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HomeMy WebLinkAboutContract 32900 CITY SECRETARY CONTRACT NO. BUY-OUT OPTION CONTRACT This Buy-Out Option Contract ("Contract") is entered into by and between the City of Fort Worth, Texas (the "C "), 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 "Party" 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 CI C L� � L� � �n Page I FT. ':`v!'UYl� a� 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 Provelly. The items listed in Section 2.01 above are collectively called the "Pro e " 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 (3 0) years from the Effective Date or the twenty-first (21S) 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 OwFICIAL WORD Buy-Out Option Contract ] r' Page Y P I U � �: ELU� P e3 title survey ("Survey") of all or any portion of the Property made by a duly licensed surveyor reasonably acceptable to the Seller. 4.02 Inspection during Option 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 ("Insl2ection"), 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 ("Closing") 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 VI 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 pro t nds on a Buy-Out Option Contract Page 5 Y P 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/o: 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 Contracts IT 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 Assignment. 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 December L ��, 2005. SELLER AQUA UTILITIES, INC., a Texas o ation K106 By: Robert L. Laughman, C ief Operating Officer Date: lot-.2)-t95, CITY OF FORT WORTH MUNICIPAL UTILITY DISTRICT NO. I 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 Name: M:1046 gU li rl U1CG President, Board of Directors Date: Kai 31, 240"1 Buy-Out Option Contract Page 8 i APERION COTVMUNITIES, LLLP By: David P. Maniatis, General Partner ELADIO PROPERTIES LLLP By: David P. Maniatis, General Partner DROOY PROPERTIES,LLLP Co^tract Authorization By: JDavid P. Maniatis, General Partner Date PURCHASER ATTEST: THE CITY OF FORT WORTH, a Texas home-rule municipal corporation of Tarrant, enton, and Wise Co s 6bj/ LA. Printed Name: v By: L 4�'vCity Se retary Name: Mac A. Ott Aunt City MIMN APPROVED AS TO FORM Title: A7ND ALITY: Date: D �� _ ' 4 A sistant ty orney O Buy-Out tion Contract Page e 9 Y P9G STATE OF TEXAS § COUNTY OF § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared -1 obe►g k.lai4Ama41 ad Alp Opefaj7AC� ,,rof 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. IVEN UNDER MY HAND AND SEA O OFFICE t ' the o� day of is 17hc 20�. *ovr�P LINDA B.LEATHERWOOD otary Public, State of Texas -: _ Notary pubge�State of Texas * "= My commission Expims z�/✓O 8 JAN.21 Notary's Typed or Printed Name My Commission expir STATE OF TEXAS § COUNTY OF DA UA-5 § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared to i t has By(i n as y iCe Prat d e—rv+ 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 Mriy 52061 . L"4,�A a(Lap- LESLIE A.CODE Notary Public, State of Texas • • Pups,$tds d Tm®s My "0F Notary's Typed or Printed Name My Commission expires: Buy-Out Option Contract Page 10 STATE OF § COUNTY OF § BEFORE ME, THE UTIN DERSIGNED AUTHORITY, on this day personally appeared _ [�ry>d F lYlr�,N))O�—s as of APERION COMMUNITIES, LLLP, a Ori,-j, UL , on behalf of said partnership, known tome 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 Notary Public, State of Tomas 40,fzoo Notary's Typed or Printed Name My Commission expires:_ 1Z)- l-,206 S OFFICIAL SEAL KIM MITCHELL Notary Pu*-Stete of Antons A COUNTY STATE OF �i zr�rL i § �` My Comm..Exppiire 0000 1ber 4,2008 COUNTY OF § u14>OR ME, TIE UNDERSIGNED AUTHORITY, on this day personally appeared —,day.� F- fflaN)f 04ca as_ PiP of ELADIO PROPERTIES LLLP, a nZi ronua- L1,117 , 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 TL)NDER MY HAND AND SEAL OF OFFICE this the day of i7QC'er✓� z_ , 20 0 r J- Notary Public, State of Tis- Notary's Typed or Printed Name My Commission expires:_ l D,l2) -�24� OFFICIAL SEAL KIM MITCHELL Notary Pu*•SIM of Aviv e MAFWWA COUNTY My Comm.Expires OdDW 14,2008 Buy-Out Option Contract Page 11 STATE OF-Az_i ZOO_ § COUNTY OF o § BEFORE ME, THE iNDERSIGNED AUTHORITY, on this day personally appeared D2:i A i (fin lv)i 0-+1 Ifs as 31- :-, of DROOY PROPERTIES, LLLP, a A-EA,-nA y j(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 this the 114*l`4 day of Notary Public, State of Terms Azjzo,0c_ M In1'4 01 .p%, Notary's Typed or Printed Name My Commission expires:_ OFFICIAL SEAL KIM MITCHELL r N018ry Pu*.State of Arbna MWCOPA COUNTY STATE OF TEXAS ,1 My Comm.Expires October 14,M COUNTY OF TARR.ANT § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared - '1 aAx, A , UL7-- as of THE CITY OF FORT WORTH, a municipal corporation, on behalf of said CRY, knokm 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 OF CE this the =day of . _, 200 Notary Public, State of Texas m .mANNE tJiY CCI IMISSJOF r:XPIRES e— 2ah e. _ July 26. 2007 Notary's Typed or Printed Name My Commission expires: 01_A4, -"o7 Buy-Out Option Contract �i ����^! l< VN:� Page 12 CITY MCIRETAPY FT. `0 H, TEX, Exhibit A Map Showing the Development MIMI ROD Exhibit A to r, Buy-Out Option Contract � � �Ir,1 � Page 1 Fy, WW, 1 /r}1 T , q , r - w^ t = _ �M a ' r� s w y r _ e yy 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 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 61 FFICh"k-1 ROD Buy-Out Option Contract MY 'j�c����� 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 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 2 86.3 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 00E1 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 OOE 1112 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 a right-of- way line of State Highway No. 114, said brass monument alsoi M�'' oe of a tract Exhibit B to �,� •�j - �f�� ' Buy-Out Option Contract CIVIC 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 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 44E26'3I" 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 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 , 20 ("Contract'), Seller has granted Purchaser the option ("Option') to purchase certain land, improvements, easements, account records, plans, and other associated property ("Pro a ") 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 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 _—, 2020 and December, 2022, but in any event, Purchaser must exercise the Option(if at all) on or before December 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 Cto � �� � Buy-Out Option Contract CIP J'�NHAV Page 1 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 � ,`�rIt �?z l� Buy-Out Option Contract ciff WIER' M7 Page 2 R. TH-10. 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 OFFICIAL ROD Buy-Out Option Contract � �C � �(? Page 3 FT. W.4 EllIH I A�K. 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 61 FRIA END 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 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: 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 (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 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 C Buy-Out Option Contract 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 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 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 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. 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 al a of a tract Exhibit A to Exhibit C Buy-Out Option Contract Ciff SECREPHY Page 2 FT. � � � . 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 A to Exhibit C Buy-Out Option Contract CITEo �� . �' ��� e Page 3 �a ' ' ' � , Tea, Page 1 of 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 IcodeQcoatsrose.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, UAA)aQUAL 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/L CODE