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HomeMy WebLinkAboutContract 36465ITY SECRETARY ONTRACT No* AGREEMENT REGARDING WATER AND WASTEWATER UTILITY SERVICE This Agreement Regarding Water and Wastewater Utility Service ("Agreement") is entered into by and between the City of Fort Worth, Texas (the "City"), 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, Drooy Properties, LLLP, and Rocksand Investments, LLLP, Arizona limited liability limited partnerships (individually and collectively, "Owner")* and Tradition Municipal Utility District No. 2 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 and any other district created over the Development by dividing the District into one or more new Districts pursuant to the District Legislation (the "District"), which District, after the District Confirmation Date (or, for any later created District, the date the election dividing a District is held pursuant to § 8189.104 of the District Legislation), will become a Party to this Agreement. ARTICLE I RECITALS A. Owner is the developer of an approximately 2,660 acre master -planned community known as "Traditionand depicted for informational purposes only on the attached Exhibit A. B. Owner has commenced development of that certain 431.303-acre tract, identified as Phase I on Exhibit A ("Phase I"), as the first phase of Tradition. C. Owner also intends to develop the approximately 1,922.737 acres in Denton County, Texas, identified as the Development on Exhibit A and described in Exhibit B attached to this Agreement (the "Development"). The Development lies entirely within the City's extraterritorial jurisdiction ("ETJ"). Owner intends the Development to be the second phase of Tradition. D. The Development and Phase I are located within the extraterritorial jurisdiction of the City and the remaining approximately 307 acres of Tradition are located within the ETJ of the Town of Northlake. E. In conjunction with Owner commencing development of Phase I, the City, Owner and Aqua Utilities entered into that certain Superseding Agreement Regarding Water and Wastewater Utility Service, dated effective December 21, 2005, (the "Superseding Agreement") which applies to Phase I and which contains certain provisions that also apply to the remaining portions of Tradition. F. Owner petitioned the Texas Legislature to form a Municipal Utility District to encompass the Development and thereafter the Texas Legislature approved the creation of Tradition Municipal Utility District No. 2 of Denton County, by Act of May 23, 2007, 80th Legislature, Regular Session, Chapter 752, Special District Local Laws Code, Chapter 8189, effective September 1 , 2007 (the "District Legislation"). Agreement Regarding Water and Wastewater Utility Service Page 1 G. On , 200_, the City Council of the City adopted Resolution No. consenting to the creation of the District, and authorizing the City Manager to execute the "Agreement Concerning Creation and Operation of Tradition Municipal Utility District No. 2 of Denton County" among the City, the Owner and the District (the "Consent Agreement'), which Consent Agreement was executed by the City and Owner and provides for Owner to cause the District to approve, execute and deliver this Agreement to the City. H. Aqua Utilities wishes to provide retail water and wastewater utility service to the Development. I. Aqua Utilities currently holds Certificate of Convenience and Necessity No. 11157 for retail water service issued by the Texas Commission on Environmental Quality ("TCE ") for an area including the Development. J. No entity presently holds a CCN for wastewater service in the area that includes the Development. K. The City has reached certain agreements with Aqua Utilities regarding the provision of wholesale water and wastewater service, and has a continuing interest in, and certain governmental responsibilities regarding, the regulation of development for the health and safety A residents in its ETJ. L. The Parties have reached certain agreements regarding water and wastewater utility infrastructure and service to be provided to the Development. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and conditions hereinafter set forth, the Parties contract and agree as follows. ARTICLE II DEFINITIONS "Agreement" means this Agreement Regarding Water and Wastewater Utility Service. "Aqua Utilities" means Aqua Utilities, Inc., a Texas corporation. "Aqua Utilities Agreements" means, collectively, the Water Agreement and the Wastewater Agreement. "Assignee" means the assignee of the Owner, as permitted by this Agreement and defined in Section 9.05(b). "Buy -Out Contract" means the "Buy -Out Option Contract," the form of which is attached to this Agreement as Exhibit H. "CFA Policy" means the City's "Policy for the Installation of Community Facilities," as it may be amended from time to time. The applicable CFA Policy for a particular area of the Agreement Regarding Water and Wastewater Utility Service Page 2 Development are those in effect, including any amendments thereto then in effect, on the later of (i) the date that a Water or Wastewater Utility Service Plan is submitted to the City pursuant to Article III of this Agreement for such area or (ii) the latest date that any District is created over the area covered by such Utility Service Plan area. means the City of Fort Worth, a home rule municipality located in Tarrant, Denton and Wise Counties, Texas. "City Council" means the City Council of the City. "City Utility Standards" means (i) all City fire protection requirements for water line sizing, number of connections, minimum water pressure and number of fire hydrants; and (ii); all City standards for design, location, construction, operation and maintenance of water and wastewater utility Infrastructure, as they may be amended from time to time, expressly including without limitation the following: (a) Subdivision Regulations; (b) CFA Policy; (c) Policy and Procedure for Processing Water and Wastewater Projects for Design and Construction; and (d) General Contract Documents and Specifications for Water Department Projects The applicable City Utility Standards for the original District are those in effect, including any amendments thereto then in effect, on the Effective Date. The applicable City Utility Standards For areas within any district created over the Development by dividing the original District into one or more new Districts pursuant to the District Legislation are those in effect, including any amendments thereto then in effect, on the later of (i) the date that a Water or Wastewater Utility Service Plan is submitted to the City pursuant to Article III of this Agreement for such area or (ii) the date that the District is created over the area covered by such Utility Service Plan. "City Review Fees" means fees and charges applicable to the review and approval of plans relating to the construction of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of submittal of such plans. "Confirmation Date" means date on which an election is held within the original District to consider confirming its creation, as required by the District Legislation. "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 C - and executed as of 5200 _. "Contractor" means a person or entity that constructs, alters or repairs Infrastructure required to serve the Development, whether located within or outside the Development. "Development" means that certain 1,922.737-acre tract located in Denton County, Texas shown on Exhibit A and more particularly described in Exhibit B. Agreement Regarding Water and Wastewater Utility Service Page 3 "Development's S, sue" means the wastewater collection facilities (whether owned by Aqua Utilities or third parties) located on the Development, or those facilities located outside the Development but constructed and operated to serve the Development, and on the Development's side of the point of entry into the Fort Worth System. rector" means the City Water Department Director or designee. "District" means the Tradition Municipal Utility District No. 2 of Denton County and any other district created over the Development by dividing the District into one or more new Districts pursuant to the District Legislation. "District Legislation" means Act of May 9 80th Legislature, Regular Session, Chapter 752, Special District Local Laws Code, Chapter 8189, effective September 1, 2007 creating the District. "Effective Date" means the effective date of this Agreement as defined in Section 9.16. "Fort Worth System" means those sewer lines and associated facilities (including sewer collection, transportation, treatment and disposal facilities) owned by the City. "Impact Fees" means City water and wastewater impact fees for new or enlarged connections located outside the boundaries of the City adopted by one or more City ordinances in Chapter 35, Division 2, of the Fort Worth City Code in accordance with Chapter 395, Texas Local Government Code, as such may be amended from time to time and as further modified by the Impact Fee Agreement. "Impact Fee Agreement" means the Agreement Regarding Payment of Impact Fees and Financing of Water and Wastewater Facilities among the City, District and Owner, the form of which is attached to this Agreement as Exhibit G. "Infrastructure" means all water and wastewater (unless expressly identified as only water or only wastewater) facilities, equipment or related improvements necessary to serve the Development, whether located within or outside the Development, but does not include the Tradition Facilities. "Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of the inspection. "Infrastructure Standards" means the standards for construction, operation and maintenance defined as the Infrastructure Standards as set forth in Article V. "Notice" means notice as defined in Section 9.03 of this Agreement. "Owner" means, individually and collectively, Aperion Communities, LLLP, Eladio Properties, LLLP, Drooy Properties, LLLP, and Rocksand Investments, LLLP Arizona limited liability limited partnerships, and each of their respective Assignees as permitted by Section 9.05. Agreement Regarding Water and Wastewater Utility Service 13age 4 "Party" means, individually, the City, Owner, District or Aqua Utilities, and any successors and assigns, as permitted by this Agreement. "Phase I" means that certain 431.303-acre tract located in Denton County, Texas shown on Exhibit A. "Policy" means the "Policy for the Installation of Community Facilities" adopted in March 2001 by the City Council, as it may be amended from time to time. "Subdivision Regulations" means the City's Subdivision Ordinance No. 7234 and Plan Commission Rules and Regulations in effect on the Effective Date, together with any amendments thereto that are in effect on the Effective Date. "Superseding Agreement" means that certain Superseding Agreement Regarding Water and Wastewater Utility Service among the City, Aqua Utilities, Owner and City of Fort Worth Municipal Utility District No. 1 of Denton County, dated December 21, 2005, City Contract No. 32899. "TCEQ" means the Texas Commission on Environmental Quality or its successor agency. "TRA" means the Trinity River Authority of Texas. "Tradition" means the proposed master -planned community containing approximately 2,660 acres as depicted in Exhibit A. "Tradition Facilities" means the storage tank, transmission lines, water treatment plants and other facilities necessary to serve Tradition as described in Exhibit F. "Wastewater Agreement" means the Wholesale Wastewater Service Agreement between the City and Aqua Utilities, the form of which is attached to this Agreement as Exhibit D. "Water Agreement" means the Agreement for Sale of Treated Water between the City and Aqua Utilities, the form of which is attached to this Agreement as Exhibit C. ARTICLE III APPLICABILITY OF SUPERSEDING AGREEMENT AND WATER AND WASTEWATER UTILITY SERVICE PLANS 3.01 Applicability of Superseding Agreement. The Superseding Agreement shall remain in full force and effect; however, the terms of this Agreement shall control with respect to the Development. 3.02 Service Plans to be Submitted. Owner will submit retail water and wastewater utility service plans for the Development to the City for review and approval, which approval shall not be unreasonably withheld. The City will make reasonable efforts to complete its review within 120 days of receipt of each plan. Multiple service plans may be submitted to the City as Agreement Regarding Water and Wastewater Utility Service Page 5 Tradition is subdivided and developed, but in no event shall a plan include less than 300 acres or more than 500 acres without the City's written consent. Approval of both a retail water utility service plan and a retail wastewater utility service plan by the City shall be a condition of the City's approval of a final plat for each phase of Tradition. 3.03 Water Plans. To obtain City approval, a water utility service plan must, at a minimum, meet the following requirements. a. The water utility Infrastructure shall meet all City Utility Standards set out in Article V. b. The plan must demonstrate that an adequate supply of potable water meeting all TCEQ public water system requirements will be provided. Such demonstration shall be made prior to the City's approval of a preliminary plat for each phase of the Development. Water supplies may be obtained from any source, including but not limited to (i) groundwater sources, (ii) third party suppliers or (iii) upon agreement of the City, pursuant to a treated water delivery contract with the City. c. All plans and specifications proposed for water utility Infrastructure, including all meters, valves, meter boxes, service lines and any offsite facilities, shall be submitted to the City as part of the retail water utility service plan. 3.04 Wastewater Plans To obtain City approval, wastewater utility service plans must at a minimum meet the following requirements: a. The wastewater utility Infrastructure shall meet all City Utility Standards set out in Article V. b. All plans and specifications proposed for wastewater utility Infrastructure, including all meters, valves, meter boxes, service lines and any offsite facilities, shall be submitted to the City as part of the retail wastewater utility service plan. c. Within the Development, where Aqua Utilities, Owner or the District may provide wastewater treatment service by owning or operating a treatment plant, such wastewater treatment plant shall be permitted, constructed, operated and maintained in accordance with all applicable TCEQ requirements, and in addition shall be constructed and operated to meet effluent limitations no less stringent than 5-5-24 (5 parts per million ["ppm"] biochemical oxygen demand; 5 ppm total suspended solids; 2 ppm nitrogen; and 1 ppm phosphorous). The City will not contest any TCEQ or other regulatory approvals sought by Aqua Utilities, Owner or the District for such wastewater treatment plant so long as the plant remains in compliance with applicable TCEQ requirements and the foregoing effluent limitations, and so long as such approvals sought by Aqua Utilities, Owner or the District are not in violation of the terms of the various agreements among the Parties, including this Agreement. ARTICLE IV SERVICE TO THE DEVELOPMENT Agreement Regarding Water and Wastewater Utility Service Page 6 4.01 Water Service. Subject to the terms of this Agreement, and under the terms of the Water Agreement attached as Exhibit C, for each District (or if the Development is not divided into any new District, then for the area covered by each service plan submitted to the City pursuant to Section 3.02), the City agrees to furnish water for full build -out of the Development, which is currently anticipated to include a total of approximately 7,400 residential units. For areas within Tradition, but outside the Development and Phase I, Aqua Utilities may obtain water supplies from any source, including but not limited to (i) groundwater sources, (ii) third parry wholesale suppliers, or (iii) water from the City pursuant to a treated water delivery contract to be agreed upon between the City and Aqua Utilities; however, nothing in this Agreement requires the City to enter into such a contract or to otherwise provide treated water service to areas of Tradition outside the Development or Phase I unless a treated water delivery contract is subsequently agreed upon for such areas. Any treated water delivery contracts to be entered into by the City pursuant to this Agreement shall not contain terms and conditions more favorable than set forth in the City's uniform wholesale water service contracts with its existing wholesale customers. For water purchased pursuant to the Water Agreement, ownership of and liability for that water shall remain with the City until the water passes through the Point of Delivery, as defined in the Water Agreement. The District (or Aqua Utilities through its lease agreement(s) with the District) assumes all liability and responsibility for, together with ownership of, the water after it passes through the Point of Delivery, including but not limited to liability for mixing, transportation and quality of water. 4.02 Wastewater Service. The Parties have not finally determined how wastewater service is to be provided to the Development; however, the option to provide wastewater service through the City's agreement with TRA is the preferred option. The Parties acknowledge that the first units developed within the Development shall, at Aqua Utilities' option, receive service by connecting to the City's Harriett Creek trunkline for transport to the TRA Denton Creek plant. These units and the Harriett Creek trunkline are depicted on Exhibit J. The remainder of Tradition may receive service from either: (a) package plants installed by or on behalf of Aqua Utilities, (b) temporary or permanent facilities constructed by or on behalf of Aqua Utilities, (c) the City through the TRA System pursuant to the Wastewater Agreement, or (d) a combination of such sources. i. If the City will provide wastewater collection and treatment service to the Development through TRA facilities pursuant to the City's agreement with TRA, then (i) such service shall be provided pursuant to the terms of the Wastewater Agreement, attached as Exhibit D; (ii) the District shall impose and reasonably enforce, in cooperation with Aqua Utilities, the wastewater influent quality and pretreatment requirements and standards for the Development, as set forth in Article III of the Wastewater Agreement, and (iii) upon commencement of sewer service to the Development, the District agrees to develop and to implement, or require Aqua Utilities to develop and implement, an ongoing capacity management, operation and maintenance plan for the prevention of sewer system overflows. The plan shall include rehabilitation, operation and maintenance for the Development's System and shall comply with any written directives from TRA applicable to the Fort Worth System. Agreement Regarding Water and Wastewater Utility Service Page 7 iis If the City will not be providing wastewater collection and treatment service to the development, then the provisions of Sections 4.03 and 4.04 do not apply to wastewater facilities within the Development. In addition, if Aqua Utilities, Owner or the District intend to provide wastewater treatment service by owning or operating a treatment plant under Section 3.04(c), such Party shall provide Notice to the City eighteen (18) months before construction of such plant begins. 4.03 Easements and Rights -of --Way. All easements or rights -of --way required for the installation of the Infrastructure will be granted or acquired by Aqua Utilities, Owner or the District, at no cost to the City. To facilitate provision of water and wastewater service to the Development pursuant to the terms of this Agreement, Aqua Utilities, Owner and the District will grant and provide to the City such easements as are necessary to connect the City's water system (including the Tradition Facilities) to the Development and, if the City is providing wastewater service, to connect the TRA's wastewater system to the City's system and ultimately to the Development, and for the continuous operation and maintenance of all metering and sampling facilities, all at no cost to the City. Such easements and rights -of -way shall be in a form acceptable to the City, such as those included as Exhibit E to this Agreement. 4.04 Access, Ingress and Egress. Upon prior Notice by the City, any duly authorized employee of the City bearing proper credentials and identification shall be granted access to any premises located within the Development as the City may determine is necessary for the purpose of inspection, observation, measurement, sampling, testing or auditing, in the provision of water and wastewater service to be provided pursuant to the terms of this Agreement. In addition, the City will be given continuous route of ingress and egress to all metering and sampling facilities. 4.05 Ownership and Construction of Infrastructure. Except for the Tradition Facilities, the Infrastructure on the Development's side of the City's water and wastewater meters will be owned by the District, and leased to Aqua Utilities unless and until it is acquired by the City pursuant to Section 7.01. Aqua Utilities shall not provide water or wastewater service to the Development pursuant to the Aqua Utilities Agreements, except through Infrastructure owned by a District. If no mutually acceptable lease agreement is reached between Aqua Utilities and a District within two (2) years after the creation of such District for the operation and maintenance of the Infrastructure, or if within five (5) years after a District's creation, such District does not own any water or sewer Infrastructure capable of providing retail water or sewer service to the District, then each of those water and sewer service agreements shall terminate pursuant to the provisions therein for termination by mutual consent. 4.06 Notices to Retail Customers. At least once annually, water bills sent to all retail customers within the District will contain the following statement: "This service address is inside the boundaries of a municipal utility district that may be annexed in the future by the City of Fort Worth." 4.07 Service by Another Entity. If Owner or the District engages or allows any entity other than Aqua Utilities to provide water or wastewater service to land within the Development, then Owner or the District will first contractually obligate such provider to the terms and conditions of this Agreement to the same extent that Aqua Utilities is obligated. Agreement Regarding Water and Wastewater Utility Service Page 8 ARTICLE V CONSTRUCTION, OPERATION AND MAINTENANCE OF INFRASTRUCTURE 5.01 Infrastructure Standards. All Infrastructure shall be designed and constructed in compliance with this Article V and: (a) the City Utility Standards; (b) rules and regulations of the TCEQ; (c) the rules and regulations, if any, of the District; and (d) the rules and regulations of Aqua Utilities that apply to the Development ("Infrastructure Standards"). 5.02 Conflicts. In the event of any conflict between the City Utility Standards and any other standards, rules, or regulations listed above, the City Utility Standards shall control unless otherwise agreed in writing by the Director. 5.03 Additional Construction Standards for Water Utility Infrastructure. The water utility Infrastructure serving the Development must be constructed using the same type, or a compatible type, of meters, valves, fire hydrants, meter boxes and service lines used by the City for its municipal water system; provided, however, that automated meter reading ("AMR")- compatible may be used. 5.04 Construction of Tradition Facilities. The City, a District, or Aqua Utilities shall construct or cause the construction of the Tradition Facilities as reflected on Exhibit F, including site acquisition and preparation, design, and rights of way. Construction costs shall be paid pursuant to the Impact Fee Agreement. All Tradition Facilities constructed or caused to be constructed by Aqua Utilities, Owner or District shall be constructed in compliance with the standards set forth in Sections 5.01, 5.02 and 5.03 above. Title to the Tradition Facilities (whether or not located in the Development) shall be held by the City, however, such facilities shall be maintained by the District (or by Aqua Utilities pursuant to its lease with the District) and the maintenance cost shall be split between the District and the City, such that the District pays the portion allocable to the Development and the City pays the portion allocable to the remainder, as shown on Exhibit F and provided by the Impact Fee Agreement (Exhibit G). 5.05 Plan Review; Payment of Fees; and Pre -Construction Conference. Construction of Infrastructure shall not commence until the plans and specifications have been reviewed and accepted by the City for compliance with the City's Utility Standards; a pre -construction conference has been held by the Contractor, the District's engineer and representatives of the City's Department of Engineering; and the applicable City Review Fees have been paid. At such pre -construction conference, the Department of Engineering shall designate City employees to serve as the project inspector (the "City Inspector") for purposes of Sections 5.07, 5.09 and 5.12 and the project manager. 5.06 Community Facilities Agreements. Construction of Infrastructure shall not commence until a Community Facilities Agreement has been executed in accordance with the City's CFA Policy. Notwithstanding the Infrastructure Standards, the City shall not participate in the cost of construction of any Infrastructure unless the City requires the construction of Infrastructure that exceeds that which is roughly proportionate to the impact of the Development. Agreement Regarding Water and Wastewater Utility Service Page 9 5.07 Inspections by Third Party Inspectors. Except as otherwise provided in this Article V, inspectors retained by the District (or by Owner on behalf of the District) and approved by the City (which approval shall not be unreasonably withheld or delayed) shall perform or cause to be performed all inspections and testing of the construction of Infrastructure for compliance with this Article V. The District or Owner, as applicable, shall submit the names, addresses and phone numbers of such inspectors simultaneously with submittal of plans in accordance with Article III. Construction of Infrastructure shall not commence until such inspectors have been approved by the City. The District shall cause the inspectors to provide copies of all inspection and testing reports to the City Inspector. All costs of such third party inspectors shall be paid by the District (or by Owner on behalf of the District). 5.08 Termination of Third Part.�pectors. The City has the right to terminate any third party inspector retained by the District or Owner pursuant to Section 5.07 if the inspector: (i) fails to properly perform inspections and testing to ensure construction in compliance with this Article V; or (ii) fails to provide copies of inspection and testing reports to the City's Department of Engineering. Upon termination of any third party inspector, the City, at its option, may: (1) allow the use of another approved third party inspector, or (ii) perform all necessary inspections and testing. Should the City elect to perform inspections and testing pursuant to this Section 5.08, the City shall perform such inspections and testing for compliance with this Article V in a timely manner (which inspections shall satisfy all applicable requirements of the TCEQ) and the District shall pay Infrastructure Inspection Fees, 5.09 Inspection b�ty. The City has the right, but not the obligation, to inspect and test the Infrastructure at any time. Further, the City has the right to participate in a fmal inspection of all Infrastructure. The Contractor shall notify the City Inspector when Infrastructure is ready for final inspection. If the City Inspector concurs that construction of the Infrastructure is substantially complete, the City Inspector will schedule a final inspection by the City within 30 days. Upon such final inspection and correction of any punch list items, written certification by the City Inspector that Infrastructure has been constructed in compliance with City Utility Standards shall constitute compliance with Sections 5.01(a), 5.03, 5.05, 5.06, 5.07, 5.09, and 5.10. Notwithstanding anything contained herein, the City shall have the right to charge Infrastructure Inspection Fees for such in and testing only if the City performs inspections and testing pursuant to Section 5.08. 5.10 Access by City Employ. Upon prior Notice by the City, any duly authorized employee of the City bearing proper credentials and identification shall be granted access to any property of the District within the Development as the City may determine necessary for the purpose of inspection and testing of Infrastructure or Tradition Facilities. 5.11 Contractors. If Owner, District or Aqua Utilities engages a Contractor to construct Infrastructure or Tradition Facilities, then such Party shall incorporate the requirements of this Article V into a written construction contract with the Contractor. All such contracts shall provide that the City is a third -party beneficiary of and may enforce such contracts against the Contractor. 5.12 Operation and Maintenance of Infrastructure. The District and Aqua Utilities shall cause all Infrastructure, once it is constructed, to be operated and maintained in compliance Agreement Regarding Water and Wastewater Utility Service Page 10 with the Infrastructure Standards, and the City shall have no liability or responsibility for maintenance and operation of the Infrastructure. 5.13 As -Built Drawings, The District and Aqua Utilities shall be jointly responsible for the delivery of mylar as -built drawings for all Infrastructure to the City Inspector within 30 days after final inspection. ARTICLE VI IMPACT FEES Impact fees shall be paid pursuant to the Impact Fee Agreement, a form of which is attached as Exhibit G. ARTICLE VII PURCHASE OF FACILITIES 7.01 Transfer of Retail Water or Wastewater Services. Pursuant to its CCN No. 11157, Aqua Utilities shall have the right and obligation to provide retail water service to the Development; however, at any time after (a) 17 years after the first connection to retail water or wastewater utility service within a District that enters into this Agreement, or (b) fifteen (15) years after a District enters into this Agreement, if the City annexes a District, or (c) at an earlier date if agreed by Aqua Utilities, the City may in its sole discretion seek to become the retail provider of water or wastewater service to the land in such District. In the event the Development is not divided into any new District, then the City shall have the right to exercise the option (a) above only for each portion of the Development covered by a separate service plan (submitted to and approved by the City pursuant to Section 3.02) at any time after 17 years after the first connection to retail water or wastewater utility service within the portion of the Development covered by that service plan. To effectuate the transfer of retail water or wastewater service from Aqua Utilities to the City, the Parties will enter into the Buy -Out Contract attached as Exhibit H. Aqua Utilities, Owner, and the District agree not to contest any applications filed by the City at the TCEQ for a new or amended water or wastewater CCN to effectuate the transfer of retail water or wastewater service rights for any portion of Tradition to the City, Aqua agrees to amend its CCN to remove the transferred retail water or wastewater service area from its CCN No. 11157, and the Parties further agree that they shall cooperate and assist the City to the extent reasonably necessary in obtaining any regulatory approvals required to effectuate such transfer of water or wastewater utility service rights from Aqua Utilities to the City. 7.02 Lease Termination. Any District lease covering all or any part of the Infrastructure shall terminate upon transfer of any Infrastructure covered by such lease to the City pursuant to the Buy -Out Contract, and each such lease shall contain a provision expressly providing for such termination. Likewise, upon transfer of any Infrastructure pursuant to the Buy -Out Contract, Aqua Utilities shall not have any obligations of any kind whatsoever to provide water or wastewater service to the District and the Aqua Utilities Agreements shall terminate in accordance with their terms with respect to such District. Agreement Regarding Water and Wastewater Utility Service Page 11 7.03 Effect of Transfer. Once the City becomes the retail provider of water or wastewater service to a District, Aqua Utilities will cease providing water or wastewater utility service to that area, and the City shall have no further obligations to Aqua Utilities or Owner with regard to the costs, operation, equipment removal or site restoration of Aqua Utilities' water or wastewater system operations serving such District, or any portion thereof that may have been served by such facilities. All costs of dismantling, decommissioning and removal of the then - existing water or wastewater system facilities not utilized by the City shall be borne by the owner of such facilities. Transfer of facilities to the City shall not affect any rights and obligations of the parties to the Impact Fee Agreement. ARTICLE VIII INDEMNIFICATION 8.01 Indemnity. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AQUA UTILITIES, THE DISTRICT, AND OWNER AGREE TO INDEMNIFY AND DEFEND THE CITY, ITS OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS, CONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "INDEMNITEES") WITH REGARD TO ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS, ADMINISTRATIVE PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS, ENFORCEMENT ACTIONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION THEREWITH (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES, COSTS OF INVESTIGATION AND EXPENSES, INCLUDING THOSE INCURRED BY CITY IN ENFORCING THIS INDEMNITY, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY OR RESULTING FROM (IN WHOLE OR IN PART) ANY BREACH OF THIS AGREEMENT OR ANY CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE INFRASTRUCTURE, (COLLECTIVELY, "LIABILITIES", EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNITE. 8.02 Insurance and Indemnity by Contractors. If any Party engages a Contractor to construct, reconstruct, repair or maintain Infrastructure, such Party shall include in the contract requirements that the Contractor must provide adequate insurance protecting the City as an additional insured. Such contract must also provide that the Contractor covenant to indemnify, hold harmless and defend the City against any and all suits or claims for damages of any nature arising out of the performance of such contract, even if such Liabilities arise from or are attributed to strict liability or to the sole or concurrent negligence of any Indemnitee. 8.03 Governmental Powers; Waiver of Immunity. By execution of this Agreement, neither the City nor the District waives or surrenders any of their respective governmental powers, immunities or rights, except as specifically waived pursuant to this section. The City and the District mutually waive their governmental immunity from suit and liability only as to any action brought by a Party to pursue the remedies available under this Agreement and only to the extent necessary to pursue such remedies. Nothing in this section shall waive any claims, defenses or immunities that the City or the District has with respect to suits against the City or the District by persons or entities not a party to this Agreement. Agreement Regarding Water and Wastewater Utility Service Page 12 ARTICLE IX MISCELLANEOUS 9.01 Governing Law; Jurisdiction and Venue. THIS AGREEMENT MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, AND HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER. 9.02 Conspicuous Provisions. The City, Aqua Utilities, the District, and Owner acknowledge that the provisions of this Agreement set out in bold, CAPITALS (or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 9.03 Notice. Any notices, approvals, or other communications required to be given by one Party to another under this Agreement (a "Notice") shall be given in writing addressed to the Parry to be notified at the address set forth below and shall be deemed given: (a) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (b) when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid; (c) when the Notice is delivered by Federal Express, UPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; or (d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be extended to the first business day following the Saturday, Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this section. To the City: City of Fort Worth, Texas 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 Agreement Regarding Water and Wastewater Utility Service Page 13 City of Fort Worth, Texas Attn: Water Director 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-2398 To the District: Tradition Municipal Utility District No. 2 of Denton County c/o: Coats Rose 2 Lincoln Center Suite 1300 Dallas, Texas 75240 FAX: 972-982-8451 To Owner: Aperion Communities, LLLP An: Mr. Gary Lane 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 FAX: 48M514414 Eladio Properties, LLLP Attn: Mr. Gary Lane 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 FAX: 48M514414 Drooy Properties, LLLP Attn: Mr. Gary Lane 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 FAX: 48M514414 Rocksand Investments, LLLP 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 Attn: Gary Lane FAX: 48M514414 To Aqua Utilities: 1421 Wells Branch Pkwy., Ste. 105 Pflugerville, TX 78660 Attn: Vice President FAX: (512) 98M891 Agreement Regarding Water and Wastewater Utility Service Page 14 762 West Lancaster Ave. Bryn Mawr, Pennsylvania 19010 Attn, Chief Legal Officer FAX: (610) 520-9127 9.04 City Consent and Approval. In any provision of this Agreement that provides for the consent or approval of the City staff or City Council, such consent or approval may be withheld or conditioned by the staff or City Council at its sole discretion. 9.05 Assignment. (a) Except as provided by Section 9.05(d), neither the District nor the City may assign this Agreement without the written consent of the other Parties. (b) Aqua Utilities may not assign this Agreement without the prior written consent of the City; provided, however, that Aqua Utilities' rights hereunder may be assigned or transferred upon Notice, but without the City's consent to (i) any subsidiary or affiliate of Aqua Utilities (i.e., any entity with respect to which 50% or more of the voting and economic interests are owned by Aqua Utilities or its parent) so long as Aqua Utilities shall remain liable to the City for any and all liabilities or obligations arising out of this Agreement, or (ii) to any entity acquiring all or substantially all of the assets or common stock of Aqua Utilities. Any assignee must assume all obligations of Aqua Utilities and any liability that may result from acts or omissions by assignee under this Agreement that may arise or accrue from and after the effective date of the assignment. If this Agreement is assigned to any entity by Aqua Utilities, then the Buy -Out Contract must be assigned at the same time and to the same extent as this Agreement. (c) Owner has the right, from time to time, to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to the District (after the Confirmation Date) and to any person or entity (an "Assignee") without the consent of the City, provided that the following conditions are satisfied: (i) if not the District, Assignee is a successor owner of all or any part of the Development or is a lender to a successor owner of all or any part of the Developments (ii) if not the District, Assignee has a contractual right to be reimbursed for water, sewer, or drainage improvements from District Bonds (or has a lien or other security interest in such reimbursements); (iii) the assignment is in writing executed by Owner and Assignee in the form of assignment attached as Exhibit I; (iv) Assignee expressly assumes in the assignment any assigned obligations and expressly agrees in the assignment to observe, perform, and be bound by this Agreement to the extent this Agreement relates to the obligations, rights, titles, or interests assigned; and (v) a copy of the executed assignment is provided to all Parties within 15 days after execution. Provided the foregoing conditions are satisfied, from and after the date the assignment is executed by Owner and Assignee, the City agrees to look solely to Assignee for the performance of all obligations assigned to Assignee and agrees that Owner shall be released from Agreement Regarding Water and Wastewater Utility Service Page 15 performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations. No assignment by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assignment. Owner shall maintain written records of all assignments made by Owner (including, for each Assignee, the Notice information required by this Agreement, and including a copy of each executed assignment) and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. It is specifically intended that this Agreement, and all terms, conditions and covenants herein, shall survive a transfer, conveyance, or assignment occasioned by the exercise of foreclosure of lien rights by a creditor or a Party, whether judicial or non judicial. This Agreement shall be binding upon and insure to the benefit of the Parties and their respective successors and Assignee. Notwithstanding the foregoing, however, Owner shall not have the right to assign this Agreement, or any right, title, or interest of Owner under this Agreement, until the District has become a Party. (d) In the event an additional District is created over the Development in accordance with the District Legislation, such District shall become a party to this Agreement and such District shall assume all of the rights and obligations of the Tradition Municipal Utility District No. 2 of Denton County as to the land located within such District's boundaries. Within 30 days following the date the election dividing the district is held creating the additional District, such District shall execute the District Joinder attached to the Consent Agreement as Exhibit H and provide a copy thereof to the other Parties. 9.06 No Third Party Beneficiary. This Agreement is solely for the benefit of the Parties, and their permitted successors and assigns, and neither the City, the District, Aqua Utilities nor Owner intends by any provision of this Agreement to create any rights in any third - party beneficiaries or to confer any benefit upon or enforceable rights under this Agreement or otherwise upon anyone other than the City, the District, Aqua Utilities and Owner. 9.07 Amendment. This Agreement may be amended only with the written consent of all Parties and with approval of the governing body of the City. 9.08 No Waiver. Any failure by a Party to insist upon strict performance by the other Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Party shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by writing signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by any Party hereto of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 9.09 Severability. The provisions of this Agreement are severable and, in the event any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or the application thereof to any person or circumstance, shall ever be held or determined to be Agreement Regarding Water and Wastewater Utility Service Page 16 invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the provision so severed. 9.10 Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of the Agreement. 9.11 Interpretation. The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting parry shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. As used in this Agreement, the term "including" means "including without limitation" and the term "days" means calendar days, not business days. Wherever required by the context, the singular shall include the plural, and the plural shall include the singular. Each defined term herein may be used in its singular or plural form whether or not so defined. 9.12 Section 13.248 Agreement. The Parties agree that the designation under this Agreement of areas and customers to be served by water and wastewater utility providers is valid and enforceable and may be submitted to the TCEQ for approval at the appropriate time pursuant to Section 13.248 of the Texas Water Code regarding contracts designating areas to be served by retail public utilities. 9.13 No Joint Venture. No provision of this Agreement shall be construed to create MY type of joint or equity ownership of any property or any partnership or joint venture. By entering into this Agreement, the City has no obligation to provide water or wastewater treatment services under this Agreement to any area within Tradition or any other area in the CCN except the services to the Development as set forth in this Agreement. 9.14 Counterpart Ori ig nals. This Agreement maybe executed in multiple counterparts, each of which shall be deemed to be an original. 9.15 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement are incorporated into this Agreement by reference for the purposes set forth herein, as follows: Exhibit A Map of Tradition showing Phase I, the Development and remainder Exhibit B Legal description of the Development Exhibit C Water Agreement Exhibit D Wastewater Agreement Exhibit E Forms of Easements and Rights -of -Way Exhibit F Tradition Facilities Exhibit G Impact Fee Agreement Agreement Regarding Water and Wastewater Utility Service Page 17 Exhibit H Buy -Out Contract Exhibit I Assignment and Assumption Agreement Exhibit J Harriett Creek Trunkline and Plant, Including Portion of Tradition Served by Harriett Creek 9.I 6 The Effective Date of this Agreement is ATTEST: CITY OF FORT WORTH Marty Hendrix City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney ATTEST: Corporate Secretary By: Title: (print name) AQUA UTILITIES, INC. By: Title: (print name) 2007. 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 Agreement Regarding Water and Wastewater Utility Service Page 18 ATTEST: ROCKSAND INVESTMENTS, LLLP By: David P. Mamatis, General Partner TRADITION MUNICIPAL UTILITY DISTRICT N0.2 OF DENTON COUNTY By: Title: (print name) Agreement Regarding Water and Wastewater Utility Service Page 19 Exhibit A Map of Tradition (showing Phase I, the Development and remainder) Exhibit A to Agreement Regarding Water and Wastewater Utility Service Page 1 Exhibit B Legal description of the Development BEING a 1,922.737 acre tract of an 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; THENCEN 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 RPRDC I 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 29065 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 bei Nng the POINT OF BEGINNING of the herein described tract, THENCE N OOE22144" 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 capped 1/2" iron pin set THENCEN 57E46'29" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, the east line of a tract conveyed to Peggy Jeannine Eaton and Betty Marie McIntyre by deed recorded under County Clerk's File No. 2003-203215 and the west line of said Nancy Reynolds Talley, et al tract, a distance of 253.45 feet to a 1/2" iron pin found; Exhibit B to Agreement Regarding Water and Wastewater Utility Service Page 1 094940.00090:997547.05 THENCE N OOE21'32" 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 OOE12'20" W along the east line of said Peggy Jeannine Eaton and Betty Marie McIntyre tract and the west line of said Aperion Tract One -A and in Sam Reynolds Road, a distance of 2791.88 feet to a railroad spike found; THENCE S 89E52'16" W along the north line of said Peggy Jeannine Eaton and Betty Marie McIntyre tract and the west line of said Aperion Tract One -A and in Sam Reynolds Road, a distance of 1909.29 feet to a 5/8" iron pin found, said iron pin also being on the east line of Indian Trails Phase 1, an addition to Denton County, Texas as recorded in Cabinet G, Page 311 of the Plat Records of Denton County, Texas (PRDCT), THENCE N OOE09' 15" W along the west line of said Aperion Tract One -A, the east line of said Indian Trails Phase 1, the east line of a tract conveyed to Avondale Ranch by deed recorded in Volume 5289, Page 4253 RPRDCT and in Sam Reynolds Road, a distance of 1437.47 feet to a 60d nail in asphalt found, said 60d nail also being the southwest corner of a tract conveyed to Milton High by deed recorded in Volume 501, Page 248 RPRDCT; THENCE N 76E15'28" E along the west line of said Aperion Tract One -A and the south line of said High tract, a distance of 381.87 feet to a 1/2" iron pin found; THENCE N OOE18'S8" W along the west line of said Aperion Tract One -A and the east line of said High tract, a distance of 307.76 feet to a 1/2" iron pin found; THENCE S 89E55'09" W along the west line of said Aperion Tract One -A and the north line of said High tract, a distance of 370.41 feet to a 60d nail found, said 60d nail also being on the east line of said Avondale Ranch tract and in Sam Reynolds Road; THENCE N OOE12109" 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 Zelmk, 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 89E57'51" E along the west line of said Aperion Tract One -A and the south line of said Margaret DiNapoli, et al tract, a distance of 509.83 feet to a 5/8" iron pin found, said iron Agreement Regarding Water and Wastewater Utility Service Page 2 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 OOE14'31" 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 89E05' 10" E along the west line of said Aperion Tract One -A and the south line of said Eddleman tract, a distance of 870.61 feet to a 5/8" iron pin found, said iron pin also being the southwest corner of a tract conveyed to Ricky Iverson by deed recorded in Volume 4718, Page 362 RPRDCT; THENCE N 88E48'S4" E along the west line of said Aperion Tract One -A and the south line of said Iverson tract and the south line of a tract conveyed to Carol Theis by deed recorded in Volume 1038, Page 887 RPRDCT, a distance of 1598.77 feet to a 1/2" iron pin found; THENCE N OOE24'S4" 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 OOE43'24" W along the west line of said Aperion Tract One -A and the east line of said Chastain tract, a distance of 423.43 feet to a 1/2" iron pin found, said iron pin also being the southeast corner of said Aperion Tract Two; THENCE S 88E53'O1" W along the south line of said Aperion Tract Two and the north line of said Chastain tract, a distance of 1193.21 feet to a capped 1/2" iron pin found, said iron pin also being on the east line of a tract conveyed to Wayne Harris by deed recorded in Volume 976, Page 42 RPRDCT; THENCE N OOE35'15" W along the west line of said Aperion Tract Two and the east line of said Harris tract, the east line %J 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 88E03'OS" 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 OOE33120" 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.); Agreement Regarding Water and Wastewater Utility Service Page 3 THENCE N 89E2640 E. along the south right -of --way line of said F.M. 407 and along the north line of said Pennington Family Trust tract, a distance of 170.00 feet to a capped 1/2" iron pin previously set; THENCE S OOE33'20" 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 88E03'OS" 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 89E00'24" E along the north line of said Aperion Tract One -A, the south line of said Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT and the south line of a tract conveyed to The Pennington Family Trust by deed recorded in Volume 4833, Page 521 RPRDCT, a distance of 1146.79 feet to a 1/2" iron pin found, said iron pin also being on the southerly right -of --way line of Farm -to -Market Road No. 407 (F.M. 407) (90' ROW); THENCE S SOE10'O1" E along the north line of said Aperion Tract One -A and the southerly right-of-way line of F.M. 407, a distance of 682.19 feet to a capped 1/2" iron pin set, said iron pin also being the Point of Curvature of a circular curve to the left having a radius of 617.96 feet, a central angle of 39E44'46" and being subtended by a chord which bears S 70E02'24" E , 420.13 Feet,* THENCE along said curve to the left and the north line of said Aperion Tract One -A and the southerly right -of --way line of F.M. 407, a distance of 428.68 feet to a capped 1/2" iron pin set; THENCE S 89E54147" 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. 4075 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 OOE00'00" 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 2998a33 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 88E5742" 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 OOE10'33" E along the east line of said Aperion Tract One -A and the west line of said Patricia Malloy tract, a distance of 3748.38 feet to a 5/8" iron pin found, said iron pin also being the northwest corner of Riggs Place, an addition to Denton County, Texas as recorded in Cabinet E. Page 359 PRDCT; Agreement Regarding Water and Wastewater Utility Service Page 4 THENCE S 00E17'37" E along the east line of said Aperion Tract One -A, the west line of said Riggs Place and the west line of a remainder tract conveyed to James Riggs, Jr., et ux Deborah, by deed recorded in Volume 870, Page 444 RPRDCT, a distance of 4211.11 feet to a 1/2" iron pin found, said iron pin also being in Sam Reynolds Road; THENCE N 89E56'15" E along the east line of said Aperion Tract One -A, the south line of said James Riggs, Jr. remainder tract, the south line of said Riggs Place, the south line of Sunflower Meadows, an addition to Denton County, Texas as recorded in Cabinet O, Page 122 PRDCT, the south line of Sage Meadows, Phase One, an addition to Denton County, Texas as recorded in Cabinet M, Page 208 PRDCT; the south line of a tract conveyed to Locust Thorn, L.P., by deed recorded in Volume 4009, Page 321 RPRDCT, the south line of Foxbane Estates, an addition to Denton County, Texas as recorded in Cabinet H, Page 24 PRDCT and in Sam Reynolds Road, a distance of 3409.24 feet to a capped 1/2" iron pin set, said iron pin also being the original northwest corner of Peyton Place, Phase One, an addition to Denton County, Texas as recorded in Cabinet M, Page 266 PRDCT; THENCE S OOE15'21" 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 OOE03'07" E along the east line of said Rocksand Investments tract, a distance of 503.35 feet to a 1/2" iron pin found, said iron pin also being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; said iron pin also being the Point of Curvature of a non -tangent circular curve to the left having a radius of 5829.65 feet, a central angle of 19E15'23 and being subtended by a chord which bears S 54E00'43" W , 1950.06 feet; THENCE along said curve to the left and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1959.27 feet to a 1/2" iron pin found; THENCE S 44E23'02" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 27.66 feet to a 5/8" iron pin found; THENCE N 45E36'58" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 50.00 feet to a 5/8" iron pin found; THENCE S 44E23'02" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 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 OOE0720" 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; Agreement Regarding Water and Wastewater Utility Service Page 5 THENCE N 90E0000 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 65E5836 W, a distance of 1029.92 feet to a capped 1/2" iron pin set; THENCE N 44E08'03" W, a distance of 999.82 feet to a capped 1/2" iron pin set; THENCE N 52E34'22" W, a distance of 867.86 feet to a capped 1/2" iron pin set; THENCE N 86E14'27" 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 18E0628 W, 624.31 feet, an arc distance of 204.03 feet, a central angle of 18E43'31 " and being subtended by a chord which bears N 81IS15'18 W, 203.13 feet; S 89E22'S7" W, a distance of 1876.49 feet; S 89E18'36" W, a distance of 1931.01 feet; THENCE N OOE04'03" W, departing the north line of said F.M. 407, a distance of 2834.59 feet; THENCE N OOE00'51" E, a distance of 1161.59 feet; THENCE N OOE04'13" 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 89E37'03" E, a distance of 5409.41 feet; Agreement Regarding Water and Wastewater Utility Service Page 6 S OOE32'35" W, a distance of 352.79 feet; N 89E46'S6" E, a distance of 651.45 feet; THENCE S OOE44'37" 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 85E 16'40" W, a distance of 2099.00 feet; THENCE S OOE24'45" 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. Agreement Regarding Water and Wastewater Utility Service Page 7 Exhibit C Water Agreement Exhibit C to Agreement Regarding Water and Wastewater Utility Service Exhibit D V�Iastewater Agreement Exhibit D to Agreement Regarding Water and Wastewater Utility Service i 0 0 Exhibit E Forms of Easements and Rights -of -Way CHECKLIST FOR PERMANENT WATER MAIN EASEMENT Project information: 1. Parcels are numbered consecutively starting with 01. If additional parcels are required at a later date they should be identified as (ex. IA, 2A, etc.) 2. DOE # can be obtained from the Project Manager 3. Provide the legal description for the easement 4. Please contact the City's project manager for any other questions regarding this information Date: Fill in the date the document was prepared Grantor: Fill in the name of the property owner and their mailing address including county Pro e :Fill in the legal description of the property (Please reference the Exhibits) Examples: Platted: Being a portion of Lot 1 Block 1, Silver Belle Estates Addition, For Worth, Tarrant County, Texas, as recorded in, Cabinet 100, Slide 200, Plat Records Tarrant County TX, and being more particularly described in Exhibits "A" and "B". 2. Un-platted: Being a portion of the W M H Little Survey, Abstract No. 900, as recorded in Volume 200, Page 357, Deed Records, Tarrant County, TX, and being more particularly described in Exhibits "A" and "B". ➢ Signature Block: Please type the Grantor's name and include all necessary information. Under the signature line please type the name of the person with authority to sign the document and his/her title ➢ Acknowled eg ment: Before submitting an executed document please verify that the document is properly signed and notarized ➢ Please allow a minimum of 8 weeks for the documents to be processed NOTICE: If an easement is to be executed on behalf of a corporation, the easement must be signed by the president or vice president of the corporation. In order to accept any other signature, a corporate resolution authorizing the person to sign on behalf of the corporation is required. If Grantor is a Limited Partnership, the name of the company acting as General Partner is also required. * If the Grantor would like any changes made to the City's standard easement document they must be on a separate document labeled as an Addendum. The Grantor and Grantee must sign the Addendum. Please be advised that any changes must be reviewed by City Departments and the City's Attorney's office and therefore additional time will be required while the City is considering any changes to the standard easement document. If you have any questions please call me at 817-392-83 86. Thank you for your cooperation. Real Property Services Exhibit E to Agreement Regarding Water and Wastewater Utility Service Page 1 «Project_Name>> Parcel # <<Parcel_Number» Doe # «DOE Number» <Property_Street Number» <<Property_Street Name» Lot -«Lot Number», Blk- «Block Number», «Addition Name» STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS COUNTY OF TARRANT CITY OF FORT WORTH PERMANENT WATER FACILITY EASEMENT DATE: GRANTOR: GRANTOR'S MAILING ADDRESS (including County): GRANTEE: CITY OF FORT WORTH GRANTEE' S MAILING ADDRESS (including County): 1000 THROCKMORTON ST. FORT WORTH, TARRANT COUNTY, TX 76102 CONSIDERATION: One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. PROPERTY: Legal Description of Property (See attached Exhibits "A" and "B") Grantor, for the Consideration paid to Grantor and other good and valuable consideration, hereby grants, sells, and conveys to Grantee, its successors and assigns, an exclusive, perpetual easement for the construction, operation, maintenance, replacement, upgrade, and repair of a Permanent Water Main Facility, hereafter referred to as "Facility". The Facility includes all incidental underground and aboveground attachments, equipment and appurtenances, including, but not limited to manholes, manhole vents, lateral line connections, valves, pipelines, junction boxes in, upon, under and across a portion of the Property and more fully described in Exhibit Agreement Regarding Water and Wastewater Utility Service Page 2 "A" attached hereto and incorporated herein for all pertinent purposes, together with the right and privilege at any and all times to enter Property, or any part thereof, for the purpose of constructing, operating, maintaining, replacing, upgrading, and repairing said Facility. In no event shall Grantor (I) use the Property in any manner which interferes in any material way or is inconsistent with the rights granted hereunder, or (II) erect or permit to be erected within the easement property a permanent structure or building, including, but not limited to, monument sign, pole sign, billboard, brick or masonry fences or walls or other structures that require a building permit. However, Grantor shall be permitted to maintain any existing concrete driveway or road on the Property. Grantee shall be obligated to restore the surface of the Property at Grantee's sole cost and expense, including the restoration of any sidewalks, driveways, or similar surface improvements located upon or adjacent to the Easement which may have been removed, relocated, altered, damaged, or destroyed as a result of the Grantee's use of the easement granted hereunder. Provided, however, that Grantee shall not be obligated to restore or replace irrigation systems or other improvements installed in violation of the provisions and intended use of this Easement. TO HAVE AND TO HOLD the above -described easement, together with all and singular the rights and appurtenances thereto in anyway belonging unto Grantee, and Grantee's successors and assigns forever; and Grantor does hereby bind itself and its successor and assigns to warrant and forever defend all and singular the easement unto Grantee, its successor and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof. When the context requires, singular nouns and pronouns include the plural. GRANTOR: GRANTEE: City of Fort Worth Marc A. Ott, Assistant City Manager APPROVED AS TO FORM AND LEGALITY Assistant City Attorney Agreement Regarding Water and Wastewater Utility Service Page 3 ACKNOWEED GEMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared known to me to be the same person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of and that he/she executed the same as the act of said for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of Notary Public in and for the State of Texas ACKNOWLEDGEMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Marc A. Ott, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of the City of Fort Worth, a municipal corporation of Tarrant County, Texas, for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of Notary Public in and for the State of Texas Agreement Regarding Water and Wastewater Utility Service Page 4 RTWORTH CHECKLIST FOR PERMANENT SEWER FACILITY EASEMENT ➢ Project information: 5. Parcels are numbered consecutively starting with 01. If additional parcels are required at a later date they should be identified as (ex. IA, 2A, etc.) 6. DOE # can be obtained from the Project Manager 7. Provide the legal description for the easement 8. Please contact the City's project manager for any other questions regarding this information ➢ Date: Fill in the date the document was prepared ➢ Grantor: Fill in the name of the property owner and their mailing address including county ➢ Pro a :Fill in the legal description of the property (Please reference the Exhibits) Examples: 3. Platted: Being a portion of Lot 1 Block 1, Silver Belle Estates Addition, Fort Worth, Tarrant County, Texas, as recorded in, Cabinet 100, Slide 200, Plat Records Tarrant County TX, and being more particularly described in Exhibits "A" and `B". 4. Un-platted: Being a portion of the W M H Little Survey, Abstract No. 900, as recorded in Volume 200, Page 357, Deed Records, Tarrant County, TX, and being more particularly described in Exhibits "A" and "B". ➢ Signature Block: Please type the Grantor's name and include all necessary information. Under the signature line please type the name of the person with authority to sign the document and his/her title ➢ Acknowled ems: Before submitting an executed document please verify that the document is properly signed and notarized ➢ Please allow a minimum of 8 weeks for the documents to be processed NOTICE: If an easement is to be executed on behalf of a corporation, the easement must be signed by the president or vice president of the corporation. In order to accept any other signature, a corporate resolution authorizing the person to sign on behalf of the corporation is required. If Grantor is a Limited Partnership, the name of the company acting as General Partner is also required. * If the Grantor would like any changes made to the City's standard easement document they must be on a separate document labeled as an Addendum. The Grantor and Grantee must sign the Addendum. Please be advised that any changes must be reviewed by City Departments and the City's Attorney's office and therefore additional time will be required while the City is considering any changes to the standard easement document. If you have any questions please call me at 817-3924386. Thank you for your cooperation. Real Property Services Agreement Regarding Water and Wastewater Utility Service Page 5 «Project_Name» Parcel # «Parcel_ Number» Doe # <<DOE Number» «Property_Street Number» <<Property_Street Name» Lot -«Lot Number», Blk- «Block Number», «Addition Name» STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS COUNTY OF TARRANT CITY OF FORT WORTH PERMANENT SEWER FACILITY EASEMENT DATE: GRANTOR: GRANTOR'S MAILING ADDRESS (including County): GRANTEE: CITY OF FORT WORTH GRANTEE'S MAILING ADDRESS (including County): 1000 THROCKMORTON STa FORT WORTH, TARRANT COUNTY, TX 76102 CONSIDERATION: One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. PROPERTY: Legal Description of Property (See attached Exhibits "A" and "B") Grantor, for the consideration paid to Grantor and other good and valuable consideration, hereby grants, sells, and conveys to Grantee, its successors and assigns, an exclusive, perpetual easement for the construction, operation, maintenance, replacement, upgrade, and repair of a Permanent Sewer Line Facility, hereafter referred to as "Facility". The Facility includes all incidental underground and aboveground attachments, equipment and appurtenances, including, but not limited to manholes, manhole vents, lateral line connections, pipelines, junction boxes in, upon, under and across a portion of the Property and more fully described in Exhibit "A" Agreement Regarding Water and Wastewater Utility Service Page 6 attached hereto and incorporated herein for all pertinent purposes, together with the right and privilege at any and all times to enter Property, or any part thereof, for the purpose of constructing, operating, maintaining, replacing, upgrading, and repairing said Facility. In no event shall Grantor (I) use the Property in any manner which interferes in any material way or is inconsistent with the rights granted hereunder, or (Il) erect or permit to be erected within the easement property a permanent structure or building, including, but not limited to, monument sign, pole sign, billboard, brick or masonry fences or walls or other structures that require a building permit. However, Grantor shall be permitted to maintain any existing concrete driveway or road on the Property. Grantee shall be obligated to restore the surface of the Property at Grantee's sole cost and expense, including the restoration of any sidewalks, driveways, or similar surface improvements located upon or adjacent to the Easement Tract which may have been removed, relocated, altered, damaged, or destroyed as a result of the Grantee's use of the easement granted hereunder. Provided, however, that Grantee shall not be obligated to restore or replace irrigation systems or other improvements installed in violation of the provisions and intended use of this Easement. TO HAVE AND TO HOLD the above -described easement, together with all and singular the rights and appurtenances thereto in anyway belonging unto Grantee, and Grantee's successors and assigns forever; and Grantor does hereby bind itself and its successor and assigns to warrant and forever defend all and singular the easement unto Grantee, its successor and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof. When the context requires, singular nouns and pronouns include the plural. GRANTEE: City of Fort Worth Marc A. Ott, Assistant City Manager APPROVED AS TO FORM AND LEGALITY Assistant City Attorney Agreement Regarding Water and Wastewater Utility Service Page 7 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. «Project_Name» Parcel # «Parcel Number» Doe # «DOE Number» <Property_Street Number» «Property_Street Name» Lot -«Lot Number», Blk- «Block Number», «Addition_Name» THE STATE OF TEXAS § COUNTY OF § RIGHT-OF-WAY EASEMENT THAT ,hereinafter referred to as "Grantor", for and in consideration of One Dollar ($1.00) and other valuable consideration paid by the City of Fort Worth, a municipal corporation of Tarrant County, Texas, receipt of which is hereby acknowledged, does Grant, Bargain, and Convey to said City, its successors and assigns, the use, passage in and along the Property ("Property") situated in County, Texas, hereinafter described in the attached Exhibit "A" and "B". Grantor does hereby acknowledge and agree that this conveyance to City includes the right of the City to permit the public to use the Property as a public right -of way. Grantor also hereby acknowledges and agrees that this conveyance to City includes the right of the City to permit utilities to be situated within the Property as required by the City or by law. "Utilities" includes but are not limited to: water facilities, sewer facilities, gas facilities electric facilities, telecommunication facilities, drainage facilities and other utilities as defined by law. It is intended by these presents to convey aright -of --way to the said City of Fort Worth to maintain and construct the right -of --way improvements, with the usual rights of ingress and egress in the necessary use of such right -of --way, in and along said Property. TO HAVE AND TO HOLD the above described Property, together with, all and singular, the rights and appurtenances thereto in anywise belonging, unto the said City of Fort Worth, its successors and assigns, forever. Grantor does hereby bind itself, it's heirs, successors and assigns, to warrant and forever defend, all and singular, the said premises unto the said City of Fort Worth, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. Agreement Regarding Water and Wastewater Utility Service Page 8 HERETO WITNESS MY HAND this the day of APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney Approved by M & C THE STATE ®� TEXAS § COUNTY OF TARRANT § GRANTOR(S)0 Name CITY OF FORT WORTII Marc A. Ott Assistant City Manager ACKNOWLEDGMENT 2004. BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Marc A. Ott, Assistant City Manager for the City of City of Fort Worth known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same as the act of the City of Fort Worth for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of AD 2005. My Commission expires on the Notary Public, State of Texas day of 20 Agreement Regarding Water and Wastewater Utility Service Page 9 THE STATE OF TEXAS § COUNTY OF TARRANT § ACKNOWLEDGMENT BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared known to me to be the same person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of and that he/she executed the same as the act of said the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 20050 Notary Public in and for the State of Texas Agreement Regarding Water and Wastewater Utility Service Page 10 ACKNOWLEDGEMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared , known to me to be the same person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of and that he/she executed the same as the act of said for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this STATE OF TEXAS § COUNTY OF TARRANT § day of Notary Public in and for the State of Texas ACKNOWLEDGEMENT BEFORE ME, the undersigned authority, on this day personally appeared Marc A. Ott, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of the City of Fort Worth, a municipal corporation of Tarrant County, Texas, for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of Notary Public in and for the State of Texas Agreement Regarding Water and Wastewater Utility Service Page 11 Project Description Exhibit F Tradition Facilities Offsite Costs Master Plan Total Reference Project Cost Impact Fee Projects Percentage Attributable to the Development Tradition Cost 1. Expand Eagle Mountain N2-18A WTP (105 to 140 MGD) 2013 $56,1605000 51% $2896415600 2. Additional ground storage N24 6 (4 MG) at Sendera Site 2020 $29640,000 45% $1,188,000 3. Expansion of Sendera Northside III Pump 2020 Station (26 MGD to 32 $900,360 28% 252 100 MGD) Subtotal $3090819700 District/Developer Installed Projects l . 30-inch transmission main from Sender" P.S. N3-10 2. 2.5 MG NS III elevated tank west of Tradition�a� N3-14 $7,150,000 Subtotal $12,034,000 (a) The construction of this facility shall begin at the start of Phase IV and shall be operational prior to the permitting of more than 1,820 single family equivalent units within Phase IV. Exhibit F to Agreement Regarding Water and Wastewater Utility Service Page 1 Exhibit G Impact Fee Agreement Exhibit G to Agreement Regarding Water and Wastewater Utility Service I� Exhibit H Suy-Out Contract Exhibit H to Agreement Regarding Water and Wastewater Utility Service Page 1 Exhibit I ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made and entered into as of the day of between ("Assignor") , and ("Assignee") (Assignor and Assignee are hereinafter sometimes collectively referred to as the "Parties" and singularly as a "Party"), RECITALS: A. Assignor is the owner of the rights of the Owner under that certain "Agreement Regarding Water and Wastewater Utility Service" (City Secretary Contract No. , M & C - (the "Agreement") effective as of , among Aqua Utilities, Inc., Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, collectively and individually as Owner, the City of Fort Worth, Texas, as the City, and Tradition Municipal Utility District No. 2 of Denton County, as the District, relating to the creation and operation of the District, to the extent that the Agreement covers, affects, and relates to the lands described on Exhibit A attached to and made a part hereof of this Assignment for all purposes he "Transferred Premises"). B. Assignor desires to assign certain of its rights under the Agreement as it relates to the Transferred Premises to Assignee, and Assignee desires to acquire such rights, on and subject to the terms and conditions of this Assignment. NOW, THEREFORE, in consideration of the premises, the mutual covenants and obligations set forth herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties hereby agree and act as follows: 1. Certain Defined Terms. Unless indicated otherwise herein, capitalized terms in this Assignment shall have the same respective meanings as are ascribed to them in the Agreement. 2. Assignment. Subject to all of the terms and conditions of this Assignment, Assignor hereby assigns all [or describe specifically assigned rights if partial] of its rights under the Agreement, insofar as the Agreement covers, affects, and relates to the Transferred Premises. 3. Assumption. Assignee hereby assumes all obligations of Assignor and any liability that may result from acts or omissions by Assignee under the Agreement as it relates to the Transferred Premises that may arise or accrue from and after the effective date of this Assignment, and Assignor is hereby released from all such obligations and liabilities from and after the effective date of this Assignment; provided, however this Assignment does not release Exhibit I to Agreement Regarding Water and Wastewater Utility Service Page 1 Assignor from any liability that resulted from an act or omission by Assignor that occurred prior to the effective date of this Assignment unless the City approves the release in writing. 4. Governing Law. THIS ASSIGNMENT MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AS THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. 5. Counterpart/Facsimile Execution. This Assignment has been prepared in multiple counterparts, each of which shall constitute an original hereof, and the execution of any one of such counterparts by any signatory shall have the same force and effect and shall be binding upon such signatory to the same extent as if the same counterpart were executed by all of the signatories. Facsimile copies of signatures may be appended hereto with the same force and effect as legally delivered original signatures. 6. Notice to City. A copy of this Assignment shall be provided to the City within fifteen (15) days after execution. 7. Binding Effect. This Assignment shall be binding upon and shall inure to the benefit of Assignor and Assignees and their respective heirs, personal representatives, successors, and assigns. EXECUTED as of the day and year first above written. ASSIGNOR: Bv: Printed Name: Title: ASSIGNEE: Bv: Printed Name: Title: Exhibit I to Agreement Regarding Water and Wastewater Utility Service Page 2 STATE OF TEXAS § COUNTY OF § SWORN TO AND SUBSCRIBED before me on the 2005, by Notary Public, State of Texas STATE OF TEXAS § COUNTY OF § SWORN TO AND SUBSCRIBED before me on the 2005, by Notary Public, State of Texas [Add Acknowledgments] Exhibit I to Agreement Regarding Water and Wastewater Utility Service Page 3 EXHIBIT "A" The Transferred Premises Exhibit J to Agreement Regarding Water and Wastewater Utility Service Page 1 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 packet/Reports/mc�nnt.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, Tidwell, Allison; Tinker, Marlena Subject: RE: MUD Contracts Tennie; Madison, Menique; Otis, Sarah; Seidel, Nicole M.; If thf�� �►r�►.�°t�i���� ���►ainot he �u5�x�u►1►�►1 t.hc�ii ������ rE���olnl�►c�i►�l t��ro c�o��i��s ►�l' tli�� ��oiitr�►,��t �►�� I►ro��i►lc�►1 for rint►►lu�i•iii;;. �V�� ����ill ►u�►,iiit��►,iii <►; �°ohti- ji��r��� for tlic� ol'fici�►1 r��►°or►I �►,ii�l rt�turii oii�� to >'ott 1'or fnll ��������rf,ion. �l'L<►,iik �-ol► �ntitt�n �►ai�l .�1llisoli. 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 have boon informed that our office has assigned 14 contra�c�t nnlnbers for 1VLUD contra�•ts for which eve ha�'e not received the fully executed doctunent� The contra�c°t nnlnbels arc as follows: 3G2OO, 30201, 3G2O2, 3(i462, 304G3, 36464, 3G4O�, 3046G, 3646"!, 3G468, 37136, 37137, 3"! 138, 37139 alld 37140 In the past, Nlal•tj' ha�cl agreed to issue contract numbers for the NILTD contra�c°ts as we were advised that we would receive the etecnted contra�c�t for processing and mainterlarlce upon all signahu•es being obtained. Since `ve have not received the executed copies for the above 1VIT7D contracts, 1VIa,1•ty has directed that effective tocla,j' we aae not to issue contra�c•t nnlnbers for a,nj' 1VIUD contra�c•t that is not fulls' etecuted. At j'onr earliest oppol•tunity, please provide the elecnted copies Of the ahove 1VIIID contl��ts for our records, if available. If thej' are not available, please advise who we maj' contact to obtain the copies. Thank ,you. I�OIl �011Z�bleS Assistant City Secretary, Cite Of Fort `Volth Ron�11�1.(xoilzalc�s(n)fort��-o1•thgov.org 81"l.392.0164 rc��� O[ZT �(1f�171TVflI'� ��1(3 � �©TIIB`n 8/19/2009