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1 -12-07 Draft
AGREEMENT REGARDING PAYMENT OF IMPACT FEES
AND FINANCING OF WATER AND WASTEWATER FACILITIES
This Agreement Regarding Payment of Impact Fees and Financing of Water and
Wastewater Facilities ("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; 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 commenced development of that certain 431.303-acre tract located in Denton
County, Texas shown on Exhibit A ("Phase I") as the first phase of an approximately 2,658 acre
master -planned community known as "Tradition", as depicted in Exhibit A.
B. The approximately 1,922.737 acres described in Exhibit B (the "Development") is
located within the extraterritorial jurisdiction ("E I i of the City.
C. The City will make wholesale water and wastewater service available to the Development
through and pursuant to its "Agreement for Sale of Treated Water" and "Wholesale Wastewater
Service Agreement," both with Aqua Utilities, Inc., which currently holds, or will in the future
hold, Certificates of Convenience and Necessity for both retail water and wastewater service for
some or all of the Development.
D. The City, the District and Owner have reached certain mutually satisfactory agreements
regarding the design and construction of the water and wastewater facilities needed to serve the
Development as set forth in the Utility Agreement. Owner and District intend to enter into
separate agreements with Aqua Utilities regarding other matters related to Aqua Utility's utility
service to the Development.
E. The Owner has expressly requested that the City enter into agreements, including this
Agreement, regarding the construction and funding of the water and wastewater facilities to
serve the Development, so that the Development can benefit from the resulting certainty
regarding utility infrastructure, even though full build -out of the Development will not be
completed for many years to come.
F. The City and the Trinity River Authority of Texas ("TRA") are parties to the "Trinity
River Authority of Texas -Denton Creek Regional Wastewater Treatment System Contract,"
Agreement Regarding Payment of Impact Fees
And Financing of Water and Wastewater Facilities Page 1
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dated October 28, 1987, City Secretary Contract No. 16054, as amended from time to time
("TRA Contract"), pursuant to which the City may obtain certain services from TRA for the
transportation, treatment and disposal of sanitary sewage, industrial waste and other wastes
generated in the drainage area of Denton Creek through the Denton Creek Regional Wastewater
System (the "TRA System The Development is located in the topographic drainage area of
Denton Creek. The Parties have not finally determined how wastewater service is to be provided
to the Development, but intend to continue negotiations toward a mutually agreeable wastewater
utility agreement that may provide for service through and funding of (other than through impact
fees) an interceptor to be owned by TRA.
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 Payment of Impact Fees and Financing of Water
and Wastewater Facilities.
"Aqua Utilities" means Aqua Utilities, Inc., a Texas corporation.
"Assignee" means the assignee of the Owner, as permitted by this Agreement and defined in
Section 5.04(b).
"Bond" means (a) any instrument, including a bond, note, certificate of participation, or other
instrument evidencing a proportionate interest in payments, due to be paid by the District, or (b)
any other type of obligation that (1) is issued or incurred by the District under the District's
borrowing power, without regard to whether it is subject to annual appropriation, and (2) is
represented by an instrument issued in bearer or registered form or is not represented by an
instrument but the transfer of which is registered on books maintained for that purpose by or on
behalf of the District. The term shall include obligations issued to refund outstanding Bonds, but
shall not include reimbursement agreements entered into between the District and a developer of
the Development or bond anticipation notes.
"Citxr" 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.
"Cityy Wastewater Facilities" means those facilities owned by the City that may be used to
provide wastewater service to the Development via aCity-owned wastewater treatment facility.
"Confirmation Election" means the election held within the District to consider confirming its
creation, as required by the District Legislation.
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"Development" means that certain 1,922.737-acre tract located in Denton County, Texas shown
on Exhibit B.
"Development's Debt Service" means the portion of the City's debt service owed to TRA
pursuant to the Interceptor Agreement allocated to Owner and District and that Owner and
District are required to pay to the City pursuant to Sections 3.04 and 3.05.
"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 additional Districts pursuant
to the District Legislation.
strict Legislation" means Act of May 235 2007, 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 5.16.
"Interceptor" means a wastewater interceptor to serve all or any portion of the Development and
other areas by transporting waste into the TRA System.
"Interceptor Agreement" means the future agreement that the Parties would enter into with TRA,
and possibly with other regional participants such as the city of Northlake and the town of Justin,
For construction of the Interceptor and provision of wastewater service to the Development, and
possibly other areas, through the TRA System, all as contemplated in Article III.
"Local Government Code" means the Texas Local Government Code, as amended from time to
time.
"Notice" means notice as defined in Section 5.03 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 5.04.
"Party" means, individually, the City, Owner or District.
"TCEQ" means the Texas Commission on Environmental Quality or its successor agency.
"TRA" means the Trinity River Authority of Texas.
"TRA Bonds" means the revenue bonds issued by TRA pursuant to the Interceptor Agreement.
"TRA Contract" means the "Trinity River Authority of Texas -Denton Creek Regional
Wastewater Treatment System Contract," dated October 28, 1987, City Secretary Contract No.
16054, as amended from time to time.
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And Financing of Water and Wastewater Facilities Page 3
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"TRA System" means the Denton Creek Regional Wastewater System owned and operated by
the TRA, including the Denton Creek Regional Wastewater System treatment plant as well as
those sewer lines and associated facilities owned by TRA which transport wastewater to that
plant.
"Utility Agreement" means the Agreement Regarding Water and Wastewater Utility Service
among the City, Aqua Utilities, Owner, and District, effective 2007, City
Secretary Contract No.
"Wastewater Agreement" means the Wholesale Wastewater Service Agreement between the City
d Aqua Utilities by which Aqua Utilities provide retai
anwill l wastewater service to the
Development, effective , 2007, City Secretary Contract No.
"Water Agreement" means the Agreement for Sale of Treated Water between the City and Aqua
Utilities by which Aqua Utilities will provide retail water service to the Development, effective
, 2007, City Secretary Contract No.
"Water Code" means the Texas Water Code, as amended from time to time.
"Water Facilities" means those capital improvements necessary for provision of water service to
the Development, as set forth in the Utility Agreement, which facilities are and necessitated by
and attributable to the new development within the Development.
"Wastewater Facilities" means those capital improvements necessary for provision of wastewater
service to the Development and that are necessitated by and attributable to the new development
within the Development.
"Wastewater Impact Fees" means the total impact fees for wastewater facilities to serve the
Development, set by the City at the maximum assessable fee under Chapter 395 and pursuant to
Article III.
"Water Impact Fees" means the total impact fees for water facilities to serve the Development,
set by I at the maximum assessable fee under Chapter 395 and pursuant to Article III.
ARTICLE III
FINANCING OF WATER AND WASTEWATER FACILITIES
3.01 Wastewater Impact Fees. From time to time, the City may conduct impact fee
studies and shall set the Wastewater Impact Fees at the maximum assessable fee pursuant to
Chapter 395 of the Local Government Code and the District Legislation. The impact fee studies
shall be based on studies of the population projections within and facilities necessary to serve the
Development. Each such impact fee study shall cover a retail service area that shall not extend
beyond the boundaries of the Development, except that it may also include all or part of the
431.303-acre Phase I of Tradition. The Wastewater Impact Fees applicable to each new or
enlarged connection within the Development shall be paid to the City by the Owner (or by the
District on behalf of the Owner pursuant to this Agreement) in two parts consisting of the Initial
Payment for Wastewater Impact Fees pursuant to Section 3.02, plus the Subsequent Payment for
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Wastewater Impact Fees pursuant to Section 3.03, The District shall collect the Wastewater
Impact Fees on behalf of the Owner, and assign them to the City. To the extent that capital costs
necessary to serve the Development are paid by the Owner or the District pursuant to Sections
3.05 and 3.06, such capital costs shall not be included in the Wastewater Impact Fees.
3.02 Initial Payment for Wastewater Impact Fees. Subject to and only as authorized by
Section 3.01, within 30 days of the installation of each new or enlarged wastewater service
connection within the Development, the Initial Payment for Wastewater Impact Fees is due to
the City and the District shall deposit, on behalf of the Owner an amount equal to the City's
then -current "impact fee per service unit for wastewater facilities" (established by the City
pursuant to section 35-78 of the Fort Worth City Code as amended from time to time) per meter
For such class of customers located within the boundaries of the City (the "Initial Payment for
Wastewater Impact Fees") into an interest -bearing account of the City. The difference between
this amount and the total Wastewater Impact Fee, if any, shall be paid to the City pursuant to
Section 3.03.
3.03 Subsequent Payments for Wastewater Impact Fees. Subject to and only as
authorized by Section 3.01, each month, beginning 30 days after the commencement of
wastewater service, and within 30 days of the installation of each new or enlarged connection
thereafter, the District shall deposit into an interest bearing account of the City monthly
payments for each connection equal to 1/120th of the difference between the (i) the total
Wastewater Impact Fee for that connection and (ii) the Initial Payment for Wastewater Impact
Fees for that connection. These Subsequent Payments for Wastewater Impact Fees are
calculated so that, after the Initial Payment for Wastewater Impact Fees to the City, the balance
of the Wastewater Impact Fee for each connection shall be paid to the City over 10 years. The
District shall deposit this amount (the "Subsequent Payments for Wastewater Impact Fees")
monthly, per connection, into an interest bearing account of the City until the City has received
the entire Wastewater Impact Fee for that connection.
3.04 Design Fees for Wastewater Infrastructure; Payment of Development's Debt
Service By Owner. If the Parties reach agreement, in writing, that the City will provide
wastewater service to the Development through the TRA Contract, then (i) the Owner shall pay
$1,000,000 to the City for design of the Interceptor ("Design Fee"), which represents
approximately 50% of the cost of total design fees for the Interceptor, and (ii) upon TRA issuing
the TRA Bonds, Owner also agrees to be responsible for payment of the Development's Debt
Service on the TRA Bonds pursuant to the Interceptor Agreement to be entered into by the
Parties consistent with Sections 3.04 and 3.05. The Interceptor Agreement shall include a
statement that, upon the TRA issuing each series of TRA Bonds, Owner agrees to be responsible
for payment of the Development's Debt Service on each series of TRA Bonds. Further, the
Parties agree that, to assure the City that Owner shall make such payments, on or before the date
that TRA issues its first series of TRA Bonds, Owner shall deposit with the City an irrevocable
letter of credit in a form acceptable to City, having a term of two (2) years, and in an amount
equal to the ensuing two years of the Development's Debt Service payments. If Owner fails to
make any of the Development's Debt Service payments required by this Section 3.04 to the City,
then the City may draw on the letter of credit in the amount of such payment. At the end of each
twelve month period after the issuance of the letter of credit, Owner shall renew the letter of
credit for a new two (2) year period in the amount of the ensuing two (2) years of the
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Development's Debt Service payments. Except as provided in Section 3.05 below, such letter of
credit shall remain in effect until the TRA Bonds are paid in full.
3.05 Payment of the Development's Debt Service By District. The Interceptor
Agreement shall also provide that the District shall conduct a "Contract Tax Election" on the
proposition to allow the Board of Directors of such District to levy an unlimited ad valorem tax in
an amount sufficient to pay such District's share of the Development's Debt Service owed to the
City. After the Contract Tax Election proposition is approved by the voters located in the District
or any District created by dividing the District), and the District is authorized to levy such tax, the
District shall assume the obligation of Owner to pay the Development's Debt Service to the City,
the Owner shall be released from such obligation and the letter of credit shall be cancelled (or
reduced proportionately to reflect the obligation of such District) and returned to Owner. Payments
to the City pursuant to this Agreement are not contingent upon the District's collection of such
amounts from tax revenue or any other source. The Parties agree that the TRA Bonds shall not
constitute bonded debt of the District for the purposes of determining when the District can be
divided into two (2) or more districts.
3.06 Water Impact Fees. From time to time, the City shall conduct impact fee studies
and shall set the Water Impact Fees at the maximum assessable fee pursuant to Chapter 395 of
the Local Government Code and the District Legislation, and based on studies of the population
projections within and facilities necessary to serve the Development. Each such impact fee study
shall cover a retail service area that shall not extend beyond the boundaries of the Development,
except that it may also include all or part of the 431.303-acre Phase I of Tradition. The Water
Impact Fees for each new or enlarged connection within the Development shall be paid to the
City by the Owner (or by the District on behalf of the Owner pursuant to this Agreement) in two
parts consisting of the Initial Payment for Water Impact Fees pursuant to Section 3.07, plus the
Subsequent Payments for Water Impact Fees pursuant to Section 3.08. The Parties have agreed
to these payments based on their reasonable estimation of the capital costs for the City to finance
the Water Facilities, which the Parties agree are necessary to serve the Development. The
District shall collect the Water Impact Fees on behalf of the Owner, and assign them to the City.
3.07 Initial Payment for Water Impact Fees. Within 30 days of the installation of each
water meter providing a new or enlarged water service connection within the Development, the
Initial Payment for Water Impact Fees is due to the City and the District shall deposit, on behalf
of the Owner, and as the first part of the Water Impact Fee, an amount equal to the City's then -
current "impact fee per service unit for wastewater facilities" (established by the City pursuant to
section 35-73 of the Fort Worth City Code as it may be amended from time to time) per meter
for such class of customers located within the boundaries of the City (the "Initial Payment for
Water Impact Fees") into an interest -bearing account of the City.
3.08 Subsequent Payments for Water Impact Fees. Each month, beginning 30 days
after the commencement of water service, and within 30 days of the installation of each new or
enlarged connection thereafter, the District shall deposit into an interest bearing account of the
City monthly payments for each connection equal to 1/120th of the difference between the (i) the
total Water Impact Fee for that connection and (ii) the Initial Payment for Water Impact Fees for
that connection. These Subsequent Payments for Water Impact Fees are calculated so that, after
the Initial Payment for Water Impact Fees is paid to the City, the balance of the Water Impact
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Fee for each connection shall be paid to the City over 10 years. The District shall deposit this
amount (the "Subsequent Payments for Water Impact Fees") monthly, per connection, into an
interest bearing account of the City until the City has received the entire Water Impact Fee for
that connection.
3.09 Termination of Subsequent Payments for Water Impact Fees. The City shall
finance the "Impact Fee Projects" listed in Exhibit F of the Utility Agreement and the portion of
those costs allocated to the Development shall be repaid to the City from Water Impact Fees.
Accordingly, after a total of $30,018,700 in total Water Impact Fees has been paid to the City
pursuant to this Agreement (excluding interest earned after the amounts have been paid to the
City), the Owner's and District's obligations to make Subsequent Payments for Water Impact
Fees to the City pursuant to this Agreement shall terminate. Thereafter the Initial Payments for
Water Impact Fees (not to exceed an amount equal to the City's then -current "impact fee per
service unit for wastewater facilities" established by the City pursuant to section 35-73 of the
Fort Worth City Code, as it may be amended from time to time) and the Wastewater Impact Fees
shall continue to be paid to the City pursuant to this Agreement to recover any unpaid costs of
utilityinfrastructure necessary to serve the Development. Throughout the term of this
Agreement, the City shall maintain an account of the costs incurred by it relative to the "Impact
Fee Projects" and the amounts paid to the City by Owner or the District allowable thereto. When
all of the "Impact Fee Projects" have been completed and all of the costs incurred by the City for
the Impact Fee Projects have been received by the City in full, no additional Impact Fees for the
Impact Fee Projects shall be due. In calculating the costs incurred by the City for the Impact Fee
Projects, no interest shall be applied.
3.10 Collection of the Water and Wastewater Impact Fees. The City shall not assess or
collect Water Impact Fees or Wastewater Impact Fees for any new or enlarged connections
within the Development except in compliance with this Article III. Further, the Parties have
agreed that the District shall collect the Water and Wastewater Impact Fees on behalf of Owner,
which the Parties agree is necessary for the District to make Water and Wastewater Facilities and
service available to the Development and to the District. The District may collect the amount of
the Wastewater Impact Fee and the Water Impact Fee from the utility customers within the
Development; however, the District's and the Owner's obligations to pay amounts due to the
City pursuant to this Agreement are not contingent upon the District's collection of such amounts
from utility customers within the Development.
3.11 Financing of Water and Wastewater Facilities from Other Sources. In the event
the TCEQ or any court having jurisdiction ever determines that any portion of the Water Impact
Fee or Wastewater Impact Fee owed to the City pursuant to this Article III may not be collected
From the utility customers within the Development, the District shall nevertheless continue to
timely pay to the City all amounts that would have been owed to the City as Wastewater Impact
Fees and as Water Impact Fees until the District has paid in full all such amounts to the City.
The amounts owed to the City pursuant to this Section 3.11 shall be paid to the City in quarterly
payments, due within 30 days of the close of each calendar quarter. The District may obtain
funds necessary to pay the Water and Wastewater Impact Fees and quarterly payments by any
lawful means, including the levying of taxes and the issuance of Bonds.
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3.12 Collection of Retail Water and Wastewater Charges. The District agrees, in
cooperation with Aqua Utilities, that it shall fix and collect such rates and charges for water and
wastewater service to be supplied to the Development as will produce revenues in an amount equal
to at least all of the operation and maintenance expenses of the Water and Wastewater Facilities and
all amounts owed to the City under this Agreement, the Wastewater Agreement, and the Water
Agreement.
3.13 Recordkeepinr5 and Accounting. The District shall keep a current record of the
following information for each water connection made within the District: the date, size and
type of connection by customer name and customer address; the total Water and Wastewater
Impact Fees due for each connection; the amounts of the Wastewater Impact Fee and the Water
Impact Fee owed to the City for each connection (separately stating the amounts of the Initial
Payments) and the dates these amounts were deposited in the City's account; and the amount of
Subsequent Payments remaining and owed to the City for each water and wastewater connection.
The District shall keep such records until the City annexes the District and dissolves it, and shall
make the records available for duplication and inspection by the City during normal business
hours. Each calendar quarter, beginning with the quarter in which the first water connection is
made within the Development, the District shall provide an accounting to the City of all
payments owed to the City pursuant to this Article III, and all payments deposited into the
City's account.
3.14 Responsibility of Owner. Owner shall be liable for all payments required to be
made by the District pursuant to this Article III unless and until such time as the District conducts
its Confirmation Election and has the authority to collect from the utility customers within the
Development, as intended, and remit to the City the Water and Wastewater Impact Fees required by
this Article III.
3.15 Agreement Valid and Enforceable. Owner and District agree that this Agreement
regarding amount and method of payment of Water and Wastewater Impact Fees complies with
the District Legislation and the requirements of Chapter 395 of the Local Government Code,
regardless of whether this Agreement is entered into before or after the plat has been recorded for
the Development, and that this Agreement and the payment of Water and Wastewater Impact
Fees provided for herein is valid and enforceable. Therefore, Owner and District agree not to
contest or appeal the assessment and applicability of, the amount of, or the time and method of
payment of the Water and Wastewater Impact Fees. Further, Owner has obtained, and shall
provide to the City upon request, approval in writing by a professional engineer licensed to
practice in the state of Texas, that the cost of the infrastructure improvements borne by Owner
pursuant to this Agreement, or otherwise required by the City for development of the
Development, do not exceed the amount required for infrastructure improvements that are
roughly proportionate to the proposed development on the Development. Owner does not
dispute this determination, which was obtained in satisfaction of Section 212.904 of the Texas
Local Government Code.
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ARTICLE IV
INDEMNIFICATION
4.01 IndemniLyTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DISTRICT AND OWNER AGREE TO INDEMNIFY AND DEFEND THE CITY, ITS OFFICERS, ELECTED
OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS, CONTRACTORS, SUCCESSORS
AND ASSIGNS (COLLECTIVELY, " INDEMNITEES") WITH REGARD TO ANY AND ALL CLAIMS,
LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS, ADMINISTRATIVE
PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS, ENFORCEMENT
ACTIONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION THEREWITH (INCLUDING,
BUT NOT LIMITED TO, ATTORNEYS' FEES, COSTS OF INVESTIGATION AND EXPENSES, INCLUDING
THOSE INCURRED BY CITY IN ENFORCING THIS INDEMNITY), DIRECTLY OR INDIRECTLY
ARISING OUT OF, CAUSED BY OR RESULTING FROM (IN WHOLE OR IN PART) ANY BREACH OF
THIS AGREEMENT OR ANY CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE
INFRASTRUCTURE, (COLLECTIVELY, "LIABILITIES'% EVEN IF SUCH LIABILITIES ARISE FROM
OR ARE ATTRIBUTED TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF
ANY INDEMNITEE.
ARTICLE V
MISCELLANEOUS
5.01 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.
5.02 Conspicuous Provisions. The City, 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.
5.03 Notice. Any notices, approvals, or other communications required to be given by
one Party to another under this Agreement (a "Notice") shall be given in writing addressed to the
Party to be notified at the address set forth below and shall be deemed given: (a) when the Notice
is delivered in person to the person to whose attention the Notice is addressed; (b) when received
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
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change the information set forth below by sending Notice of such changes to the other Party as
provided in this section.
To the City:
City of Fort Worth, Texas
Attn: City Secretary
1000 Throckmorton Street
Fort Worth, Texas 76102
FAX: (817) 392-6196
City of Fort Worth, Texas
Attn: City Manager
1000 Throckmorton Street
Fort Worth, Texas 76102
FAX: (817) 392-6134
City of Fort Worth, Texas
Attn: Water Director
1000 Throckmorton Street
Fort Worth, Texas 76102
FAX: (817) 392-2398
To the District:
Tradition Municipal Utility District No. 2 of Denton County
c/o: Coats Rose
Attn: Timothy G. Green
5420 LBJ Freeway, Suite 1300
Dallas, TX 75240
FAX: 972-9824451
To Owner:
Aperion Communities, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
FAX: 480-9514414
Eladio Properties, LLLP
Attn: Mr. Gary Lane
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
FAX: 480-9514414
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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: 48M51-8414
5.04 Assignment
(a) Except as provided by Section 5.04(c), neither the District nor the City may assign
this Agreement without the written consent of the other Parties.
(b) Owner has the right, from time to time, to assign this Agreement, in whole or in
part, and including any obligation, right, title, or interest of Owner under this
Agreement, to the District (after the Confirmation Date) and to any person or entity
(an "Assignee") without the consent of the City, provided that the following
conditions are satisfied: (i) if not the District, Assignee is a successor owner of all or
any part of the Development or is a lender to a successor owner of all or any part of
the Development; (ii) if not the District, Assignee has a contractual right to be
reimbursed for water, sewer, or drainage improvements 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 C; (iv) Assignee expressly assumes in the assignment any assigned
obligations and expressly agrees in the assignment to observe, perform, and be
bound by this Agreement to the extent this Agreement relates to the obligations,
rights, titles, or interests assigned; and (v) a copy of the executed assignment is
provided to all Parties within 15 days after execution. Provided the foregoing
conditions are satisfied, from and after the date the assignment is executed by
Owner and Assignee, the City agrees to look solely to Assignee for the performance
of all obligations assigned to Assignee and agrees that Owner shall be released from
performing the assigned obligations and from any liability that results from the
Assignee's failure to perform the assigned obligations. No assignment by Owner
shall release Owner from any liability that resulted from an act or omission by
Owner that occurred prior to the effective date of the assignment. Owner shall
maintain written records of all assignments made by Owner (including, for each
Assignee, the Notice information required by this Agreement, and including a copy
of each executed assignment) and, upon written request from any Party or Assignee,
shall provide a copy of such records to the requesting person or entity. It is
specifically intended that this Agreement, and all terms, conditions and covenants
herein, shall survive a transfer, conveyance, or assignment occasioned by the
exercise of foreclosure of lien rights by a creditor or a Parry, whether judicial or
non judicial. This Agreement shall be binding upon and inure to the benefit of the
Agreement Regarding Payment of Impact Fees
And Financing of Water and Wastewater Facilities Page 11
12-12-07 Draft
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.
(c) 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. As soon as possible following the creation of 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.
5.05 Remedies. The City may enforce the payments required by this Agreement
against the District and the Owner and, in addition to the other remedies that may be available in
law and equity, may seek a writ of mandamus requiring the District to collect and pay to the City
the amounts owed pursuant to this Agreement. If the District fails to collect and pay to the City
the Impact Fees, as provided in Article III, then Owner shall nonetheless remain liable to the
City for the payment of Impact Fees due pursuant to this Agreement, and shall satisfy its
obligations to the City out of any Bond proceeds that Owner receives thru reimbursement or
other agreements with the District.
5.06 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.
5.07 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, nor Owner
intends by any provision of this Agreement to create any rights in any third -party beneficiaries or
to confer any benefit upon or enforceable rights under this Agreement or otherwise upon anyone
other than the City, the District, and Owner.
5.08 Amendment. This Agreement may be amended only with the written consent of
all Parties and with approval of the governing body of the City.
5.09 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
Agreement Regarding Payment of Impact Fees
And Financing of Water and Wastewater Facilities Page 12
12-12-07 Draft
shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver
of the same term or condition.
DO W Severability. The provisions of this Agreement are severable and, in the event
any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or
the application thereof to any person or circumstance, shall ever be held or determined to be
invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or
unenforceability does not cause substantial deviation from the underlying intent of the Parties as
expressed in this Agreement, then such provision shall be deemed severed from this Agreement
with respect to such person, entity or circumstance, without invalidating the remainder of this
Agreement or the application of such provision to other persons, entities or circumstances, and a
new provision shall be deemed substituted in lieu of the provision so severed which new
provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the
provision so severed.
5.11 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of the Agreement.
5.12 Interpretation. The Parties recognize that the Development is a large tract of land
that may require many years for full built -out, and that the costs of the utility infrastructure
cannot be predicted with certainty at this time; it is therefore the intent of the Parties that this
Agreement provide for the Owners and the District to pay the City for the cost of the utility
infrastructure constructed or expanded to serve the Development; accordingly, this Agreement
shall be liberally construed to effectuate that intent. In addition, the Parties acknowledge that
each parry and, if it so chooses, its counsel have reviewed and revised this Agreement and that
the normal rule of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto. As used in this Agreement, the term "including" means "including without
limitation" and the term "days" means calendar days, not business days. Wherever required by
the context, the singular shall include the plural, and the plural shall include the singular. Each
defined term herein may be used in its singular or plural form whether or not so defined.
5.13 No Joint Venture. No provision of this Agreement shall be construed to create
any type of joint or equity ownership of any property or any partnership or joint venture. By
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 expressly set forth in the Parties' Agreements.
5.14 Counterpart Ori ig nals. This Agreement maybe executed in multiple counterparts,
each of which shall be deemed to be an original.
5.15 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:
Agreement Regarding Payment of Impact Fees
And Financing of Water and Wastewater Facilities Page 13
Exhibit A Map of Tradition Phase I and the Development
Exhibit B Legal description of the Development
Exhibit C Form of Assignment
5.10 Effective Date. The Effective Date of this Agreement is
2007.
12-12-07 Draft
5.17 Term. This Agreement shall continue in effect until all land within the
Development has been annexed by the City.
5.18 Survival. Article IV of this Agreement (Indemnification) and all payment
obligations shall survive the termination of this Agreement.
ATTEST:
Marty Hendrix
City Secretary
APPROVED AS TO FORM AND
LEGALITY:
Assistant City Attorney
CITY OF FORT WORTH
By:
Title:
(print name)
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 Payment of Impact Fees
And Financing of Water and Wastewater Facilities Page 14
12-1M7 Draft
ROCKSAND INVESTMENTS, LLLP
By:
David P. Maniatis, General Partner
Agreement Regarding Payment of Impact Fees
And Financing of Water and Wastewater Facilities Page 15
ATTEST:
12-12-07 Draft
TRADITION MUNICIPAL UTILITY DISTRICT
N 12 OF DENTON COUNTY
By:
Title:
(print name)
Agreement Regarding Payment of Impact Fees
And Financing of Water and Wastewater Facilities Page 16
Exhibit A
Map of Tradition Showing the Development
Exhibit A to
Agreement Regarding Payment of Impact Fees
And Financing of Water and Wastewater Facilities
Page 1
12-12-07 Draft
Exhibit B
Legal description of the Development
BEING a 1,919.898 acre tract of land in the G. Cardinas Survey, Abstract No. 214, the James
Chesier Survey, Abstract No. 225, the W.D. Reed Survey, Abstract No. 1125, the W.C.
Brookfield Survey, Abstract No. 34, and the W.A. Ferris Survey, Abstract No. 419 situated in
Denton County, Texas and being a combination of a portion of those tracts conveyed to Aperion
Communities, L.L.L.P. (Aperion Tract One -A and Aperion Tract One-B), by deed recorded
under County Clerk's File No. 200441913 of the Real Property Records of Denton County,
Texas (RPRDCT), that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in
Volume 23 01 , Page 223 RPRDCT, a portion of that tract conveyed to Aperion Communities,
L.L.L.P. by deed recorded under County Clerk's File No. 2003490652 RPRDCT (Aperion
Tract Two), that tract conveyed to Rocksand Investments, LLLP by deed recorded in Instrument
Number 2005-30851 RPRDCT and those tracts recorded in Volume 5128, Page 3102 and
Volume 5119, Page 715, RPRDCT and being more particularly described as follows:
TRACT ONE
COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-
way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161
Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie
McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE
N OOE32'36" W along the west line of said Alliance 161 Investments tract and the east line of
said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of 3701.24
feet to a 3/8" iron pin found; THENCE N 89E39'59" E along the north line of said Alliance 161
Investments tract and the east line of said McIntyre, et al, tract recorded in Volume 2906, Page
363 RPRDCT, a distance of 1826.89 feet to a 1/2" iron pin found, said iron pin also being on the
west line of said Aperion Tract One -A; THENCE N OOE22'44" W along the east line of said
McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said
Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2" iron pin set, said capped iron
pin set also being on the west line of said Nancy Reynolds Talley, et al tract, said iron pin also
being the POINT OF BEGINNING of the herein described tract;
THENCE N OOE22'44" W along the east line of said McIntyre, et al, tract recorded in Volume
2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 102.53
Feet to a capped 1/2" iron pin set
THENCE N 57E46'29" W along the east line of said McIntyre, et al, tract recorded in Volume
2906,,Page 363 RPRDCT, the east line of a tract conveyed to Peggy Jeannine Eaton and Betty
Marie McIntyre by deed recorded under County Clerk's File No. 2003-203215 and the west line
of said Nancy Reynolds Talley, et al tract, a distance of 253.45 feet to a 1/2" iron pin found;
THENCE N OOE21'32" E along the east line of said Peggy Jeannine Eaton and Betty Marie
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;
12-12-07 Draft
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 OOE18'58" W along the west line of said Aperion Tract One -A and the east line of
said High tract, a distance of 307.76 feet to a 1/2" iron pin found;
THENCE S 89E55'09" W along the west line of said Aperion Tract One -A and the north line of
said High tract, a distance of 370.41 feet to a 60d nail found, said 60d nail also being on the east
line of said Avondale Ranch tract and in Sam Reynolds Road;
THENCE N OOE12'09" W along the west line of said Aperion Tract One -A, the east line of said
Avondale Ranch tract, the east line of a tract conveyed to W.E. Wilkerson by deed recorded in
Volume 960, Page 35 RPRDCT, the east line of a tract conveyed to Edward Zelnik, et ux Janet
by deed recorded in Volume 4062, Page 1905 RPRDCT, the east line of a tract conveyed to J.
Lloyd Barksdale, et ux Dorthy by deed recorded in Volume 829, Page 271 RPRDCT, the east
line of a tract conveyed to J. Lloyd Barksdale, et ux Dorthy by deed recorded in Volume 829,
Page 275 RPRDCT, the east line of a tract conveyed to Gary Lynn Barksdale, et ux Toni Gayle
by deed recorded in Volume 1545, Page 427 RPRDCT, the east line of a tract conveyed to
Bobby J. Henry by deed recorded in Volume 5028, Page 3683 RPRDCT, and in 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 5 09.8 3 feet to a 5/8" iron pin found, said iron
pin also being on the west line of a tract conveyed to Archie Eddleman by deed recorded in
Volume 2322, Page 824 RPRDCT;
THENCE S 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;
Page 1
12-12-07 Draft
THENCE N 88E48S4 E along the west line of said Aperion Tract One -A and the south line of
said Iverson tract and the south line of a tract conveyed to Carol Theis by deed recorded in
Volume 1038, Page 887 RPRDCT, a distance of 1598.77 feet to a 1/2" iron pin found,
THENCE N OOE24'54" W along the west line of said Aperion Tract One -A and the east line of
said Theis tract and the east line of a tract conveyed to S.R. Harper by deed recorded in Volume
1726, Page 31 RPRDCT, a distance of 907.14 feet to a 1/2" iron pin found, said iron pin also
being the southeast corner of a tract conveyed to Roy Chastain by Contract of Sale recorded
under County Clerk's File No. 97-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 88E53'01 W along the south line of said Aperion Tract Two and the north line of
said Chastain tract, a distance of 1193.21 feet to a capped 1/2" iron pin found, said iron pin also
being on the east line of a tract conveyed to Wayne Harris by deed recorded in Volume 976,
Page 42 RPRDCT;
THENCE N OOE35' 15" W along the west line of said Aperion Tract Two and the east line of said
Harris tract, the east line of a tract conveyed to John McCurry by deed recorded in Volume 971,
Page 697 RPRDCT, the east line of a tract conveyed to Samuel Haynes by deed recorded in
Volume 962, Page 43 RPRDCT, and the east line of a tract conveyed to Howell Choate by deed
recorded in Volume 924, Page 921 RPRDCT, a distance of 2336.13 feet to a 1/2" iron pin found,
said iron pin also being the southwest corner of a tract conveyed to The Pennington Family Trust
by deed recorded in Volume 4833, Page 525 RPRDCT;
THENCE S 88E03'05" E along the north line of said Aperion Tract Two and the south line of
said Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT, a distance of
1190.05 feet to a 1/2" iron pin found, said iron pin also being on the north line of Aperion Tract
One -A;
THENCE N 89E00'24" E along the north line of said Aperion Tract One -A, the south line of said
Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT and the south line
of a tract conveyed to The Pennington Family Trust by deed recorded in Volume 4833, Page 521
RPRDCT, a distance of 1146.79 feet to a 1/2" iron pin found, said iron pin also being on the
southerly right -of --way line of Farm -to -Market Road No. 407 (F.M. 407) (90' ROW);
THENCE S 50E10'01 E along the north line of said Aperion Tract One -A and the southerly
right-of-way line of F.M. 407, a distance of 682.19 feet to a capped 1/2" iron pin set, said iron
pin also being the Point of Curvature of a circular curve to the left having a radius of 617.96 feet,
a central angle of 39E44'46" and being subtended by a chord which bears S 70E02'24" E , 420.13
feet;
THENCE along said curve to the left and the north line of said Aperion Tract One -A and the
southerly right -of --way line of F.M. 407, a distance of 428.68 feet to a capped 1/2" iron pin set;
THENCE S 89E54'47" E tangent to said curve and along the north line of said Aperion Tract
One -A and the southerly right-of-way line of F.M. 407, a distance of 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 OOE00100" W, departing the north line of said Aperion Tract One -A and the
12-12-07 Draft
southerly right -of --way line of said F.M 401, along the east line of the City of Fort Worth ETJ
line and along the west line of the Town of Northlake ETJ line, a distance of 2998.33 feet to a
point on the north line of a tract conveyed to Patricia Malloy by deed recorded in Volume 769,
Page 965 RPRDCT;
THENCE S 88E57'42" W along the east line of said Aperion Tract One -A and the north line of
the north line of said Patricia Malloy tract, a distance of 802.46 feet to a 5/8" iron pin found,
THENCE S 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 3 748.3 8 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 PRDCT4
THENCE S OOE17'37" 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
Page 1
12-12-07 Draft
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 OOE07'20" W along the east line of said Aperion Tract One -A and the west line of
said Rocksand Investments tract, a distance of 857.55 feet to a capped 1/2" iron pin set;
THENCE N 90E00'00" W, departing the east line of said Aperion Tract One -A and the west line
of said Rocksand Investments tract, a distance of 773.31 feet to a capped 1/2" iron pin set;
THENCE N 65E58'36" 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 59,664,159 square feet or 1369.701 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 rcorded 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 18E06128" W, 624.31 feet, an are distance of 204.03 feet, a central angle of 18E43'31 and
being subtended by a chord which bears N 81E15'18 W, 203.13 feet;
S 89E22'57" W, a distance of 1876.49 feet;
S 89E18'36" W, a distance of 193 1. 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;
S OOE32'35" W, a distance of 352.79 feet;
N 89E46'56" 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;
Page 1
12-12-07 Draft
THENCE N 85E1640 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.
Page 1
Exhibit C
Form of Assignment
Exhibit E to
Agreement Regarding
Water and Wastewater Facilities
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.
h1-tn•//www rfwnet nrs�/rrn�ncil nacketlRennrts/mc nrint.asn
Page 3 of 3
City funds. Any effect on expenditures and revenues will be budgeted in future fiscal years.
TO Fund/AccountlCenters
Submitted for Cit�r Manager's Office by:
Originating Department Head:
Additional Information Contact:
FROM Fund/Account/Centers
Dale Fisseler (6140)
Fernando Costa (8042)
Susan Alanis (8180)
httn�//www.cfwnet_or�/council
nacket/Renorts/mc
nrint.asn
Page 1 of 2
Tidwell, Allison
From: Gray, Allison M.
Sent: Wednesday, August 19, 2009 11:10 AM
To: Gonzales, Ronald; Alanis, Susan
Cc: Fullenwider, Sarah; Burghdoff, Dana; Hendrix, Marty; Cole, Tennie; Madison, Menique; Otis, Sarah; Seidel,
Nicole M.; Tidwell, Allison; Tinker, Marlena; Knight, Beth
Subject: RE: MUD Contracts
Ron,
I have contacted Marcella Olson, the attorney for the Municipal Utility District and she has spoken to the representatives
of the district. The contracts that we received and were partially executed were picked up and returned to the District for
their execution and recording. The contracts required that the documents be executed within 60 days of the confirmation
of the district. Due to the economy and some personnel changes with the property owner the district has not yet been
confirmed. There is not a date certain for that district confirmation.
So Ron, the contracts are in the possession of the Municipal Utility District and have not been fully executed yet. The
property owner believes that someone will purchase the property, confirm the district, execute the contracts and move
forward. Unfortunately, I can't tell you when we will get fully executed contracts returned to us.
If you have any questions or need further information please let me know and I will tell you what I can,
Allison
From: Gonzales, Ronald
Sent: Thursday, August 13, 2009 3:31 PM
To: Alanis, Susan; Gray, Allison M.
Cc: Fullenwider, Sarah; Burghdoff, Dana; Hendrix, Marty; Cole, Tennie; Madison, Menique; Otis, Sarah; Seidel, Nicole M.;
Tidwell, Allison; Tinker, Marlena
Subject: RE: MUD Contracts
If th�� pr�i��ti�°c� ���iainot �m ��i5lx�tul���1 thc�ii «��� rE���•olnnic�ii�l t���-o ����1►i��5 of tl�c� c°oi�tr�ic�t b�� i�i�o�-i�l���1
for iiuuibc�riii W�� ���ill tiia�iut����iii �i� ��o���- liE�r�� f��r tli��� ��f�t'i<�i<<1 rc�c°ord <a,u�l r��tnrii oii�� t�� �-��n f<�r
�fnll �����c�utiori. Tl�<��nh �'u�i �'utia�n aaicl .�11 lisoli.
ltoii
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 ha,Ve been lnfOrnle(1 that our office has assigned 14 contracct uitliibers for 1VIUD contracts for
which we have not received the fully e.�ecuted dociunent. The contrast nnmbei•s are as follows:
36200, 36201, 36�02, 3646�, 3G�63, 36404, 36465, 3(i406, 36467, 30408, 37136, 3713"l, 3"(138, 3"(130
and 3"(140
In the past, Dla,rtj= hail agreed to issue contract numbers for the �IIJD contracts as eve �=ere
advised that we would recei�=e the elecaited contract for processing and ma�lteaiaalce upon all
signa,ttucs being obta111ed. Since we ba,ve not received the eiccitted copies for the above.lVliJD
contracts, Ma,i•t}= has directed that effective today we a,re not to issue contra�c°t niunbers for a,n}=
MUD coiitra�c�t that is not fiilly eiecuted.
At your earliest opportunitj=, please provide the etecttted copies of the above NIi7D contra�c•ts for
o�u• records, if a,vailaUle. If they are not available, please advise who we niay contact to obtain
the copies. Thank you.
loll %011Za1eS
Assistant City Secretary=, Cityy of Fort Worth
l�,onald GonZa,lc���fort��•orthgov.oi��
817.3J2.61(i�
"With four 1'varr�wvr� �ha Zhu Works►,
8/19/2009