a tract conveyed to The
Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File
No. 93-ROO20408 RPRDCT;
THENCE N 44E26'31" E along the west line of said Aperion Tract 2 and the southeasterly line
of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a
5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract;
THENCE S OOE07'09" E along the east line of said Aperion Tract 2 and the west line of said
Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing
2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit D to
Strategic Partnership Agreement Page 5
Exhibit G
STATE OF TEXAS
COUNTY OF DENTON
NOTICE CONCERNING ANNEXATION AND SERVICES
The real property described in Exhibit A attached hereto and incorporated herein
is located in City of Fort Worth Municipal Utility District No. 1 of Denton County, which
may subsequently be known as Tradition Municipal Utility District No. 1 of Denton
County (the "District"). The District is located wholly within the extraterritorial
jurisdiction of the City of Fort Worth. The City does not impose property taxes within
the District and is not required by state law to provide police protection, fire protection,
road maintenance or any other municipal services to the District.
The City of Fort Worth may annex the District for full purposes upon the earliest
to occur of:
(1) The date construction of water, wastewater, drainage, road and other
infrastructure improvements to serve 90%of the District is complete;
(2) Dissolution of the District; or
(3) December 13, 2020.
For additional information concerning potential annexation of the District, contact
the City of Fort Worth Development Director.
CITY OF FORT WORTH MUNICPAL UTILITY
DISTRICT NO. 1 OF DENTON COUNTY
By:
Name printed:
Title:
Exhibit G to
Agreement Concerning Creation and Operation Page 1
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me, on the_day of ,
2006, by President, Board of Directors of
, 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 G to
Agreement Concerning Creation and Operation Page 2
Exhibit A
BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G.
Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a
combination of that tract conveyed to Alliance 161 Investments by deed recorded in
Volume 2778, Page 958 of the Real Property Records of Denton County, Texas
(RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by
deed recorded under County Clerk's File No. 2004-11913 RPRDCT(Aperion Tract One-
A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley
Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more
particularly described as follows:
Tract 1
BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-
of-way line of State Highway No. 114, said iron pin also being on the west line of said
Alliance 161 Investments tract, said iron pin also being on the east line of a tract
conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363
RPRDCT;
THENCE N OOE32'36" W along the west line of said Alliance 161 Investments tract and
the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a
distance of 3701.24 feet to a 3/8" iron pin found;
THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and
the east line of said McIntyre, et al, tract recorded in Volume 2906,Page 363 RPRDCT,a
distance of 1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line
of said Aperion Tract One-A;
THENCE N OOE2244" W along the east line of said McIntyre, et al, tract recorded in
Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One-A, a
distance of 1294.80 feet to a capped 1/2" iron pin set;
THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set;
THENCE S 52E34'22"E, a distance of 867.86 feet to a capped 1/2" iron pin set;
THENCE S 44E08'03" E, a distance of 999.82 feet to a capped 1/2" iron pin set;
THENCE S 65E58'36" E, a distance of 1029.92 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" E, a distance of 773.31 feet to a capped 1/2" iron pin set; said
capped 1/2" iron pin set also being on the east line of said Aperion Tract One-A and the
west line of that tract conveyed to Ferbro Investments, LLC by deed recorded under
County Clerk's File No. 97-0003605 RPRDCT;
Exhibit A to Exhibit G to
Agreement Concerning Creation and Operation Page 3
THENCE S OOE07'20" E along the east line of said Aperion Tract One-A and the west
line of said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found,
said iron pin being on the northwesterly line of a tract conveyed to The Atchison, Topeka
and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-
R0020408 RPRDCT;
THENCE S 44E23'02" W along the east line of said Aperion Tract One-A and the
northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a
distance of 2256.14 feet to a 5/8" iron pin found;
THENCE N 47E15'51" W along the east line of said Aperion Tract One-A and the
northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a
distance of 24.73 feet to a 5/8" iron pin found;
THENCE S 44E2742" W along the east line of said Aperion Tract One-A and the
northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a
distance of 1121.43 feet to a brass monument in concrete found, said brass monument
also being on the said north right-of-way line of State Highway No.114;
THENCE S 89E47'36" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 286.33 feet to a brass
monument in concrete found;
THENCE S 84E30'09" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 703.04 feet to a brass
monument in concrete found;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2"
iron pin set;
THENCE N OOE11'12" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron
pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2"
iron pin set;
THENCE S OOE 11'12" E along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron
pin set;
THENCE S 89E48'48" W along the south line of said Aperion Tract One-A and the north
right-of-way line of State Highway No.114, a distance of 238.28 feet to the Point of
Beginning and containing 16,728,840 square feet or 384.041 acres of land, more or less.
Exhibit A to Exhibit G to
Agreement Concerning Creation and Operation Page 4
Tract 2
BEGINNING at a brass monument in concrete found, said brass monument also being on
the south line of said Aperion Tract One-B, said brass monument also being on the north
right-of-way line of State Highway No. 114, said brass monument also being on the west
line of a tract conveyed to Ferbro Investments by deed recorded under County Clerk's
File No. 97-0003605 RPRDCT
THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north
right-of-way line of State Highway No.114, a distance of 1072.97 feet to a brass
monument in concrete found;
THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north
right-of-way line of State Highway No.114, a distance of 900.20 feet to a brass
monument in concrete found, said brass monument also being on the southeasterly line of
a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed
recorded under County Clerk's File No. 93-R0020408 RPRDCT;
THENCE N 44E26'3I" E along the west line of said Aperion Tract One-B and the
southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a
distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line
of said Ferbro Investments tract;
THENCE S OOE07'O9" E along the east line of said Aperion Tract One-B and the west
line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning
and containing 2,058,725 square feet or 47.262 acres of land,more or less.
Exhibit A to Exhibit G to
Agreement Concerning Creation and Operation Page 5
Exhibit H
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is
made and entered into as of the day of , between
a ("Assignor"),
and , a
("Assignee") (Assignor and Assignee are hereinafter sometimes collectively referred to
as the"Parties" and singularly as a"Parry").
RECITALS:
A. Assignor is the owner of the rights of the Owner under that certain
"Agreement Concerning Creation and Operation of City of Fort Worth Municipal Utility
District No.1 of Denton County" (City Secretary Contract No. , M & C -
(the "Agreement") effective as of , among Aperion
Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, collectively
and individually as Owner, the City of Fort Worth, Texas, as the City, and the City of
Fort Worth Municipal Utility District No. 1 of Denton County, as the District, relating to
the creation and operation of the District, to the extent that the Agreement covers, affects,
and relates to the lands described on Exhibit A attached to and made a part hereof of this
Assignment for all purposes (the"Transferred Premises").
B. Assignor desires to assign certain of its rights under the Agreement as it
relates to the Transferred Premises to Assignee, and Assignee desires to acquire such
rights, on and subject to the terms and conditions of this Assignment.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
obligations set forth herein, and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the Parties hereby agree and act as
follows:
1. Certain Defined Terms. Unless indicated otherwise herein, capitalized
terms in this Assignment shall have the same respective meanings as are ascribed to them
in the Agreement.
2. Assignment. Subject to all of the terms and conditions of this
Assignment, Assignor hereby assigns all [or describe specifically assigned rights if
partial] of its rights under the Agreement, insofar as the Agreement covers, affects, and
relates to the Transferred Premises.
3. Assumption. Assignee hereby assumes all obligations of Assignor and
any liability that may result from acts or omissions by Assignee under the Agreement as
it relates to the Transferred Premises that may arise or accrue from and after the effective
date of this Assignment, and Assignor is hereby released from all such obligations and
Exhibit H to
Agreement Concerning Creation and Operation Page 1
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.
4. Governing Law. THIS ASSIGNMENT MUST BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY
TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO
ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY.
5. Counterpart/Facsimile Execution. This Assignment has been prepared
in multiple counterparts, each of which shall constitute an original hereof, and the
execution of any one of such counterparts by any signatory shall have the same force and
effect and shall be binding upon such signatory to the same extent as if the same
counterpart were executed by all of the signatories. Facsimile copies of signatures may
be appended hereto with the same force and effect as legally delivered original
signatures.
6. Notice to City. A copy of this Assignment shall be provided to the City
within fifteen(15) days after execution.
7. Binding Effect. This Assignment shall be binding upon and shall inure to
the benefit of Assignor and Assignees and their respective heirs,personal representatives,
successors, and assigns.
EXECUTED as of the day and year first above written.
ASSIGNOR:
1 1
By:
Printed
Name:
Title:
ASSIGNEE:
[ 1
By:
Printed
Name:
Title:
Exhibit H to
Agreement Concerning Creation and Operation Page 2
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of
2005, by
Notary Public, State of Texas
STATE OF TEXAS §
COUNTY OF §
SWORN TO AND SUBSCRIBED before me on the day of
,2005, by
Notary Public, State of Texas
[Add Acknowledgments]
Exhibit H to
Agreement Concerning Creation and Operation Page 3
EXHIBIT "A"
The Transferred Premises
Exhibit A to Exhibit H to
Agreement Concerning Creation and Operation Page 4
Papae 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12/13/2005
DATE: Tuesday, December 13, 2005
LOG NAME: 60TRADITION REFERENCE NO.: C-21198
SUBJECT:
Approval of Strategic Partnership Agreement, Development Agreement, Tradition Project Special
Regulations Agreement, and Agreements Concerning Water and Wastewater Service for the First
Phase of the Tradition Development
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager or a designee to execute the following
agreements:
1. Strategic Partnership Agreement between the City and Fort Worth Municipal Utility District No. 1 of
Denton County (the "District");
2. Development Agreement between the City and Aperion Communities, LLLP, Eladio Properties, LLLP
and Drooy Properties, LLLP ("AED");
3. Tradition Project Special Regulations Agreement between the City and AED;
4. Superseding Agreement Regarding Water and Wastewater Utility Service between the City, Aqua
Utilities, Inc., AED and the District;
5. Buy-Out Option Contract between the City, Aqua Utilities, Inc., AED and the District;
6. Memorandum of the Buy-Out Option Contract;
7. Agreement for Sale of Treated Water between the City and Aqua Utilities, Inc.; and
8. Wholesale Wastewater Service Agreement between the City and Aqua Utilities, Inc.
DISCUSSION:
AED owns and intends to develop approximately 2,663 acres in Denton County in Fort Worth's
extraterritorial jurisdiction as a mixed-use development to be known as "Tradition". AED intends to develop
the southernmost 431 acres as the first phase (the "Development") and has requested that the City Council
consent to creation of a municipal utility district over the Development. (M & C C-21197).
The documents listed above, which have been provided to the City Council and are available for public
inspection and copying in the City Secretary's Office, can be summarized as follows:
The Strategic Partnership Agreement authorizes the City to annex approximately 107 acres within the
Development designated for commercial development for the limited purpose of imposing sales and use
tax. The agreement provides that the City and the District will divide the sales tax proceeds equally for the
first 19 years after annexation. The City's share will increase to 75% in year 19.
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 8/1/2007
Page 2 of 2
The Development Agreement provides for the enforcement of municipal building codes and establishes
land use and development regulations for the Development. Special Regulations, which govern design
issues such as block lengths and street, right-of-way and sidewalk widths, are attached to the agreement as
Exhibit E.
The Tradition Project Special Regulations Agreement provides that the Special Regulations attached to the
Development Agreement as Exhibit E will be deemed to be incorporated in any other development
agreements for the remainder of Tradition for the next 10 years. The agreement recognizes that approval of
any future development agreements for Tradition is within the sole discretion of the City Council.
The five remaining agreements identified as items 4 through 8 above relate to utility service for the
Development. Aqua Utilities will provide the retail water and wastewater service to customers within the
Development through an operations contract with the District which will finance and own the facilities. The
agreements provide for the City to sell treated water service and wastewater service to Aqua Utilities. The
City has the option to purchase the water and wastewater facilities in the Development from Aqua Utilities
for $10 and to become the retail provider at any time after 17 years and within 15 to 17 years if the City
annexes during that period.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that approval of this Agreement will not require the expenditure of City funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Marc Ott (8476)
Originating Department Head: S. Frank Crumb (8207)
Additional Information Contact: S. Frank Crumb (8207)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 8/1/2007
COATS I ROSE
LESLIE ANNE CODE
lcode@coatsruse.com
Direct Dial
(972)982-8457
Facsimile
(972)982-8451
June 19, 2007
VIA COURIER
Ms. Allison Gray
Senior Planner, City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Re: Tradition Municipal Utility District No. 1 of Denton County f/k/a
City of Fort Worth Municipal Utility District No. 1 of Denton County
Dear Ms. Gray:
Enclosed please find the following fully executed original documents:
1. Buy-Out Option Contract (7 originals);
2. Memorandum of Buy-Out Option Contract (8 originals);
3. Superseding Agreement Regarding Water and Wastewater Utility Service (6
originals); and
4. Agreement Concerning Creation and operation of City of Fort Worth Municipal
Utility District No. 1 of Denton County(4 originals)
I have retained one original of each of the documents above for the Districts records.
On a related matter, the District conducted its first public hearing on the Strategic
Partnership Agreement on May 31, 2007 and we are currently scheduling the next hearing. I will
advise you of the date of the hearing once we have it confirmed.
Thank you for your assistance in this matter and please feel free to contact me if you have
any questions.
Sincerely,
Wo,aQ_(L�u-
Leslie Anne Code
Legal Assistant
Enclosures
COATS I ROSE I YALE I RYMAN I LEE
A Professional Corporation
Two Lincoln Centre,5420 LBJ Freeway,Suite 1300 Dallas,Texas 75240
Phone:972-982-8450 Fax:972-982-8451
Web:www.coatsrose.com
970281.1/005743.000007/LCODE