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HomeMy WebLinkAboutContract 36464CITY SECRETARY,..t(J'Y((.J C©NTRACT No. STRATEGIC PARTNERSHIP AGREEMENT BETWEEN THE CITY OF FORT WORTH, TEXAS AND TRADITION MUNICIPAL UTILITY DISTRICT NO.2 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 "City"), acting by and through its duly authorized Assistant City Manager, and Tradition Municipal Utility District No. 2 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 by Act of May 23, 2007, 80th Texas Legislature, Regular Session, Special District Local Laws Code, Chapter 752, Special Strategic Partnership Agreement Page 1 014940.00010:998812.04 District Local Laws Code 6189, effective September 1, 2007. Be On , 2007, the City Council of the City adopted Resolution No. consenting to the creation of the District and approved that certain Agreement Concerning Creation and Operation of Tradition Municipal Utility District No. 2 of Denton County (City Secretary Contract No. , M & C �. C. The District encompasses approximately 1,922.737 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, Drooy Properties, LLLP, and Rocksand Investments, 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. M & C ), 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 83 and 86, totaling approximately 3V2 acres, and mixed -use residential and commercial development may occur on Tract 32, totaling approximately 30V2 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 , 200at ,in, at and on 200_, at _.m. at I. The Board of Directors of the District approved this Agreement on 200_, in open session at a meeting held in accordance with Chapter 551 of the Government Code, Strategic Partnership Agreement Page 2 014940.00010:998812.04 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 , 200_, at _.rn., at the City Council Chambers and on 200_, at _.m., at the City Council Chambers. L. The City Council of the City approved this. Agreement on , 200_, 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. 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. ARTICLE II DEFINITIONS Terms used in this Agreement shall have the following meanings: "Act" means the Texas Local Government Code, Section 43.0751, 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 Strategic Partnership Agreement Page 3 014940.00010:9988 12.04 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. ICILI " means the City of Fort Worth, Texas, a home rule municipality located in Tarrant, Wise, and Denton Counties. y Council" means the City Council of the City. y 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 Tradition Municipal Utility District No. 2 of Denton County by and among the City, the District, and Owner, which was approved by the City Council on , 200_ (City Secretary Contract No. M & C and executed as of , 200_6 "Development" means that certain 1,922.737-acre tract located in Denton County, Texas as shown on Exhibit A and described on Exhibit B. "Development Agreement" means the Development Agreement between the City and Owner, which was approved by the City Council on , 200_ (City Secretary Contract No. , M & C � and executed as of , 200_. "District" means the Tradition Municipal Utility District No. 2 of Denton County.. trict Boundaries" means boundaries of the District, consisting of the boundaries of the 1,922.737-acre tract as shown on Exhibit A and described on Exhibit B. "District Legislation" means Act of May 23, 2007, 80th Texas Legislature, Regular Session, Special District Local Laws Code, Chapter 7525 Special District Local Laws Code 8189, effective September 1, 2007, 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. "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 Ms. Strategic Partnership Agreement Page 4 014940.00010:998812.04 "Effective Date" means the date on which the City adopted this Agreement. "Finance Director" means the Director of the City's Finance Department. "Governmenn 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. "Original Commercial Property" means those certain 30'/z acre (Tract 32), 1% acre (Tract 83), and 2 acre (Tract 86 ) 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, Drooy Properties, LLLP, and Rocksand Investments, LLLP, Arizona limited liaty 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 36300550 Strategic Partnership Agreement Page 5 014940.000 l 0:998812.04 '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 COMMERCIAL 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. 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 3.06 for limited purposes as permitted by the Act. Strategic Partnership Agreement Page 6 014940.00010:998812.04 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 19 years of the Limited Purpose Annexation Period, and paid to the City as reflected in sales tax reports provided by the Comptroller to the City. Further, during the 19t" 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 20`" 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 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 "City hare '). 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 Strategic Partnership Agreement Page 7 o t a9�o. o00 � o:9�gs i z.oa (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 lOt" 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 20t" 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 19t" year of the Limited Annexation Period in order to defray the cost of maintaining roads within the Development upon full purpose annexation. 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 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 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 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 Strategic Partnership Agreement Page 8 0 l 4940.000 10:998812.04 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 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. 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 Party shall give Notice to the breaching Party that describes. the breach in reasonable detail. 6.02 Cure of Breach. The breaching Party shall commence curing such breach within 14 calendar days after receipt of such Notice and shall complete the cure within 14 calendar days from the date of commencement of the cures 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 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 Strategic Partnership Agreement Page 9 014940.00010:998812.04 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 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 Throckmorton Street Fort Worth, Texas 76102 Attn: City Secretary FAX: 817-392-6196 Strategic Partnership Agreement Page 10 O 14940.00010:998812.04 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 Throckmorton Street Attn: Finance Director Fort Worth, Texas 76102 Attn: Finance Director FAX: 817-392-8966 To the District: Tradition Municipal Utility District No c/o: Coats Rose 3 Greenway Plaza, Suite 2000 Houston, TX 77046 Attn: Timothy G. Green FAX: 713490-3924 2 of Denton County 7.03 Pants. 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 Strategic Partnership Agreement Page 11 014940.00010;998812.04 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 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 Assi ng ability 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. Strategic Partnership Agreement Page 12 014940.00010:998812.04 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 Parry 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. 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, CAPITALS (or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 7.18 Counterpart Ori lg'nals. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. Strategic Partnership Agreement Page 13 014940.00010:998812.04 CITY OF FORT WORTH By: Marty Hendrix, City Secretary Marc Ott, Assistant City Manager Date: APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney TRADITION MUNICIPAL UTILITY DISTRICT NO, 2 OF DENTON COUNTY By: Printed Name: President, Board of Directors Date: Strategic Partnership Agreement 014940.00010:998812.04 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me, on the _day of , 200_, 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 200_1 by President, Board of Directors of Tradition Mt Utility District No. 2 of Denton County, on behalf of said district. Notary Public, State of Texas Printed Name: My Commission Expires: [SEAL] n icipal Strategic Partnership Agreement Page 15 014940.00010:998812.04 Exhibit A Map of the Development a .ItfiPS 3.EP[C.fi99 � Gzu AN �8` rf60t N—G.91.-SQN C4W00 yy NZ< Q 1 I �0 s- WWEIR Irva si aa, i$ ' C �Ti� �q � �I .fiY9[QI X.[SZ4w15 -� - P9 t- Q1Y III `----- .{QIE61 .491. fL 9 [gX, LL 9ZIEL $1'° Pig: m �3-CLEF. JI"• 93llX {'2 'YQfddY } a C N.0.'EP L N � PP Su. zOb •W 3; E0.IN ] �` T TI I IULS QQ'Q3'P5' E a S F S 49" v NV 1^ .IPES 9B S T x � I v H am r�L-----.� sat OR I8 UP �60 UO �,al 3 .BtS1.9[ xuVI igL_- JI 62 FQii .9t.25, EB 51 I 81 a I I P� ZZfN[ 3 -SI.9S EB x ETJ E -wLW- sp Erv[>a smowaa wvs F 7a fl ' Nb s� del le= Aia^ gst QR - J1� \ r � rv10 _ 21 a 0 Ifwe0/fie" = J — — — K i 'ON AVMHJIH 31VIS ------------- Exhibit A to Strategic Partnership Agreement Page 1 014940.00010:998812.04 Exhibit B Legal Description of the Development BEING a 1,922.737 acre tract of land 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 a portion of those tracts conveyed to Aperion Communities, L.L.L.P. (Aperion Tract One -A and Aperion Tract One-B), by deed recorded under County Clerk's File No. 2004-11913 of the Real Property Records of Denton County, Texas (RPRDCT), that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT, a portion of that tract conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2003490652 RPRDCT (Aperion Tract Two), that tract conveyed to Rocksand Investments, LLLP by deed recorded in Instrument Number 2005-30851 RPRDCT and those tracts recorded in Volume 5128, Page 3102 and Volume 5119, Page 715, RPRDCT and being more particularly described as follows: TRACT ONE COMMENCING 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 00032136" 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 89°39'59" 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, said capped iron pin set also being on the west line of said Nancy Reynolds Talley, et al tract, said iron pin also being the POINT OF BEGINNING of the herein described tract; THENCE N 00022'44" 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 102.53 feet to a cappediron pin set THENCE N 57°46'29" 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 00021'32" E along the east line of said Peggy Jeannine Eaton and Betty Marie 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 00012'20" 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 89°52' 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 00009115" 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 m asphalt found, said 60d nail also being the southwest corner of a tract conveyed to Milton High by deed recorded in Volume 501, Page 248 RPRDCT; THENCE N 76015'28" 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 00018'58" W along the west line of said Aperion Tract One -A and the east line of said High tract, a Exhibit B to Strategic Partnership Agreement Page 1 014940.00010:998812.04 distance of 307.76 feet to a 1/2" on pin found; THENCE S 89055'09" W along the west line of said Aperion Tract One -A and the not 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 00° 12'09" 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 Sam 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; THENCE S 89057'51" 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 00°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 89005' 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 88°48'54" 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 00024'54" 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-R0021328 RPRDCT; THENCE N 00043'24" 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 8805TO1" 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 00035' 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 88003'05" 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 977.84 feet to a capped 1/2" iron pin previously set, said iron pin also being on the north line of Aperion Tract One -A; THENCE N 00033'20" W, departing the south line of said Pennington Family Trust tract and the north line of said Aperion Tract One -A, a distance of 723.83 feet to a capped 1/2" iron pin previously set; said iron pin also being on the south right -of --way line of F.M. 407 (90' R.O.W.); THENCE N 89026'40" E, along the south right-of-way line of said F.M. 407 and along the north line of said Exhibit B to Strategic Partnership Agreement Page 2 014940.000100998 812404 Pennington Family Trust tract, a distance of 170.00 feet to a capped 1/2" iron pin previously set; THENCE S 00033'20" E, departing the south right-of-way . line of said F.M. 407 and the north line of said Pennington Family Trust tract, a distance of 731.26 feet to a capped 1/2" iron pin previously set, said iron pin also being on the south line of said Pennington Family Trust tract and the north line of Aperion Tract One -A; THENCE S 88°03'05" E along the north line of said Aperion Tract One -A and the south line of said Pennington Family Trust tract, a distance of 42.05 feet to a 1/2" iron pin found, said iron pin also being on the north line of Aperion Tract One -A; THENCE N 89000'24" 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 500101O1" 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 39044'46" and being subtended by a chord which bears S 70002'24" 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 89054'47" 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 458.09 feet to a point on the east line of the City of Fort Worth ETJ line and the west line of the Town of Northlake ETJ line; THENCE S 00000'00" W, departing the north line of said Aperion Tract One -A and the southerly right -of --way line of said F.M 407, along the east line of the City of Fort Worth ETJ line and along the west line of the Town of Northlake ETJ line, a distance of 2998.33 feet to a point on the north line of a tract conveyed to Patricia Malloy by deed recorded in Volume 769, Page 965 RPRDCT; THENCE S 88057'42" W along the east line of said Aperion Tract One -A and the north line of the north line of said Patricia Malloy tract, a distance of 802.46 feet to a 5/8" iron pin found; THENCE S 00010'33" 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 0001737" 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 89°56'15" 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 00015'21" 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 Rocksand Investments, LLLP by deed recorded in Instrument Number 2005-30851 RPRDCT; THENCE S 00003'07" E along the east line of said Rocksand Investments tract, a_distance of 503.35 feet to a 1/2" on 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-R0020408 RPRDCT; said iron pin Exhibit B to Strategic Partnership Agreement Page 3 014940.00010:998812.04 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 19° 15'23" and being subtended by a chord which bears S 54°00'43" 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 44°2302 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 45036'58" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 50.60 feet to a 5/8" iron pin found; THENCE S 44°23'02" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1446.37 feet to a 5/8" iron pin found, said iron pin being on the east line of said Aperion Tract One -A and the west line of said Rocksand Investments tract; THENCE N 00°07'20" W along the east line of said Aperion Tract One -A and the west line of said Rocksand Investments tract, a distance of 857.55 feet to a capped 1/2" iron pin set; THENCE N 90000'00" W, departing the east line of said Aperion Tract One -A and the west line of said Rocksand Investments tract, a distance of 773.31 feet to a capped 1/2" iron pin set; THENCE N 65058'36" W, a distance of 1029.92 feet to a capped 1/2" iron pin set; THENCE N 44008'03" W, a distance of 999.82 feet to a capped 1/2" iron pin set; THENCE N 52034'22" W, a distance of 867.86 feet to a capped 1/2" iron pin set; THENCE N 86014'27" W, a distance of 222.13 feet to the POINT OF BEGINNING and containing 59,787,842 square feet or 1372.540 acres of land, more or less. TRACT TWO 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 18643131" and being subtended by a chard which bears N 81015'18" W, 203.13 feet; S 89°22'57" W, a distance of 1876.49 feet; 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'S1" 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 89037'03" 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; Exhibit B to Strategic Partnership Agreement Page 4 014940.00010:998812.04 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. Exhibit B to Strategic Partnership Agreement Page 5 014940.00010:998812.04 Exhibit C Map of Original Commercial Property To be attached prior to approval of agreement Exhibit C to Strategic Partnership Agreement Page 1 014940.00010:998812.04 Exhibit D Legal Description of Original Commercial Property To be attached prior to approval of agreement Exhibit D to Strategic Partnership Agreement Page 1 014940.00010:998812.04 Page 1 of 3 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 12/18/2007 -Res. No. 3568-12-2007 DATE: Tuesday, December 18, 2007 LOG NAME: 06TRADITION2 REFERENCE NO.: C-22589 SUBJECT: Authorize Execution of the Consent Resolution, Development Agreement, Buy -Out Option Agreement, Impact Fee Agreement, Utility Agreement, Wholesale Wastewater Service Agreement, and the Agreement for the Sale of Treated Water and Approve the Form of the Strategic Partnership Agreement for Tradition Municipal Utility District No. 2 of Denton County RECOMMENDATION: It is recommended that the City Council: 1. Adopt a resolution consenting to the creation of Tradition Municipal Utility District No. 2 of Denton County ("District"); 2. Authorize the City Manager or a designee to execute the following contingent upon receipt of necessary executed documents from Aqua Utilities: a. A Development Agreement between the City and Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP; b. A Buy -Out Option Agreement between the City, Aqua Utilities, Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP, and the District; c. An Impact Fee Agreement between the City, Aqua Utilities, Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP, and the District; d. A Utility Agreement between the City and Aqua Utilities, Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP, and the District; e. A Wholesale Wastewater Service Agreement between the City and Aqua Utilities; f. An Agreement for the Sale of Treated Water between the City and Aqua Utilities; and 3. Authorize the City Manager or a designee to bring forth the Strategic Partnership Agreement for approval after the formation of the Municipal Utility District. DISCUSSION: Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and Rocksand Investments, LLLP, (AEDR) are Arizona limited liability partnerships that own and are developing approximately 2,663 acres in Fort Worth's and Northlake's extraterritorial jurisdiction as a mixed -use development to be known as "Tradition." The property is in Denton County and is located north of Highway 114 and west of Highway 156. On December 13, 2005, (M&C C-21198) the City Council authorized the City Manager to enter into contracts for the first 431 acres of this development known as Tradition Municipal Utility District No. 1 of Denton County. The district was confirmed by the voters on May 12, 2007. http://www.cfwnet. org/council�acket/Reports/mc�rint.asp 1 /8/2008 Page 3 of 3 City funds. Any effect on expenditures and revenues will be budgeted in future fiscal years. TO Fund/Account/Centers Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: FROM Fund/Account/Centers Dale Fisseler (6140) Fernando Costa (8042) Susan Alanis (8180) http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 1/8/2008 Page 1 of 2 Tidwell, Allison From: Gray, Allison M. Sent: Wednesday, August 19, 2009 11:10 AM To: Gonzales, Ronald; Alanis, Susan Cc: Fullenwider, Sarah; Burghdoff, Dana; Hendrix, Marty; Cole, Tennie; Madison, Menique; Otis, Sarah; Seidel, Nicole M.; Tidwell, Allison; Tinker, Marlena; Knight, Beth Subject: RE: MUD Contracts Ron, I have contacted Marcella Olson, the attorney for the Municipal Utility District and she has spoken to the representatives of the district. The contracts that we received and were partially executed were picked up and returned to the District for their execution and recording. The contracts required that the documents be executed within 60 days of the confirmation of the district. Due to the economy and some personnel changes with the property owner the district has not yet been confirmed. There is not a date certain for that district confirmation. So Ron, the contracts are in the possession of the Municipal Utility District and have not been fully executed yet. The property owner believes that someone will purchase the property, confirm the district, execute the contracts and move forward. Unfortunately, I can't tell you when we will get fully executed contracts returned to us. If you have any questions or need further information please let me know and I will tell you what I can, Allison From: Gonzales, Ronald Sent: Thursday, August 13, 2009 3:31 PM To: Alanis, Susan; Gray, Allison M. Cc: Fullenwider, Sarah; Burghdoff, Dana; Hendrix, Marty; Cole, Tennie; Madison, Menique; Otis, Sarah; Seidel, Nicole M.; Tidwell, Allison; Tinker, Marlena Subject: RE: MUD Contracts If tl►c j)r�i,c�t�ic�(� (��i,linot� b(� �usl)(�n(l��(t tlic�il «-c� r��(�oniin(�ii(l t����O (�ol)ic�ti (�f th(� c�outr<i(�t b(� t)rO�-i�lc�(1 for nuuijx�rin;;. ��V(� swill iit:��iiit�a�in a, (�Ol)}- li(+rc� for th(�� Ofl'i(�i<<�l r��(°(n•(1 ���ii(1 rc�turii Ou(� to -Ott flu• full c�xc�(°utiOn. 'Pl<<<;nl: wOil fiutia ► ��a�id ,�111i5o1i. From: Alanis, Susan Sent: Thursday, August 13, 2009 3:08 PM To: Gonzales, Ronald; Gray, Allison M. Cc: Fullenwider, Sarah; Burghdoff, Dana Subject: Re: MUD Contracts Ron: I will find out why you haven't received it and resolve that if possible. It will not be possible to suspend this practice altogether due to the cross-referencing in them. It has always been anticipated that there could be a long gap before final execution because some cannot be signed until formation of the separate governmental entities. With the slowdown in development, they may be slowed even further. It makes sense to me for your office to have the official record even though they are partially executed so they are available for public inquiry. Allison: Please see what is going on with these in particular. 8/19/2009 From: Gonzales, Ronald Sent: Thursday, August 13, 2009 3:31 PM To: Alanis, Susan; Gray, Allison M. Cc: Fullenwider, Sarah; Burghdoff, Dana; Hendrix, Marty; Cole, Tennie; Madison, Menique; Otis, Sarah; Seidel, Nicole M.; Tidwell, Allison; Tinker, Marlena Subject: RE: MUD Contracts If tl►c j)r�i,c�t�ic�(� (��i,linot� b(� �usl)(�n(l��(t tlic�il «-c� r��(�oniin(�ii(l t����O (�ol)ic�ti (�f th(� c�outr<i(�t b(� t)rO�-i�lc�(1 for nuuijx�rin;;. ��V(� swill iit:��iiit�a�in a, (�Ol)}- li(+rc� for th(�� Ofl'i(�i<<�l r��(°(n•(1 ���ii(1 rc�turii Ou(� to -Ott flu• full c�xc�(°utiOn. 'Pl<<<;nl: wOil fiutia ► ��a�id ,�111i5o1i. From: Alanis, Susan Sent: Thursday, August 13, 2009 3:08 PM To: Gonzales, Ronald; Gray, Allison M. Cc: Fullenwider, Sarah; Burghdoff, Dana Subject: Re: MUD Contracts Ron: I will find out why you haven't received it and resolve that if possible. It will not be possible to suspend this practice altogether due to the cross-referencing in them. It has always been anticipated that there could be a long gap before final execution because some cannot be signed until formation of the separate governmental entities. With the slowdown in development, they may be slowed even further. It makes sense to me for your office to have the official record even though they are partially executed so they are available for public inquiry. Allison: Please see what is going on with these in particular. 8/19/2009 Page 2 of 2 Thanks, Susan From: Gonzales, Ronald To: Gray, Allison M. Cc: Burghdoff, Dana; Alanis, Susan Sent: Thu Aug 13 14:59:23 2009 Subject: MUD Contracts Allison, I lla�ve beetr ll1f01'lrled that our office has assigned 14 colltra�c°t mullbers for IUD colltra�c•ts for which we have not received the frilly elecuted doelllllellt� The contract numbers are as follows: 36200, 3G�01, 3G202, 3(i4G2, 30463, 36464, 3G465, 36466, 36467, 3G468, 3"l13G, 3"!13"l, 3"l138, 3"l139 and 3"l140 Iu the past, Marty had agreed to issue contract nanrbers for the 1Vi[Jl) contracts as we were advised that `ve would reserve the eaecntcd contract for processing and nraantenance upon all sign�r�hues being obta�rned. Since we have not received the ctecuted copies for the above 1VILTD contra�c�ts, Marty has directed that effective today we are not to issue contra�c°t niimbcrs for any NIUD contrast that is not fiilly esecnted. At your earliest opportunity, please provide the e�ecut�d copies of the above NIiTD contracts for our records, if available. If they are not available, please. a�clvise who we may conta�c�t to obtain the copies. Thank yore. Ron Gonzales Assistant City Secretaay, City of Fort tiVorth Rouahl(toi�a,les(ii)fol•t�worth�ov.or�; 81"l.3J�.61�1 "Wit1t fhzr° '�,} av®� %he I��€�,zrt Worlrs" 8/19/2009