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Contract 32899
SUPERSEDING AGREEMENT REGARDING WATER AND WASTEWATER UTILITY SERVICE This Superseding Agreement Regarding Water and Wastewater Utility Service (".Aueement") 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 and Drooy Properties, LLLP, Arizona limited liability limited partnerships (individually and collectively, "Owner"); and the City of Fort Worth Municipal Utility District No. 1 of Denton County, a municipal utility district created pursuant to Article XVI, Section 59, of the Texas Constitution, Chapters 49 and 54 of the Texas Water Code and the applicable Special District Local Law (the "District"), which District, after the District Confirmation Date, will become a Party to this Agreement. ARTICLE I RECITALS A. Aqua Utilities wishes to provide retail water and wastewater utility service to approximately 431.303 acres in Denton County, Texas, as shown on Exhibit A and more particularly described in Exhibit B attached to this Agreement (the "Development"), which Development lies entirely within the City's extraterritorial jurisdiction ("ETJ"). B. Aqua Utilities REcurrently holds Certificate of Convenience and Necessity No. 11157 for retail water service issued by the Texas Commission on Environmental Quality ("TCEQ") and covering several geographic service areas, including the area in Denton and Wise Counties shown on Exhibit D to this Agreement (the "Denton -Wise County CCN Area"), which includes the Development. Aqua Utilities wishes to provide retail water and waste water utility service to Tradition. Aqua Utilities, Owner, and the City wish to cooperate in providing water and wastewater service to Tradition. C. No entity presently holds a CCN for wastewater service in the area that includes the Development. D. The City has reached certain agreements with Aqua Utilities regarding the provision of wholesale water and wastewater service, and has a continuing interest in, and certain czovernmental responsibilities regarding. the reff,ulation of development for the health and safety of residents in its F r„ nibcrier renieseined b deiiciriep ine De\ ciopineni as The first phase t oYmmutut COni,-11111Egi ,pj_Irt:, X ::late 2,t)00 acres, as depicted in Exhibit A arid more piirtiedicirk described in Exhibit C F. Aqua Ltilities, ()‘vner and the City entered into the "'Am -cement Regarding Water and l:tiliiv driled (lien h 20)4. (fit \ i Conniici \b related to planning for water and wastewater utility service to Tradition and the remainder of the Denton -Wise CCN area. G. After the Original Utility Service Agreement was executed. Owner petitioned the Texas Legislature to form a Municipal Utility District to cover the Development and thereafter the Texas Legislature approved the creation of City of Fort Worth Municipal Utility District No. 1 of Denton County containing the Development. by Act of May 25, 2005. 79th Legislature, Regular Session, Chapter 1330, Special District Local Laws Code. Chapter 8129. effective September 1. 2005 (the District") H. On December 13. 2005, the City Council of the City adopted Resolution No. 3299-12- 2005 consenting to the creation of the District, approving the "Agreement Concerning Creation and Operation of City of Fort Worth Municipal Utility District No. 1 of Denton County" among the City, the Owner and the District (the "Consent Aueement"), which Consent Agreement was executed by the City and Owner and provides for Owner to cause the District to approve, execute and deliver this Agreement to the City. I. Aqua Utilities, Owner and the City wish to amend, restate and supersede the Original Utility Service Agreement to provide for further and amended agreements of the Parties regarding water and wastewater infrastructure and service, including among other things, to provide for the District to be a Party to this Agreement, to provide for changed circumstances arising out of the creation of the District, and to provide for services to the entirety of the Development, rather than only to the first 1,000 connections within the Development (defined in the Original Utility Service Agreement as the "Land"). J. The Parties to the Original Utility Service Agreement and to this Agreement intend that, upon its execution, this Agreement shall entirely supersede the Original Utility Service Agreement, as of the Effective Date of this Agreement. NOW THEREFORE, for and in consideration of the mutual agreements. covenants, and conditions hereinafter set forth, the Parties contract and agree as follows: ARTICLE II DEFINITIONS "Aareement" means this Superseding Agreement Regarding Water and Wastewater Utility Service. re.rited for rlr- I rt-,r1%!ii '11% - ter'' ;Nov\ cozi I 1- C 0-) ,ind Aeztkfcment as Exhibit --A;zreenient for Wastewater .Service- means the -Wholesale Wasteter Service Agreement - between the City and Aqua [tilities. the form of which is attached to this Agreement as Exhibit F. "Assianee" means the assignee of the Owner, as permitted by this Agreement and defined in Section 9.05(b). "BuY-Out Contract" means the "Buy -Out Option Contract." the form of which is attached to this Agreement as Exhibit G. "CFA Policy" means the "Policy for the Installation of Community Facilities" as amended in March 2001 (M & C G-13181) in effect on the Effective Date, including any amendments thereto that are in effect on the Effective Date. "City" means the City of Fort Worth. a home rule municipality located in Tarrant. Denton and Wise Counties, Texas. "City Council" means the City Council of the City. "City Utility Standards" means (i) all City fire protection requirements for water line sizing, number of connections, minimum water pressure and number of fire hydrants that are in effect on the Effective Date, including any amendments thereto in effect on the Effective Date; and (ii); all City standards for design, location, construction, operation and maintenance of water and wastewater utility Infrastructure that are in effect on the Effective Date, including any amendments thereto in effect on the Effective Date, except as modified by Section 5.13, and expressly including without limitation the following: (a) Subdivision Regulations; (b) CFA Policy; (c) Policy and Procedure for Processing Water and Wastewater Projects for Design and Construction (1999); and (d) General Contract Documents and Specifications for Water Department Projects "City Review Fees" means fees and charges applicable to the review and approval of plans relating to the construction of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of submittal of such plans. "Consent Aureement" means the Agreement Concerning Creation and Operation of City of Fort Worth Municipal Utility District No. 1 of Denton County by and among the City, the District, and Owner. which was approved by the City Council on December 13. 2005 (City Secretary Contract No. 32896. !VI& C C - 21197)and executed as of December 21. 2905 onductor niduro pL Noll or enup, dud itiiiistriiors., ilitets, or tOrAirIS tu.diuriic to serve the IX-, eh:Trim-a, hether hated within or outside the Development. -Denton-Wisk.- Count\ L.CN Area- means that portion k..q the Aqua Utilities Certificate of Convenience and Necessity No, 11157 for retail water service issued by the Texas Commission on Fnxironmental Quality -TCFcr") and co\ erinct the area in Denton and Wise Counties shown 1 Nhibil "Development- means that certain 431.303-acre tract located in Denton County. Texas shown on Exhibit A and more particularly described in Exhibit B. "Director" means the City Water Department Director or designee. "District" means the City of Fort Worth Municipal Utility District No. 1 of Denton County. the name of which will be changed to "Tradition Municipal Utility District No. 1 of Denton County" pursuant to the Consent Agreement. "Effective Date" means the effective date of this Agreement as defined in Section 9.17. "Impact Fees" means City water and wastewater impact fees for new or enlarged connections adopted by one or more City ordinances in Chapter 35, Division 2, of the Fort Worth City Code in accordance with Chapter 395, Texas Local Government Code, as such may be amended from time to time. "Infrastructure" means all water and wastewater (unless expressly identified as only water or only wastewater) facilities, equipment or related improvements necessary to serve the Development, whether located within or outside the Development. "Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of the inspection. "Infrastructure Standards" means the standards for construction, operation and maintenance defined as the Infrastructure Standards as set forth in Article V. "Notice" means notice as defined in Section 9.03 of this Agreement. "Oriainal Utility Service Aareement" means the "Agreement Regarding Water and Sewer Utility Service," City Secretary Contract No. 30790, between Aqua Utilities, Owner, and the City executed October 26, 2004. "Owner" means. individually and collectively„Aperion Communities, LLLP. Eladio Properties. LLLP and Drooy Properties. LLLP. Arizona limited liability limited partnerships, and each of their respective Assignees as pelmit-ted by Section 9.05. Trtt'atl', :13ChVid1.1,111% tilt (PAnk:r. \tia I ai2j r,'1-nr,"`•,4, means the '--P(diefor the Intallation of Community racilittes adopted in :\ larch 2001 by the C' as ma v be amended from time to time "Prior Contractual (:ornmitment- means a contractual comniiiinent dated Januar- 16. 2004 or "Subdivision ReLrulations" 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. "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 and more particularly described in Exhibit C. ARTICLE III WATER AND WASTEWATER UTILITY SERVICE PLANS 3.01 Service Plans to be Submitted. Owner will submit retail water and wastewater utility service plans for Tradition to the City for review and approval, which approval shall not be unreasonably withheld. The City will make reasonable efforts to complete its review within 120 days of receipt of each plan. Multiple service plans may be submitted to the City as Tradition is subdivided and developed, but in no event shall a plan include less than 300 acres without the City's consent. Approval of both a retail water utility service plan and a retail wastewater utility service plan by the City shall be a condition of the City's approval of a final plat for each phase of Tradition. If Owner creates any additional conservation and reclamation districts over the area covered by Tradition, the Owner shall submit a single retail water utility service plan and a single retail wastewater service utility service plan covering each district. 3.02 Water Plans. To obtain City approval, a water utility service plan must, at a minimum, meet the following requirements: a. The water utility Infrastructure shall meet all City Utility Standards set out in Article V. b. The plan must demonstrate that an adequate supply of potable water meeting all TCEQ public water system requirements will be provided. Such demonstration shall be made prior to the City's approval of a preliminary plat for each phase of Tradition. Water supplies may be obtained from any source, including but not limited to (i) groundwater sources. (ii) third party suppliers or (iii) upon agreement of the City, pursuant to a treated water de.livery contract with the City, arld tOI lucludIng Ii Ineters, ho\e,s, sen, ice hues and offsite raohties, shall he 'ial-uitted to the C t\-- a. part Of the retail \\a -ter iiti1it ,;er-v 'Ice plan. d. [pan City approval of the retail water utility service plan submitted pursuant to this :V2.reemern. the City ;\ ill not seek to challcrwe the Aqua Ltilitie, ater CCN area 3.03 Wastewater Plans. To obtain City approval, wastewater utility service plans must at a minimum meet the following requirements: a. The wastewater utility Infrastructure shall meet all City Utility Standards set out in Article V. b. All plans and specifications proposed for wastewater utility Infrastructure, including all meters. valves, meter boxes, service lines and any offsite facilities, shall be submitted to the City as part of the retail wastewater utility service plan. c. For areas within Tradition, but outside the Development, where Aqua Utilities, Owner or the District will provide wastewater treatment service by owning or operating a treatment plant, such wastewater treatment plant shall be permitted. constructed, operated and maintained in accordance with all applicable TCEQ requirements, and in addition shall be permitted to meet effluent limitations no less stringent than 5-5-2-1 (5 parts per million ["ppm"] biochemical oxygen demand; 5 ppm total suspended solids; 2 ppm nitrogen; and 1 ppm phosphorous). The City will not contest any TCEQ or other regulatory approvals sought by Aqua Utilities, Owner or the District for such wastewater treatment plant so long as the plant remains in compliance with applicable TCEQ requirements and the foregoing effluent limitations. ARTICLE IV SERVICE TO THE DEVELOPMENT 4.01 Water Service. The City will provide treated water service to the Development under the terms of the Agreement for Sale of Treated Water by and between the City and Aqua Utilities, attached as Exhibit E. For areas within Tradition, but outside the Development, Aqua Utilities may obtain water supplies from any source, including but not limited to (i) groundwater sources, (ii) third party wholesale suppliers, or (iii) water from the City pursuant to a treated water delivery contract to be agreed upon between the City and Aqua Utilities; however, nothing in this Agreement requires the City to enter into such a contract or to otherwise provide treated water service to areas of Tradition outside the Development unless a treated water delivery contract is subsequently agreed upon for such areas. Any treated water delivery contracts to be entered into by the City pursuant to this Agreement shall not contain terms and conditions more favorable than set forth in the City's uniform wholesale water service contracts with its existing wholesale customers. 'Lir.: p![,', (1-\-1-c_:: to tilt Dcvd_ormen1 undtl ihe The ALIFCkATIClit 101 \\ Lv1er rv1e by and between the C it and Aqua I nlities, ;ittaehed as Exhibit F 4.03 Easements and Rh-thts-of-Way. All easements or rights -of -way required for the installation of the Infrastructure will he itranted or acquired b \qua Ltilities. Owner or the ( 1 the District will grant and provide to the City such easements as are necessary to connect the City's water and wastewater systems or the TRA's wastewater system to the Development, and for the continuous operation and maintenance of all metering and sampling facilities, all at no cost to the City. 4.04 Access. Ingress and Euress. 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. The Infrastructure on the Development's side of the City's water and wastewater meters will be owned by the District, and leased to Aqua Utilities unless and until it is acquired by the City pursuant to Section 7.01. Aqua Utilities shall not provide water or wastewater service to the Development pursuant to the Section 4.01 "Agreement for Sale of Treated Water by and between the City and Aqua Utilities" or the Section 4.02 "Agreement for Wastewater Service by and between the City and Aqua Utilities" except through Infrastructure owned by District. If prior to January 1, 2007 no mutually acceptable lease agreement is reached between Aqua Utilities and the District for the operation and maintenance of the Infrastructure, or if within five (5) years of the Effective Date, the District does not own any water or sewer Infrastructure capable of providing retail water or sewer service to the District, then Aqua Utilities and the City shall terminate each of those water and sewer service agreements pursuant to the provisions therein for termination by mutual consent. 4.06 Notices to Retail Customers. At least once annually. water bills sent to all retail customers within the District will contain the following statement: "This service address is inside the boundaries of a municipal utility district that may be annexed in the future by the City of Fort Worth." 4.07 Service by Another Entity. If Owner or the District engages or allows any entity other than Aqua Utilities to provide water or wastewater service to land within Tradition. then Owner or the District will first contractually obligate such provider to the terms and conditions of this Agreement to the same extent that Aqua Utilities is obligated. ARTICLE V CONSTRUCTION, OPERATION AND MAINTENANCE OF INFRA.STRUCTI RE Ill Infrastructure •',(:-.1ndar(ls. Al] Infrastructure des(rned and oristructed compliance k‘i iii this Article V and: in) the t rules and reulations of he-1CLQ: lei the rules and re:-2ulations. if an. of the District: and tdi the rules and reilulations of Aqua Ltilities that apply to the Development ("Infrastructure Standards"1 5.02 Conflicts. In the event of any conflict between the City Utility Standards and any other standards, rules, or regulations listed above, the City Utility Standards shall control unless otherwise agreed in writing by the Director. 5.03 Additional Construction Standards for Water Utility Infrastructure. The water utility Infrastructure serving the Development must be constructed using the same type, or a compatible type, of meters, valves, meter boxes and service lines used by the City for its municipal water system; provided, however, that automated meter reading ("AMR") -compatible may be used. For additional connections in Tradition. but outside the Development, the water system may be constructed using meters, valves, meter boxes and service lines chosen by the retail provider, subject to the requirements of Article III. 5.04 Plan Review: Payment of Fees; and Pre -Construction Conference. Construction of Infrastructure shall not commence until the plans and specifications have been reviewed and accepted by the City for compliance with the City's Utility Standards; a pre -construction conference has been held by the Contractor, the District's engineer and representatives of the City's Department of Engineering; and the applicable City Review Fees have been paid. At such pre -construction conference, the Department of Engineering shall designate City employees to serve as the project inspector (the -City Inspector-) for purposes of Sections 5.06, 5.08 and 5.11 and the project manager 5.05 Community Facilities Aareements. Construction of Infrastructure shall not commence until a Community Facilities Agreement has been executed in accordance with the City's CFA Policy. Notwithstanding the Infrastructure Standards, the City shall not participate in the cost of construction of any Infrastructure unless the City requires the construction of Infrastructure that exceeds that which is roughly proportionate to the impact of the Development. 5.06 Inspections by Third Party Inspectors. Except as otherwise provided in this Article V, inspectors retained by the District (or by Owner on behalf of the District) and approved by the City (which approval shall not be unreasonably withheld or delayed) shall perform or cause to be performed all inspections and testing of the construction of Infrastructure for compliance with this Article V. The District or Owner, as applicable, shall submit the names, addresses and phone numbers of such inspectors simultaneously with submittal of plans in accordance with Article III. Construction of Infrastructure shall not commence until such inspectors have been approved by the City. The District shall cause the inspectors to provide copies of all inspection and testing reports to the City Inspector. All costs of such third party inspectors shall he paid by the District (or by Owner on behalf of the District). 5 077 crmin.ition ot [hini PartInspeclors, The (iny has the riht to teririinx,e any (-e:amcd 1c Dis.tnel or V\kilCr Section 5,06 at Is properl- perform_ ihs{lek:tions a; hi testing (0 ensure omstraetion in compliance with (his Article , or (HI Lids to pro\ ide eopies of inspection and testinkl reports to the Cu> 's Department of Emlincerinu, rpon termination of any third party inspector, the City. at its option. may: allow the use of another approved third party inspector, or (ii) perform all necessan inspections and test*. Should the City elect to perform inspections and testin:2 section .;.07_ with this Article V in a timely manner (which inspections shall satisfy all applicable requirements of the TCEQ) and the District shall pay Infrastructure Inspection Fees. 5.08 Inspection by City. The City has the right, but not the obligation, to inspect and test the Infrastructure at any time. Further, the City has the right to participate in a final inspection of all Infrastructure. The Contractor shall notify the City Inspector when Infrastructure is ready for final inspection. If the City Inspector concurs that construction of the Infrastructure is substantially complete. the City Inspector will schedule a final inspection by the City within 30 days. Upon such final inspection and correction of any punch list items, written certification by the City Inspector that Infrastructure has been constructed in compliance with City Utility Standards shall constitute compliance with Sections 5.01(a), 5.03, 5.04. 5.05, 5.06. 5.08, and 5.09. Notwithstanding anything contained herein, the City shall have the right to charge Infrastructure Inspection Fees for such inspections and testing only if the City performs inspections and testing pursuant to Section 5.07. 5.09 Access by City Employees. Upon prior Notice by the City, any duly authorized employee of the City bearing proper credentials and identification shall be granted access to any property of the District within the Development as the City may determine necessary for the purpose of inspection and testing of Infrastructure. 5.10 Contractors. If any Party engages a Contractor to construct Infrastructure, such Party shall incorporate the requirements of this Article V into a written construction contract with the Contractor. All such contracts shall provide that the City is a third -party beneficiary of and may enforce such contracts against the Contractor. 5.11 Operation and Maintenance of Infrastructure. The District and Aqua Utilities shall cause all Infrastructure, once it is constructed, to be operated and maintained in compliance with the Infrastructure Standards. 5.12 As -Built Drawin2s. The District and Aqua Utilities shall be jointly responsible for the delivery of mylar as -built drawings for all Infrastructure to the City Inspector within 30 days after final inspection. 5.13 Modification of Governing Rmtlations. (a) If a preliminary plat for the entire 431.303 acres comprising the Development is approved by the City's Plan Commission before January 1. 2007. the development of all portions of the Development for which the Plan Commission approves final plA! be in ,ik.,)riane the (tu\ Rcgi11.111,:,ns, detined \tilde 1 ir!) It prel;ininwv plat tor the entire -HI ;0',acies eomprismc the De\ clopment s approcd 1-1\ the it\ 11s Plan ( ommission 'pew L'en Januar\ I. 2007 and September 30. 2007. the Governing Regulations that arc in effect on January 1, 2007. including amendments in effect on January 1. 2007. shall apply to development of all portions of the Development for \\ hich a final plat is approved bv the 1)1:111 Commission, and the definition of . ;"se (c) If a preliminary plat for all or any portion of the Development is approved by the Plan Commission on or after October 1. 2007, the Governing Regulations that are in effect on the date of submittal of the preliminary plat shall apply to development of all portions of the Development for which a final plat is approved by the Plan Commission, and the definition of -Governing Regulations- shall be deemed to be amended accordingly. ARTICLE VI IMPACT FEES 6.01 Initiation of Fees. At such time as City water or wastewater meters are installed to provide service to the Development pursuant to this Agreement, Owner shall be responsible for paying to the City all Impact Fees for each new or enlarged water and wastewater connection within the Development, based upon the size of the retail water meter. 6.02 Quarterly Payments. Payment of Impact Fees under this Article VI shall be sent to the City within 30 days of the close of each quarter of the year, beginning with the quarter ending March 30, 2006. Such quarterly payments shall include Impact Fees for each new or enlarged connection for water and/or wastewater service for which application has been made within the Development during the preceding quarter of the year. 6.03 Reporting Requirements. Owner, Aqua Utilities and the District shall provide to the City such information that relates to the making of new and/or enlarged connections within the Development as may be requested by the Director, including information required to be provided by the Agreement for Sale of Treated Water and the Agreement for Wastewater Service. ARTICLE VII PURCHASE OF FACILITIES 7.01 Transfer of Retail Water or Wastewater Services. Pursuant to its CCN No. 11157, Aqua Utilities shall have the right and obligation to provide retail water service to the Development; however, at any time after (a) 17 years after the Effective Date or (b) fifteen (15) years after the Effective Date, if the City annexes the Development between fifteen (15) and seventeen (17) years after the Effective Date or (c) at an earlier date if agreed by Aqua Utilities, the City may in its sole discretion seek to become the retail provider of water and/or wastewater service to the Development. To effectuate the transfer of retail water or wastewater service from Aqua Utilities to the City, the Parties will enter into the Buy -Out Contract attached as Exhibit G. Aqua Ltilities. Owner, and the District auee not to contest any applications filed by the City at iht2 f ( ci for sine or amended (:C\ to effcc',u,-ilL!1111:2 Irtitr-ter ofretail Jirld or ‘,L.,.[;::\\,i1,;::!' :() The ( 11.\, real f-th'ther dUeftlift the e operate and :ismi the CJ\ to the tent reasonuht\ san obtaininL an‘ reL!ulatory approvals required to effectuatc• such tranaler el -‘ c r or \\ ;:iter ,.;er% cc rights from Aqua ltilities to the City. 7.02 Lease Fermination„-kny District lease covering all or any part of the providing for such termination. Likewise, upon transfer of any Infrastructure pursuant to the Buy -Out Contract. Aqua Utilities shall not have any obligations of any kind whatsoever to provide water or wastewater service to the Development and the ".Agrcement for Sale of Treated Water by and between the City and Aqua Utilities" pursuant to Section 4.01 and the "Agreement for Wastewater Service by and between the City and Aqua Utilities" pursuant to Section 4.02 shall terminate in accordance with their terms. 7.03 Effect of Transfer. Once the City becomes the retail provider of water and/or wastewater service to the Development. Aqua Utilities will cease providing water and/or wastewater utility service to that area, and the City shall have no further obligations to Aqua Utilities or Owner with regard to the costs, operation, equipment removal or site restoration of Aqua Utilities' water and/or wastewater system operations at the Development, or any portion of the Development that may have been served by such facilities. All costs of dismantling, decommissioning and removal of the then -existing water and/or wastewater system facilities not utilized by the City shall be borne by the owner of such facilities. 7.04 Utility Service Plans and Prior Contractual Commitments. The City agrees not to contest the Denton -Wise County CCN Area identified in Exhibit D so long as Aqua Utilities submits water and wastewater utility service plans to the City for its review and approval for those Denton -Wise County CCN areas within the City's ETJ. To obtain the City's approval, the plans must show that the water and wastewater service facilities will meet all City Utility Standards, except to the extent Aqua Utilities has a contractual commitment dated January 16, 2004 or earlier calling for or allowing water or wastewater utility Infrastructure that does not comply with City Utility Standards ("Prior Contractual Commitment"). Exhibit H attached hereto identifies all developments within the Denton -Wise County CCN Area for which Aqua Utilities has a contractual commitment dated January 16, 2004 or earlier calling for or allowing water or wastewater utility Infrastructure that does not comply with City Utility Standards. Aqua Utilities has identified the locations of the developments identified in Exhibit H on Exhibit H-1 attached hereto. As development occurs, and at the time that Aqua Utilities submits each of Exhibit H subdivision water and wastewater utility service plan to the City for its review and approval, Aqua Utilities also will demonstrate to the City the existence of the Prior Contractual Commitment for that subdivision. The City reserves its right to protest any new developments within the Denton -Wise County CCN Area within the City's ETJ that do not conform to City - approved water and wastewater utility service plans. 7.05 Service to Walsh Ranch. Aqua Utilities, Owner and the District agree not to protest any water or wastewater CCN application, or any sale -transfer -merger application, filed by the City to senc the area west of the existing, City limits known as Walsh Ranch in [arrant and Cunt, Exhibit I lo !_hr• -Ngnf•c:mcro :1,Tha -.incl. Owner !'!„ -n-in \\-.1k1) R-,-1H(.--11 to 111:' a[cr or \-\ astevsater .4vstenl. ARTICLE VIII INDEMNIFICATION 8.01 Indemnity. To THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AQUA UTILITIES, THE DISTRICT, AND OWNER AGREE TO INDEMNIFY AND DEFEND THE CITY, ITS OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS, CONTRACTORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "INDEMNITEES") WITH REGARD TO ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, LIENS, FINES, SUITS, JUDGMENTS, ADMINISTRATIVE PROCEEDINGS, REMEDIATION OR CORRECTIVE ACTION REQUIREMENTS, ENFORCEMENT ACTIONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION THEREWITH (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES, COSTS OF INVESTIGATION AND EXPENSES, INCLUDING THOSE INCURRED BY CITY IN ENFORCING THIS INDEMNITY), DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY OR RESULTING FROM (IN WHOLE OR IN PART) ANY BREACH OF THIS AGREEMENT OR ANY CONSTRUCTION, OPERATION, OR MAINTENANCE OF THE INFRASTRUCTURE, (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNITEE. 8.02 Insurance and 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. 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. orr' 'revi mrns rie (_ it:, Aid the _Id!_sisien and (b‘rodr a-dh r,c0A. ledge Mut Mse Fit", ;ens er V.11CCMeni. 'rn bold, (dx Pi I it."^, L'OinhlnatiOn thereo1d simstv the requirements fdr the e press neL5iiii1entie rule and or Are conspicuous. 9.03 Notice. Any notices, approvals, or other communications required to he given hy one Parir to another under this Agreement (a "Notice-) shall he given in riting addressed to die if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid: (c) when the Notice is delivered by Federal Express. UPS. or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; or (d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on a Saturday. Sunday, or legal holiday, the applicable period for calculating the Notice shall be extended to the first business day following the Saturday. Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this section. To the City: City of Fort Worth, Texas Attn: City Secretary 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-6196 City of Fort Worth, Texas Attn: City Manager 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-6134 City of Fort Worth, Texas Attn: Water Director 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-2398 To the District: Fort Worth Municipal Utility District No. 1 of Denton County c/o: Coats Rose Attn: Timothy G. Green 3 Grecnwav Plaid. Suite 2000 Housion. -F\ 77046 -\_\: To Owner: Aperion Communities. LLLP Attn: Mr. Gary Lane 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 FAX: 480-951-8414 Eladio Properties, LLLP Attn: Mr. Gary Lane 7835 East Redfield Road. Suite 100 Scottsdale, Arizona 85260 FAX: 480-951-8414 Drooy Properties, LLLP Attn: Mr. Gary Lane 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 FAX: 480-951-8414 To Aqua Utilities: 1421 Wells Branch Pkwy., Ste. 105 Pflugerville, TX 78660 Attn: Vice President FAX: (512) 989-9891 762 West Lancaster Ave. Bryn Mawr, Pennsylvania 19010 Attn: Chief Legal Officer FAX: (610) 520-9127 9.04 City Consent and Approval. In any provision of this Agreement that provides for the consent or approval of the City staff or City Council. such consent or approval may be withheld or conditioned by the staff or City Council at its sole discretion. 9.05 Assienment. t,0 '.'-ohitet- the Dootrh„t nor the (i-hty mtiy co_osh,:rt this 1,:crectrient tht_vott e,rihen consent ot the other Parnes h Aqihi L tilitees iiia not asswn this ALireement \\idiom the prior -WritICII consent of the City: provided, however. that Aqua rtilities. rights hereunder may be assigned or transferred upon Notiec. hut v1/4 ithout the Citv-s consent to 1 i any subsidiary or [6' 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 AE.T.reement. (c) Owner has the right, from time to time, to assign this Agreement. in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement. to the District (after the District Confirmation Date) and to any person or entity (an "Assignee") without the consent of the City, provided that the following conditions are satisfied: (i) if not the District, Assignee is a successor owner of all or any part of the Development or is a lender to a successor owner of all or any part of the Development; (ii) if not the District, Assignee has a contractual right to be reimbursed for water, sewer, or drainage improvements and/or the Road Project from District Bonds (or has a lien or other security interest in such reimbursements); (iii) the assignment is in writing executed by Owner and Assignee in the form of assignment attached as Exhibit J; (iv) Assignee expressly assumes in the assignment any assigned obligations and expressly agrees in the assignment to observe, perform, and be bound by this Agreement to the extent this Agreement relates to the obligations, rights, titles, or interests assigned; and (v) a copy of the executed assignment is provided to all Parties within 15 days after execution. Provided the foregoing conditions are satisfied, from and after the date the assignment is executed by Owner and Assignee, the City agrees to look solely to Assignee for the performance of all obligations assigned to Assignee and agrees that Owner shall be released from performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations. No assignment by Owner shall release Owner from any liability that resulted from an act or omission by Owner that occurred prior to the effective date of the assignment. Owner shall maintain written records of all assignments made by Owner (including, for each Assignee, the Notice infolination 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 hy the exercise of foreclosure of lien rights hy a creditor or a !i;th,;::-;,11 or To tile benciit ,ite Lifties drid then Jul:cu.:AA s,..ieees.,ots and \_riee, NoiNN iiiisLindino the tu1eeuue. ho\ee\ er. (A\ rier shall not h\ e the riizht to ,issftin this Agreeinent or an\ rii.Tht_ title, or interest ol owner under this Aii2reLirnetit. until the District has hecome a Party. 9.0A No Third Party Fieneficiarx. !Ins _Agreement is rsoiely for the benefit of the 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 tel ill 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 deteimined to be invalid, illegal. or unenforceable for any reason. and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the provision so severed. 9.10 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 party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. As used in this Agreement. the telln "including' means "including without limitation" and the term "days" means calendar days, not business days. Vtlerever required by the context. the singular shall include the plural, and the plural shall include the singular. Each defined term herein may he used in its singular or plural firm NV healer or not so defined. 1 2 `,ection 17, A.21-e-int."111, the that -J-L: A4:reeinent ot areas and ilstomeN to He served by \\ ater and \\ astex\ ater Imlay pro\ rJer is\ and and enforceable and ma\ be suhtnirtcd to the IC [IQ tor appro \ al at the appropriate lime pursuant to Section 13,248 of the teNas Water Code regarding contracts desiunating areas to be served by retail public utilities. entering into this agreement. the City has no obligation to provide water or wastewater treatment services to any area within Tradition or any other area in the CCN except the services to the Development as set forth in this Agreement. 9.14 Counterpart Oriainals. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. 9.15 Effect of Aareement. This Agreement supersedes any prior understandings or written or oral agreements among the Parties and their affiliates, including without limitation Recorp Partners. Ltd.. concerning the subject matter hereof and the Original Utility Service Agreement is hereby terminated as of the Effective Date of this Agreement. 9.16 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement are incorporated into this Agreement by reference for the purposes set forth herein, as follows: Exhibit A Map of Tradition showing the Development Exhibit B Legal description of the Development Exhibit C Legal description of Tradition Exhibit D Map of ''Denton & Wise County CCN Area" Exhibit E Agreement for Sale of Treated Water Exhibit F Agreement for Wastewater Service Exhibit G Buy -Out Contract Exhibit H List of developments with a Prior Contractual Commitment Exhibit H-1 Map of developments within the Denton -Wise County CCN Area with a Prior Contractual Commitment pursuant to Section 7.04 Exhibit I Map of the area west of the existing City limits known as Walsh Ranch in Tarrant and Parker Counties Exhibit J Assignment and Assumption Agreement 9.17 The Effective Date of this Agreement is . 2005. ATTES \ Marty Hendrix City Secretary I LE,( ----,An Assistant (y CITY'OF-F_PRT --WORTH fit7 I. I : I (print name) rt:tt t_ - „ - " - t ATTEST: Corporate Secretary ATTEST: AQUA UTILITIES. INC. / By: (print name) Title:( - t APERIONFOMMUNITIES. LLLP By: --- - David P. Maniatis, General Partner ELADIO PROPERTIES LLLP By: 7- David P. Maniatis, General Partner DROOY PROPERTIES, LLLP By: - David P. Maniatis, General Partner FORT WORTH MUNICIPAL UTILITY DISTRICT NO. I OF DENTON COUNTY By: (print name) Title: Exhibit A Map of Tradition Showing the Development Y1,11,1iiilLomy1110111,1 111111111101111111041,,11, Exhibit B Legal description of the Development BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more particularly described as follows: Tract 1 BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" 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 00E22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2" iron pin set; THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set; THENCE S 52E34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set; THENCE S 44E08'03" E, a distance of 999.82 feet to a capped 1/2" iron pin set; THENCE .S 65F586-F. distance ot 1029 92 feet to a apped I -2- iron pin se -IRENCE N 90E00'00" E, a distance of 773„11 feet to a capped 1/2" iron pin set; said capped I '2" iron pin set also being on the east line of said Aperion Tract One -A and the west line of that tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's File No. 97- 0003605 RPRDCT; Wert elst astrweer Oit Scrv.,,r Page I THENCE S 00E07'20" E along the east line of said Aperion Tract One -A and the west line of said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE S 44E23'02" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to a 5/8" iron pin found; THENCE N 47E15'51" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found; THENCE S 44E27'42" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said brass monument also being on the said north right-of- way line of State Highway No.114; THENCE S 89E47'36" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete found; THENCE S 84E30'09" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete found; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set; THENCE N OOE11'12" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set; THENCE S 00E11'12" E along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15,00 feet to a capped lir iron pin set; S 10E48-48" W alone the south line of said Aperion II -act One -A and the north right- of-way line of State Highway No 114, a distance of 238 28 feet to the Point of Beginning and containing 16,728,840 square feet or 384.041 acres of land, more or less. Tract 2 BEGINNING at a brass monument in concrete found, said brass monument also being on the Arterlc:,n raC t The-}3, cAlij brass monument ake ..yeirw on the north 1-10u-of- Ap:zerne A Atei And A Iste,xater 1;t:iltv Nge 2 way line of State Highway No. 114, said brass monument also being on the west line of a tract conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT THENCE S 89E4648" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found; THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract; THENCE S 00E07'09" E along the east line of said Aperion Tract One-B and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing 2,058,725 square feet or 47.262 acres of land, more or less. %).1Tcr St-r-v:c," Exhibit C Legal Description of Tradition BEING 2,663.040 total acres of land described in three tracts in the G. Cardinas Survey, Abstract No. 214, the James Chesier Survey, Abstract No. 225, the W.D. Reed Survey, Abstract No. 1125, the W.C. Brookfield Survey, Abstract No. 34, and the W.A. Ferris Survey, Abstract No. 419 situated in Denton County, Texas and being a combination of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B), that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT, that tract conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2003-190652 RPRDCT (Aperion Tract Two), that tract conveyed to Trail Creek Acres, Inc. by deed recorded in Volume 1912, Page 979 RPRDCT, that tract recorded in Volume 5128, Page 3102 RPRDCT, and that tract recorded in Volume 5119, Page 715 RPRDCT and being more particularly described as follows: TRACT 1 BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" 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 00E22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1397.33 feet to a capped 1/2" iron pin set, said capped iron pin set also being on the west line of said Nancy Reynolds Talley, et al tract; HENCT N 7E4f-).29" 'A' along the east line of said Mant,N,Te, et al, tract recorded in Volume 2Q06._ Page 36; RPRIW I the east line ot a tract con\ eyed to Peggy Jeannine Eaton and Betty Marie McIntyre by deed ecorded under County Clerk's- File No_ 2003-203215 and the west line of said Nancy ReN,nolds 'Valley, et al tract, a distance of 253 45 feet to a 1'2" iron pin foundi THENCE N 00E2132" 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 00E12'20" W along the east line of said Peggy Jeannine Eaton and Betty Marie McIntyre tract and the west line of said Aperion Tract One -A and in Sam Reynolds Road, a distance of 2791.88 feet to a railroad spike found; THENCE S 89E52'16" W along the north line of said Peggy Jeannine Eaton and Betty Marie McIntyre tract and the west line of said Aperion Tract One -A and in Sam Reynolds Road, a distance of 1909.29 feet to a 5/8" iron pin found, said iron pin also being on the east line of Indian Trails Phase 1, an addition to Denton County, Texas as recorded in Cabinet G, Page 311 of the Plat Records of Denton County, Texas (PRDCT); THENCE N 00E09'15" 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 76E1528" 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 00E18'58" 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 00E1209" 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 Bobb .1 Henn- by deed recorded in Volume 5028. Page 3683 RPRDCT, and In Sam Reynolds Road, a distance of 349534 feet to a railroad spike found, said railroad spike also being on the south line of a tract conveyed to Margaret DiNapoli. et al, by deed recorded in Volume 4522, Page 2063 RPRDCT; Exhibit C to S,•;IttttsNest't-tg E`44! THENCE S 89E57'51" E along the west line of said Aperion Tract One -A and the south line of said Margaret DiNapoli, et al tract, a distance of 509.83 feet to a 5/8" iron pin found, said iron pin also being on the west line of a tract conveyed to Archie Eddleman by deed recorded in Volume 2322, Page 824 RPRDCT; THENCE S 00E1431" 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 88E4854" 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 00E24'54" 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 00E43'24" W along the west line of said Aperion Tract One -A arid 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 00E35'15" 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 Vi,durne 4g13, Page .525 RPRDCI- THENCE S 88E0305" E along the north line of said Aperion d tact f‘vo and the south line of said Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT, a distance of 1190.05 feet to a 1/2" iron pin found, said iron pin also being on the north line of Aperion Tract Exhibit C to Superseding Agreement Regarding iter ,v1,2, ,v,tf i!fr l'age One -A; THENCE N 89E00'24" E along the north line of said Aperion Tract One -A, the south line of said Pennington Family Trust tract recorded in Volume 4833, Page 525 RPRDCT and the south line of a tract conveyed to The Pennington Family Trust by deed recorded in Volume 4833, Page 521 RPRDCT, a distance of 1146.79 feet to a 1/2" iron pin found, said iron pin also being on the southerly right-of-way line of Farm -to -Market Road No. 407 (F.M. 407) (90' ROW); THENCE S 50E10'01" E along the north line of said Aperion Tract One -A and the southerly right-of-way line of F.M. 407, a distance of 682.19 feet to a capped 1/2" iron pin set, said iron pin also being the Point of Curvature of a circular curve to the left having a radius of 617.96 feet, a central angle of 39E44'46" and being subtended by a chord which bears S 70E02'24" E , 420.13 feet; THENCE along said curve to the left and the north line of said Aperion Tract One -A and the southerly right-of-way line of F.M. 407, a distance of 428.68 feet to a capped 1/2" iron pin set; THENCE S 89E54'47" E tangent to said curve and along the north line of said Aperion Tract One -A and the southerly right-of-way line of F.M. 407, a distance of 1464.51 feet to a 1/2" iron pin found, said iron pin also being the Point of Curvature of a circular curve to the left having a radius of 617.96 feet, a central angle of 45E20'00" and being subtended by a chord which bears N 67E25'13" E, 476.29 feet; THENCE along said curve to the left and the north line of said Aperion Tract One -A and the southerly right-of-way line of F.M. 407, a distance of 488.94 feet to a capped 1/2" iron pin set; THENCE N 44E45'13" E tangent to said curve and along the north line of said Aperion Tract One -A, the north line of a tract conveyed to Trail Creek Acres, Inc. by deed recorded in Volume 1912, Page 979 RPRDCT and the southerly right-of-way line of F.M. 407, a distance of 225.73 feet to a capped 1/2" iron pin set, said iron pin also being the Point of Curvature of a circular curve to the right having a radius of 527.96 feet, a central angle of 44E35'06" and being subtended by a chord which bears N 67E02'46"E , 400.55 feet; THENCE along said curve to the right and the north line of said Trail Creek Acres, Inc. tract and the southerly right-of-way line of F.M. 407, a distance of 410.84 feet to a capped 1/2" iron pin set; THENCE N 89E20'19" E tangent to said curve and along the north line of said Trail Creek Acres, Inc_ tract and the southerly riat-of-way line of F.M. 407, a distance of 1406,17 feet to a capped 1 iron pin ,et1 I HENCE N. 89E2619'. E along the north line of said Trail Creek Acres, Inc, tract and the southerly right-of-way line of F.M. 407, a distance of 749.30 feet to a I/2" iron pin found, said iron pin also being the northwest corner of a tract conveyed to Margaret DiNapoli, et al, by deed recorded in Volume 4522, Page 2063 RPRDCT: THENCE S 00E0841" E departing the southerly right-of-way line of F.M. 407 and along the east line of said Trail Creek Acres, Inc. tract, the west line of said Margaret DiNapoli, et al tract, and the west line of a tract conveyed to Olen N. Range, et ux, Myrtie by deed recorded in Volume 670, Page 29 RPRDCT, a distance of 3454.30 feet to a fence corner found; THENCE S 89E10'18" W along the south line of said Trail Creek Acres, Inc. tract, the north line of said Olen N. Range tract and the north line of a tract conveyed to Patricia Malloy by deed recorded in Volume 769, Page 965 RPRDCT, a distance of 2598.90 feet to a 1/2" iron pin found, said iron pin also being on the east line of said Aperion Tract One -A; THENCE S 88E57'42" W along the east line of said Aperion Tract One -A and the north line of said Patricia Malloy tract, a distance of 2342.10 feet to a 5/8" iron pin found; THENCE S 00E1033" E along the east line of said Aperion Tract One -A and the west line of said Patricia Malloy tract, a distance of 3748.38 feet to a 5/8" iron pin found, said iron pin also being the northwest corner of Riggs Place, an addition to Denton County, Texas as recorded in Cabinet E, Page 359 PRDCT; THENCE S 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 0, 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 00E15'21" E along the east line of said Aperion Tract One -A, the west line of said Peyton Place, Phase One and the west line of Peyton Place, Phase Two, an addition to Denton County, Texas as recorded in Cabinet P, Page 50 PRDCT , a distance of 1482.19 feet to a 1/2" iron pin found, said iron pin also being the northeast corner of a tract conveyed to Ferbro estrnents by deed recorded under County Cier's Hle Ni) 97-000605 RPRDC H ITIENCE S 00E03'07" E along the east line of said Ferbro ln\esunents 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 582'4.65 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 44E2302" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 3702.51 feet to a 5/8" iron pin found; THENCE N 47E15'51" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found; THENCE S 44E27'42" W along the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said brass monument also being on the said north right-of-way line of State Highway No.114; THENCE S 89E47'36" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete found; THENCE S 84E30'09" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete found; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set; THENCE N 00E11'12" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set; If�LES 00E11-12" E along the _couth line of said Apenon Iract One -A and the north r tht of -way line of State Highway No 114, a distance of 15.00 feet to a capped 1:2" iron pin set. THENCE S 89E4848" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and containing 89,976,698 square feet or 2065.581 acres of land, more or less. ',Vecr And 1.1„ TRACT 2 BEGINNING at a brass monument in concrete found, said brass monument also being on the south line of said Aperion Tract One-B, said brass monument also being on the north right-of- way line of State Highway No. 114, said brass monument also being on the west line of a tract conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found; THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract; THENCE S 00E07'09" E along the east line of said Aperion Tract One-B and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing 2,058,725 sqiiRre feet or 47.262 acres of land, more or less. TRACT 3 BEING a 550.197 acre tract of land in the W.C. Brookfield Survey, Abstract No. 34, situated in Denton County, Texas and being that same tract of land as described in deeds recorded in Volume 5128, Page 3102 and Volume 5119, Page 715 of the Real Property Records of Denton County, Texas (RPRDCT) and being more particularly described as follows: BEGINNING at a point in the north line of F.M. 407 at the southeast corner of the herein described tract of land, said point lying in the west line of a tract of land as described in deed to Bill Pennington. recorded in Volume 572. Page 131, RPRDCT: along the ncrh Ineot said FM 407. as follows: Northwesterly. along a curve to the left, haying a radius point that bears S 180628" W, 624.31 feet, an arc distance of 204.03 feet, a central angle of 1843'31" and being subtended by a chord which bears N 81'15'18" W, 203.13 feet; A it,!-!:17,-: ;_t• S 89°1836" W, a distance of 1931.01 feet; THENCE N 00°04'03" W, departing the north line of said F.M. 407, a distance of 8.)4.59 feet; THENCE N 00°00'51" E, a distance of 1161.59 feet; THENCE N 00°04'13" E, a distance of 1244.99 feet to the northwest corner of the herein described tract of land; THENCE, being adjoined to the north by a tract of land as described in deed to Orville Rogers, recorded in Document No. 94-R0029773, RPRDCT, along the north line of the herein described tract of land, as follows: S 89°37'03" E, a distance of 5409.41 feet; S 00°32'35" W, a distance of 352.79 feet; N 89°46'56" E, a distance of 651.45 feet; THENCE S 00°44'37" 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 85°16'40" W, a distance of 2099.00 feet; THENCE S 00°24'45" E, being adjoined to the east by the aforementioned Pennington tract, a distance of 3642.68 feet to the POINT OF BEGINNING and containing 550.197 acres, more or less. The above described three tracts of land totaling 2663.040 acres of land, more or less. --A-Alt!T Ind Wa,,trwatfr Exhibit D Map of "Denton & Wise County CCN Area" "Exhibit D" i'DE N i ©N COL' "Exhibit D" taOi U1'C.a Uri ir rx . Exhibit E Agreement for Sale of Treated Water AGREEMENT FOR SALE OF TREATED WATER This Agreement for Sale of Treated Water ("Agreement") is entered into by and between Aqua Utilities, Inc., formerly known as Aqua Source Utility, Inc., a Texas corporation (and/or its corporate successors and assigns) ("Aqua Utilities") and the City of Fort Worth, a Texas home rule municipality (the "City"). ARTICLE I RECITALS A. Aqua Utilities wishes to provide retail water utility service to the land shown on Exhibit A and more particularly described in Exhibit B to this Agreement, and consisting of approximately 431.303 acres in Denton County, Texas (the "Development"), located entirely within the City's extraterritorial jurisdiction ("ETJ"). B. The City and Aqua Utilities are parties to the "Superseding Agreement Regarding Water and Wastewater Utility Service," dated December 21, 2005, City Secretary Contract No. 32899, ("Superseding Utility Agreement"), which sets forth the rights and obligations of the parties to that agreement with respect to the provision of retail and wholesale water and wastewater service to the Development, and provides, among other things, for the City and Aqua Utilities to enter into a contract for the provision of wholesale water service to the Development. C. The Development is located within Certificate of Convenience and Necessity No. 11157 issued to Aqua Utilities by the Texas Commission on Environmental Quality, pursuant to which Aqua Utilities is to be the retail provider of a continuous and adequate supply of water to the Development. D. The City has obtained at its own expense, and now owns, operates and maintains facilities for processing and distributing a supply of surface water, and is authorized to furnish and deliver treated water, both inside and outside its corporate boundaries. E. Aqua Utilities has considered its various alternatives for obtaining a water supply for its retail water service to the Development under its CCN and has elected to seek to obtain water from the City. F. Aqua Utilities has independently obtained a water utility engineering study describing facilities and equipment needed for retail ater service to the Development, including the Storage -lank. G. The City and Aqua Unlit es have reached a mutually satisfactory agreement by which Aqua Utilities may purchase a supply of treated water from City to serve the Development A 4ret,merit t(,r irt!ate, -Ater 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 for Sale of Treated Water between the City and Aqua Utilities. "Annual Consumption" means the total quantity of water purchased under the terms of this Agreement by Aqua Utilities during the City's Fiscal Year as determined by the difference in the annual October Meter readings. "Aqua Utilities" means Aqua Utilities, Inc., a Texas corporation (and/or its corporate successors and assigns). "Average Daily Use" means the total Annual Consumption divided by 365 days. "City" means the City of Fort Worth, Texas, a home -rule municipality. "City Council" means the City Council of the City. "Cure Period" means the period of time to cure a material breach, as defined in Section 9.04. "Customer System" means all water mains and distribution facilities (whether owned by Aqua Utilities or third parties) within the Development and on Aqua Utilities' side of the Meter shown on Exhibit C. from and beyond the Point of Delivery of treated water by the City. "Development" means that certain 431.303-acre tract located in Denton County, Texas shown on Exhibit A and more particularly described in Exhibit B. which Development is located entirely within the ETJ of the City. "Director" means the City Water Department Director or designee. "Effective Date" means the effective date as defined in Section 9.03. "ETJ" means the extraterritorial jurisdiction of a city as defined by the Texas Local Government Code, as amended, with the City's ETJ being an unincorporated area presently extending five miles from the Cit)-'s corporate limits, excluding other incorporated municipalities and their respective 1:. [Is. "Fiscal Year" means the City's fiscal year from October 1 through September 30. "Fort Worth System" means the City's water treatment and distribution system. Agreerrient for Sale of I '.8'1!er Page 2 "Maximum Day Demand" means the maximum quantity of water used by Aqua Utilities during one calendar day of the City's Fiscal Year. "Maximum Hour Demand" means the maximum quantity of water used by Aqua Utilities during the one hour of the year that more water passed through the Meter serving Aqua Utilities than during any other hour of the City's Fiscal Year multiplied by 24 hours. "Metering Facilities" means all facilities associated with metering the water provided hereunder, excluding Meters, and including without limitation continuous flow chart recording devices and telemetering equipment connected with the City's SCADA control center. "Meter" means the six-inch (6") meter located at the Point of Delivery shown on Exhibit C. "MGD" means million gallons per day. "Notice" means notice as defined in Section 11.02 of this Agreement. "Parties" means, all of the City and Aqua Utilities, their successors and their assigns, as permitted by this Agreement. "Party" means, individually, the City or Aqua Utilities, their successors and their assigns, as permitted by this Agreement. "Point of Delivery" means the meter vault connection to Aqua Utilities' side of the Meter installed by Aqua Utilities in accordance with Article IV, as shown on Exhibit C. "Rate of Use Charge" means the charge determined for the Maximum Day Demand in excess of Average Daily Use and the Maximum Hour Demand in excess of Maximum Day Demand rates of use. "Raw Water Charge" means the rate per 1,000 gallons for out -of -district raw water charged to the City by the Tarrant Regional Water District, as such rate may be adjusted, plus eight percent (8%) of said rate, representing the City's system losses of four percent (4%), and the street rental charge of 4%. "Storage Tank" means the 600,000 gallon storage tank owned and/or operated by Aqua Utilities, as shown on Exhibit C. -Superseding Utility Agreement" means the agreement defined in Recital B. -Svstern Cost" means the operating expense and capital related cost incurred by the City pursuant to the provision of water treatment and transmission to the wholesale class of water customers. Such costs are to be collected by the City as a component of the annual cost of providing wholesale water service. fie "Temporary Emergency Condition" means a situation created by unforeseeable mechanical failure or by unprecedented high rate of water usage such as might result from a major fire or a major water main break. This term does not include events that are foreseeable or preventable by the exercise of due diligence. "Treatment, Pumping and Transmission Charge" means that part of the rate charged for 1,000 gallons used, regardless of rate of use. This charge shall include the maintenance and operation costs and the capital facilities cost on the part of the production and transmission system related to annual use. "Volume Charge" means the combined Treatment, Pumping and Transmission Charge and the Raw Water Charge. ARTICLE III WATER SUPPLY, USE AND STORAGE 3.01 Supply of Treated Water. The City agrees to furnish and sell to Aqua Utilities treated water of potable quality meeting all applicable governmental standards, delivered under the normal operating pressure prevailing in the Fort Worth System at the Point of Delivery. Aqua Utilities agrees to accept delivery under the conditions of this Agreement and to pay for such water in accordance with the terms herein. Aqua Utilities' sole connection to the Fort Worth System shall be at the Point of Delivery. 3.02 Rate of Withdrawal, Construction of Storage Tank and Pressure. The rate at which water is withdrawn from the Fort Worth System by Aqua Utilities shall be limited by system design based on a six-inch (6") Meter. Aqua Utilities shall install and maintain or cause to be installed and maintained a 600,000 gallon Storage Tank at the location shown on Exhibit C: all construction costs for the storage tank, including, but not limited to, site acquisition and preparation, design and engineering and rights -of -way, and all maintenance costs shall be paid by Aqua Utilities. In addition, Aqua Utilities shall maintain a minimum pressure of 35 pounds per square inch ("PSI") at the Meter. 3.03 Extension of Facilities. The City's water supply line is approximately 8,000 feet from the Development. In order for Aqua Utilities to receive treated water from the City pursuant to this Agreement, the City's water supply line will have to be extended to the Development. The City has no obligation to extend such line. 3.04 Backflow Prevention. Prior to the delivery of any water by the City pursuant to this Agreement, Aqua Utilities, at its sole expense, shall install and maintain a hackflow prevention device approved by the Texas Commission on Environmental Quality immediately after the Meter on Aqua Utilitiesside, as reflected in Exhibit C. 3A)5 Sale and Use Within Develonment Only. Aqua Utilities may not sell or transfer any water furnished by the City under this Agreement to any connections or for any use outside of the Development, except that Aqua Utilities may (a) serve a maximum of 10 retail residential L:onnectiors outside the Development 'A-1th City's -Ariven ,:onsent and Jo serve outside the :14,reement for time ct I -rated Page 4 Development as provided in Section 3.08. The City is under no obligation to sell or otherwise deliver any treated water to Aqua Utilities except pursuant to all of the terms and conditions this Agreement. 3.06 Tarrant Regional Water District Contract. In accordance with the terms of City Secretary Contract No. 12720 between the City, City of Arlington, City of Mansfield, Trinity River Authority and the Tarrant County Water Control and Improvement District No. 1, a Water Control and Improvement District created under authority of Article XVI, Sec. 59 of the Texas Constitution and now named the Tarrant Regional Water District, this Agreement shall be deemed subordinate in all respects to the water requirements of the contracting parties as specified in Section 3 of that Contract No. 12720. 3.07 Conservation. If the City shall ration the use of water throughout its corporate limits or issue water conservation measures or restrict the use of water in any way, the City shall notify Aqua Utilities, who shall immediately impose and enforce the same rationing, conservation measures, or restrictions to the use of water within the Development. 3.08 Delivery of Water by Aqua Utilities Outside the Development. At the request of the Director, Aqua Utilities agrees to furnish water to areas and premises situated adjacent to the Development and within the City's ETJ. The metered quantity of water used in such area each month by the City shall be the total of all individual customer meter readings. The metered quantity of such water furnished by Aqua Utilities to the City shall be deducted from the total quantity of water withdrawn from the Fort Worth System by Aqua Utilities before the charge for water service to Aqua Utilities is computed as provided in this Agreement. No adjustment will be made to the Rate of Use Charge for water furnished pursuant to this Section 3.08; however, at the option of Aqua Utilities or the City, a master meter may be installed where practicable at the City's expense to meter and deduct from the Rate of Use Charge calculation all water used by the City under the terms of this section. ARTICLE IV METER AND METERING FACILITIES 4.01 Construction and Title. All water furnished by the City under this Agreement shall be measured by a six-inch (6") Meter equipped with continuous flow, chart -recording devices, and telemetering equipment connected with the City's control center. Aqua Utilities shall construct and install or cause to be constructed and installed the Meter, Metering Facilities and appurtenances. All construction shall be in accordance with Article V of the Superseding Utility Agreement, which requires, among other things, that all construction of water infrastructure shall be in accordance with plans and specifications meeting City standards and shall ix approved in advance by the City. All construction costs, including, but not limited to, site acquisition and preparation, design and engineering and rights -of -way, shall be paid for by Aqua Utilities, Upon acceptance of the \leter, 'Metering Facilities and appurtenances, the City shall own and have title to such equipment, along with the exclusive right to use, operate and maintain such equipment. T ‘1r 4.02 Operation and Maintenance. Upon acceptance of the Meter, Metering Facilities and appurtenances, the City shall pay all costs associated with the operation and maintenance of such equipment and shall pay for the repair and replacement of such equipment as necessary, excluding upsizing of the Meter. Such costs, as well as charges for repair and replacement of the telelink line and microwave transmitter and the power to operate same, shall be a System Cost. The Meter will be properly sealed, and the seal shall not be broken unless representatives of both Parties have been notified and given a reasonable opportunity to be present. 4.03 Service and Calibration. City shall test for accuracy, and service and calibrate if necessary, the Meter no less than once during each twelve (12) month period. Copies of the results of such calibration and all related information shall be provided to Aqua Utilities. 4.04 Access to Facilities. Aqua Utilities shall have access to the Meter and Metering Facilities at all reasonable times; provided, however, that any reading, calibration or adjustment to such equipment shall be done by employees or agents of City, or other mutually approved third party calibration agent, in the presence of representatives of Aqua Utilities and City, if so requested by Aqua Utilities. The City shall notify Aqua Utilities at least seventy-two (72) hours in advance of the date and time for any calibration and Aqua Utilities may observe the calibration. 4.05 Corrections. Upon any calibration, if it is determined that the accuracy envelope of the Meter is found to be lower than ninety-five percent (95%) or higher than one hundred five percent (105%) expressed as a percentage of the full scale of the Meter, the registration of the flow as determined by the defective Meter shall be corrected for a period extending back to the time such inaccuracy began, if such time is ascertainable; or, if such time is not ascertainable, then for a period extending back one-half (1/2) of the time elapsed since the date of the last calibration, but in no event further back than a period of six (6) months. 4.06 Out of Service Meter. If the Meter used to determine the flow of treated water to Aqua Utilities is out of service or out of repair so that the amount of water metered cannot be ascertained or computed from the reading thereof, the water delivered during the period the Meter is out of service or out of repair shall be estimated upon the extrapolation of past patterns of flow for that Meter location under similar conditions. ARTICLE V METER READING, BILLING AND PAYMENT 5.01 Meter Reading and Access. City will read the Meter at monthly intervals. City and Aqua Utilities shall have free access to read the Meter daily, if either so desires. It shall be the duty of City and Aqua Utilities to give immediate Notice, each to the other, should the Meter or Metering Facilities be found not functioning properly and. upon such Notice, City shall promptly repair such equipment. 5.02 Access to Records. All data obtained from Meter readings will be maintained by the City in its usual and customary manner. Aqua Utilities shall have access to such records during reasonable business hours and shall be furnished with monthly readings for the Meter. A greernent tor ot Treated Y ater Page h 5.03 Billing. Bills for water service shall be rendered to Aqua Utilities monthly by the City. All such bills shall be due and payable by Aqua Utilities not more than thirty (30) days from the billing date. The bills will show current charges, as well as past -due charges, if any. Past -due charges shall be the total amount unpaid from all prior billings as of the current billing date. Payments received by the City shall first be applied to the past -due charges, if any, and thereafter to the current charges. A review of water usage amounts by Aqua Utilities for the past twelve (12) months shall be made during the presentation of the October bill each year. The October statements shall be prepared so as to reflect any and all Rates of Use Charges that have not been previously billed and paid. A copy of the rate of flow charts or other records showing the Maximum Day Demand and the Peak Hour Rate of the year shall be furnished to Aqua Utilities with the October billing. 5.04 Disputes. If Aqua Utilities disputes a bill and is unable to resolve the difference informally, Aqua Utilities shall notify the Director in writing. The Director and Aqua Utilities shall use their best efforts to resolve the disputed bill; however, dispute of a bill is not grounds for non- payment In the event a payment is not paid as specified in this Agreement, a finance charge of ten percent (10%) per annum will be calculated from the date which the payment was required to be made. ARTICLE VI OWNERSHIP, LIABILITY AND INDEMNIFICATION 6.01 Water Oualitv; Additional Water Sources. The City shall deliver water that meets all state and federal water quality requirements to the Point of Delivery. If Aqua Utilities obtains water from any source other than the City, the City makes no representation that the treated water to be delivered to Aqua Utilities will properly mix with water that Aqua Utilities obtains from other sources. Aqua Utilities assumes all responsibility and liability for any combining or mixing of water delivered by the City that is combined or mixed with water from Aqua Utilities' other sources. The City's sole responsibility is to provide to Aqua Utilities water of a quality that meets state and federal drinking water standards at the Point of Delivery. From the Point of Delivery on, Aqua Utilities is solely responsible for meeting state and federal drinking water quality standards. Aqua Utilities shall notify the Director in writing before obtaining water for the Development from any source other than the City. 6.02 Liability and Ownership. Ownership of and liability for the water shall remain with the City until the water passes through the Point of Delivery. Aqua Utilities assumes all liability and responsibility for, together with ownership of, the water after it passes through the Point of Delivery, including but not limited to liability for mixing, transportation and quality of water. In addition, repair and maintenance of the Customer System shall be Aqua Utilities' responsibi;ity and the City has no liability or responsibility for maintenance and operation of the Customer System. No provision of this .34.;reernent shall be construed to create any. type of joint or equitv ownership of any property or any partnership or joint venture, and Aqua I..itihties' payments (whether past, present, or future) shall not be construed as granting Aqua Utilities partial ownership of, pre -paid capacity in, or equity in the Fort Worth System. Agreerv,rnt fot l4 Tr t'ved WItev Page 7 6.03 Indemnity. To THM FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AQUA U I'ILITIES AGREES TO INDEMNIFY AND DEFEND THE CITY, ITS O1} FICERS, ELECTED LD 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 AC1IONS, AND ALL COSTS AND EXPENSES INCURRED IN CONNECTION THEREWITH (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, COSTS OF INVESTIGATION AND EXPENSES, INCLUDING I HOSE INCURRED BY CITY IN ENFORCING PHIS INDEMNITY), DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED BY OR RESULTING FROM (IN WHOLE OR IN PART) ANY BREACH OF THIS AGREEMENT OR ANY CONNECTION OF THE CUSTOMER SYSTEM TO THE FORT WORTH SYSTEM (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNI l LE. ARTICLE VII REPORTS AND AUDIT 7.01 Required Records. Aqua Utilities shall provide the following data to the City upon 30 days Notice: A. Actual number of customer accounts consuming drectly or indirectly from the Customer System; B. Classification of domestic and nondomestic accounts within the Development by number and percentage of accounts consuming directly or indirectly from Customer System; and C. Aqua Utilities' water usage from all sources other than the Fort Worth System, including, but not limited to, ground water, other surface water, and water supply agreements with other entities. 7.02 Inspection and Audit. The City and Aqua Utilities shall maintain all records and accounts related to this Agreement for a period of five (5) years. Each Party shall at all times, upon Notice, have the right at reasonable times to examine and inspect said records and accounts during normal business hours; and further, if required by any law, rule or regulation, make said records and accounts available to federal and/or state auditors. ARTICLE Viii RATES AND CHARGES 8.01 Rates Charged Pursuant to this Agreement. The Parties agree that the rates charged pursuant to this Agreement will be calculated using the methodology set forth in Exhibit D, which also serves as the basis for the wholesale water rates that the City charges to each municipality that is a wholesale water customer of the City, pursuant to each of their separate contracts. The majority f the ( its ' contracts `. "'_th its municipal wholesale customers will expire in 2010 and the City Page 8 expects to enter into negotiations for new wholesale contracts with such customers. The City shall provide Aqua Utilities at least ten (10) days prior Notice of the commencement of the negotiations between the City and the Water System Advisory Committee. If this Agreement is renewed pursuant to Section 9.02(A), and if the renegotiated contracts with the City's wholesale customers who are municipalities include a rate methodology that differs from Exhibit D. then Aqua Utilities and the City expressly understand and agree that for the renewal term of this Agreement the rate methodology described in Exhibit D will be automatically superceded and replaced with a new Exhibit D that adopts the same rate methodology used to calculate the rates for those wholesale customers of the City who are municipalities, and such Exhibit D will then be used to calculate rates charged pursuant to this Agreement 8.02 Initial Rate. The initial rates for this Agreement shall be those adopted by the City Council and effective on October 1, 2005, which are as follows: Treatment, Pumping and Transmission Charge Raw Water Charge Annual charge per MGD of Maximum Day Demand in excess of Average Daily Use Maximum Hour Demand in excess of the Maximum Day Demand Service Charge $0.6829 per 1,000 gallons withdrawn by Aqua Utilities $0.6775 per 1,000 gallons $104,348 per MGD $27,043 per MGD $25.00 per month per meter 8.03 Annual Payment. The annual payment to the City for water used by Aqua Utilities will be computed based on all water delivered by the City to Aqua Utilities during the current Fiscal Year using rates charged pursuant to this Agreement. For purposes of calculating the annual payment, the current year will be the Fiscal Year during which the water usage occurred. However, the minimum annual payment will be the greater of the following: (a) The charges calculated by applying the current Volume Charge to Annual Consumption, the appropriate Meter reading and billing charge, and the Rate of Use Charge for the current Fiscal Year; or b) The current Fiscal Year Volume Charge, the appropriate Meter reading and billing charge, and the current Fiscal Year Rate of Use Charge applied to the average of the Maximum Day Demand above Average Daily Use and the average of the Maximum Hour Demand above Maximum Day Demand for the most recently completed three Fiscal Years. The most recently completed three Fiscal Years will include the current Fiscal Year; or 'fwelve thousand dollars ($12,000) Agreement tor 1-17 '3(e,"(1 '‘Vater Page 9 8.04 Monthly Payment. Except as provided for in Section 8.05 below, the monthly payment will be the greater of either one thousand dollars ($1,000) or a sum equal to the Volume Charge for the actual volume of water taken plus one twelfth (1/12) of the sum of the estimated Rate of Use Charges and the appropriate Fiscal Year charges for meter reading and billing. For purposes of estimating the rate of use payments, the current Fiscal Year Rate of Use Charges will be applied to the prior Fiscal Year's Maximum Day Demand, Maximum Hour Demand and Average Daily Use. 8.05 Adjustment of Rates. Aqua Utilities agrees that the City shall have the right to unilaterally adjust the rates charged for the water services provided pursuant to this Agreement, from time to time, so long as the adjustment is based on the agreed methodology set forth Exhibit D and in effect pursuant to Section 8.01, and otherwise in compliance with this Agreement. Aqua Utilities' agreement that the City has the right to unilaterally adjust the rates charged pursuant to this Agreement is an essential part of the consideration given by Aqua Utilities in exchange for the City's entering into this Agreement to provide wholesale water service to the Development, which is in the City's ETJ and in Aqua Utilities' CCN, and without which consideration the City would not have provided wholesale water service to Aqua Utilities, either by entering into this Agreement or otherwise. Furthermore, in exchange for the City's right to unilaterally adjust the rates charged hereunder, in addition to other rights under this Agreement, should Aqua Utilities object to any unilateral rate adjustment, Aqua Utilities shall have the right to terminate this Agreement with one year's Notice and the following rate relief. Upon any rate adjustment pursuant to this Article VIII and Exhibit IX Aqua Utilities has the following options: A. Agree to pay the adjusted rate; or B. Give Notice (i) that it wishes to terminate this Agreement one year after the effective date of the proposed rate adjustment and (ii) that it rejects the rate change, in which case the City will continue to charge Aqua Utilities the contract rates that were in effect immediately prior to the proposed rate adjustment. If Aqua Utilities elects to terminate this Agreement under this Section 8.05, then the Agreement will expire at the earlier of the one-year Notice period or the Section 9.01 expiration date. If Aqua Utilities continues to accept delivery of treated water and has not disconnected the Customer System from the Fort Worth System on the date this Agreement is to expire pursuant to this Section 8.05, then the Agreement shall not expire pursuant to this Section 8.05 and Aqua Utilities shall immediately pay the City the difference between the amount that would have been charged pursuant to this Agreement under the rate Aqua Utilities rejected, and the amount actually charged to Aqua Utilities during the preceding year, with interest, and subject to any other rate adjustment. past or future, pursuant to this Article VIII and Exhibit D. Aqua Utilities agrees that the remedy provided by this Section 8.05 provides its sole and exclusive remedy, in law and equity, for any rate adjustments pursuant to this Agreement, and that it will not pursue a wholesale rate appeal of such rates at any regulatory agency. 8 06 Minimum Revenue Collection. Aqua Utilities agrees, throughout the term of this 5tgfeffrient, t fix and ixliect s-,ich fates And changes for water service to be supplied as will produce gr J.) S4i!e, of ITe_ated Page 10 revenues in an amount equal to at least all of its operation and maintenance expenses of the Customer System, including specifically its payments and obligations under this Agreement ARTICLE IX TERM AND RELATED PROVISIONS 9.01 Term of Azreement. This Agreement shall expire upon the sooner of: (i) the date upon which Aqua Utilities ceases to be the retail water provider for the Development; (ii) termination in accordance with this Article IX; or (iii) December 31, 2011. 9.02 Extension. Where expiration of this Agreement occurs pursuant to Section 9.01(iii), the City will offer to continue to sell wholesale water to Aqua Utilities under one of two options, to be chosen by the City in its sole discretion: A. A renewal of this Agreement, in its entirety, amending only Section 9.01(iii) to state "December 31, 2025" and Section 8.02 to state initial rates that are those in effect on the first day of the renewal term for the City's wholesale customers who are municipalities. B. A wholesale water agreement with terms that are the same as the terms of the renegotiated contracts with the City's wholesale customers whose contracts now expire in 2010, and subject to all the terms and conditions of those contracts, except that the expiration date of the wholesale agreement with Aqua Utilities shall not extend beyond the earlier of the date on which Aqua Utilities ceases to be the retail water provider for the Development or December 31, 2025. The City will advise Aqua Utilities of the City's selected option by providing Notice one hundred eighty (180) days before the Section 9.01(iii) expiration date. Aqua Utilities can then either (i) agree to accept the option offered by the City in its Notice, in which case Aqua Utilities and the City will execute the documents necessary to formalize the terms of such agreement within 60 days of Aqua Utilities' receipt of Notice; or (ii) elect not to continue to purchase water from the City, in which case this Agreement terminates on the Section 9.01(iii) expiration date and thus the City shall have no further service obligation thereafter. If the City's wholesale customers' 2010 expiration dates are extended, then the Section 9.01(iii) expiration date of this Agreement will be extended for the same number of years or months, but in no event beyond December 31, 2025. 9.03 Effective Date. This Agreement, together with all terms and conditions and covenants, shall be effective December 21, 2005. 9,04 Terrnination, In addition to termination pursuant to this Article IX and Section 8.05, this Agreement may be terminated in whole or in part by the mutual consent of Aqua Utilities and the City, and the Agreement shall expire on any such mutually agreed date. Notwithstanding anything contained herein to the contrary, any material breach by Aqua Utilities in the performance of any of the duties or the obligations assumed by Aqua Utilities hereunder, or to faithfully keep and perform any of the terms, conditions and provisions hereof, shall be cause for !errnination of this Agre_ement by the City in the manner set forth in this Section 9,04, If Aqua A4yrtrntme friT nf Utilities commits a material breach, then, except as provided in Sections 9.06 and 9.07, the City shall deliver to Aqua Utilities ninety (90) days Notice of its intention to terminate this Agreement, including in such Notice a reasonable description of the breach. Aqua Utilities shall commence curing such breach within fourteen (14) calendar days after receipt of such Notice and shall diligently pursue and complete such cure without unreasonable cessation of activities within ninety (90) days from the date of the Notice; however, if the breach is not reasonably susceptible to cure by Aqua Utilities within such ninety (90) day period, the City agrees that it will not terminate this Agreement so long as Aqua Utilities has diligently pursued such cure within the foregoing ninety (90) days and diligently completes the work, without unreasonable cessation, within a reasonable time thereafter. The time authorized by this Agreement to cure the breach is the "Cure Period." If Aqua Utilities shall fail or refuse to cure such material breach to the satisfaction of the City within the Cure Period, then and in such event, the City shall have the right with additional sixty (60) days advance Notice to Aqua Utilities and without any liability whatsoever on the part of the City to declare this Agreement terminated, and the Agreement will immediately expire at the end of such Notice period. The City shall give Notice to Aqua Utilities immediately upon acceptance of the cure of any breach. A material breach of this Agreement includes, but is not limited to: (a) Failure to pay any bill, charge or fee as provided for in this Agreement; (b) Making any connection to the Fort Worth System at any point except the Point of Delivery; (c) Failure to provide City ingress and egress for purposes of operation and maintenance of any Metering Facility; (d) Failure to comply with Sections 3.02, 3.05, 4.01, or 8.05; and (e) Failure to comply with Article X. 9.05 Non -Material Breach. In the event of any non -material breach, default or failure to perform duties under this Agreement, the City shall deliver to Aqua Utilities sixty (60) days Notice of such default. If Aqua Utilities fails to cure such breach, default or failure within said sixty (60) days, then the City shall give Aqua Utilities Notice of such failure to cure and may surcharge Aqua Utilities Five Thousand Dollars ($5,000) per month until such time as Aqua Utilities cures such non -material breach. 9,06 Failure to Impose Conservation Measures. If the City rations the use of water throughout its corporate limits, issues water conservation measures or restricts the use of water in any way pursuant to Section 3.07. and Aqua Utilities fails or refuses to impose and enforce the same rationing, conservation measures or restrictions, Aqua Utilities shall be in material breach of this Agreement. The 90-day Notice provision contained in Section 9.04 shall not apply and the Director, in his or her sole discretion, shall provide Notice to Aqua Utilities of the deadline for curing such breach. If Aqua Utilities fails or refuses to cure such breach within the stated time, the City shall have the right, with six (6) months additional advance Notice to Aqua T:])ttt:'s, and w-lhoul any Itabill! whatsti.ever cn the rart ..,f the (:;ty. !0 declare_ this Agreement for Sale ut vd l.k ierl'age 2 terminated, and the Agreement will immediately expire at the end of such Notice period, notwithstanding the expiration or rescission of the rationing, conservation measures or restrictions during such six-month period. The City shall give Notice to Aqua Utilities immediately upon acceptance of the cure of any breach. 9.07 Failure to Prevent Backflow. The Notice and cure provisions set out in Section 9.04 do not apply to a breach of Section 3.04. The City shall have the right to terminate this Agreement without further Notice if Aqua Utilities commits a breach of Section 3.04 and fails to cure such breach after reasonable Notice and opportunity to cure. 9.08 Obligation to Develop Alternative Sources. Aqua Utilities shall develop alternative or replacement water supplies prior to the expiration of this Agreement.. 9.09 Effect of Termination. In event of termination of this Agreement, except to the extent provided in Section 9.10, all rights, powers, and privileges of Aqua Utilities hereunder shall cease and immediately terminate upon the expiration date, and Aqua Utilities shall not assert any claim of any kind whatsoever against the City, its agents, or representatives, by reason of such termination or any act incident thereto, provided City acted reasonably and such termination was not unreasonable, arbitrary and capricious. 9.10 Surviving Provisions. As part of, or in addition to, survival rights to which the Parties may be entitled in law or equity, the following provisions shall survive following termination or expiration of this Agreement for any reason: (a) any payment obligation of any Party under the terms of this Agreement; (b) Section 6.03 (Indemnity); (c) Article VII (Reports and Audit); Article X (Construction Standards) and (d) Article XI (Miscellaneous). ARTICLE X PERFORMANCE PURSUANT TO SUPERSEDING UTILITY AGREEMENT This Agreement is executed pursuant to, and shall be performed consistent with the terms of, the Superseding Utility Agreement. Accordingly, all construction, operation and maintenance activities undertaken pursuant this Agreement shall be performed in compliance with the Superseding Utility Agreement, including the standards for construction, operation and maintenance set forth in Article V of that agreement. In the event of a conflict between this Agreement and the Superseding Utility Agreement, the Superseding Utility Agreement shall control. Agreernent tjlr Sate ,:,)1.: 1-Tea!ed Witer Plge 11 ARTICLE XI MISCELLANEOUS 11.01 Governing Law: Jurisdiction and Venue. THIS AGREEMENT MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PAR i ILS ACKNOWLEDGE THAT PHIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS AND HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, AND HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER. 11.02 Notice. Any notices, approvals, or other communications required to be given by one Party to another under this Agreement (a "Notice") shall be given in writing addressed to the Party to be notified at the address set forth below and shall be deemed given: (a) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (b) when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid; (c) when the Notice is delivered by Federal Express, UPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; or (d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be extended to the first business day following the Saturday, Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this section. To the City: City of Fort Worth, Texas 1000 Throckmorton Street Attn: City Secretary Fort Worth, Texas 76102 FAX: (817) 392-6196 City of Fort Worth, Texas 1000 Throckmorton Street Attn: City Manager Fort Worth, Texas 76102 FAX: (817)392-6134 City of Fort Worth, Texas 1000 Throckmortbn Street Attn: Water Director Worth. reVIS 76102 A zreemeal for Saie of teed Water r-ige 14 FAX (817)392-2398 To Aqua Utilities: 1421 Wells Branch Pkwy., Ste. 105 Pflugerville, TX 78660 Attn: Vice President FAX: (512) 989-9891 762 West Lancaster Ave. Bryn Mawr, Pennsylvania 19010 Attn: Chief Legal Officer FAX: (610) 520-9127 11.03 Consent Required for Assignment and Binding on Successors and Assigns. All of the terms of this Agreement shall be binding upon, shall inure to the benefit of, and shall be severally enforceable by and against each Party to this Agreement, individually, and such Party's respective personal representatives, successors, trustees, receivers, and assigns. However, no Party shall assign this Agreement without the written consent of each of the other Party. It is specifically intended that this Agreement and all terms, conditions and covenants herein shall survive a transfer, conveyance or assignment occasioned by the exercise of foreclosure of lien rights by a creditor or a Party hereto, whether judicial or non -judicial. 11.04 Amendment. This Agreement may be amended only with the written consent of all Parties and with approval of the governing body of the City. 11.05 No Waiver. Any failure by a Party to insist upon strict performance by the other Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Party shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by writing signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by any Party hereto of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. AgTeeITICItt 14 t r,eaTed net Page 1 5 11.06 Severability. The provisions of this Agreement are severable and, in the event any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or the application thereof to any person or circumstance, shall ever be held or determined to be invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the provision so severed. 11.07 Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of the Agreement. 11.08 Interpretation. The Parties acknowledge that each Party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. As used in this Agreement, the term "including" means "including without limitation" and the term "days" means calendar days, not business days. Wherever required by the context, the singular shall include the plural, and the plural shall include the singular. Each defined term herein may be used in its singular or plural form whether or not so defined. 11.09 Conspicuous Provisions. The Parties acknowledge that the provisions of this Agreement that are set out in bold, cAprrAts (or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 11.10 No Third Party Beneficiary. This Agreement is solely for the benefit of the Parties, and neither the City nor Aqua Utilities intends by any provision of this Agreement to create any rights in any third -party beneficiaries or to confer any benefit upon or enforceable rights under this Agreement or otherwise upon anyone other than the City and Aqua Utilities. 11.11 Force Maieure. No Party shall be considered to be in default in the performance of any of the obligations hereunder (other than obligations of either Party to pay costs and expenses) if such failure of performance shall be due to an uncontrollable force beyond the control of the Parties, including, but not limited to, the failure of facilities, flood, earthquake, tornado, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material hortage, sabotage, or restraint by a court order or public authority, which by the exercise of due diligence and foresight such Party could not have reasonably been expected to avoid. Either Party rendered unable to fulfill any obligation by reason of an uncontrollable force shall exercise due diligence to remove such inability with all reasonable dispatch. In the event the proper operation of the Fort Worth System, as a result of the above, requires the City to temporarily interrupt all or part of the services to Aqua Utilities, no claims for damage shall be made by Aqua Utilities against the City A -.2-,e2ner,t f'ot Sa:e fITated Vater P3ge 11.12 Emergencies. In the event of a Temporary Emergency Condition, it may be necessary for Aqua Utilities to withdraw water from the Fort Worth System at a rate of usage in excess of that required for Aqua Utilities' usual peak requirements. If a Temporary Emergency Condition occurs and Aqua Utilities provides Notice to the Director within 48 hours of the onset of the Temporary Emergency Condition describing the unforeseeable mechanical failure or unprecedented high rate of water usage, obtains the Director's written concurrence that the situation constitutes a Temporary Emergency Condition, and exercises due diligence in ending the Temporary Emergency Condition, then the City shall not consider the Rate of Use Charge established during the Temporary Emergency Condition for billing purposes. Volume charges for all water delivered during the Temporary Emergency Condition shall be due and payable as described elsewhere herein. 11.13 Applicable Laws. This Agreement is subject to all applicable federal and state laws and any applicable permits, amendments, orders, or regulations of any state or federal governmental authority having or asserting jurisdiction, but nothing contained herein shall be construed as a waiver of any right to question or contest any such law, order, rule or regulation in any forum having jurisdiction. 11.14 Access to Facilities. Upon prior Notice to Aqua Utilities by the City, any employee of City bearing proper credentials and identification shall be given access to the Development as may be necessary for the purpose of inspections and observation, measurements, sampling and testing and/or auditing, in accordance with the provisions of this Agreement. Aqua Utilities may elect to accompany the City's representative. 11.15 Incorporation of Exhibits by Reference. All exhibits attached to this Agreement are incorporated into this Agreement by reference for the purposes set forth herein, as follows: Exhibit A Exhibit B Exhibit C Exhibit D map of the Development legal description of the Development map showing the Development's Point of Delivery into the Fort Worth System, Storage Tank, Meter, and backflow prevention device Rate Methodology Each Party has caused this Agreement to be executed by its duly authorized representative in multiple copies on the date or dates indicated below. ATTEST: CITY OF FORT WORTH RN, Marty Hendrix City Secretary title: =-rcerr—ne tr v4, (print name) APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney AT I EST: Corporate Secretary AQUA UTILITIES, INC., a Texas Corporation By: Print Name: Title: "kgreernent for Sate of f'!:itt.,,A Water Page f Exhibit A Map of the Development 11111111110000001VI\ Exhibit B Legal Description of the Development BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that tract conveyed to Alliance 161 Investments by deed recorded in Voinme 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more particularly described as follows: Tract 1 BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" 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 00E22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2" iron pin set; THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set; THENCE S 52E34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set; THENCE S 44E08'03" E, a distance of 999.82 feet to a capped 1/2" iron pin set; '[HENCE S 65E5836" F. a distance of 1029 92 feet to a capped 1/2" iron pin set; THENCE N 90E00'00" F, a distance of 77131 feet to a capped 1/2" iron pin set; said capped 1'2" iron pin set also being on the east line of said Aperion Tract One -A and the west line of that tract conveyed to Ferbro Investments, EEC by deed recorded under County Clerk's File No. 97- 0003605 RPRDCT; EXti}-11 ALleetrient for e Of I scateii 1k, met l'age 1 THENCE S 00E07'20" E along the east line of said Aperion Tract One -A and the west line of said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE S 44E23'02" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to a 5/8" iron pin found; THENCE N 47E15'51" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found; THENCE S 44E27'42" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said brass monument also being on the said north right-of- way line of State Highway No.114; THENCE S 89E47'36" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete found; THENCE S 84E30'09" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete found; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set; THENCE N 00E11'12" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set; THENCE S 00E11'12" E along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; LENGE S ii9E48"4-8" W along the south !me of said .,Aperion Tract One -A and the north right- of-way line of State Highway No114, a di:stance of 238,28 feet to the Point of Beginning and containing 16,728,840 square feet or 384.041 acres of land, more or less. Tract 2 BUCTINNINti at ;i brass monument in c-c.)ncrete found, said brass monument also being on the Int! xhib H Ti _Agreement for '7•,ae of Iteated W31CT Page 1! way line of State Highway No. 114, said brass monument also being on the west line of a tract conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found; THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract; THENCE S 00E07'09" E along the east line of said Aperion Tract One-B and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing 2,058,725 square feet or 47.262 acres of land, more or less. If! Exhibit C Map Showing the Development's Point of Delivery into the Fort Worth System, Storage Tank, Meter, and Backflow Prevention Device X W Y llu �u�P'Ilwj IIN��,I��� ill' IIVI Il�' II'I�,�III( dlAll IVI !I. ���1VII6 IIII ul fi dl„ IR Ir �Ijul�l pld A'u 1111 dl ern II m".Vk 11V ou at AIIIIIIIIIIIII ,II 0111 91p II lw f or,,elVl'r 09,4l�iliula %c uibMo>ViV�dull plMhir, , „I'il „,Iillpiu llllll,,dlilYf'ill��;'IIIVI�,Qllii ,III„IV'^I�dIVd ab � �, fmV,V,„10J0%0Www, 41,'ll',Y IIY°u''illl�, �I!II �'ll!11'IBIiI' �nMl�Ylll ,,i,IIii!!,VvO,, v% II%IIIII�A yll IIII 11110 �y�Illuliliy�l(I,h��Ill�''IIIIIIIIII' lilt YIIii��'VI1"IIIIII,I������'i111°III ' IIII I'' °°IIV loludl fvw 011 AvA 114 II 00 4,1 Iv riv 111111111111 WWW 104 Wdov 1111111111 110 wvA dia uul wi Www 100 II V vo WII ol 144,0 Exhibit D Wholesale Rate Methodology . Wholesale water rates will be based upon cost -of -service rate studies performed by independent utility rate consultants. The independent utility rate consultant shall be selected by the Director from a list of five qualified firms submitted to the Director by the Fort Worth "Water System Advisory Committee." The cost of such studies shall be a System Cost. All cost -of -service studies shall be conducted utilizing the utility cost basis of determining revenue requirements applicable to the wholesale customer class. 2. A detailed wholesale cost -of -service water rate study was performed by an independent utility rate consultant for the Fiscal Year beginning October 1, 2005. An additional detailed wholesale cost -of -service water rate study will be performed in accordance with this Exhibit D for the Fiscal Year beginning October 1, 2008, using the same methodology of the previous rate study, subject to modifications recommended by a majority of the Water System Advisory Committee and approved by the Fort Worth City Council. In the Fiscal Years between detailed rate studies, the City will perform a wholesale water rate study using the same methodology as the last detailed rate study, and will utilize the actual operating data for the twelve month period ending September 30th of the prior year, adjusted for all known and measurable changes in cost data that may have occurred since the last audited financial statement. Such adjustments should allow for year-end trending and the spreading of non -recurring expenses over an appropriate benefit period. The cost -of -service for the wholesale class shall include allocated reasonable and necessary operation and maintenance expense, depreciation expense and a fair and reasonable return on allocated capital facilities. To determine the allocation and distribution of costs to the wholesale customer class, the independent utility rate consultant shall consider at least the following factors: total volume, rate of flow, metering, and customer -related costs such as accounting, billing, and monitoring. Capital -related costs will consist of depreciation expense and return on original cost rate base. The rate base shall consist of all allocated capital facilities, net of depreciation and contributions, and shall include construction work in progress, a reasonable allowance for working capital, and a reasonable inventory of materials and supplies necessary for the efficient operation of the Fort Worth System. Records of the original cost and the accumulated depreciation of all capital facilities shall be maintained in the Fort Worth Fixed Asset Tracking System. These records shall be available for inspection at the City's Water Department during reasonable business hours upon request by Aqua Utilities. 4. The City shall be allowed an adequate opportunity to earn a reasonable rate of return. The return shall be sufficient to assure confidence in the financial soundness of the City's utility, shall be adequate to maintain and support its credit. shall enable it to raise the money necessary for the proper discharge of its public duties, and shall be equal to the weighted average imbedded cost of outstanding debt plus one and one-half percent (1 -1/29/0), 5. The Raw Water Charge shall be equal to the rate per 1,000 gallons for out -of -district raw water charged to the City by the Tarrant Regional Water District, plus eight percent (8%) A gy-trirrcrict for 'Irir:rr- Warrrr r of said rate, representing the City's system losses of four percent (4%) and the street rental charge of four percent (4%), and shall be charged for the amount of water furnished by the City at the Point of Delivery. Adjustments to the Raw Water Charge shall made whenever the rate per 1,000 gallons charged to the City is adjusted by the Tarrant Regional Water District. 6. The rates set forth in Article 8.02 shall be automatically adjusted to equal those adopted by the City Council based on the foregoing rate studies, and shall become effective on the effective date as determined by the City Council. 7. The total annual payment for water by Aqua Utilities shall be related to the armunl and peak volumes used by Aqua Utilities during the Fiscal Year, as determined by the Meter, flow recording devices or other approved methods, subject to the annual payment provisions set forth above. The October bill for September usage shall reflect any necessary adjustment to the annual payment due to actual rates of withdrawal from the Fort Worth System. Example: The rate used in the example is based on Aqua Utilities not being in Tarrant Regional Water District and water being withdrawn at one metering station. The Volume Charge and Rate of Use Charges are those that were in effect until September 30, 2005. Usage Month Consumption Oct. 1,000,000 Nov. 1,000,000 Dec. 1,000,000 Jan. 1,000,000 Feb. 1,000,000 March 2,000,000 April 3,000,000 May 3,000,000 June 3,000,000 Usage Month Consumption Jl 3000,000 August 4.1.100,000 Subtotal 23,000,000 Sept. 3,000,000 1,223.90 1,223.90 1,223.90 2,447.80 3,671.70 3,671.70 3,671.70 Monthly Volume Monthly Rate Volume of Use Service Charge Total $ 1,223.90 $ 1,466.93 $25 1,223.90 1,466.93 25 1,466.93 25 1,466.93 25 1,466.93 25 1,466.93 25 1,466.93 25 1,466.93 25 1,466.93 25 Rate Service of Use Charge Total 3.671 70 1,466 93 4,895 60 1,4-66.93 $28,149,70 $16,136.23 $275 3,671.70 3,214.32 511,821,40 $19;350 ;5 smo I) I to Agreement for Sale reared ater Page 2 $ 2,715.83 2,715.83 2,715.83 2,715.83 2,715.83 3,939.73 5,163.63 5,163.63 5,163.63 5,163 61 S44,560 93 5 6,911.02 $51,471_95 Prior Year Rate Of Use Calculation (for use in estimated monthly Rate of Use Charge) Average Daily Use for the prior year Maximum Day Demand for the prior year Maximum Hour Demand for the prior year Maximum Day Demand above Average Daily Use = 60,000 gallons = 175,000 gallons = 480,000 gallons = 115,000 gallons Maximum Hour Demand above Maximum Day Demand = 305,000 gallons Monthly Excess Maximum Day and Hour Payment Calculation .115 mg X $108,262 = $12,450.13 (Maximum day) .305 mg X $16,895 = 5.152.98 (Maximum hour) Total $17,603.11 Monthly Rate of Use Payment (Total Divided by 12) = $1,466.93 A. The annual payment calculation will be computed on the basis of the current year maximum usage rates or the average of the maximum usage rates of the most recent three Fiscal Years, whichever is greater. In Example A, the current year exceeds the average of the most recent three Fiscal Years. Current Year Rate Of Use Calculation Average Daily Use for the year = 71,233 gallons Maximum Day Demand for the current year = 200,000 gallons Maximum Hour Demand for the current year = 520,000 gallons Maximum Day Demand above Average Daily Use = 128,767 gallons Maximum Hour Demand above Maximum Day Demand = 320,000 gallons Fiscal Year Average of Most Recent Three Years CURRENT FY FY FY 2004 2003 Maximum Day Demand above Average Daily Use 128,767 115,000 130,000 Maximum Hour Demand above Maximum Dav Demand ',20,(00 COO "7, ?5.(Plio Three year average of Maxim, above Average Daily Use Day Demand 124„589 Three year average of Maximum Hour Demand above Maximum Day Demand 316.667 Agrt.-t-TT,CT11 ff_11 53k yiW-a!er iri ZZ1 ri* 4 PA Aqua Utilities' annual payment will be based on the greater of the current year maximum usage rates or the average of the maximum usage rates of the most recent three Fiscal Years. Annual Payment Calculation FY 2005 Rates (Based on Current Year Data) 26,000 X $ 1.2239 .1288 mg X $108,262 .3200 mg X $16,895 12 X1 X$25 Total Annual Payment Previous Billings for October through August Usage October Billing for September Usage $31.821.40 13,944.15 5,406.40 300.00 $51,471.95 44,560.93 $ 6,911.02 B. Example of computation when the average of the maximum usage rates of the most recent three Fiscal Years is greater than the current Fiscal Year rate of use: Current Year Rate of Use Calculation Average Daily Use for the current year = 71,233 gallons Maximum Day Demand for the current year = 200,000 gallons Maximum Hour Demand for the current year = 520,000 gallons Maximum Day Demand above Average Daily Use = 128,767 gallons Maximum Hour Demand above Maximum Day Demand = 320,000 gallons Fiscal Year Average of Most Recent Three Years CLTRRENT FY FY FY 2004 2003 Maximum Day Demand above Average Daily Use Maximum Hour Demand above Maximum Day Demand 128,767 130,234 130,000 32n,000 123,010 325,000 three \ear Age of Maximum Day Demand above Average Daily Use I 19„667 Three year average of Maximum Hour Demand above Maximum Day Demand 322,670 Aqua annual payment will he based on the greater of the current Fiscal Year naxiirturri h!T 010 A4r:e7nent 1-4.ir Sale of Treated 11174,ter = i'Jge LA 110,4 kulICCMCIII Itir WASIO% jicr ScrA Exhibit F to Superseding Agreement Regarding Water and Wastewater Utility Service Page 1 WHOLESALE WASTEWATER SERVICE AGREEMENT This Wholesale Wastewater Service Agreement ("Avreement") is entered into by and between Aqua Utilities, Inc., formerly known as Aqua Source Utility, Inc., a Texas corporation (and/or its corporate successors and assigns) ("Aqua Utilities") and the City of Fort Worth, a Texas home rule municipality (the "City"). RECITALS A. Aqua Utilities wishes to provide retail wastewater utility service to the land shown on Exhibit A and more particularly described in Exhibit B to this Agreement, and consisting of approximately 431.303 acres in Denton County, Texas (the "Development"), located entirely within the City's extraterritorial jurisdiction ("ETJ"). B. The City and Aqua Utilities are parties to the "Superseding Agreement Regarding Water and Wastewater Utility Service," dated December 21, 2005, City Secretary Contract No. 32899, ("Supersedina Utility Avreement"), which sets forth the rights and obligations of the parties to that agreement with respect to the provision of retail and wholesale water and wastewater service to the Development, and provides, among other things, for the City and Aqua Utilities to enter into a contract for the provision of wholesale wastewater service to the Development. C. The City and the Trinity River Authority of Texas ("TRA") are parties to the "Trinity River Authority of Texas - Denton Creek Regional Wastewater Treatment System Contract," dated October 28, 1987, City Secretary Contract No. 16054, attached as Exhibit C. as amended from time to time ("TRA Contract"), pursuant to which the City may obtain certain services from TRA for the transportation, treatment and disposal of sanitary sewage, industrial waste and other wastes generated in the drainage area of Denton Creek through the Denton Creek Regional Wastewater System (the "TRA System"). D. The Development is located in the drainage area of Denton Creek. E. Aqua Utilities has considered its various alternatives for treatment of the Development's wastewater and has elected to seek to obtain such services from the City. 4 , i -4t ! - - rst ,-,4 'NhiCh AqUa Lri1ites%% 11 purchase from he CIty ,ertam •c,Ilection and treatment -;eryices !--or wastt"Nater generated 1/4\ ithin the Dc.\-elopment to be collected and transported lyorn seAker lines ithin the Development, to sccer lines owned by the City, to the City's point of entry into the TRA System as authorized by the TRA Contract and subject to the Superseding Utility Agreement. ARTICLE I DEHNITIONS "Advisory Committee" means the Advisory Committee of the TRA. "Agreement" means this Wholesale Wastewater Service Agreement between the City and Aqua Utilities. "Aqua Utilities" means Aqua Utilities, Inc., a Texas corporation (and/or its corporate successors and assigns). "Biochemical Oxy2en Demand" ("BOD") means the quantity of oxygen utilized in the biochemical oxidation of organic matter under standard laboratory procedure in five days at 20 degrees Centigrade, expressed in milligrams per liter. "City" means the City of Fort Worth, Texas, a home rule municipality. "City Council" means the City Council of the City. "Cure Period" means the period of time to cure a material breach, as defined in Section 9.04. "Development" means that certain 431.303-acre tract located in Denton County, Texas as shown on Exhibit A and more particularly described in Exhibit B. which Development is located entirely within the ETJ of the City. "Development's Capacity" means the wastewater capacity that the City has allocated to serve the Development pursuant to Section 2.01. "Development's System" means the wastewater collection facilities (whether owned by Aqua Utilities or third parties) located on the Development, or those facilities located outside the Development but constructed and operated to serve the Development, and on the Development's side of the Point of Entry into the Fort Worth System shown on Exhibit D. "Director" means the City Water Department Director or designee. "Discharge" means any solid or liquid waste, regardless of its source, nature or composition, that a wis!ew-arer i:olie.tion or Iroatment -14fecti‘e Date- means the effective datt:. Lis :1(:ned in Section 9.03 F.P.V" means the IS,S. Envirorunental Protection Agency. "ETJ" means the extraterritorial jurisdiction of a city as defined by the Texas Local Government A':Zh irea resentiv ,,-xren,lirqz 11%-e tire 2 "Fort Worth System" means those sewer lines and associated facilities owned by the City. "General Benefit Capital Facilities" means wastewater facilities that provide utility services and benefits common to all City customers, including but not limited to wastewater treatment facilities, Metering and Sampling Facilities, control systems and appurtenances, and all major collectors and interceptors that are eighteen inches (18") and greater in diameter. -Infiltration" means water that has migrated from the ground into a wastewater system. "Inflow" means water other than wastewater that enters a wastewater system (including sewer service connections) from sources such as, but not limited to, roof leaders, cellar drains, yard drains, area drains, drains from springs and swampy areas, manhole covers, cross connections between storm sewers and sanitary catch basins, cooling towers, storm waters, surface runoff, street wash waters or drainage. Inflow does not include, and is distinguished from, Infiltration. "Metering and Sampling Facilities" means the meter, meter vault, and all metering and telemetry equipment required to measure and/or sample wastewater flows from the Development at the Point of Entry. "Notice" means notice as defined in Section 11.02 of this Agreement. "Party" means, individually, the City or Aqua Utilities, and each of its successors and its assigns, as permitted by this Agreement. "Point of Entry" means the location where Discharge from the Development's System enters the Fort Worth System, as reflected on the attached Exhibit D. "Prohibited Discharge" means a Discharge from outside the Development's System or otherwise not in compliance with this Agreement, as defined in Section 2.02. "Significant Industrial User" ("SIU") means any User connected to the Development's System that meets at least one of the following criteria: a. Average industrial wastewater discharge rate greater than 50,000 gallons per day. b. Biochemical Oxygen Demand and/or suspended solids concentrations in industrial wastewater greater than 25 0 mgit. c. Meets any of the criteria used by the Environmental Protection Agency ("EPA") to define Stt t in 40 CI' R. 40,-3:1(t.1 as amended fri-sin time to tint' rfOr purposes FP:\ •!1 the A-Lahonn, upern2 Ltd. y rAereernenC means the .11'C'CITIN:711 defInVd in Recital B above. -System Cost" means operating expenses and capital related costs incurred by the City pursuant !,) IzijUTI vs;;IST,CAVAtCT c.,',..dleknicm and n-t.',Ina-amt :-VAker "TCEQ" means the Texas Commission on Environmental Quality or its successor state agency. "TRA" means the Trinity River Authority of Texas. "TRA Contract" means that agreement defined in Recital C above and attached as Exhibit C. as it may be amended from time to time. "TRA System" means the Denton Creek Regional Wastewater System owned and operated by the TRA, including the Denton Creek Regional Wastewater System treatment plant as well as those sewer lines and associated facilities owned by TRA which transport wastewater to that plant. "TSS" (also referred to as Total Non -Filterable Residue) means total suspended solids, measured in mg/L, that either float on the surface of, or are in suspension in, water, wastewater or other liquids, and which are largely removable by a laboratory filtration device. "User" means any person or entity that owns or operates any facility or other point from which a Discharge enters the Development's System, either directly or indirectly. ARTICLE II GENERAL 2.01 Development's Capacity. The City has allocated to the Development a portion of its available TRA Contract treatment capacity sufficient to accept the wastewater from the Development's System pursuant to this Agreement. Aqua Utilities shall have the right, in accordance with the terms and conditions of this Agreement, to deliver wastewater collected by the Development's System, in volumes not to exceed the Development's Capacity, to the Point of Entry for further transport by the City and TRA and treatment at the TRA System plant pursuant to the City's rights under the TRA Contract. The Development's Capacity shall not exceed a peak flow of 1,357 gallons per minute and an average daily flow of 430 gallons per minute. Thus, the combined maximum rate of discharge from the Development's System into the Fort Worth System may riot exceed a rate which, if continued for a period of twenty-four hours would equal 3.16 times the 430 gallon per minute average daily flow. 2.02 Prohibited Discharges. Any waste generated outside the Development or any Discharge not in compliance with this Agreement is a Prohibited Discharge that is not authorized to enter the Do itjj.p-nenr's S im pursuant to tbk Al:reentent The Coil, shal! be under no atioi-7.1 -1:::cpt. --x.,trort : th-Jt 2 03 fRA AiDprovais :tnd TRA Contract: The 1 RA U.:A.:trail requires approval ot this Aizreement by both the 'FRA and by a majority vote of the Advisory Committee and is not valid until such required approvals are obtained. The Agreement is subject to the TRA Contract, as amended from time to time, and all standards contained therein. This Agreement is a ':--“,!„1 ;71, Section 91.-0 f the FR,\ Fc 3 2.04 Connection to the Fort Worth System. The City hereby grants to Aqua Utilities, upon compliance with the terms and conditions of this Agreement, peimission to connect the Development's System to the Fort Worth System at the Point of Entry as agreed to and designated on Exhibit D. Other Point(s) of Entry may be mutually agreed upon at a later date. 2.05 Construction and Maintenance of Development's System. Aqua Utilities agrees that the Development's System, including all sewer connections, shall be constructed in accordance with the standards set forth in the Superseding Utility Agreement. Aqua Utilities agrees to maintain the Development's System in good condition and to make repairs in a timely manner, and in the manner it determines in its sole discretion, so as to comply with this Agreement, the Superseding Utility Agreement and applicable federal, state and local laws. The City shall not have any responsibility or liability for the maintenance and operation of the Development's System, unless and until the City takes title to the Development's System. Aqua Utilities shall not have any responsibility or liability for the maintenance and operation of the Fort Worth System, except as otherwise expressly provided herein. 2.06 Extension of Facilities. The City's wastewater collection line is approximately 5,000 feet from the Development. In order for Aqua Utilities to receive wastewater service from the City pursuant to this Agreement, the City's wastewater collection line will have to be extended to the Development. The City has no obligation to extend such line. 2.07 Prevention of Sewer System Overflows. Aqua Utilities agrees to develop, and to implement upon commencement of operation of the Development's System, an ongoing capacity management, operation and maintenance plan for the prevention of sewer system overflows. The plan shall include rehabilitation, operation and maintenance for the Development's System and shall comply with any written directives from TRA applicable to the Fort Worth System. 2.08 Compliance with Laws. Aqua Utilities shall operate the Development's System in compliance with all applicable federal, state and local laws, including but not limited to the regulations, permits and orders adopted or issued by EPA, TCEQ or other regulatory authorities with jurisdiction over the Development's System. Aqua Utilities shall send to the City, pursuant to the procedures required for Notice, copies of any reports or other communications to or from the TCEQ, the EPA, Denton County or other political subdivisions of the State of Texas, that contain data from or analyses of, or otherwise expressly discuss, the Development's System. In addition, upon request from TRA or the City, Aqua Utilities shall provide copies of any documents or data, to the extent that they are not legally privileged, that are necessary for the operation of the TRA System or the Fort Worth System. ARTICLE III WASIEWA1 ER EY, STANDARDS anti ENT RCEMENT 3.01 influent (.2ualitv and Prctrea!ment Standards, Aqua UtMiucs agrees that all Discharge into the Development's System shall comply with influent quality and pretreatment standards contained in both Section 4 of the TRA Contract, as amended from time to time, and ActiciK! VI of (Thztpter 12 to Fort, W(--,rth Uity Amended from tIrno to tHt pretreatment standards within the Development's System. In addition to compliance at the point of discharge into the Development's System, any Discharge shall comply with these influent quality and pretreatment standards at the Point of Entry into the Fort Worth System. 3.02 Industrial Wastewater. Aqua Utilities shall obtain the written consent of the City prior to any Discharge into the Development's System generated by an SIU. Consent will not be granted unless (i) the proposed Discharge will meet all influent quality and pretreatment standards of Section 3.01 and (ii) the SIU submits a permit application ninety (90) days prior to commencing discharge in accordance with Article VI of Chapter 12.5 of the Fort Worth City Code, as amended from time to time, and such permit is granted. As a condition for granting the permit, the City may require the pretreatment of the Discharge as specified in relevant sections of the Fort Worth City Code. 3.03 Infiltration and Inflow. Connections that allow surface drainage (including storm water run-off from rainwater spouts, rainwater collection areas, streets and gutters), abnormal seepage, and Infiltration or Inflow to enter the Development's System are prohibited. Aqua Utilities will supervise and maintain the Development's System using best management practices to prevent such Prohibited Discharges and, if any are discovered within the Development's System, shall, to the extent permitted by law, immediately take the necessary steps to disconnect them. 3.04 Compliance with Permit Conditions. Aqua Utilities acknowledges that both the City and TRA are holders of Texas Pollutant Discharge Elimination System permits issued by the State of Texas and subject to oversight by EPA. Aqua Utilities agrees that it will comply with all permit conditions that relate in any way to the Development's System and to any Discharge into the Development's System that ultimately enters the Fort Worth System. Aqua Utilities agrees that, in the event a fine is assessed against the City or TRA for any violation of any permit condition, and the violation is directly attributable, in whole or in part, to the Development's System or to a Prohibited Discharge, then such fine is included in the matters indemnified by Aqua Utilities pursuant to Article VII. 3.05 Fort Worth City Code. Aqua Utilities agrees to abide by all other provisions contained in Article VI of Chapter 12.5 of the Fort Worth City Code that apply to customers or other users in the City's ETJ, as amended from time to time, including, but not limited to, those provisions that relate to influent quality or pretreatment standards. 3,06 Citv's Right to Revise Wastewater Quality Standards, The City reserves the right :t=1 evi sc :'nfluent quality and pretreatment .,tandards contained in the rt Worth City Lode, ,ind a,.11,3 I ak he jcv A:1 f ucire-v; atter zeYoaon thereof. Aqua tahtes nall Ie reTonsthle for !rot:J.:wing nhdiani4es into its .areernents with 1,5sers and for nk-,?tityin2 ad affected 1sers ot the ,..1.1,uiv,e within -=,qxtv hi! Lia‘s fothrxing such Notice. 07 Enforcement. Aqua Utilities will reasonably inspect all connections at the time syslirn following notice and to the extent permitted by law, to disconnect the User from the Development's System. Ln addition to Aqua Utilities' obligation to enforce influent quality and pretreatment standards under this Article III, the City has the right, within the Development's System, to enforce the same using methods including, but not limited to, those enforcement procedures contained in Chapter 12.5, Article I, Division 3 of the Fort Worth City Code, as amended from time to time, and the Enforcement Response Plan agreed to by the City and the IRA, as amended from time to time; however, such enforcement by the City does not relieve Aqua Utilities of its enforcement obligations under this Agreement. ARTICLE IV RATES and CHARGES 4.01 Calculation of Rates Pursuant to this Agreement. The Parties agree that the rates to be charged pursuant to this Agreement will be calculated using the methodology set forth in Exhibit E. This methodology also serves as the basis for the wholesale wastewater rates that the City charges to each municipality that is a wholesale wastewater customer of the City, pursuant to each of their separate contracts. The City will send Aqua Utilities a copy of any finally adopted wastewater rate study performed pursuant to this methodology. The majority of those separate contracts with the City's wholesale customers who are municipalities will expire in 2017 and the City expects to enter into negotiation for new wholesale contracts with those wholesale customers who are municipalities. The City shall provide Aqua Utilities at least ten (10) days prior Notice of the commencement of the negotiations between the City and the Wastewater Advisory Committee. If this Agreement is renewed pursuant to Section 9.02(A), and if the renegotiated contracts with the City's wholesale customers who are municipalities include a rate methodology that differs from Exhibit E, then Aqua Utilities and the City expressly understand and agree that for the renewal term of this Agreement the rate methodology described in Exhibit E will be automatically superseded and replaced with a new Exhibit E that adopts the same rate methodology used to calculate the rates for those wholesale customers of the City who are municipalities, subject to the provisions of Articles IV and EX herein. 4.02 Initial Rate. The initial rates for this Agreement shall be those adopted by the City Council on effective October 1, 2005, which are as follows: Volume Charge BOD Strength Charges TSS Strength Charges Monthly Billing Charges $0.8296 per 1000 gallons $02906 per pound of BOD $0.1871 per pound of TSS $75 00 cof, :VditIstr.-tent A.Likta Lth-„tt the („:1-t-,I e JO1f) ointtitterttly -:t,tht the rates: charged 101 the wititArvtfter vt TO\ ided ptift-tiarit to this 11.0a-i time to time. so the itklmshrent haled On the agreed methodology set forth Exhibit F and in effect pursuant to Section 4.01, and otherwise in compliance with this Agreement. Aqua Utilities' agreement that the City has the right to unilaterally adjust the rates charged pursuant to this Agreement is an essential part of the consideration given by Aqua iti; tO charge cor he (:11V,s ettertnt IPAS) !.hiS 7 Agreement or otherwise. Furthermore, in exchange for the City's right to unilaterally adjust the rates charged hereunder, in addition to other rights under this Agreement, should Aqua Utilities object to any unilateral rate adjustment, Aqua Utilities shall have the right to terminate this Agreement with one year's Notice and the following rate relief. Upon any rate adjustment pursuant to this Article IV and Exhibit E, Aqua Utilities has the following options: A. Agree to pay the adjusted rate; or B. Give Notice (i) that it wishes to terminate this Agreement one year after the effective date of the proposed rate adjustment and (ii) that it rejects the rate change, in which case the City will continue to charge Aqua Utilities the contract rates that were in effect immediately prior to the proposed rate adjustment. If Aqua Utilities elects to terminate this Agreement under this Section 4.03, then the Agreement will expire at the earlier of the one-year Notice period or the Section 9.01 expiration date. If Aqua Utilities continues to deliver wastewater to the City at the Point of Delivery and has not disconnected the Development's System from the Fort Worth System on the date this Agreement is to expire pursuant to this Section 4.03, then the Agreement shall not expire pursuant to this Section 4.03 and Aqua Utilities shall immediately pay the City the difference between the amount that would have been charged pursuant to this Agreement under the rate Aqua Utilities rejected, and the amount actually charged to Aqua Utilities during the preceding year, with interest, and subject to any other rate adjustment, past or future, pursuant to this Article IV and Exhibit E. Aqua Utilities agrees that the remedy provided by this Section 4.03 provides its sole and exclusive remedy, in law and equity, for any rate adjustments pursuant to this Agreement, and that it will not pursue a wholesale rate appeal of such rates at any regulatory agency. 4.04 Payment and Finance Charge. Bills for services provided pursuant to this Agreement shall be rendered to Aqua Utilities monthly by the City. All such bills shall be due and payable by Aqua Utilities not more than thirty (30) days from the billing date. The bills will show current charges, as well as past -due charges, if any. Current charges shall be the amount due for wastewater collection, treatment and disposal service provided since the prior billing period. Past - due charges shall be the total amount unpaid from all prior billings as of the current billing date. Payments received by the City shall first be applied to the past -due charges, if any, and thereafter to the current charges. Any payment required herein not made within thirty (30) days of the billing date shall be subject to a finance charge of ten percent (10°4) per annum to be calculated from the date which the payment was required to be made. 41)5 Biltirig Di_nutes If Aqua I. fflifies disputes a HI And is unable to rei;ols-e the i:itornally. Aqua 1. Unties shall gi‘e Notice the Director. The Dirc.ct_or and ALL,A fAilities shall iise their l.,est efforts to resoke the disputed HI, ho\f,e‘er 1-i4iute of a bill is not 2,rounds for non-payment. In the event a paviient )s not paid as -cpecl 111 this Atzreement, finance charge of ten percent (111(3,-) per annum will he calculated from the Jatc which the payment was required to be made. Mlnimurn Revenue Cet:ecteen ,!trees, thn hut he ferll F)( maintenance expenses of the Development's System, including specifically the payments under this Agreement. ARTICLE V METERING AND SAMPLING FACILITIES 5.01 Construction and Title. Aqua Utilities or its agents or assigns shall construct or cause to be constructed the Metering and Sampling Facilities. All construction shall be in accordance with plans and specifications meeting City standards and shall be approved in advance by the City. All construction costs, including, but not limited to, site acquisition and preparation, design and engineering, construction and equipment for such facilities, together with the costs of necessary easements and rights -of -way, and including any and all necessary modifications to accommodate a complete initial installation satisfactory to the City, shall be provided free of charge to the City and be paid for pursuant to the Superseding Utility Agreement. Upon acceptance of the Metering and Sampling Facilities, the City shall own and have title to the Metering and Sampling Facilities along with the exclusive right to use, operate, and maintain such facilities; however, such metering and sampling facilities shall serve the Development only and no Discharge from outside the Development will be connected to the Fort Worth System in a manner that would allow it to pass through such facilities. 5.02 Operation and Maintenance. The City shall become solely responsible for the operation and maintenance responsibilities associated with the Metering and Sampling Facilities. Aqua Utilities, to the extent that access is under its control, will continuously provide a route of ingress and egress to said Metering and Sampling Facilities for the City. The City shall have the discretion to construct improvements, expansions, and replacements to said facilities as a System Cost and at the timing of the City's needs. Aqua Utilities will also grant and provide to the City such permits or easements as are necessary for the continuous operation and maintenance of all Metering and Sampling Facilities. All costs incurred by the City for operation, maintenance, or replacement of the Metering and Sampling Facilities shall be considered a System Cost. 5.03 Metering and limited to, the A. B. 1) Expenses. Expenses incurred by the City for the operation and maintenance of the Sampling Facilities shall be a System Cost and shall include, but not necessarily be following: Cost of electricity at the facility; Cost of the initial installation of the telemetry service at the facility and to the control center and cost of monthly lease charge for the telephone line; Cost of calibration; Cost of parts. materials and supplies required for repairs.. calibraion.s and uperading thr.t- :hc titr„ ancr plUS hinge Penets arid indirect „-_us t(i.rrais. ailltirations and i.F.radir4,,, of t he Ia.., 1 or es, and Maintenance of ingress and tigress- and meter facility site. 5.04 Replacement Facilities. Replacement of the Metering and Sampling Facilities rI-1!s Article V or the ehutprinent the'ftim, 9t-_-astuned is cult olcincc System Cost. Any replacement facility or equipment therein shall comply with the City's standards and specifications. ARTICLE VI METERING AND SAMPLING 6.01 Requirement of Metering and Sampling. Any Discharge into the Fort Worth System from the Development's System shall be metered and sampled as set forth in this Article VI. 6.02 Access to Facilities. Aqua Utilities shall have access to the Metering and Sampling Facilities at all reasonable times; provided, however, that any reading, calibration or adjustment to such metering equipment shall be done by employees or agents of the City, or other mutually approved third party calibration agent, in the presence of representatives of Aqua Utilities and the City, if so requested by Aqua Utilities. Notice of any proposed tests shall be provided to Aqua Utilities at least seventy-two (72) hours prior to such tests being conducted. 6.03 Access to Records. All readings of meters will be maintained by the City in its usual and customary manner. Aqua Utilities shall have access to such records during reasonable business hours and shall be furnished with monthly totalizer readings for each Point of Entry metering and sampling facility. 6.04 Service and Calibration. The City shall calibrate and routinely service the meters no less than once during each six (6) month period. Copies of the results of such calibration and all related information shall be provided to Aqua Utilities. The City shall notify Aqua Utilities at least seventy-two (72) hours in advance of the date and time for any calibration and Aqua Utilities may observe the calibration. 6.05 Corrections. Upon any calibration, if it is determined that the accuracy envelope of such meter is found to be lower than ninety-five percent (95%) or higher than one hundred five percent (105%) expressed as a percentage of the full scale of the meter, the registration of the flow as determined by such defective meter shall be corrected for a period extending back to the time such inaccuracy began, if such time is ascertainable; or, if such time is not ascertainable, then for a period extending back one-half (1/2) of the time elapsed since the date of the last calibration, but in no event further back than a period of six (6) months. 6.06 Out of Service Meter. If any meter used to determine volume from the Development's System is out of service or out of repair so that the amount of wastewater metered cannot he ascertained or computed from the reading thereof. the ‘‘astewater delivered through the meter ,enice or out repair shall be tiiiinated and agreed upon by the Pasties hereto upon the hams of the best data availabki. lhe basis lOr estimating such flovN includes, but is not !United to, extrapolation of past patterns of flow tur :3aid metering station under similar 6.07 Monitoring of Quantity and Quality. All Discharge from the Development's System for vf,-Virre Tnr 'c :3tvit eriodiu allter 'i ii t f the and testing shall be performed up to two times per year until build -out of the Development and thereafter one time per year. To determine the quality of the wastewater, the City shall collect twenty-four (24) hour flow -weighted composite samples for a period of not less than five (5) consecutive twenty-four (24) hour periods. The City will provide Aqua Utilities with a Notice at least seven (7) days in advance of its intent to sample, or sufficiently in advance of the sampling to allow Aqua Utilities to arrange the services of a qualified laboratory. If, at the request of Aqua Utilities or at the request of the Director, more extensive monitoring is desired, such additional monitoring shall be paid for by the Party making the request and shall be done in compliance with this Article VI. If Aqua Utilities requests such additional monitoring, the City shall invoice Aqua Utilities and payment shall be made within thirty (30) days after receipt of invoice. The Notice shall include the planned dates, times, and location(s) of sampling. The City shall analyze the samples collected in accordance with standard methods. Aqua Utilities may be present during the initial setup of sampling equipment and at the time of pickup for each twenty-four (24) hour composite sample. The City agrees, if requested, to split the wastewater samples with Aqua Utilities. 6.08 Compliance Monitorine. If, in the opinion of the Director, compliance monitoring is required, the Director may order that additional monitoring be performed with or without prior Notice to Aqua Utilities. Such compliance monitoring is to be in addition to the routine monitoring and periodic sampling set forth in Section 6.07. All information obtained as a result of this compliance monitoring shall be provided to Aqua Utilities upon request. The City will provide Notice of such compliance monitoring to Aqua Utilities within a reasonable time thereafter. ARTICLE VII OWNERSHIP, LIABILITY and INDENLNIFICATION 7.01 Liability and Ownership. Liability for damages arising out of the transportation, delivery, receipt, treatment, or disposal of any Discharge into the Development's System shall remain in Aqua Utilities, together with ownership of the Discharge, until such Discharge passes through the Point of Entry to the Fort Worth System, at which point ownership of the Discharge and any liability arising thereafter shall pass to the City, save and except that liability arising out of and ownership of any Prohibited Discharge shall not pass to the City, and shall remain with Aqua Utilities. No provision of this Agreement shall be construed to create any type of joint or equity ownership of any property, any partnership or any joint venture. Payments by Aqua Utilities (whether past, present, or future) will not be construed as granting Aqua Utilities partial ownership of, pre -paid capacity in, or equity in the Fort Worth System or the IRA System. 7,02 Indemnity. To THE FULLEST EXTENT PERMITTED BY .APPLICABLE LAW, AQUA itsnEs af,REEs 'in INTEAINIFy tsd) DEFEND CiTv, URA, AND EAull OF THEIR RESPFITINE OFFICERS, I. E (-EV D offic Ls, } "III OYEFS, _kc EN FS, YFl oRNEYs, oNsITTANTs, os; TRA( tOIlS, su( EssoRs ‘Ni) :sSits v °FEET I IN FLY. ANDENINI [TVs" I 11 REGARD 1(1 ANY I.N1) kLL ‘INIs, 1,0SsFS, DAMAGLs, t BlESt IFS, LIES, STU'S, ,EUDGNIENrs, yDNIINIsTRAEIVE PRO( FEDIN(,s, REMEDIYE-10N OR (_ORRECTIN'E ACTION REQUIRENIENTS, ENFORCEMENT ACTIONS, AND ALL COSTS .AND EXPENSES INCURRED IN CONNECTION THEREWITH (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' ETES, COSTS OF 1.,%;1 II; it 1 l()%1 -%%E) EAPENsEs, IN( ItDIN(; 1 Iti/q-- 1:st 1 RRFI) tilt CI 1 IN; F"..}()Kr I\l I HIS \ '0%11 1, 110-01 I! \ t,ft I \) Nfi 51 )1 t if-, I L) I ro,f k0'11 14tIt • 00 ks.N %cif of V„i0 Nit stj, \ Pi-01111131{1.j; 1 ANY CONNECTION OF THE DEVELOPMENT'S SYSTEM TO THE FORT WORTH SYSTEM, (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILI I IES ARISE FROM OR ARE ATTRIBUTED TO STRICT LIABILITY OR TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDENTNITEE. AR 1 ICLE VIII REPORTS AND RECORDS 8.01 Required Records. As required by the City's agreement with TRA, Aqua Utilities shall provide the following data upon 30 days Notice from the City: A. Actual number of customer accounts discharging into the Development's System; B. Classification of domestic and non -domestic accounts within its service area by number and percentage of accounts discharging directly or indirectly into the Development's System; C. The number of SIU connections subject to Section 3.02 of this Agreement to be served by the Development's System, with name and location of each; and D. Additional data which may assist the City in developing methodology for cost of service studies, planning studies for analyzing federal grants, and system access fees; provided, however, that the City shall not request data that will require Aqua Utilities to incur unreasonable expenses in providing such data. 8.02 Inspection and Audit. Complete records and accounts required to be maintained by each Party hereto shall be kept for a period of five (5) years. Each Party shall at all times, upon Notice, have the right at reasonable times to examine and inspect said records and accounts during normal business hours; and further, if required by any law, rule or regulation, make said records and accounts available to federal and/or state auditors. ARTICLE IX TERM and RELATED PROVISIONS 9.01 Term of Agreement. This Agreement shall expire upon the sooner of: (i) the date upon which Aqua Utilities ceases to be the retail wastewater provider for the Development; (ii) termination in accordance with this Article IX; or (iii) April 30, 2018. 9.02 Extension. Where expiration of this Agreement occurs pursuant to Section 9.01(iii), the City will offer to continue to sell wholesale water to Aqua Utilities under one of two options, to be chosen by the City in its sole discretion: A_ A 7enewal of this Atgreement, in its entirety. amending ()rd.\-- Section 9.01(iii) to Dei.tember 2r1.25-- and Section 4,02 to -,,rate ;:ites Mar .are ho-e in _tTect on 'he first day at the renewal lean ti..4 the Citv•-i wholesale asuiners who are inunicipalities. B. A wholesale wastewater agreement with terms that are the same as the terms of the renegotiated contracts with the City's wholesale customers whose contracts no‘s, e_xvii;re in 7017. t-o di dc crins and ,:i--_,ndnions ot those ceases to be the retail wastewater provider for the Development or December 31, 2025. The City will advise Aqua Utilities of the City's selected option by providing Notice one hundred eighty (180) days before the Section 9.01(iii) expiration date. Aqua Utilities can then either (i) agree to accept the option offered by the City in its Notice, in which case Aqua Utilities and the City will execute the documents necessary to formalize the terms of such agreement within 60 days of Aqua Utilities' receipt of Notice; or (ii) elect not to continue to purchase wastewater from the City, in which case this Agreement terminates on the Section 9.01(iii) expiration date and thus the City shall have no further service obligation thereafter. If the City's wholesale customers' 2017 expiration dates are extended, then the Section 9.01(iii) expiration date of this Agreement will be extended for the same number of years or months, but in no event beyond December 31, 2025. 9.03 Effective Date. This Agreement, together with all terms and conditions and covenants, shall be effective December 21, 2005. 9.04 Termination. In addition to termination pursuant to Article IX and Section 4.03, this Agreement may be terminated in whole or in part by the mutual consent of Aqua Utilities and the City. Notwithstanding anything contained herein to the contrary, any material breach by Aqua Utilities in the performance of any of the duties or the obligations assumed by Aqua Utilities hereunder, or to faithfully keep and perform any of the terms, conditions and provisions hereof, shall be cause for termination of this Agreement by the City in the manner set forth in this Section 9.04. If Aqua Utilities commits a material breach, then the City shall deliver to Aqua Utilities ninety (90) days prior Notice of its intention to so terminate this Agreement, including in such Notice a reasonable description of the breach. Aqua Utilities shall commence curing such breach within fourteen (14) calendar days after receipt of such Notice and shall diligently pursue and complete such cure without unreasonable cessation of activities within ninety (90) days from the date of the Notice; however, if the breach is not reasonably susceptible to cure by Aqua Utilities within such ninety (90) day period, the City agrees that it will not terminate this Agreement so long as Aqua Utilities has diligently pursued such cure within the foregoing ninety (90) days and diligently completes the work, without unreasonable cessation, within a reasonable time thereafter. The time authorized by this Agreement to cure the breach is the "Cure Period." If Aqua Utilities shall fail or refuse to cure such material breach to the satisfaction of the City within the Cure Period, then and in such event, the City shall have the right with additional sixty (60) days advance Notice to Aqua Utilities and without any liability whatsoever on the part of the City to declare this Agreement terminated, and the Agreement will immediately expire at the end of such Notice period. The City shall give Notice to Aqua Utilities immediately upon acceptance of the are of any default. A material breach or this ,Nueernent includes, but not litni*eil to: 1-111Ure tt A-1111 'and tre•ITIV k rLWatT or pretreat/new, itandaTds required h ±i Agreement; Failure to make any payment of any bill, charge or tee as pro\ ided for in this Agreement: c. Making any connection to the Fort Worth System at any point other than Avrec,meri,, - secti,,n ir Failure of Aqua Utilities to comply with Sections 2.01, 2.05, 2.07, 2.08, 4.03 or 5.01 or Article X hereof. 9.05 Non -Material Breach. In the event of any nonmaterial breach, default or failure to perform duties tinder this Agreement, the City shall deliver to Aqua Utilities thirty (30) days advance Notice of such default. If Aqua Utilities fails to cure such breach, default or failure, then the City shall give Aqua Utilities Notice of such failure to cure and may surcharge Aqua Utilities Five Thousand Dollars ($5,000) per month until such time as Aqua Utilities cures such nonmaterial default. 9.06 Effect of Termination. In the event of termination of this Agreement, except to the extent provided in Section 9.07, all rights, powers, and privileges of Aqua Utilities hereunder shall cease and terminate and Aqua Utilities shall make no claim of any kind whatsoever against the City, its agents or representatives, by reason of such termination or any act incident thereto, provided the City acted reasonably and such termination was not unreasonable, arbitrary and capricious. 9.07 Surviving Provisions. As part of, or in addition to, survival rights to which the Parties may be entitled in law or equity, the following provisions shall survive the termination of this Agreement for any reason: (a) any payment obligation of any Party under the terms of this Agreement that has accrued prior to such termination; (b) Section 7.02 (Indemnity); (c) Article VIII (Reports and Records); and (d) Article XI (Miscellaneous). 9.06 Effect of Opportunity to Cure. The opportunities provided in the Agreement to cure a material or non -material breach do not relieve or diminish any obligation of Aqua Utilities to indemnify the City pursuant to Article VII for any Liabilities. ARTICLE X PERFORMANCE PURSUANT TO SUPERSEDING UTILITY AGREEMENT This Agreement is executed pursuant to, and shall be performed consistent with the terms of, the Superseding Utility Agreement. Accordingly, all construction, operation and maintenance activities undertaken pursuant this Agreement shall be performed in compliance with the Superseding Utility Agreement, including the standards for construction, operation and maintenance set forth in Article V of that agreement. In the event of a conflict between this Agreement and the Superseding Utility Agreement, the Superseding Utility Agreement shall control. ARTICLE XI MISCELLANEOUS xerninu, Law, Junsdict]on and Venue, fins AGREEmET MINT BE, CONS TRUED AND ENFORCED IN ACCORDANCE WITH THE LAv1S OF THE STA FE OF l'EXAS, 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 KNcAv EDGE 1 II I TillS V-.14VENIF NI IS PERI:ORAL% Fit 17,, IN rAliKANT COI NI TYVkti AM) IIES*1.1iV HE jt RINDI( I(1N• 114 ( !)t WIN I ARK ( NiN , 1 LVAS, _N HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER. 11.02 Notice. Any notices, certifications, approvals, or other communications required to be given by one Party to another under this Agreement (a "Notice") shall be given in writing addressed to the Party to be notified at the address set forth below and shall be deemed given: (a) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (b) when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid; (c) when the Notice is delivered by Federal Express, UPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; or (d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Agreement ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be extended to the first business day following the Saturday, Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this section. To the City: City of Fort Worth, Texas 1000 Throckmorton Street Attn: City Secretary Fort Worth, Texas 76102 FAX: (817) 392-6196 City of Fort Worth, Texas 1000 Throckmorton Street Attn: City Manager Fort Worth, Texas 76102 FAX: (817)392-6134 City of Fort Worth, Texas 1000 Throckmorton Street Attn: Water Director Fort Worth, Texas '610-2 iJ A.qua 1421 Wells Branch Pkwy., Ste. 105 7S664) 762 West Lancaster Ave. Bryn Mawr, Pennsylvania 19010 Attn: Chief Legal Officer FAX: (610) 520-9127 11.03 Consent Required for Assignment & Binding on Successors and Assigns. All of the terms of this Agreement shall be binding upon, shall inure to the benefit of, and shall be severally enforceable by and against each Party to this Agreement, individually, and such Party's respective personal representatives, successors, trustees, receivers, and assigns. However, no Party shall assign this Agreement without the written consent of the other Party. It is specifically intended that this Agreement and all terms, conditions and covenants herein shall survive a transfer, conveyance or assignment occasioned by the exercise of foreclosure of lien rights by a creditor or a party hereto, whether judicial or non -judicial. 11.04 Amendment. This Agreement may be amended only with the written consent of all Parties and with approval of the governing body of the City. 11.05 No Waiver. Any failure by a Party to insist upon strict performance by the other Party of any material provision of this Agreement shall not be deemed a waiver thereof, and the Party shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by writing signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by any Party hereto of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 11.06 Severability. The provisions of this Agreement are severable and, in the event any word, phrase, clause, sentence, paragraph, section, or other provision of this Agreement, or the application thereof to any person or circumstance, shall ever be held or determined to be invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the provision so severed. 1ansCaptl-',71s and ittninninits niteit ninn; ate thr rz-14-Cr-CTIC: plirp,-,c,s only and tthail not he deemed a part nt the Agreement. I I 1)8 Interpretation The pArtiei Jckno‘Aledge that ea.h party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in 3a ,111? ,ti'llern,:.,T1t; eOn'tnts hetetn, L;Icii in !Ili include the plural, and the plural shall include the singular. Each defined term herein may be used in its singular or plural form whether or not so defined. 11.9 Conspicuous Provisions. The City and Aqua Utilities acknowledge that the provisions of this Agreement that are set out in bold, CAPITALS (or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 11.10 No Third Party Beneficiary. This Agreement is solely for the benefit of the Parties, and neither the City nor Aqua Utilities intends by any provision of this Agreement to create any rights in any third -party beneficiaries or to confer any benefit upon or enforceable rights under this Agreement or otherwise upon anyone other than the City and Aqua Utilities. 11.11 Force Maieure. No Party shall be considered to be in default in the performance of any of the obligations hereunder (other than obligations of either Party to pay costs and expenses) if such failure of performance shall be due to an uncontrollable force beyond the control of the Parties, including hut not limited to, the failure of facilities, flood, earthquake, tornado, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material shortage, sabotage, or restraint by a court order or public authority, which by the exercise of due diligence and foresight such Party could not have reasonably been expected to avoid. Either Party rendered unable to fulfill any obligation by reason of an uncontrollable force shall exercise due diligence to remove such inability with all reasonable dispatch. In the event the proper operation of the Fort Worth System, as a result of the above, requires the City to temporarily interrupt all or part of the services to Aqua Utilities, no claims for damage shall be made by Aqua Utilities against the City. The City will exercise its best efforts to insure that such interruptions will not adversely affect the health and welfare of the Users. 11.12 Incornoration 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 Exhibit B Exhibit C Exhibit D Exhibit E Map of the Development Legal Description of the Development Original TRA Contract Map showing the Development's Point of Entry into the Fort Worth System and Fort Worth's Point of Entry to the TRA System Rate Methodology 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., a Texas Corporation By: Title: (print name Exhibit A Map of the Development I i uuolllpl. " p1 BI' wl YI "II 611 u III 0001 MINJiINII'N' Wll �'v"um 1094',i1N 00 6061 ll1 of +* m '4� 11 1 douml Im" M p� IIMW`Ii11y�ly ,p NI111111111111111V VNMI^ 911�p1„+,I,. m1Nl^"nh N4M1� nu !p1 uuu f'h 111111111 111111" 'V umu 61 , Ilvu�M1N,uoN Im "I; / VrVm II n1 a I�Ia !^ N IW �4111 vavm,w 6666 IfW.. �ulu1"NNrrt'"W��NN�VidI^vv�lllull I � FYI YVYI yw WIµ �� I0 Vfl 011,6 II NI III 8'I"IIIIIIIIIIIIIII 1t JIV d u1l hV j�'Vul IN�'I 1'N 111110111111111 11 IIIu u IVIII' rv9v VI ,1,11,11„1,11,110111111111,001t66.6 661 ?IlMlo NIW NmYe YIY Mnl 41ugIII III'Puri� 1111 W^^10 I l l l l n Ipud 111.1. 11 tlllli li��1110 �° 1'�M1� III i�'I lulu I o ^ Ilrrd �,mu1111''wIiM1IIM1uI1�I�VIIIM1olVl1��IW11"Milli INII 1Yp�Yi1 u11111 ^IIIII III 1� iill 41111 11 1111116 to 11 w1NIV1111111VV(V 411 ,11067, 'Ii11111111111 1111 61NIII,11111 6,11 �plw Ins N;' II1111111 111"VIII�I'�'iY'''^I�w'�� 11 11661. 1'111111 M1'ltl1 m^�m�'WI"pml��ll'm Ir�ip^NxVvlll" IIV^,IiVY, iq^;� Il �I ,'11xIV'''IYW uIINI Illy y II Vl uuu 1'I4.1,10 I IV 1�11�IIII6VI�m1�f"° p,�l ulll ^"I'lllxil�,l liNull� I"°Ir,�M1YI IgIuIJVyIV I11""41tlIIgYII^l oId ���II 11��1""jl jlll ' i) I,l 'iiN 1lpn'�'� �1ii ��lu��l°' �u�yV��1111111 II^'"ml"IN��VIIIMI� I� ilud'" 1 ",;IIIVI�IIl11W RINIV° II��I ^VI tl pI Ip lll7ll^M1Vq,I��'@�iY�' 1p11�"�i��,«�., 1Y Illy"'Nl�ylii�ll���ldlhxrl ih IV�IV1��'IIIM1 I �'"1 Im ull 111 !IIV�u 1,01 ^oi dIN WII 1II"1VYV �NvV!I"1 I°'"„ 11,1 IIIIII ppmuwl, VlilMiY1AI Nllly I". 111666 Nlllilll! 1111111111111 OfI 6V0 IIN 161111 661 111( IY�hp"� ��11^' 16YY61� IV Nit YII Im IP lu Im pull .11111111 lua"^ 0 161 m1���1111111111 lll,, Iru lllVl'illll"f1V,�, V.rcviryII ^IiIY tra oo 610 411 NI 111 Hirt �I��II�pIs1 Iuyly�lµlmll llll,l N A'Alllllu"IN ulVuuuu mn�ilViVp IIIII IIIIIIIII �Inlldlw11„1 '1 ?„) II NIY1111111 nn�n ��inn�;1i14 M1It"IINI No IW� X C- Exhibit B Legal Description of the Development BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more particularly described as follows: Tract 1 BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" 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 00E22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2" iron pin set; THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set; THENCE S 52E34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set; THENCE S 44E0803" E, a distance of 999.82 feet to a capped 1/2" iron pin set; S 65E58'36" F, a distance of 1029.92 feet to a capped 1/2" iron pin set; 1 JJFNL -N ';(1.:00)(--CF. .i di f 77 feet +A., kJpped un pin set, id ippcd 2" non pin ci also (.] !,he east line of said Aperion Tract OT1C-A ind tic west line ot t.hat tcao k..om.el.ed to Ferbro Investments., 1_ LC by deed recorded under (...",._,[intv Clerk's File iNo. 97-- 0003005 RPR DC T; 1 HENCE S 00E07'20" F along the east line of said Aperion Tract One -A and the west line of ,A11; !O being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE S 44E23'02" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to a 5/8" iron pin found; THENCE N 47E15'51" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found; THENCE S 44E27'42" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said brass monument also being on the said north right-of- way line of State Highway No.114; THENCE S 89E47'36" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete found; THENCE S 84E3009" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete found; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set; THENCE N 00E11'12" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set; THENCE S 00E1112" E along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 238,28 feet to the Point of Beginning and containing 16,728,840 square feet or .;84_041 acres of land, more or less. IAA BLOINNINCi at a brass monument n coni:rete found, ;aid brass monument also beinci: on the south line of said Aperion Tract One-B, said brass monument also being on the north right-of- way line of State Highway No, 114, said brass monument also being on the west line of a tract (onve:.ed t4-) J',:•rbro ;ri‘t.-triierns by deed recorded under County Clerk's File W7-000:3605 ?RI THENCE S 89E46'48" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found; THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract; THENCE S 00E0709" E along the east line of said Aperion Tract One-B and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing 2,058,725 square feet or 47.262 acres of land, more or less. Exhibit C Original TRA Contract TRINITY RIVER AUTHORITY OF TEXAS - DENTON CREEK REGIONAL WASTEWATER TREATMENT SYSTEM CONTRACT, THE STATE OF TEXAS TRINITY RIVER AUTHORITY OF TEXAS THIS TRINITY RIVER AUTHORITY OF TEXAS - DENTON CREEK REGIONAL WASTEWATER TREATMENT SYSTEM CONTRACT (the "Contract") made and entered into as of the 28th day of OCTOBER, 1987 (the "Contract Date") by and among TRINITY RIVER AUTHORITY OF TEXAS (the "Authority"), an agency and political subdivision of the State of Texas, being a conservation and reclamation district created and functioning under Article 16, Section 59, of the Texas Constitution, pursuant to Chapter 518, Acts of the 54th Legislature of the State of Texas, Regular Session, 1955, as amended (the "Authority Act"), and the following: CITY OF FORT WORTH, IN TARRANT COUNTY, TEXAS, CITY OF HASLET, IN TARRANT CpUNTY TEXAS, and CITY OF ROANOKE IN DENTON COUNTY, TEXAS, (collectively the. Initial Contracting Parties"). W I T N E S S E T H: WHEREAS, each of the Initial Contracting Parties is a duly created city and political subdivision of the State of Texas operating under the Constitution and laws of the State of Texas; and WHEREAS, the Authority and the Initial Contracting Parties are authorized to enter into this Contract pursuant to the FFUL RL ORD i CITY SECRETARY FT. AORTA TM Authority A apter 30, Texas Water Code, Vernon's Ann. Tex. Civ. St. Article 4413(32c) (the "Interlocal Cooperation Act"), and other applicable laws; and WHEREAS, the Authority proposes to acquire and construct a regional Wastewater treatment system to serve the Initial Con- tracting Parties within the watershed or drainage area of Denton Creek, a tributary of the Trinity River, located in Denton and Tarrant Counties, Texas (the "System"); and WHEREAS the System initially proposed to be acquired and constructed is described in an engineering report of Rady & Associates, Fort Worth, Texas, entitled "Comprehensive Feasibility Study on Denton Creek Regional Wastewater System", dated August, 1987; and WHEREAS, such report, including all amendments and supple- ments thereto made prior to the execution of acquisition and construction contracts for the System and as changed by change orders entered after acquisition and construction contracts for the System have been executed, is hereinafter called the "Engineering Report"; and WHEREAS, it is expected by the parties hereto that as soon as practicable after the execution of this Contract the Author- ity will issue an installment of Bonds to provide part of the money to acquire and construct the System, and thereafter will issue a subsequent installment or installments of Bonds to complete the acquisition and construction of the System, with all of said Bonds to be payable from and secured by Annual Payments made under this Contract by the Initial Contracting Parties. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Authority agrees to provide Wastewater treatment services of the System to the Initial Contracting Parties under this Contract, and to issue its Bonds and to acquire and construct the System, upon and subject to the terms and conditions hereinafter set forth, to -wit: Section 1. DEFINITION OF TERMS. The following terms and expressions as used in this Contract, unless the context clearly shows otherwise, shall have the following meanings: (a) "Additional Contracting Party" means any party not defined as one of the Initial Contracting Parties with which the Authority makes a contract similar to this Contract for providing services of the System, provided that after execution of any such contract such, party shall become one of the Con- tracting Parties for all purposes of this Contract, unless otherwise specifically provided herein. (b) "Adjusted Annual Payment" means the Annual Payment, as adjusted during or after each Annual Payment Period, as provided by this Contract. (c) "Advisory Committee" means the committee to be created to consult with and advise the Authority with respect to the System as provided in Section 10 of this Contract. (d) "Annual Payment" means the amount of money to be paid to the Authority by each of the Contracting Parties during each Annual Payment Period as its proportionate share of the Annual Requirement. (e) "Annual Payment Period" means the Authority's Fiscal Year, ,which currently begins on December 1 of each calendar year and ends on the last day of November of the next calendar year, and the first Annual Payment Period under this Contract is estimated to be the period of December 1, 1989, through November 30, 1990. (f) "Annual Requirement" means the total amount of money required for the Authority to pay all Operation and Maintenance Expenses of the System, to pay the debt service on its Bonds, to pay or restore any amounts required to be deposited in any. special, contingency, or reserve funds required to be estab- lished and/or maintained by the provisions of the Bond Resolu- tions, all as further described in Section 11 (a) of this Contract. (g) "B.O.D." (denoting Biochemical Oxygen Demand) means the quantity of oxygen utilized in the biochemical oxidation of organic matter under standard laboratory procedure in five days at 20' C. expressed in milligrams per liter. 4 (h) "Bond Resolution" means any resolution of the Author- ity which authorizes any Bonds. (i) "Bonds" means all bonds hereafter issued by the Authority, expected to be in two or more series or issues, and the interest thereon, to acquire and construct the System (including all bonds issued to complete the acquisition and construction of the System), and/or all bonds issued subse- quently to improve and/or extend the System, and any bonds issued to refund any Bonds or to refund any such refunding bonds. (j) "Contracting Parties" means the "Initial Contracting Parties", as defined in the first paragraph of this Contract, together with any other party or parties which hereafter becomes one of the Contracting Parties by becoming an Addi- tional Contracting Party. (k) "Contracting Party" means any one of the Contracting Parties. (1) "Engineering Report" means the "Engineering Report" as defined in the preamble to this Contract. (m) "Garbage" means solid wastes from the preparation, cooking, and dispensing of food, and from handling, storage, and sale of produce. (n) "Grease" weans fats, waxes, oils, and other similar nonvolatile materials in wastewater, which are extracted by freon from an acidified sample using the Partition-Gravimetric method. (0) "Industrial User (III) but not limited to, any individua any person, including partnership, corporation, association, or any other group or combination acting as a unit, or any other legal entity, who discharges or desires to discharge industrial wastes into the System. (P) a sewer. (q) Infiltration water" means the water which leaks into "Operation and Maintenance Expenses" means all costs and expenses -of operation and maintenance of the System and the Wastewater Interceptor System, including (for greater certainty but without limiting the generality of the foregoing) repairs and replacements for which no special fund is created in the Bond Resolutions, operating personnel, the cost of utilities, the costs of supervision, engineering, accounting, auditing, legal services, supplies, services, administration of the System and the Wastewater Interceptor System, including the Authority's general overhead expenses attributable to the System and the Wastewater Interceptor System, insurance premiums, equipment necessary for proper operation and maintenance of the System and the Wastewater Interceptor System, and payments made by the Authority in satisfaction of judgments resulting from claims not covered by the Authority's insurance arising in connection with the operation and mainte- nance of the System and the Wastewater Interceptor System. The term does not include depreciation. (r) "pH" means the common logarithm of the reciprocal of the weight of hydrogen ions in grams per liter of solution. (s) "Project" means the "Project" as defined in the preamble to this Contract, and as generally described in the Engineering Report. (t) "POTW" means Publicly Owned Treatment Works as defined in 40 CFR 403. (u) "Properly Shredded Garbage" means garbage that has been shredded to such degree that all particles will be carried freely under the flow conditions normally prevailing in public sewers, with no particle greater than 1/2 inch in any dimen- sion. (v) "Significant Industrial User (SIU)" means any indus- trial user who is connected or desires to connect to the City's domestic wastewater collection system and meets at least one of the following criteria: (1) Average industrial wastewater discharge rate greater than 50,000 gpd. (2) BOD and/or suspended solids concentrations in industrial wastewater greater than 250 mg/1. (3) Industrial category regulated by National Pretreatment Standards as promulgated by the United States Environmental Protection Agency. (w) "Suspended Solids" means solids that either float on the surface or are in suspension in water, sewage, or other liquids, and which are removable by laboratory filtering, expressed in milligrams per liter. (x) "System" means the regional wastewater treatment system described in the preamble to this Contract and in the Engineering Report, and all improvements and additions to and extensions, enlargements, and replacements of such facilities which are deemed necessary and feasible by the Authority in order to receive, treat, and dispose of Wastewater from Con- tracting Parties and to comply with the requirements of the Wastewater regulatory agencies of the State of Texas and the United States of America. Said term does not include any facilities acquired or constructed by the Authority with the proceeds from the issuance of "Special Facilities Bonds", which are hereby defined as being revenue obligations of the Author- ity which are not secured by or payable from Annual Payments made under this Contract and similar contracts with Additional Contracting Parties, and which are payable solely from other sources. (y) "Total Toxic Organics" means the sum of all detected concentrations greater than 10 micrograms per liter for all organic compounds classified as priority pollutants by the United States Environmental Protection Agency. (z) "Trunk Sewer" means any sewer in which sewage from collecting and lateral sewers i,s concentrated and conveyed to the System. (aa) "Wastewater" means Sewage, Industrial Waste, Munici- -pal Waste, Recreational Waste, and Agricultural Waste, as defined in the Texas Water Code, together with Properly Shred- ded Garbage and such Infiltration Water that may be present. (bb) "Wastewater Interceptor System" means the "Interceptor System" as defined in the "Trinity River Authority of Texas - Denton Creek Wastewater Interceptor System Contract", dated October 28, 1987, executed by the parties to this Contract concurrently with the execution hereof (the "Interceptor Contract"), and being facilities intended to collect and transport Wastewater into the "System", as defined in this Contract, together with any other Wastewater collection and transporation facilities which are not part of the System as herein defined, and which are intended to collect and transport the Wastewater of any Additional Contracting Party into the System as herein defined. Section 2. CONSULTING ENGINEERS; CONSTRUCTION OF SYSTEM. The Authority and the Contracting Parties agree that the Authority will choose the Consulting Engineers for the System, provided that the Consulting Engineers may be '.changed at the option of the Authority, The Authority agrees to issue its Bonds, payable from and secured by Annual Payments made under this Contract, to acquire and construct the System, and agrees that the System will be acquired and constructed in general accordance with the Engineering Report. It is anticipated that such acquisition and construction will be financed by the Authority through the issuance of two or more series or issues of its Bonds payable from and secured by Annual Payments made under this Contract, and the Authority agrees to issue its Bonds for such purpose. The proceeds from the sale and de- livery of such Bonds also will be sufficient to fund to the extent deemed advisable by the Authority a debt service reserve fund, a contingency fund, and interest on the Bonds during construction; and such proceeds also will be used for the payment of the Authority's expenses and costs in connection with the System (including all engineering and design costs and expenses, and the cost of the land and interests therein related to the System) and the Bonds, including, without limitation, all financing, legal, printing, and other expenses and costs related to the issuance of such Bonds and the System. It is now estimated that such Bonds to acquire and construct the initial System will be issued in an aggregate amount of approximately $2,800,000 (whether actually more or less), which sum is now estimated to be sufficient to cover all the aforesaid costs, expenses, and other amounts. Each Bond Resolut the Authority shall specify the exact principal amount of the Bonds issued thereunder, which shall mature 0 within the maximum period, and shall bear interest at not to exceed the maximum rates, then permitted by law, and each Bond Resolution shall create and provide for the maintenance of a revenue fund, an interest and sinking fund, a debt service reserve fund, and any other funds deemed advisable, all in the manner and amounts as provided in such Bond Resolution. Each Contracting Party agrees that if and when such Bonds are actually issued and delivered to the purchaser thereof, either for the purpose of initially acquiring and constructing the System, or subsequently for improving and/or extending the System, the Bond Resolution authorizing the Bonds shall for all purposes be deemed to be in compliance with this Contract in all respects, and the Bonds issued thereunder will constitute Bonds as defined in this Contract for all purposes. Section 3. QUANTITY AND POINTS OF ENTRY. (a) In con- sideration of the payments to be made by each Contracting Party under this Contract, each such Contracting Party is entitled, during each Annual Payment Period while the System is in operation, to discharge into'the System at its Point or Points of Entry hereinafter described, all of the Wastewater which is generated within its boundaries which are within the watershed or drainage area of Denton Creek, subject to the restrictions hereinafter stated; and provided that each such Contracting Party must transport such Wastewater to its Point or Points of Entry. Further, each Initial Contracting Party shall be obligated to transport and discharge into the System at its Point or Points of Entry all Wastewater which is generated within its boundaries which are within the watershed or drainage area of Denton Creek, except for reasonably small fringe areas which could be more cost effectively served by other means, and which are approved by a majority vote of the Advisory Committee and approved by the Authority. (b) The combined maximum rate at which Wastewater is dis- charged by each Contracting Party at all of its Points of Entry shall not exceed a rate which, if continued for a period of twenty-four hours would equal 3.50 times such Contracting Party's estimated average daily contributing flow of Wastewater for the then current Annual Payment Period. The total quantity of Wastewater discharged into the System shall never exceed the amount which the System is capable of receiving, treating, and disposing, unless approved by a majority vote of the Advisory Committee and approved by the Authority, subject to terms and conditions to be established by the Authority. Notwithstanding the foregoing, no Contracting Party shall ever make any dis- charge into the System which would cause it to be overloaded or be in violation of its permits from the State of Texas and/or the United States of America. {c) Wast meeting the quality requirements of Section 4 of this Contract will be received into the System at the Points of Entry, respectively, shown for each Initial Contracting Party, respectively, in the Engineering Report, or at such other or additional Points of Entry that may be estab- lished by mutual agreement between the Authority and a Con- tracting Party in the future, if such other or additional Points of Entry are determined by the Authority to be econom- ical and beneficial to the System, and such Contracting Party pays any costs related thereto which the Authority determines should be paid by such Contracting Party. (d) It is the intention of the parties hereto that the System shall be acquired, constructed, extended, and improved so that at all reasonable times it will be capable of receiv- ing, transporting, treating, and disposing of all eligible Wastewater generated within the boundaries of each Contracting Party which are within the watershed or drainage area of Denton Creek and which such Contracting Party delivers to its Point or Points of Entry, and that the Authority will from time to time issue its Bonds in such amounts as are, within its judgment and discretion, sufficient to achieve such results. Section 4. QUALITY. The obligation of the Authority to receive into the System such Wastewater depends upon compliance by each Contracting Party with the provisions of this Section. General Obiectives of Duality Reauirements. In order to permit the Authority to properly treat and dispose of each Contracting Party's Wastewater; to protect the public health; and to permit cooperation with other agencies which have requirements for the protection of the physical, chemical, and bacteriological quality of public water and water courses, and to protect the properties of the System, each Contracting Party agrees: (a) Admissible Discharges into Authority's System. Discharges into the System shall consist only of Wastewater and other waste free from the prohibited constituents listed in Subsection (b) and limited in B.O.D., Suspended Solids, dis- solved sulfides, and pH as hereinafter provided. (b) Wastes Not Admissible. Gasoline; cleaning solvents; non emulsified oils and greases; mineral oils; ashes; cinders; sand; gravel; tar; asphalt; ceramic wastes; plastics; other viscous substances; feathers; hair; rags; metal; metal filings; glass; wood shavings; sawdust; unshredded garbage; toxic, corrosive, explosive or malodorous gases; acetylene generation sludge; cyanides or cyanides or cyanogen compounds capable of liberatling hydrocyanic gas on acidification in excess of 2 mg/1 by weight as CN; radioactive materials which will permit a transient concentration higher than 100 microcuries per liter; emulsified oil and grease, exclusive of soaps, exceeding on analysis an average of 100 mg/1 of ether -soluble matter; acids or alkalis having a pii value lower than 6.0 or higher than 10.0; and Iastewater containing specific pollutant concentra- tions in excess of any of the numerical limitations named hereunder be prohibited from discharge to the System: 14 Maximum Allowable Pollutant Concentration fua/1) Arsenic 100 Barium 1,000 Cadmium 100 Chromium 1,000 Copper 1,500 Lead 1,000 Manganese 1,500 Mercury 5 Nickel 1,000 Selenium 50 Silver 100 Zinc 2,000 Total Toxic Organics 1,000 (c) Biochemical Oxygen Demand (B.O.D.). B.O.D. of Wastewater delivered to the System, as determined by standard methods, shall not exceed 250 mg/1. (d) Total Suspended Solids. Total Suspended Solids delivered to the System, as determined by Standard methods, shall not exceed 250 mg/1. (e) Hydrogen Ion Concentration (pH). The pH of Waste- water delivered to the System shall be not lower than 6.0 nor higher than 10.0. No acids shall be discharged into the Authority's System unless neutralized to a pH of 6.0 or more. (f) Hydrogen Sulfide Concentration. Dissolved sulfides in Wastewater at the point of delivery to the System shall not exceed 0.1 mg/l. (g) Prohibited DischargA Limitations S2Abject to Chang - Notwithstanding the foregoing provisions of this Section, the parties hereto agree and understand that Federal and State Regulatory Agencies periodically modify standards on prohibited discharges; therefore, revisions to, additions to, or deletions from the items listed in this Section may become necessary in the future to comply with these latest standards. It is the intention of this Contract that prohibited discharge require- ments be reviewed periodically by the Authority and revised in accordance with the latest standards of any Federal or State Agency having regulatory powers. Any required revisions shall be made and written notice thereof given to each Contracting Party. Each Contracting Party shall be responsible for inte- grating such changes into the local industrial waste ordinance and notifying all affected users of the change within ninety days following written notice to the Contracting Party of such changes. (h) To determine normal quality of Wastewater, the Authority will collect twenty-four hour composite samples of Wastewater at each Point of Entry and cause same to be analyzed in accordance with testing procedures as set forth in the latest edition of Standard Methods of Examination of Water and Wastewater, published by American Public Health Association, Inc. Composite samples will normally be taken once a month, or at more frequent intervals if necessary to determine Wastewater quality. As provided above, such Wastewater shall not exceed 15 the limits of concentration specified for Normal Wastewater as follows: Normal Wastewater Concentration, BOD 250 mg/1 TSS 250 mg/1 pH, not less than 6 nor greater than 10 Hydrogen Sulfide 0.1 mg/1 Should the analysis disclose concentrations higher than those listed, the Authority immediately will inform the Con- tracting Party which made the discharges resulting in the violation of this Section, and such discharges shall cease immediately. However, with the approval of the Authority, Wastewater with concentrations of BOD and TSS greater than specified above may be discharged by a Contracting Party into the System on an emergency and temporary basis, subject to the payment of a surcharge (in addition to all other payments required by this Contract), which surcharge shall be determined by the Authority and shall be in an amount sufficient to cover and pay for all additional costs of transportation, treatment, and disposal related to such discharges. Section 5. METERING OF WASTEWATER. The Authority will furnish, install, operate, and maintain at its expense the necessary equipment and devices of standard type required for measuring properly all Wastewater discharged into the System by each Contracting Party, respectively, through its Point or Points of Entry, respectively. Such meters and other equipment shall regain the property of the Authority. Each Contracting Party shall have access to such metering equipment at all reasonable times for inspection and examination, but the reading, calibration, and adjustment thereof shall be done only by employees or agents of the Authority in the presence of a representative of the affected Contracting Party or Parties if requested by such Contracting Party or Parties. All readings of meters will be entered upon proper books of record main- tained by the Authority. Upon written request any Contracting Party may have access to said record books during reasonable business hours. Not more than three times in each year of operation, the Authority shall calibrate its meters, if re- quested in writing by the affected Contracting Party or Parties to do so, in the presence of a representative of such Contract- ing Party or Parties, and such parties shall jointly observe any adjustments which are made to the meters in case any adjustment is found to be necessary. If, for any reason, any meters are out of service or out of repair, or if, upon any test, the percentage of inaccuracy of any meter is found to be in excess of five (5%) per cent, registration thereof shall be corrected for a period of time extending back to the time when such inaccuracy began, if such time is ascertainable, and if not ascertainable, then for a period extending back one-half (1/2) of the time elapsed since the date of the last calibra- tion, but in no event further back than a period of six (6) months. Any Contracting Party may, at its option and its own expense, install and operate a check meter to check each meter installed by the Authority, but the measurement for the purpose of this agreement shall be solely by the Authority's meters, except as in this Section specifically provided to the con- trary. All such check meters shall be of standard make, shall be installed in a location approved by the Authority, and shall be subject at all reasonable times to inspection and examina- tion by any employee or agent of the Authority, but the read- ing, calibration, and adjustment thereof shall be made only by the Contracting Party or Parties, except during any period when a check meter may be used under specific written consent by the Authority for measuring the amount of Wastewater delivered into the System, in which case the reading, calibration, and adjust- ment thereof shall be made by the Authority with like effect as if such check meter or meters'had been furnished or installed by the Authority. Section 6. UNIT OF MEASUREMENT. The unit of measurement for Wastewater discharged into the System hereunder shall be 1,000 gallons, U. S. Standard Liquid Measure. Section 7. LIABILITY FOR DAMAGES AND RESPONSIBILITY FOR TREATMENT AND DISPOSAL OF WASTEWATER. Liability for damages arising from the transportation, delivery, reception, treat- ment, and/cr disposal of all Wastewater discharged into the System hereunder shall re each Contractg Party t o its Point or Points of Entry, respectively, and title to such Wastewater shall be in such Contracting Party to such Point or Points, and upon passing through Points of Entry liability for such damages shall pass to the Authority. As between the Authority and each Contracting Party, each party agrees to indemnify and to save and hold the other party harmless from any and all claims, demands, causes of action, damages, losses, costs, fines, and expenses, including reasonable attorney's fees, which may arise or be asserted by anyone at any time on account of the transportation, delivery, reception, treatment, and/or disposal while title to the Wastewater is in such party, or on account of a prohibited discharge by a Contracting Party. The Authority has the responsibility as between the parties for the proper reception, transportation, treatment, and disposal of all Wastewater discharged into the System, but not for prohibited discharges discharged by any party at any Point of Entry. Section 8. REPORTING REQUIREMENTS. (a) Approximately thirty days after the end of each Annual Payment Period each Contracting Party, respectively, shall furnish in writing to the Authority the following information with respect to such Contracting Party: (1) The number of active domestic sewer connections tributary to the System and which will be served by the System; (2) The number of commercial and business sewer connec- tions to be served by the System; 20 (3) The number of industrial connections to be served by the System, with name and location of each. The purpose of this provision to permit the Authority to accumulate statistical data which will enable it to render better service and facilitate plans for betterment and future facilities expansion. (b) Industrial Waste. The effects of certain types of Industrial Waste upon sewers and sewage treatment processes are such as to require that careful consideration be made of each industrial connection. This is a matter of concern both to the Authority and to the Contracting Parties. Accordingly, each Contracting Party shall regulate the discharge of Industrial Waste generated by a SIU into its sewer system, and will authorize discharge of Industrial Waste into its sewers subject to the general provision that no harm will result from such discharge and subject to the filing by applicant industry of a statement, copy of which shall be forwarded to the Authority, containing the following information: (1) Name and address of applicant; (2) Type of industry; (3) Quantity of plant waste; (4) Typical analysis of the waste; (5) Type f pretreatment proposed. illtate inspection and o trol of Industrial waste, each Contracting Party will e industries eparate Industrial Waste from Sanitary Sewage until such Industrial Waste has passed through a monitoring portal which shall be located so as to be accessible at all times to inspectors of such Contracting Party. If inspection indicates that damage might result from the discharge the permit shall be revoked unless and until the industry promptly establishes acceptable remedial measures. At regular intervals the Authority will collect twenty-four hours composite samples of all Wastewater at each Point of Entry and cause same to be analyzed by American Public Health Association Standard Methods. Such Wastewater shall not exceed the limits of concentration specified in Section 4 of this Contract. Should the analysis disclose concentrations higher than those stipulated the Authority immediately will inform the affected Contracting Party of such disqualification. It shall be the obligation of such Contracting Party to require the offending originator of said highly concentrated materials to immediately initiate and undertake remedial pre-treatment or other legal means before discharge into such Contracting Party's sewers. (c) Ordinances. Each Contracting Party, respectively, agrees that it has enacted or will enact ordinances as neces- sary to include the following provisions: For each existing and future SIB', the ontxa t q Party shall require said user to complete and submit a permit application containing that information specified in the sample app a ion form which is attached hereto as Exhibit 1 immedi- ately following this Section 8 (c). The Authority shall be provided a copy of the permit application within thirty days after receipt by the Contracting Party. The Authority shall provide comments on said application within thirty days of receipt and return comments to the Contracting Party. Failure to comment shall be construed as concurrence by the Authority. After approval of the Permit Application by both the Contracting Party and the Authority, the Contracting Party shall issue a permit to discharge containing the requirements as shown on the form which is attached hereto as Exhibit 2 immediately following Exhibit 1 at the end of this Section 8 (c). Said permit to discharge shall be required of all SIUs before said user will be allowed to discharge industrial wastes into the sewage system. A copy of the permit to discharge shall be forwarded to the Authority for approval prior to the issuance to the SIU. (2) The Contracting Party shall require significant industrial users to comply with applicable Federal Categorical Pretreatment Standards as well as any applicable state and local standards. (3) The Contracting Party shall maintain certain informa- tion contained in permit applications as confidential at SIU's request. tion f The Contracting Party shall be authorized to enter (4) The Contracting Party shall disallow dilution as a means of reducing pollutant concentrations in an SIU's waste stream. (5) SIU premises at any time for independent monitoring, inspec- tion, or review of applicable records to determine compliance. (6) The Contracting Party shall develop and require adherence to SIU compliance schedules. (7) The Contracting Party shall require self -monitoring and reporting at SIU's expense. (8) The Contracting Party shall choose or approve labora- tory to analyze industrial wastes. (9) The Contracting Party shall require SIU's to pay applicable fees for: (i) sampling and testing to determine compliance (ii) disconnection/reconnection of service resulting from noncompliance (iii) abnormal strength wastes (iv} additional costs incurred by Contracting Party or POTW in transporting or treating wastes (v) filing, revision, or renewal of Permit Application (10) The Contracting Party shall provide public notif.ca- f violation. (11) The Contracting Party shall deny/revoke permit, disallow/disconnect service, assess civil or criminal penal- ties, and seek other available legal and equitable remedies against SIt7 for: discharge to sewerage system resulting in violation of POTW's discharge permit conditions (ii) hazard to health or life of POTW personnel or users of receiving waters (iii) violation of any applicable ordinance or regulation (iv) false infoii,ation transmitted to approving authority through Permit Application, monitoring reports, etc. The Contracting Party shall furnish to the Authority all documents and records, in addition to those outlined herein, as necessary to demonstrate compliance by all industries. EXHIBIT 1 PERMIT APPLICATION CITY of Date: To: Significant Industrial Users From: Subject: Application for a Permit to Discharge Industrial Wastewaters to the Sanitary Sewer System. Ordinance number has been adopted for the purpose of regulating the quality of industrial wastewaters contributed to the sanitary sewer. The objectives of the ordinance are to prevent damage or obstruction to the sewer. to avoid interference with the regional wastewater treatment plant operated by the Trinity River Authority. and to comply with state and federal regulations regarding pretreatment of.industrial wastes. Significant industrial users must obtain a Permit to discharge Industrial wastewaters to the sewer. The Permit authorizes your discharge and sets forth criteria for discharge quality and requirements for reporting. The attached application for a Permit must be completed and returned to the mailing address shown below within 180 days. A fee of must accompany this Application. The City and the Trinity River Authority will review your application. Additional information such as evidence of treatability may be requested from either entity. The City will return a Permit to you upon approval of your application and will either approve or deny said application within 90 days of its receipt by City. Please address questions concerning the Industrial Wastewater Ordinance Permit to: EXHIBIT 1 (CDKT'D) APPLICATION FOR A PERMIT TO DISCHARGE INDUSTRIAL WASTEWATER TO THE SANITARY SEWER Note to Signing Official: Please complete and return this application within 180 days. Signing officials must have authorization to provide information on behalf of the company. Information considered confidential by your company should be clearly marked so that this information can be maintained in separate. limited access files. SECTION A. GENERAL INFORMATION I. Company name 2. Mailing address Lip Lode 3. Facility address ieiepnone Number (address where sewer service is requested) 4. is company currently in operation at facility address? YES SECTION B. PRODUCTS DR SERVICE INFORMATION NO 1. Brief description of manufacturing processes or service activity at the facility including rate of production, if applicable: 2. Principal raw materials. including chemicals. catalysts. solvents, etc., used in any phase of the manufacturing process or service activity: 3. Number of employees Hours per day of operation Days per week of operatio a. Standard Industrial Code Number (4 digits). S. List other environmental control permits held at this time. Attach a property plat prepared by an engineer or architect showing locations of water and sewer connections, manholes. traps, etc. Also indicate the locations of an acceptable monitoring station for collecting samples and measuring flows of the Industrial wastewater streams prior to discharge to the sanitary serer. EXHIBIT 2 PERMIT FORM CITY OF PERMIT TO DISCHARGE INDUSTRIAL WASTEWATERS TO THE SANITARY SEWER Kama of Industry (Permittee) Address ( Permit No. Account No. The above named Perwittee .is authorized to discharge industrial wastewaters to the sanitary sewerage system according to the provisions of this Permit. Authorization is granted for a period beginning until Authorized Representative Date City of T 2 (CONT'D) EFFLUENT LIMITATIUNS Tne quality of permittee's industrial discharges will be limited by the provisions of City Ordinance No. and the National Pretreatment Regulations which include the following numerical limitations: STANDARDS Average Concentration Pollutant or • Maximum Allowable and/or Load Pollutant Property Concentration, mg/I mg/1 or lb/day The discharge of any pollutant at a level in excess of that identified and authorized by this permit, shall constitute a violation of the terms and conditions of this permit. Such a violation may result in permit revocation and/or the imposition of civil and/or criminal penalties. B. MONITORING AND REPORTING 1. Permittee shall collect representative samples of the wastewater discharge and analyze these waters for the pollutants indicated in Section A. Where feasible, samples shall be obtained using flow proportional composite sampling techniques specified in the applicable Categorical Pretreatment Standard. Where composite sampling 1s not feasible. grab sampling is acceptable. The permittee shall collect and analyze sample(s) during a period. (numoer) (interval) Permittee shall summarize monitoring information on a copy of the attached 'Significant Industrial User Self Monitoring Report' form. Duplicates of this form shall be submitted during the months of and of each year to: City Engineer City of with copy to: Pretreatment Program Manager Trinity River Authority of Ttaas P. 0. 8o■ :40 Ar;ingt n, Ticas 750:0 EXHIBIT 2 (CONT'D) failure to submit any report or information required by this permit shall constitute a violation. 4. Any changes in the characteristics of the industrial discharges as a result of modifications to the industrial processes must be reported. Modifications to the permit may then be made to reflect any necessary changes in process conditions. including any necessary effluent limitations for any pollutants not identified and limited herein. This permit is not transferrable to companies or processes other than those to which 1t is originally issued. 5. Permittee all immediately notify the treatment plant manager at (214) 22S-sh3462 in the event of a slug loading of pollutants as a result of an operational failure of pretreatment facilities or accidental spills. Pemittee must maintain records of all information resulting from any monitoring activities for a minimum period of 3 years. Such records will include for all samples: (I) The date, exact place. method, and time of sampling and the names of the person or persons taking the samples; (ii) The dates the analyses were performed; (Iii) Who performed the analyses; The analytical techniques/methods used; and (v) The results of such analyses. Records shall be made available for inspection and copying by the city, or its representatives. Compliance Schedule: Activity Date !!. Permittee is advised that he may need to comply with additional regulations listed as follows: EXHI3IT 1 (CDNT'D) SECTION C. WASTEWATER DTSCNARGE INFORMATION 1. Indicate the types and quantity of industrial wastewater by completing the table below: Check Industrial Flow Flow Flow Appropriate Flow Metered Estimated Proposed Box For Average Daily/ (check (check For New Type Of Maxlmum Daily 1f yes) if yes) Industry Wastewater (check if yes) ntinuou% Discharge Batch Discharge (b) Boller Slowdown (c} Cooling Water Release (d) Plant and Equipment Washdown ther (specify) For each wastewater stream attach a schematic of water flow that depicts the water source. industrial units where water is used and pretreatment units. Wastewater Quality. The applicant must present information on the quality of industrial wastewaters. Samples collected from wastewater streams should be representative of daily operations. Analytical procedures should follow those in Standard methods for the Examination of Water and Wastewater. APHA-AWWA-WrL,, tarn Coition`, ayi�. EXHIBIT 1 (CONT'D) (a) Conventional ►ollutants . In the spaces below, indicate the average and maximum value of each constituent to the discharge. Wastewater Constituent Biochemical Oxygen Demand (S day) Total Suspended Solids pH Temperature Maximum Value Average Valve pH units of EXHIBIT 1 (COtUT'D) (a) Priority Pollvt.•t lalerssatlea: r1u{I laaetlla by I1a[I•t as 't' la the yrrllrllts Ma by rata listed tboosetal oMtl.ar It It 'Saltprete4 to ►e #alrat% 'too.* to N *scot", 'Pet/Ktrt LI he Irelewl'. or 't.a.a to a! rrcleat' I. tees ae.vfacterl.t Sr trrsica actlslt7 •r fnrralrl al a by-prodirct. I lla Marcia. eir•a.a aaa.Itso (rla../s) spats, (s.1a1I ...slow., finial( "'Wall (total arerll la. (1.1a1 Lamar (tallI Or., (cool ) miner ( lot lI( l.., (twee ) r Ms., (total) 411111.61.1. (tniall War,. (total) t4I11r (caull ILK final wrlow•r lwl .1r.1 els ace rlwltells slrl. 'Maraca.' Iwl.r MIIr1.a a.•la a 1 a•l bK..l as-aa .) nr..a aims. (a( I1..r..lbras a. I. 11.1.11 n•rte.. I.. a. 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Ica. 1,1r1011rrthre 1.1 pi1lalrs/tber 1r l. a.1. t.11 I11 are.1 a.// t.4.01t.I.rs.•...I 1.l./It•s.rNrNSM (tit I (roost 1,1410►1rwtMr 'Solaria 1Nt►rl L1•nl.p l,t/wlr►It+.,l 'Ss-tafl patriots llrrtt►1 low'Isle 4.1541.11r•.t ilylra..•m1 t,1+1.11rar•.•.1 1./r1.11ewal.s•e tour, /.I {rani.# rr 41.41p •s•r l ayalra l l r. basil f.. I .wa.11.a II 0•.1.s.lfa. rllau . marls lrrl■ 51514.r . Pr ltr.l.r fl.ro•t•... floors.* 4•lai a Ir be.tac•Ir aomlaa ireacalrseo•c/•• besKal roaot.rt sir I.racaler.t rcl•.ras N1..1 Iw.cll.r.rl•... 1.1... (1.1.I.0) •/••"• Isor•rM • otyler t•1r1N swoon* leY alsr.aw...r r .'Lr.ear..l l+law..•.+l I+ 11rellana . tar lop lest w l tr.IMl +-•r..r I..I.s w llr.L•lIpm.rlr.1.1 ✓ ea.1/lI K1.1/11 ✓ U-I111 ►CI•lllt KI• I1/1 Ka.I11/ M-IIII pests/la ontr•r.rl rYY.L le.Y flora acres r11.t I• 1. 1.1.1.1.t..tllor..1•.Y twins alr.R t•r.* col amp 1. *a a Won. 1.1, a A,/ col roar a.... I,1.1•Irltal'PrI•... I.1.1-II II.IrrI.. I r4, lr •I I .er.Y i •.+• EXHIBIT 1 (CDNT'D) For chemical compounds which are indicated to be 'Known Present' please list and provide the following data for each (attach additional sheets if needed). Item Mo. Chemical Compound Annual Usage (1bs) Estimated Average Ke:tow Loss To Concentration Concentration Sewer In Discharge In Discharge (lbs/year) (mg/1) (mg/1) EXHIBIT 1 (CCNT'D) Is your discharge subject to national Pretreatment Standards established under 40 CFR, Chapter 1. Subchapter N. TES NO The above question must be answered with certainty. information regarding National Pretreatment Standards. contact Region VI of the Environmental Protection Agency or the Trinity River Authority, Northern Region Office at For additional plicant should 214) 767-2630 I1 ) 467-4223. 4. For existing significant industrial users. if the answer to the above question is yes. please indicate the applicable pretreatment standards in the space provided below and attach a statement reviewed by applicant's authorized representative and certified by a qualified, professional. indicating whether applicable pretreatment standards are being met on a consistent basis. If applicable pretreatment standards are not being met on a consistent basis. certified statement should indicate the following; a. Whether additional operation and maintenance (ORM) and/or additional pretreatment is required for applicant to meet pretreatment standards; and b. The shortest schedule by which applicant will provide additional OLM or pretreatment. The completion date in this schedule must not be later than compliance date established for applicable pretreatment standard. ble Standards Constituent Limits) EXHIBIT 1 (CONT'D) S. For new significant industrial users describe the pretreatment processes proposed for your facility to meet the requirements listed in item 4. (Examples: neutralization, materials recovery, grease traps. sand traps, etc.) l Lhe undersigned applicant, being the authorized representative of the herein named company, do hereby request a Permit to continue to use or to establish an industrial sewer connection at the location indicated herein and do agree to comply with provisions of City Ordinance Signature of Applicant Date Name of Signee {Please Print) Name and phone number of person to contact regarding Permit information. CORPORATE ACKNOWLEDGMENT THE STATE OF TEXAS CDUNTT OF Before me, the undersigned authority. on this day personally appeared of a corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for purposes and considerations therein expressed. in the capacity therein stated and as the act and deed of said corporation. Given under my hand and seal of office on this day of 19 Notary Public in an d to County, Texas ►b Commission Expires: Section 9. OTHER CONTRACTS. (a) The Authority reserves the right, with the approval of a majority vote of the Advisory Committee, to enter into contracts to provide the Wastewater services of the System to Additional Contracting Parties under contracts similar to this Contract, subject to the requirements concerning "minimumq" as hereinafter provided. Each contract with any Additional Contracting Party shall comply with the requirements of this Contract, shall substantially restate the essential provisions of this Contract, and shall be structured to be similar hereto to the fullest extent applicable and practicable, with such additions or changes as are necessary to meet the actual circumstances, with the effect that each Additional Contracting Party will substantially adopt the provisions of this Contract, as supplemented and necessarily changed by its contract. However, the Authority shall not obligate itself to receive Wastewater into the System from any future Additional Contracting Party if, in the judgment and discretion of the Authority, such obligation would jeopardize the Authority's ability to meet its obligation to receive, transport, treat, and dispose of Wastewater discharged into the System by prior Contracting Parties, including specifically the Initial Contracting Parties. (b) It is further recognized and agreed that in the future the Authority may provide services of the System to parties which are not Additional Contracting Parties, provided that all such services of the System to parties which are not Additional Contracting Parties shall in all respects be sub- ordinate to the prior rights of the Contracting Parties, and all contracts or other arrangements relating to such services shall recognize, and be made subordinate to, such prior rights. (c) Each Contracting Party shall have the right, with the approval of a majority vote of the Advisory Committee and the approval of the Authority, to negotiate and enter into sub -con- tracts with any other city or other entity under which such other city or entity may discharge Wastewater generated within the drainage area of Denton Creek, but outside the boundaries of such Contracting Party, into such Contracting Party's sewers, to be transported into the System at such Contracting Party's Point or Points of Entry along with such Contracting Party's Wastewater generated within the drainage area of Denton Creek. In such case such additional Wastewater shall be regarded as being the Wastewater of such Contracting Party for all purposes of this Contract. The consideration as between or among such cities or other entities may be determined by such parties, but no such transaction shall relieve the Contracting Party of its obligations to the Authority under the terms of this Contract. Section 10. ADVISORY COMMITTEE. (a) The governing body of each of the Contracting Patties annually shall appoint one of the members of its governing body or one of its employees as a voting member of the Advisory Committee for the System, which Advisory Committee is hereby created and established. The Advisory Committee, at its first meeting, shall elect a Chairman a Vice Chairman, and a Secretary. The Advisory Committee may establish bylaws governing the election of officers, meeting dates, and other matters pertinent to the functioning of the Advisory Committee. The Advisory Committee shall consult with and advise the Authority, through its . General Manager or his designated representative, with regard to the following matters pertaining to the System: (i) The issuance of Bonds; (ii) The operation and maintenance of the System; (iii) Additional Contracting Parties and the terms and conditions of the contracts with such parties, consistent with the provisions of this Contract; (iv) Contracts for services to entities which are not Additional Contracting Parties, and the prices, terms, and conditions of such contracts consistent with the provisions of this Contract; (v) The Authority's Annual Budget, prior to its submission by the Authority's General Manager to the Authority's Board; (vi) Review of the Authority's Annual Audit; (vii) All other pertinent matters relating to the management of the System; and 23 IrrLr (viii) Improvements and extensions of the System. The Advisory Committee shall have access to and may inspect at any reasonable times all physical elements of the System and all records and accounts of the Authority pertaining to the System. A copy of the minutes of the meetings of the Advisory Committee and all other pertinent data, shall be provided to the members of the Advisory Committee. (b) The term of membership on the Advisory Committee shall be at the pleasure of each governing body represented, respectively, and each member shall serve until replaced by such governing body. All expenses of the Advisory Committee in discharging its duties under this Section shall be considered as an Operation and Maintenance Expense of the System. Section 11. FISCAL PROVISIONS. (a) Subject to the terms and provisions of this Contract, the Authority will provide and pay for the cost of the acquisition and construction of the System and all System facilities, by issuing its Bonds in amounts which will be sufficient to accomplish such purposes, and the Authority will own and operate the System. It is acknowledged and agreed that payments to be made under this Contract and similar contracts with Additional Contracting Parties, if any, will be the primary source available to the Authority to provide the Annual Requirement, and that, in compliance with the Authority's statutory duty to fix and from time to time revise the rates of compensation or charges for services of the System rendered and made available by the Authority, the Annual Requirement will change from time to time, and that each such Annual Requirement shall be allocated among the Contracting Parties as hereinafter provided, and that the Annual Requirement for each Annual Payment Period shall be provided for in each Annual Budget and shall at all times be not less than an amount sufficient to pay or provide for the payment of: (A) An "Operation and Maintenance Component" equal to the amount paid or payable for all Operation and Mainte- nance Expenses of the System and the Wastewater Interceptor System. It is understood and agreed that although the Wastewater Interceptor System will not be a part of the System as defined in this Contract, it will consist of facilities which are ancillary to and integrated into the operation of the System, and therefore will be operated and maintained in effect as a part of the System under the provisions of this Contract, consistent with the terms of the Interceptor Contract; and (B) A "Bond Service Component" equal to: (1) the principal of and interest on, its demption pre due, less interest to be paid out of proceeds or from other sources if pe redemption premium, if any, Bonds, as such principal, f any, and interest become Bond ed by any Bond Resolution, and all amounts required to redeem any Bonds prior to maturity when and as provided in any Bond Resolution, plus the fees, expenses, and charges of each Paying Agent/Registrar for paying the principal of and interest on the Bonds, and for authenticating, registering, and transferring Bonds on the registration books; and (2) the proportionate amount of any special, contingency, or reserve funds required to be accumulated and maintained by the provisions of any Bond Resolution; and (3) any amount in addition thereto sufficient to restore any deficiency in any of such funds required to be accumulated and maintained by the provisions of any Bond Resolution. Section 12. ANNUAL BUDGET. Each Annual Budget for the System shall always provide for amounts sufficient to pay the Annual Requirement. The Annual Budget for the System for all or any part of the Annual Payment Period during which the System is first placed into operation shall be prepared by the Authority based on estimates made by the Authority after consultation with the Advisory Committee. On or before August 1 of each year after the System is first placed in operation, the Authority shall furnish to each Contracting Party a 3 preliminary estimate of the Annual Payment required from each Contracting Party for the next following Annual Payment Period. Not less than forty days before the commencement of the Annual Payment Period after the System is first placed into operation, and not less than forty days before the commencement of each Annual Payment Period thereafter, the Authority shall cause to be prepared as herein provided its preliminary budget for the System for the next ensuing Annual Payment Period, which budget shall specifically include the Operation and Maintenance Component and the Bond Service Component. A copy of such preliminary budget shall be filed with each Contracting Party. The preliminary budget shall be subject to examination, at reasonable times during business hours, at the office of the City Secretary of each Contracting Party. If no protest or request for a hearing on such preliminary budget is presented to the Authority within ten days after such filing of the preliminary budget by one or more Contracting Parties or. by the owners of a minimum of 25% in principal amount of the Bonds then outstanding, the preliminary budget for the System shall be considered for all purposes as the "Annual Budget" for the next ensuing Annual Payment Period. But if protest or request for a hearing is duly filed, it shall be the duty of the Authority to fix the date and time for ry budy et, and to g cin the prelim less than t da v s got ice t.ereo to the Contracting Parties. An appropriate of the Authority shall consider the testimony and showings made in such hearing and shall report its findings to the Board of Directors of the Authority. The Board of Directors may adopt the preliminary budget or make such amendments thereof as to it may seem proper. The budget thus approved by the Board of Directors of the Authority shall be the Annual Budget for the next ensuing Annual Payment Period. The Annual Budget (includ- ing the first Annual Budget) may be amended by the Authority at any time to transfer from one division thereof to another funds which will not be needed by such division. The amount for any division, or the amount for any purpose, in the Annual Budget may be increased through formal action by the Board of Direc- tors of the Authority even though such action might cause the total amount of the Annual Budget to be exceeded; provided that such action shall be taken only in the event of an emergency or special circumstances which shall be clearly stated in a resolution at the time such action is taken by the Board of Directors. Certified copies of the amended Annual Budget and resolution shall be filed immediately by the Authority with each Contracting Party. Section 13. PAYMENTS BY CONTRACTING PARTIES. (a) For the Wastewater services to be provided to the Contracting Parties . nder this Contract, each of the C. ting Pai_ties agrees to pay, at the time and in the manner hereinafter provided, .its proportionate share of the Annual Requirement, which shall be determined as herein described and shall consti- tute a Contracting Party's Annual Payment. Each of the Con- tracting Parties shall pay its part of the Annual Requirement for each Annual Payment Period directly to the Authority, in monthly installments, on or before the 10th day of each month, in accordance with the schedule of payments furnished by the Authority, as hereinafter provided. (b) For each Annual Payment Period each Contracting Party's proportionate share of the Annual Requirement shall be a percentage obtained by dividing the number of gallons of contributing flow of Wastewater estimated to be discharged into the System by such Contracting Party during such Annual Payment Period, as determined by the Authority after consultation with such Contracting Party, by the aggregate total number of gallons of contributing flow of Wastewater estimated to be discharged into the System by all Contracting Parties during such period, as determined by the Authority after consultation with all of the Contracting Parties. It is provided, however, that in estimating costs for services the Authority is specifi- cally authorized, in its discretion, to estimate such costs based on an arbitrary assumption that the Annual Payment Period for which the calculation is being made will be an extremely dry year, rather than a normal or average year, and that ccordi:g the f�tr�b:t ng Wastewater disc;h the System will be less than expected normally or on an average, all with the result that the monthly payments made by the Contracting Parties may be higher than would have been required on the basis of a normal or average year, and with the further result that the total amount required to meet the then current Annual Budget for the System may be collected by the Authority before the end of the then current Annual Payment Period. This result is expressly approved by the Contracting Parties and is deemed by the parties hereto to be beneficial in the fiscal management of the System, and will assure the timely availability of funds even under unexpected circumstances. However, upon receipt during any Annual Payment Period of an amount sufficient to meet the then current Annual Budget of the System for the remainder of the then current Annual Payment Period, the Authority immediately shall notify the Contracting Parties, and they shall not be obligated to make further payments under this Section for the remainder of that Annual Payment Period, unless otherwise specifically hereinafter provided in the event of unexpected or additional Annual Budget requirements. It is further provided that the Authority may revise its estimates of contributing flow either monthly or for any other period within an Annual Payment Period, as determined by the Authority, and such revised estimates may be made on the basis of actual metered contributing flow Jurinq the prec-eding month or other period, t.o the end that the Authority may use its best efforts to avoid to the extent practicable unnecessary final adjustments among the Contracting Parties for each Annual Payment Period. All such payments for each Annual Payment Period shall be made in accordance with a written schedule of payments for the appropriate Annual Payment Period which will be supplied to each of the Contracting Parties by the Authority. Such schedule of payments may be revised by the Authority periodically based on any changes in its estimates of contributing flow as provided above, and each revised schedule of payments shall be supplied to each Contracting Party before the beginning of the period to which it is applicable. At the close of each Annual Payment Period the Authority shall determine the actual metered number of gallons of contributing flow of Wastewater discharged into the System by each Contracting Party during said period and determine each Contracting Party's actual percentage of the Annual Requirement by dividing such Contracting Party's actual metered contributing flow by the actual metered contributing flow of all Contracting Parties. Each Contracting Party's Adjusted Annual Payment shall be calculated by multiplying each such Contracting Party's redetermined percentage times the actual Annual Requirement. The difference between the amounts which actually have been paid by each Contracting Party and the amounts actually due from such Contracting Party hereunder shall be applied as a credit or a debit to such Contracting Party's account with the Authority and shall be credited or debited to such Contracting Party's next monthly payment, or as otherwise agreed between the Authority and the affected Con- tracting Party, provided that all such credits and debits shall be made in a timely manner not later than the end of the next following Annual Payment Period. (c) Notwithstanding the provisions of (b), above, and as an exception thereto, it is agreed that if, during any Annual Payment Period, the estimated and/or actual metered contribut- ing flow of Wastewater into the System of any Contracting Party is, for any reason whatsoever, less than the minimum amount hereinafter prescribed and provided for it, such Contracting Party shall pay its share of each Annual Requirement as if its estimated and/or actual metered contributing flow of Wastewater into the System were such minimum amount. However, if such Contracting Party's estimated and/or actual metered contribut- ing flow of Wastewater into the System is equal to or in excess of such minimum amount, its share of all of each Annual Re- quirement shall be calculated on the basis of estimated and actual contributing flow as provided in (b), above. All contracts with Additional Contracting Parties shall provide for equitable minimums similar to those provided for below. Such minimums shall be fixed in amounts at least sufficient, as determined by the Authority, to assure tial annual payment by ,such Additional Contracting Party for not less than the amount of its estimated contributing flow of Wastewater into the System during the first year of service under such contract. For the purpose of calculating the minimum per- centage of each Annual Requirement for which each Initial Contracting Party is unconditionally liable, without offset or counterclaim (also see Section 16 hereof), the contributing flow of Wastewater into the System of each Initial Contracting Party, during each Annual Payment Period, shall be deemed to be not less than the minimum amount (regardless of whether or not such amount was actually discharged into the System) specified for such Initial Contracting Party as follows: City of Fort Worth: City of Haslet: City of Roanoke: 43,158,695 gallons 22,082,500 gallons 40,150,000 gallons. (d) Notwithstanding the foregoing, the Annual Require- ment, and each Contracting Party's share thereof, shall be redetermined, after consultation with each of the Contracting Parties, at any time during any Annual Payment Period, to the extent deemed necessary or advisable by the Authority, if: ( The Authority commences furnishing services of the System to an Additional Contracting Party or Parties; Unusual, extraordinary, or unexpected expenditures for Operation and Maintenance Expenses are required which are not provided for in the Authority's Annual °Idget for t?:e ;y any Bond Resolution; Operation and Maintenance Expenses are substantia (v) (e) less than estimated; The Authority issues Bonds which require an increase in the Bond Service Component of the Annual Payment; or The Authority receives either significantly more or significantly less revenues or other amounts than those anticipated. During each Annual Payment Period all revenues received by the Authority from providing services of the System to parties which are not Contracting Parties, and all sur- charges collected from any Contracting Party under Section 4, above, shall (i) first be credited to the Operation and Mainte- nance Component of the Annual Requirement, and (ii) then any remainder credited to the Bond Service Component of the Annual Requirement, with the result that such credits under (i) and (ii), respectively, shall reduce, to the extent of such credits, the amounts of such Components, respectively, which otherwise would be payable by the Contracting Parties pursuant to the method prescribed in (b) and (c), above. The Authority may estimate all such credits which it expects to make during each Annual Payment Period in calculating each Annual Payment. (f) Each Contracting Party hereby agrees that it will make payments to the Authority required by _hi Section on fore the 10th day of each month of each Annual Period. If any Contracting Party at any time disputes the amount to be paid by it to the Authority, such complaining party shall nevertheless promptly make such payment or pay- ments, but if it is subsequently determined by agreement or court decision that such disputed payments made by such com- plaining party should have been less, or more, the Authority shall promptly revise and reallocate the charges among all Contracting Parties in such manner that such complaining party will recover its overpayment or the Authority will recover the amount due it. All amounts due and owing to the Authority by each Contracting Party or due and owing to any Contracting Party by the Authority shall, if not paid when due, bear interest at the rate of ten (10) percent per annum from the date when due until paid. The Authority shall, to the extent permitted by law, discontinue the services of the System to any Contracting Party which remains delinquent in any payments due hereunder for a period of sixty days, and shall not resume such services while such Contracting Party is so delinquent. It is further provided and agreed that if any Contracting Party should remain delinquent in any payments due hereunder for a period of one hundred twenty days, and if such delinquency continues during any period thereafter, such Contracting Party's minimum amount of gallons of Wastewater specified and described in (c), above, shall be deemed to have been zero ons during all al,u of such delinquency, purpose g and redetermining the percentage of each Annual Payment to be paid by the non -delinquent Contracting Parties, and the Authority shall redetermine such percentage on that basis in such event so that the non -delinquent Contracting Parties collectively shall be required to pay all of the Annual Requirement. However, the Authority shall pursue all legal remedies against any such delinquent Contracting Party to enforce and protect the rights of the Authority, the other Contracting Parties, and the holders of the Bonds, and such delinquent Contracting Party shall not be relieved of the liability to the Authority for the payment of all amounts which would have been due .hereunder, in the absence of the next preceding sentence. It is understood that the foregoing provisions are for the benefit of the holders of the Bonds so as to insure that all of the Annual Requirement will be paid by the non -delinquent Contracting Parties during each Annual Payment Period regardless of the delinquency of a Contracting Party. If any amount due and owing by any Contracting Party to the Authority is placed with an attorney for collection, such Contracting Party shall pay to the Authority all attorneys fees, in addition to all other payments provided for herein, including interest. (g) If, during any Annual Payment Period, any Contracting Part.y's Annual Payment is -edetermined in any manner as prc - vided or required in this Section, the Authority will prcmptly 41 furnish such Contracting Party with an updated schedule of monthly payments reflecting such redetermination. Section 14. SPECIAL PROVISIONS. (a) The Authority will continuously operate and maintain the System in an efficient manner and in accordance with good business and engineering practices, and at reasonable cost and expense. (b) The Authority agrees to carry fire, casualty, public liability, and other insurance (including self-insurance to the extent deemed advisable by the Authority) on the System for purposes and in amounts which ordinarily would be carried by a privately owned utility companyowning and operating such facilities, except that the Authority shall not be required to carry liability insurance except to insure itself against risk of loss due to claims for which it can, in the opinion of the Authority's legal counsel, be liable under the Texas Tort Claims Act or any similar law or judicial decision. Such insurance will provide, to the extent feasible and practicable, for the restoration of damaged or destroyed properties and equipment, to minimize the interruption of the services of such facilities. All premiums for such insurance shall constitute an Operation and Maintenance Expense of the System. (c) It is the intent of the parties that the System will be placed in operation in 1989, and the Authority agrees to r cet ifwith t e design and nst .mot z=: n of the System to meet such schedule, subject to the other terms and conditions in this Contract. It ssly understood and agreed, however, that any obligations on the part of the Authority to ac construct, and complete the System and to provide the services of the System to the Contracting Parties shall be conditioned (i) upon the Authority's ability to obtain all necessary permits, material, labor, and equipment, (ii) upon the ability of the Authority to finance the cost of the System through the actual sale of the Authority's Bonds, and (iii) subject to all present and future valid laws, orders, rules, and regulations of the United States of America, the State, of Texas, and any regulatory body having jurisdiction. (d) The Authority shall never have the right to demand payment by any Initial Contracting Party of any obligations assumed by it or imposed on it under and by virtue of this Contract from funds raised or to be raised by taxes, and the obligations under this Contract shall never be construed to be a debt of such kind as to require any of the Initial Contract- ing Parties to levy and collect a tax to discharge such obli- gation. (e) Each of the Initial Contracting Parties, respect- ively, represents and covenants that all payments to be made by it under this Contract shall constitute reasonable and neces- sary "operating expenses" ?f its combined waterworks and sewer system, 3s defined in Vernon's Ann. Tex. `iv. St. Article 1113, and that such payments will be made from the revenues of 43 its combined waterworks and sewer system. Each of the Con- tracting Parties, respectively, represents and has determined that the services to be provided by the System are necessary and essential to the present and future operation of its aforesaid system, and that the System constitutes the only available and adequate method for discharging, receiving, treating, and disposing of its Wastewater from the Denton Creek drainage area, and, accordingly, all payments required by this Contract to be made by each Contracting Party shall constitute reasonable and necessary operating expenses of its systems, respectively, as described above, with the effect that the obligation to make such payments from revenues of such systems, respectively, shall have priority over any obligation to make any payments from such revenues of principal, interest, or otherwise, with respect to all bonds or other obligations heretofore or hereafter issued by such Contracting Party. (f) Each of the Contracting Parties agrees throughout the term of this Contract to continuously operate and maintain its combined waterworks and sewer system, and to fix and collect such rates and charges for water and sewer services and/or sewer services to be supplied by its system as aforesaid as will produce revenues in an amount equal to at least (i) all of the expenses of operation and maintenance expenses of such s stem n luding specif iva . j its pa,,me ;ts under. this Con - and (ii) all other amounts as required by law and the provisions of the ordinances or resolutions authorizing its revenue bonds or other obligations now or hereafter outstand- ing, including the amounts required to pay all principal of and interest on such bonds and other obligations. (g) The Authority covenants and agrees that neither the proceeds from the sale of the Bonds, nor the moneys paid to it pursuant to this Contract, nor any earnings from the investment of any of the foregoing, will be used for any purposes except those directly relating to the System, the Wastewater Interceptor System, and the Bonds as provided in this Contract; provided that the Authority may rebate any excess arbitrage earnings from such investment earnings to the United States of America in order to prevent any Bonds from becoming "arbitrage bonds" within the meaning of the IRS Code of 1986 or any amendments thereto in effect on the date of issue of such Bonds. Each of the Contracting Parties covenants and agrees that it wil not use or permit the use of the System in any manner that would cause the interest on any of the Bonds to be or become subject to federal income taxation under the IRS Code of 1986 or any amendments thereto in effect on the date of issue of such Bonds. Section 15. FORCE MAJEURE. If by reason of force majeure any party hereto shall be rendered unable wholly or in part to carry out its obligations under this Contract, other than the obligation of each Contracting Party to make the payments required under Section 13 of this Contract, then if such party shall give notice and full particulars of such force majeure in writing to the other parties within a reasonable time after occurrence of the event or cause relied on, the obligation of the party giving such notice, so far as it is affected by such force majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term "Force Majeure" as employed herein shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the Government of the United States or the State of Texas, or any Civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquake, fires, hurri- canes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or entire failure of water supply, or on account of any other causes not reasonably within the control of the party claiming such inability. Section 16. UNCONDITIONAL OBLIGATION TO MAKE PAYMENTS. Recognizing the fact that the Contracting Parties urgently require the facilities and services of the System, and that such facia, and se -vi es .ire assentA n € s mart' for actual use and for standby purposes, and recognizing the fact that the Authority will use payments received from the Con- tracting Parties to pay and secure its Bonds, it is hereby agreed that each of the Contracting Parties shall be uncon- ditionally obligated to pay, without offset or counterclaim, its proportionate share of the Annual Requirement, as provided and determined by this Contract (including the obligations for paying for "minimums" as described in Section 13 hereof), regardless of whether or not the Authority actually acquires, constructs, or completes the System or is actually operating or providing services of the System to any Contracting Party hereunder, or whether or not any Contracting Party actually uses the services of the System whether due to Force Majeure or any other reason whatsoever, regardless of any other provisions of this or any other contract or agreement between any of the parties hereto. This covenant by the Contracting Parties shall be for the benefit of and enforceable by the holders of the Bonds and/or the Authority. Section 17. TERM OF CONTRACT; MODIFICATION; NOTICES; STATE OR FEDERAL LAWS, RULES, ORDERS, OR REGULATIONS. (a) This Contract shall be effective on and from the Contract Date, subject to its execution by all of the Initial Contracting Parties and the Authority, and this Contract shall continue in force and effect until the principal of and interest on all 3ond5 shall have been paid, and thereafter shallntinue in force and effect during the entire useful life of the System. 47 This Contract constitutes the sole agreement between the parties hereto with respect to the System. (b) Modification. No change, amendment, or modification of this Contract shall be made or be effective which will affect adversely the prompt payment when due of all moneys required to be paid by each Contracting Party under the terms of this Contract and no such change, amendment, or modification shall be made or be effective which would cause a violation of any provisions of any Bond Resolution. (c) Addresses and Notice. Unless otherwise provided herein, any notice, communication, request, reply, or advice (herein severally and collectively, for convenience, called "Notice") herein provided or permitted to be given, made, or accepted by any party to any other party must be in writing and may be given or be served by depositing the same in the United States mail postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such patty, or by prepaid telegram when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner herein - above described shall be conclusively deemed to be effective, unless otherwise stated herein, from and after the expiration of three days after it is so deposited. Notice given in any other Danner ihall be effec the ly i_f and when received by be notified. For the purposes of notice, the addresses of the parties shall, until changed as hereinafter provided, be as follows: If to the Authority, to: Trinity River Authority of Texas 5300 S. Collins P. 0. Box 240 Arlington, Texas 76010 If to the Initial Contracting Parties, as follows: City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 City of Haslet P. O. Box 8 Haslet, Texas 76052 City of Roanoke P. O. Box 386 Roanoke, Texas 76262 The parties hereto shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify as its address any other address by at least fifteen (15) days' written notice to the other parties hereto. (d) State or Federal Laws, Rules. Orders, or Reaulations. This Contract is subject to all applicable Federal and State laws and any applicable permits, ordinances, rules, orders, and regulations of any local, state, or federal governmental authority having or asserting jurisdiction, but nothing con- tained herein shall be construed as a waiver of any right to question or contest any such law, orlinance, order, rule, regulation in any forum having jurisdiction. 4 .) Section 18. SEVERABILITY. The parties hereto specifical- ly agree that in case any one or more of the sections, subsec- tions, provisions, clauses, or words of this Contract or the application of such sections, subsections, provisions, clauses, or words to any situation or circumstance should be, or should be held to be, for any reason, invalid or unconstitutional, under the laws or constitutions of the State of Texas or the United States of America, or in contravention of any such laws or constitutions, such invalidity, unconstitutionality, or contravention shall not affect any other sections, subsections, provisions, clauses, or words of this Contract or the applica- tion of such sections, subsections, provisions, clauses, or words to any other situation or circumstance, and it is in- tended that this Contract shall be severable and shall be construed and applied as if any such invalid or unconstitu- tional section, subsection, provision, clause, or word had not been included herein, and the rights and obligations of the parties hereto shall be construed and remain in force accord- ingly. Section 19. REMEDIES UPON DEFAULT. It is not intended hereby to specify (and this Contract shall not be considered as specifying) an exclusive remedy for any default, but all such other remedies (other than termination) existing at law or in equity may be availed of by any party hereto and _hall be -:11.millative. Recognizing however, that the Authority's undertaking to provide and maintain the services of the System is an obligation, failure in the performance of which cannot be adequately compensated in money damages alone, the Authority agrees, in the event of any default on its part, that each Contracting Party shall have available to it the equitable remedy of mandamus and specific performance in addition to any other legal or equitable remedies (other than termination) which may also be available. Recognizing that failure in the performance of any Contracting Party's obligations hereunder could not be adequately compensated in money damages alone, each Contracting Party agrees in the event of any default on its part that the Authority shall have available to it the equitable remedy of mandamus and specific performance in addition to any other legal or equitable remedies (other than termination) which may also be available to the Authority. Notwithstanding anything to the contrary contained in this Contract, any right or remedy or any default hereunder, except the right of the Authority to receive the Annual Payment which shall never be determined to be waived, shall be deemed to be conclusively waived unless asserted by a proper proceeding at law or in equity within two (2) years plus one (1) day after the occurrence of such default. No waiver or waivers of any breach or default (or any breaches or defaults) by any party hereto or of performance by any other party of any duty or obligation hereunder shall be deemed a waiver thereof in the future, nor shall any ver or waivers be deemed or construed to be a waiver of subsequent breaches or defaults of any kind, character, or description, under any circumstances. Section 20. VENUE. All amounts due under this Contract, including, but not limited to, payments due under this Contract or damages for the breach of this Contract, shall be paid and be due in Tarrant County, Texas, which is the County in which the principal administrative offices of the Authority are located. It is specifically agreed among the parties to this Contract that Tarrant County, Texas, is the place of perfor- mance of this Contract; and in the event that any legal pro- ceeding is brought to enforce this Contract or any provision hereof, the same shall be brought in Tarrant County, Texas. IN WITNESS WHEREOF, the parties hereto acting under authority of their respective governing bodies have caused this Contract to be duly executed in several counterparts, each of which shall constitute an original, all as of the day and year first above written, which is the date of this Contract. TRINITY R AUT O' TY OF TEXAS BY A Se- Qtary, Board of. .r=Lct s (AUTHORITY SEAL:) Gene Manager City Secretary (CITY SEAL) Contract Authorization Date ATTEST: 400,14.4 1Ze-t-a- City Secretary (CITY SEAL) ATTEST: (CITY SEAL) CITY OF FORT WOR TEXAS APPROVED AS TO FORM AND LEGALITY iCity Attorney, City of Fort Worth, -V— Texas CITY OF HAS LET, TEXAS BY_O bt4- ets:2-L4,./cc.",_ 7-- Mayor CITY OF ROANOKE, TEXAS BY Mayor Exhibit D Points of Entry Exhibit D gcfsnttx�:terir3^cxtirsr<irtiG:r�r.+ifx, {ri„�r��� ,u ,� ,.� , , EXHIBIT E WHOLESALE RATE METHODOLOGY Wholesale wastewater rates will be based upon cost -of -service rate studies performed by independent utility rate consultants. The independent utility rate consultant shall be selected by Director from a list of five qualified firms submitted to the Director by the Fort Worth -Wastewater Advisory Committee." The cost of such studies will be a System Cost. All cost of service studies shall be conducted utilizing the utility cost basis of determining revenue requirements applicable to the wholesale customer class. 2. Every three (3) years, a detailed wholesale revenue requirement shall 1) developed on an actual historical cost test year basis allowing for reasonable and necessary expenses of providing such wastewater service and allowing for known and measurable adjustments. Such adjustments should allow for year end trending and the spreading of non recurring expenses over an appropriate benefit period. The test year for the initial rate set forth in Section 4.02 is October 1, 2003, through September 30, 2004, and the next detailed cost of service study shall be performed by an independent utility rate consultant during the first two (2) calendar quarters of 2007, based on audited data for the immediate past fiscal year ended September 30, 2006. On a three (3) year cycle thereafter, a complete detailed rate study will be performed with the same methodology used in the previous rate study by an independent utility rate consultant, subject to modifications recommended by a majority of the Wastewater Advisory Committee and approved by the Fort Worth City Council. In the interim period between complete detailed rate studies, wholesale wastewater rates shall be adjusted by Fort Worth using the same methodology adopted at the time of the last complete detailed rate study, utilizing the actual operating data for the twelve month period ending September 30th of the prior year, adjusted for known and measurable changes in cost data which may have occurred since the last audited statement. . The cost of service for the wholesale class shall include allocated reasonable and necessary operation and maintenance expense, depreciation expense and a fair and reasonable return on allocated capital facilities. To determine the allocation and distribution of costs to the wholesale customer class, the independent utility rate consultant shall consider at least the following factors: total volume, rate of flow, wastewater quality, metering, and customer related costs such as accounting, billing, and monitoring. Capital related costs will consist of depreciation expense and return on original cost rate base. On a periodic basis as determined by the Director the depreciation rates on all General Benefit Capital Facilities shall be studied, and new salvage values, useful lives, and annual rates of depreciation shall be developed from such studies The 3:vease haU xst ail a cd aita IK.11;ties, nct nude =..,orltr:,..tion work in i reasabie. L,!- N,ki)ri. ng t.,ii)Je.a]. and a rea',,on:Ah!e im.:!ntory r)t materials and supplies the ettielent t•peration of the Fort Worth tistem On a periodic basis as determined by the Director, a cash "lead lagstudy shall be conducted to determine the appropriate level of working capital at the same time as the above depreciation rate study is done. Records ol the o7iitinal ct and the Acc!:_mulated depreciation f tI 1 capital Etc he —c! available for inspection at the Fort Worth Water, Department during reasonable business hours upon request by Aqua Utilities. 4. The City shall be allowed an adequate opportunity to earn a reasonable rate of return, sufficient to assure confidence in the financial soundness of the utility, adequate to maintain and support its credit, enable it to raise the money necessary for the proper discharge of its public duties. The rate of return is equal to the weighted average imbedded cost of outstanding debt plus one arid one half percent (1-1 /2%). 5. The rates set forth in Article 4.02 shall be automatically adjusted to equal those adopted by the City Council based on the foregoing rate studies, and shall become effective on the effective date established by the City for those rates. 2 Exhibit G Buy -Out Contract 14, in r 1 BUY-OUT OPTION CONTRACT This Buy -Out Option Contract ("Contract") 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 and Drooy Properties, LLLP, Arizona limited liability limited partnerships (individually and collectively, "Owner"); and the City of Fort Worth Municipal Utility District No. 1 of Denton County, a municipal utility district created pursuant to Article XVI, Section 59, of the Texas Constitution, Chapters 49 and 54 of the Texas Water Code and the applicable Special District Local Law (the "District"), which District, after the District Confirmation Date, will become a Party to this Contract. RECITALS A. The Parties to this Contract are also parties to that "Superseding Agreement regarding Water and Wastewater Utility Service", City Secretary Contract No. 32899 (the "Utility Agreement"). B. The Utility Agreement governs the provision of water and wastewater utility service to approximately 431.303 acres in Denton County, Texas, as shown on Exhibit A and more particularly described in Exhibit B, attached to this Contract (the "Development"). C. Article VII of the Superseding Utility Agreement provides that the Parties will enter into this Contract to "effectuate the future transfer of retail water or wastewater service from Aqua Utilities to the City," at the City's option and under the conditions set forth in that agreement. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and conditions hereinafter set forth, the Parties contract and agree as follows: 6.12. ARTICLE I SELLER AND PURCHASER 1.01 "Effective Date" means the effective date of this Contract as defined in Section 7-t-starts t-rtearts, ii_s..t.tvit,t,ttally„ the (Tltx, i)ts-;-rict rtr ire,) .04 "Seller" means Aqua Utilities, Owner or District, and each of their permitted the extent that each of those Parties or such assigns owns all or any interest in the „!eitittss,:-1 :tt t 1.05 Other Defined Terms. Unless otherwise defined below, capitalized terms in this Contract shall have the same respective meanings as are ascribed to them in the Superseding Utility Agreement. ARTICLE II PROPERTY, GRANT AND EXERCISE OF OPTION 2.01 Grant of Option. Subject to the terms and conditions set forth in this Contract, Seller GRANTS to Purchaser an Option to purchase and accept from Seller, for the Purchase Price, all of Seller's right, title and interest in and to the Property, as it may now exist, or be acquired or constructed by Seller at any time during the Option Period, and consisting of the following: a. all water distribution facilities, including meters, above ground tanks, pump stations and other equipment, fixtures, improvements or appurtenances used to provide water service to the Development, and located inside the Development (collectively, "Water Facilities"); b. all wastewater collection facilities, including meters, lift stations, and other equipment, fixtures, improvements or appurtenances used to provide wastewater service to the Development, and located inside the Development (collectively, "Wastewater Facilities"); c. all easements and rights -of -way inside the Development associated with the Water or Wastewater Facilities (the "Easements"); d. any tract of land within the Development owned by Seller and in use for the operation of the Water or Wastewater Facilities (the "Land"); e. account records and information for existing customers served by the Wastewater and Water Facilities (the "Account Information"); and surveys, plans and specifications in Seller's possession or control that relate to the Water Facilities or Wastewater Facilities (the "Documents"). 2.02 Property. The items listed in Section 2.01 above are collectively called the erty." 2.03 z'r-":45e_ 54.--ss the Parties ,i'e,ree tATiting to eariier date, Purchaser may exercise the Uption to purchase the Property at any time arter the -,:ariter of I .-,eventeen i 7) years After the. Eft.ective Date, (hi 90 days before the date )of annexation of the Development by the City, -such that Closing will occur upon or after annexation, if the City annexes the District within fifteen (15) to seventeen (17) years at -ter the Effective Date; but in any event Purchaser must exercise the Option (if at all) on or before the earlier of the date that is !!-t, ;-7tfe,Lto, D.ite OT the t-,-tirt 12_ i ,innivorory f the ki;h of the simultaneously for both the Water and the Wastewater Facilities (and the Land, Easements, Account Infoiniation and Documents related thereto). 2.04 Exercise Notice. Whenever Purchaser desires to exercise the Option as to the Property, Purchaser must provide Notice to Seller during the Option Period of its desire to exercise the Option ("Exercise Notice"). The date on which Purchaser sends the Exercise Notice is called the "Option Exercise Date." 2.05 Information to Purchaser. Within thirty (30) days following the Option Exercise Date, both Aqua Utilities and the District shall provide to Purchaser true and complete copies of all written information that either of them possesses (other than privileged communications or attorney work -product) with regarding to the Property, including by not limited to: environmental studies and reports; any permits required for the Water Facilities and Wastewater Facilities; all agreements granting or conveying the Easements; the Documents; and a complete and itemized inventory of any of the Property that is not described in or shown on the Documents. 2.06 Prohibited Encumbrance. Seller may not enter into any agreement to sell, transfer, mortgage, lease, or grant any preferential right to purchase (including but not limited to any option, right of first refusal, or right of first negotiation) with respect to, or otherwise encumber all or any portion of, the Property before Closing ("Prohibited Encumbrance"), unless such Prohibited Encumbrance is cured and removed at or before Closing. 2.07 Memorandum of Option. Seller and Purchaser shall execute and record, in the form attached as Exhibit C to this Contract, a "Memorandum of Buy -Out Option Contract" in the Real Property Records of Denton County, Texas within thirty (30) days after the District confirmation date. ARTICLE III PURCHASE PRICE AND OPTION CONSIDERATION 3.01 Purchase Price. When the Option is exercised pursuant to this Contract, the consideration ("Purchase Price") for the entirety of the Property purchased pursuant to that Option is TEN DOLLARS ($10.00). 3.02 Time of Payment. The Purchase Price is payable in cash at the Closing. 3 (1_1 (ideritn A;,:i,!--psiderati--,31 for st..!:ler*,-, r)-rperly ,niae firy,.11 •_;14 h 5elcr C`13 1 hi nt i r ['re uption nut Apply to the se ARTICLE IV SURVEY, INSPECTION AND TITLE COMMITMENT title survey ("Survey") of all or any portion of the Property made by a duly licensed surveyor reasonably acceptable to the Seller. 4.02 Inspection during Option Period. From time to time during the Option Period, Purchaser shall have the right to obtain an inspection, including an appraisal of real and personal property ("Inspection"), of all or any portion of the Property, for purposes of assessing the physical and operational condition of the Property. 4.03 Title Examination during the Option Period. During the Option Period, Purchaser shall have the right to obtaini at Purchaser's expense, an examination of any or all of the real property records related to the Land and the Easements ("Title Commitment"), including any and all instruments constituting an exception or restriction upon the title or easement rights of Seller. 4.04 Approval Period and Title. If Purchaser chooses to have a Survey, Inspection or Title Commitment of all or any portion of the Property during the Option Period, Purchaser may, after it has delivered its Exercise Notice, deliver to Seller a Notice of its written objections to anything contained therein. Seller shall, in good faith, attempt to satisfy such objections before Closing; but Seller shall not be required to incur any cost to do so, except with respect to any Prohibited Encumbrance, which must be removed or cured before Closing. For all objections except the Prohibited Encumbrances, if Seller is unable to satisfy such other objections on or before the Closing date, or if, for any reason, Seller is otherwise unable to convey title in accordance with Section 5.02(b) below, then Purchaser, as its sole and exclusive remedy hereunder may (a) waive such objections and accept the Property in its condition at the time of Closing, with such title to the Property as Seller is able to convey; (b) elect to exclude from the purchase any portion of the Property that it deems to be affected by its objections and accept such title to the remainder of the Property as Seller is able to convey or (c) withdraw the Exercise Notice in its entirety, and its corresponding exercise of the Option, but preserve its right to exercise the Option at a later date within the Option Period. The Purchaser may enforce by specific performance the Seller's obligation under Section 2.05 to remove any Prohibited Encumbrance. ARTICLE V CLOSING 5.01 Time of Closing. The closing ("Closing") of the sale of the Property by Seller to Purchaser will occur on or before ninety (90) days after the Option Exercise Date, or at such other time or place as the Parties may mutually determine ("Closing Date"). 2 Seliet litir ot the l'titperty the hitoh :he Option Nonce, indess exc.-hided hey: ihtrithaser purinthnt to Section 4.04, Seller shad delneer (ir c'ause to 5e delliveted to Purchaser at Closing till of the hollowing: (it) a Bib of ‘-..."ale and A ',,SigTiment, fully executed and acknowledged by each Seller as its interests may appear, com-eying„, transferring, and assiping to Purchaser all of Seller's right, title, and interest in and to the Water Facilities. the Waste -water Facilities, the Account Infom-iation. and the Documents; (11) a Special Warranty coi=!‘oyun.t a; car, het:oh:it th, ; at :tit, tile, 4 in and to the Easements; (d) evidence reasonably satisfactory to Purchaser that the person(s) executing the Closing documents on behalf of Seller has full right, power, and authority to do so; and (e) any other document reasonably necessary to consummate the transaction. 5.03 Requirements of Purchaser. Purchaser shall deliver or cause to be delivered to Seller at Closing all of the following: (a) immediately available funds in an amount equal to the Purchase Price; and (b) evidence reasonably satisfactory to Seller the person executing any Closing documents on behalf of Purchaser has full right, power, and authority to do so. 5.04 Termination of Leases. Upon completion of the Closing, Seller shall terminate, as of the Closing Date, any and all leases and operating agreements between Aqua Utilities and the District or the Owner covering any portion of the Property purchased. 5.05 Purchaser's Remedies. If Seller fails or refuses to sell the Property at the Closing, then the Purchaser, at its sole option, is entitled to (ii) enforce specific performance of Seller's obligations under this Contract; or (ii) withdraw its Exercise Notice and its corresponding exercise of the Option, but preserve its right to exercise the Option at a later date within the Option Period; or (iii) to exercise any other right or remedy available to Purchaser at law or in equity. ARTICLE XI MISCELLANEOUS 6.01 Form of Easement within the Development. Before entering into any Easement, Seller shall submit to Purchaser for its review and approval (which approval by Purchaser shall not be unreasonably withheld) Seller's proposed forms of Easement for water and wastewater lines and related facilities and appurtenances. Among other things, the Easement forms must provide that the underlying land owner of the servient tenement consents in advance to any future assignment of such Easement by Seller to Purchaser. After Purchaser has approved the forms of water and wastewater Easements, Purchaser's prior written consent will not be required for any new Easement that Seller enters into under the approved forms. Nevertheless, Seller must send to Purchaser copies of each fully executed and recorded Easement within thirty (30) days after such Easement is executed. 6.02 Other Forms. In case of a dispute as to the form of any document required by this Contract, unless otherwise required by the Superseding Utility Agreement, the current foil prepared by the State Bar of Texas shall be conclusively deemed reasonable. \I-cy -1:C5 ?,irty :r1,-,ZhCr ii,ntter Coritract -Ncattce'd shad he :1VE:11 isiiittipi addressed to the Part‘ to he potified at the address set forth liieh: ss- and shah he deemed giveip 'shen the Notice is delivered in person to the person to hose attention the Niiticc is aildresscd; (b) heti reeeixed if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested. postage prepaid:, (c) -4 hen the Notice is delivered by Federal Express, UPS, or another -ish ,ss -4>A: 1-AiX siipt it Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be extended to the first business day following the Saturday, Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this Section 6.03. To the City: City of Fort Worth, Texas Attn: City Secretary 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-6196 City of Fort Worth, Texas Attn: City Manager 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817)392-6134 City of Fort Worth, Texas Attn: Water Director 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-2398 To the District: Fort Worth Municipal Utility District No. 1 of Denton County c/o: Coats Rose Attn: Timothy G. Green 3 Greenway Plaza, Suite 2000 Houston, TX 77046 FAX: 713-890-3924 To Owner: p Auri R,:titie!d Sufe '100 Scs.11t.,:dale, Antona S.S250 FAX: 480-95 I -S4 I 4 ropertie-g, Li.LP , ,r Drooy Properties, LLLP Attn: Mr. Gary Lane 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 FAX: 480-951-8414 To Aqua Utilities: 1421 Wells Branch Pkwy., Ste. 105 Pflugerville, TX 78660 Attn: Vice President FAX: (512) 989-9891 762 West Lancaster Ave. Bryn Mawr, Pennsylvania 19010 Attn: Chief Legal Officer FAX: (610) 520-9127 6.04 City Consent and Approval. Except as provided by Section 6.01 of this Agreement, in any provision of this Contract that provides for the consent or approval of the City staff or City Council, such consent or approval may be withheld or conditioned by the staff or City Council at its sole discretion. 6.05 Binding Effect and Assignment. This Contract, and the Option granted herein, shall inure to the benefit of and bind the Parties hereto and their respective heirs, representatives, successors and assigns. Assignment of this Contract is peiiiiitted only under the same teinis, and to the same extent as assignment of the Superseding Utility Agreement. Further, this Contract must be assigned at the same time and to the same entity as the Superseding Utility Agreement. 6.06 Amendment. This Contract may be amended only with the written consent of all Parties and with approval of the governing body of the City and the District. 6.07 Severability. The provisions of this Contract are severable and, in the event any word, phrase, clause, sentence, paragraph, section, or other provision of this Contract, or the application thereof to any person or circumstance, shall ever he held or determined to he invalid, illegal. or unenforceable for any reason, and the extent of such invalidity or unenforeeability es no! The ir:.e!,!. tits !',:k-` i'Ari;xs ms :x1 n :is :en :171.7.11t% Cc:111.1%1:A or he ot 5:ich provision to Other perF0 1,• eril!tles r 1:;1; ,11-1‘11 u prm.ision haii hede-,17,-ied ;!.tbsl-lt-uted in lieu of the pro :;ion so ri,.,:vercd '.:hi1/4,1, new ;h1:1111, to the extent possible, accomplish the intent of the Parties as evidenced by the provision so severed. Contract, the term "including" means "including without limitation" and the term "days" means calendar days, not business days. Wherever required by the context, the singular shall include the plural, and the plural shall include the singular. Each defined term herein may be used in its singular or plural form whether or not so defined. 6.09 Survival. Any portion of this Contract not otherwise consummated at the Closing will survive the Closing of this transaction as a continuing agreement by and between the Parties. 6.10 Counterpart Originals. This Contract may be executed in multiple counterparts, each of which shall be deemed to be an original. 6.11 Incorporation of Exhibits by Reference. All exhibits attached to this Contract are incorporated into this Contract by reference for the purposes set forth herein, as follows: Exhibit A Exhibit B Exhibit C Map of Tradition showing the Development Legal description of the Development Memorandum of Buy -Out Option Contract 6.12 Effective Date. The Effective Date of this Contract is December , 2005,. SELLER AQUA UTILITIES, INC., a Texas corporation By: Robert L. Laughman, President Date: CITY OF FORT WORTH MUNICIPAL UTILITY DISTRICT NO. 1 OF DENTON COUNTY, a municipal utility district created Pursuant to Article XVI, Section 59, of the Texas Constitution, Chapters 49 and 54 of the Texas Water Code, and Chapter 8129, Special District Local Laws Code Name: President. Board of Directors A I I EST: Printed Name: City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney APERION COMMUNITIES, LLLP By: David P. Maniatis, General Partner ELADIO PROPERTIES LLLP By: David P. Maniatis, General Partner DROOY PROPERTIES, LLLP By: David P. Maniatis, General Partner PURCHASER THE CITY OF FORT WORTH, a Texas home -rule municipal corporation of Tarrant, Denton, and Wise Counties By: Name: Title: Date: STATE OF TEXAS COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of AQUA UTILITIES, INC., a corporation, on behalf of said corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of 20 . My Commission expires: STATE OF TEXAS COUNTY OF Notary Public, State of Texas Notary's Typed or Printed Name BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of CITY OF FORT WORTH MUNICIPAL UTILITY DISTRICT NO. I OF DENTON COUNTY, on behalf of said District, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said District. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of 20 Notary Public, State of Texas Detitine ; STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of APERION CO LLLP, a , on behalf of said partnership, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 20 . My Commission expires: STATE OF COUNTY OF Notary Public, State of Texas Notary's Typed or Printed Name BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of ELADIO PROPERTIES LLLP, a , on behalf of said partnership, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of • 20 . Notary Public. State o t-Texas f:,-ped r Ii111"::LNI STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of DROOY PROPERTIES, LLLP, a partnership, on behalf of said partnership, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of 20 . My Commission expires: STATE OF TEXAS COUNTY OF TARRANT Notary Public, State of Texas Notary's Typed or Printed Name BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of THE CITY OF FORT WORTH, a municipal corporation, on behalf of said City, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said City. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of .20. Con-uni,-)11 explres; Notary Public, State of Texas P ol Exhibit A Map Showing the Development !i,itytti it fityi,t=n orottitt TO.Lite Exhibit A Exhibit B Legal Description of the Development BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more particularly described as follows: Tract 1 BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" 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 00E22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2" iron pin set; THENCE S 86E14271' E, a distance of 3 feet to a capped 1/2" iron pin set; THENCE S 52E34'22" E, a distance of 867,S6 feet to a capped 1 j2" iron pin set; 1(5- F., a ,1--;:riFt,:r I, _I"rcc IHENCE N 90E00'00" F. a distance of 773.31 feet to a capped 1 /2" iron pin set; said capped ?" iron pin set also being on the east line of said Aperion Tract One -A and The west line of that THENCE S 00E07'20" E along the east line of said Aperion Tract One -A and the west line of said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE S 44E23'02" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to a 5/8" iron pin found; THENCE N 47E15'51" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found; THENCE S 44E27'42" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said brass monument also being on the said north right-of- way line of State Highway No.114; THENCE S 89E4736" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete found; THENCE S 84E30'09" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete found; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set; THENCE N 00E11'12" W along the south line of said Aperion Tract One -A and the north right of -way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set; S 00E1112" E along the south lire of said Aperion Tract One -A and the north right- F I , 1:!) -'11,-'71! The .-o,atia t ;--.terott and .;-Le :10t-11 off Star,e ff-,athwat,- I Fdt,,t.at.h...e 2148 1:‘,S f-eet to The poIntr a And is)ritariirig 1 tri.:72S.,1,4f.) square feotr O4 ha -es of land, rnore [tact conveyed to Ferbro investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT THENCE S 89E4648" W along e south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found; 1 HENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract; THENCE S 00E07'09" E along the east line of said Aperion Tract One-B and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing 2,058,725 square feet or 47.262 acres of land, more or less. Exhibit C Memorandum of Buy -Out Option Contract STATE OF TEXAS KNOW ALL BY THESE PRESENTS: COUNTY OF DENTON This Memorandum of Buy -Out Option Contract ("Memorandum") is effective as of , 20 , by and among APERION COMMUNU IES, LLLP, ELADIO PROPERTIES, LLLP AND DROOY PROPERTIES, LLLP, Arizona limited liability limited partnerships; AQUA UTILITIES, INC., a Texas corporation, and CITY OF FORT WORTH MUNICIPAL UTILITY DISTRICT NO. 1 OF DENTON COUNTY, a municipal utility district created pursuant to Article XVI, Section 59, of the Texas Constitution, Chapters 49 and 54 of the Texas Water Code, and Chapter 8129, Special District Local Laws Code (collectively, "Seller"), and THE CITY OF FORT WORTH, a home -rule corporation of Tarrant, Denton, and Wise Counties, Texas ("Purchaser"). A. Under that certain Buy -Out Option Contract dated as of December 21, 2005, 2005 ("Contract"), Seller has granted Purchaser the option ("Option") to purchase certain land, improvements, easements, account records, plans, and other associated property ("Property") related to the provision of water and wastewater utility service to, and located within, that certain real property development consisting of approximately 431.303 acres of land in Denton County, Texas, as more particularly described on EXHIBIT "A" attached hereto ("Development"). The period during which Purchaser may exercise the Option begins at any time (and from time to time) after the earlier of: (i) December 21, 2022; or (ii) 90 days before the date of annexation of the Development by the City, such that Closing will occur upon or after annexation, if the City annexes the Development during the period between December 21, 2020 and December 21, 2022, but in any event, Purchaser must exercise the Option (if at all) on or before December 21, 2035 ("Option Period"). Purchaser's exercise of the Option is governed by the terms and conditions of the Contract. B. Seller and Purchaser are executing, acknowledging, and recording this Memorandum to provide public notice of the existence of the Contract and of the Option that exists in Purchaser's favor to purchase the Property in the Development under the terms and conditions of the Contract. ; ;cr.iezd h.et ;:tend 1:331; decried TO ':;:Tk-,"1-, ::117:C1 r et!--,er-Aiesci --nfe--:t the *erTihi Uteendireihi ot the EFFECTIVE as of the date set forth above. SELLER APERION COMMUNITIES, LLLP By: David P. Maniatis, General Partner ELADIO PROPERTIES LLLP By: David P. Maniatis, General Partner DROOY PROPERTIES, LLLP By: David P. Maniatis, General Partner AQUA UTILITIES, INC., a Texas corporation By: Name: Title: CITY OF FORT WORTH MUNICIPAL UTILITY DISTRICT NO. 1 OF DENTON COUNTY PURCHASER A I I EST: THE CITY OF FORT WORTH, Printed Name: City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney By: Name: Title: STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of APERION COMMUNITIES, LLLP, a , on behalf of said partnership, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 20 . My Commission expires: STATE OF COUNTY OF Notary Public, State of Texas Notary's Typed or Printed Name BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of ELADIO PROPERTIES LLLP, a , on behalf of said partnership, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said pal tnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , "70 i ipet.1 or -'rinteel ane vI Commi.3sion es: 1 STATE OF COUNTY OF BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of DROOY PROPERTIES, LLLP, a partnership, on behalf of said partnership, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of ,20 . My Commission expires: THE STATE OF TEXAS COUNTY OF Notary Public, State of Texas Notary's Typed or Printed Name BEFORE ME, the undersigned, a Notary Public in and for the said County and State, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Option, and acknowledged to me that the same was the act of Aqua Utilities, Inc., a Texas corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 20 THE STATE OF TEXAS COUNTY OF BEFORE ME, the undersigned, a Notary Public in and for the said County and State, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Option and acknowledged to me that the same was the act of City of Fort Worth Municipal Utility District No. 1 of Denton County. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 20 STATE OF TEXAS COUNTY OF TARRANT § This Memorandum of Option , 20_, by Worth, a Texas home -rule municipal behalf of that municipal corporation. Notary Public in and for the State of Texas My Commission expires: was acknowledged before me on the day of , the Assistant City Manager of The City of Fort corporation of Tarrant, Denton, and Wise Counties, on Notary Public for the State of Texas Notary's Printed Name: My Commission Expires: Exhibit A Legal Description of the Development BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more particularly described as follows: Tract 1 BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" 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 00E22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2" iron pin set; THENCE S 86E14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set; TI11-NCE S 52E34'22" distance 0f 867 86 feet to a ,:apped 1,2" iron pin set; 11-ft*,`,331, 33-333, 343-4L,1;';'3,3-Y3 ,a -J3„:3„C33,3 1T2i '< feet CO a capncd n-nn p331 I HENCE S tn-t F5F. adIstane of 1, ;29 '42 feet to a ,:apped I iron pin so, THENCE N 90E00'00" F, a distance of 773.31 feet to a capped 112" iron pin set; said capped • -2: el pin -set d;0 1-nnitni '39 !!'33'- C`,ISt 13ir,e of ; Arction inlet nan A and !Inc -A,' ,t nint tItat 333:-,:-/-3„:33:3 3333_33 '31 1333,..33,-e 3 THENCE S 00E0720" E along the east line of said Aperion Tract One -A and the west line of said Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE S 44E23'02" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to a 5/8" iron pin found; THENCE N 47E15'51" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found; THENCE S 44E27'42" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said brass monument also being on the said north right-of- way line of State Highway No.114; THENCE S 89E47'36" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 286.33 feet to a brass monument in concrete found; THENCE S 84E30'09" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 703.04 feet to a brass monument in concrete found; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 1249.97 feet to a capped 1/2" iron pin set; THENCE N 00E1112" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No.114, a distance of 250.00 feet to a capped 1/2" iron pin set; THENCE S 041E1 El 2" F alen4 the south line of said Aperion Tract Onc-A and the north righ s;0 t-cet _ptn ii FN.( ‹, Ome sac-i \potion ± et neA .tcal the n.07-th rco,,ht of.Ava-j, Lne of Stat..e Eghs‘cay Ne 114„ i‘..4,1,zt_;1:1-CC of 23-%.(28 tect Is) th,„!P cf 13c,ainnit-',2and containing 16,,72,840 square lest or 384.041 acres ot ;and, more or less. Frac,t Ige conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT THENCE S 89E4648" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found; THENCE N 86E29'44" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE N 44E26'31" E along the west line of said Aperion Tract One-B and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract; THENCE S 00E07'09" E along the east line of said Aperion Tract One-B and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing 2,058,725 square feet or 47.262 acres of land, more or less. 3 Exhibit H List of Developments With a Prior Contractual Commitment -.4,41er iin,1 aqt*AA-alt! : C,er. Exhibit System Name 1 I Diamond Ridge — W 2 I Elizabeth Creek Estates — W & WV 3 I Justin Ranch #1 — W & WW 4 I Lexington — W 5 I Sap Meadows W (2 agreements) 6 Shako Creek W & WW 7 I Sunshine Meadows / By Wel — W 8 1 WIow Springs — W 9 I Scenic Ridge - W W — Water W & WW — Water & Wastewater PWS ID * 2490052 24 061 0610238 2490040 0610237 0610245 County Wee Denton Denton Wise Denton Denton Wse Denton Denton Exhibit H-1 Map of Developments Within the Denton -Wise County CCN Area With a Prior Contractual Commitment Pursuant to Section 7.04 grer ktga:,!•,-* '0,alcr and A.S t ater Pagc Exhibit "H II Exhibit I Map of Area West of Existing City Limits Known as Walsh Ranch in Tarrant and Parker Counties Walsh Ranch Walsh Ranch "Exhibit i• p„�a N w,"i"�!I'iIMXlralpll bi I� v�Y'„rMr September 2004 Exhibit J ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made and entered into as of the day of between , a ("Assignor"), and . a ("Assignee") (Assignor and Assignee are hereinafter sometimes collectively referred to as the "Parties" and singularly as a "Party"). RECITALS: A. Assignor is the owner of the rights of the Owner under that certain "Superseding Agreement Regarding Water and Wastewater Utility Service" (City Secretary Contract No. , M & C - ) (the -Agreement") effective as of among Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, collectively and individually as Owner, the City of Fort Worth. Texas, as the City, and the City of Fort Worth Municipal Utility District No. 1 of Denton County, as the District, relating to the creation and operation of the District, to the extent that the Agreement covers, affects. and relates to the lands described on Exhibit A attached to and made a part hereof of this Assignment for all purposes (the "Transferred Premises"). B. Assignor desires to assign certain of its rights under the Agreement as it relates to the Transferred Premises to Assignee, and Assignee desires to acquire such rights, on and subject to the teinis 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. 7. Assignment. Subject to all of the terms and conditions of this Assignment. Assignor hereby 'assins all jor describe specifically assigned rights if partial! of its rights ..inder the e eeren.1.itehe ei Premisesi. Assumption, Assignee hereby assumes all obligations of Assignor and any liahtl it 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 A,ssit,nment. and A ssi rri)!n al1 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. fifteen (15) 7. benefit of successors. Notice to City. A copy of this Assignment shall be provided to the City within days after execution. Binding Effect. This Assignment shall be binding upon and shall inure to the Assignor and Assignees and their respective heirs, personal representatives, and assigns. EXECUTED as of the day and year first above written. ASSIGNOR: By: Printed Name: Title: ASSIGNEE: lit STATE OF TEXAS COUNTY OF SWORN TO AND SUBSCRIBED before me on the 2005. by STATE OF TEXAS COUNTY OF day of Notary Public, State of Texas SWORN TO AND SUBSCRIBED before me on the day of 2005, by Notary Public. State of Texas lAdd Acknowledgments] EXHIBIT "A" The Transferred Premises Exhibit D Development Agreement DEVELOPMENT AGREEMENT THE STATE OF TEXAS § COUNTY OF DENTON § This Development Agreement (this "Agreement") is entered into by the City of Fort Worth, Texas, a home -rule municipal corporation situated in Tarrant, Denton and Wise Counties, Texas (the "City"), acting by and through its duly authorized Assistant City Manager, and Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, Arizona limited liability limited partnerships (individually and collectively, "Owner"). RECITALS A. Owner has represented to the City that Owner is the owner of approximately 431.303 acres in Denton County, Texas, as shown on Exhibit A and described in Exhibit B attached to this Agreement (the "Development"). The Development lies entirely within the City's extraterritorial jurisdiction ("ETJ"). Owner intends the Development to be the first phase of the master -planned community known as "Tradition," depicted for informational purposes only on the attached Exhibit A. B. The Texas legislature approved the creation of City of Fort Worth Municipal Utility District No. 1 of Denton County containing the Development by Act of May 25, 2005, 79th Legislature, Regular Session, Chapter 1330, Special District Local Laws Code, Chapter 8129, effective September 1, 2005 (the "District" and the "District Legislation"); provided, however, the District Legislation provides that the election to confirm creation of the District may not be held unless the City adopts a resolution after September 1, 2005, consenting to the creation of the District. C. Owner has submitted to the City a petition requesting the City's consent to the creation of the District. D. On December 13, 2005, the City Council of the City adopted Resolution No. 3299-12-2005 consenting to the creation of the District (the "Consent Resolution"). E. On December 13, 2005, the City Council of the City approved that certain "zkizreement COTICCMITIg Creation and Operation of City of Fort Worth Municipal Irtility District N. I of Denton Coi.intY" h rndarni..)ng the CiJy, the District. and punier it Lecretary Contract .;2896, \1 & C-21197) ( the "consentAgreement F. The Development is located in an area for which Aqua Utilities, Inc., formerly known as AquaSource Utility, Inc. a Texas corporation ("Aqua Utilities"), holds Certificate of Convenience and Necessity ("C(N") 1\k, 11157 issued by the Texas Commission on uuallt‘. he IJ(J(_f' c pro vde rotat water serv-ic...e G. The Development is located in an area for which the TCEQ has not issued a CCN for retail sewer service. H. Retail water service to the Development will be provided by Aqua Utilities pursuant to: (i) that certain " Agreement for Sale of Treated Water " between Aqua Utilities and the City executed to be effective December 21, 2005 (City Secretary Contract No. 32902), pursuant to which agreement the City will provide treated water to Aqua Utilities; (ii) that certain lease and/or operating agreement between Aqua Utilities, Owner, and the District pursuant to which agreement: (A) Owner will construct or cause to be constructed (on behalf of or in the name of the District) water infrastructure improvements to serve the Development; (B) the District will lease the water infrastructure improvements to Aqua Utilities and/or enter into an operating agreement with Aqua Utilities; and (C) Aqua Utilities will operate and maintain the water infrastructure improvements and provide retail water service to the Development; and (iii) that certain "Superseding Agreement Regarding Water and Wastewater Utility Service" between Aqua Utilities, Owner, the District and the City executed to be effective December 21, 2005 (City Secretary Contract No. 32899 ), pursuant to which agreement: (A) Aqua Utilities has the right to provide retail water service to the Development until the City exercises its right to become the retail water provider in accordance with such agreement; (B) upon becoming the retail provider, the City has an option to purchase (for a nominal amount) the water infrastructure improvements serving the Development and to become the retail provider of water service to the Development; and (C) Aqua Utilities will cooperate with the City's efforts to obtain the CCN and any other regulatory approvals required to provide retail water service to the Development. I. Retail wastewater service to the Development will be provided by Aqua Utilities pursuant to: (i) that certain "Wholesale Wastewater Service Agreement" between Aqua Utilities and the City executed to be effective December 21, 2005 (City Secretary Contract No. 32903) pursuant to which agreement the City will provide wastewater treatment service to Aqua Utilities; (ii) that certain lease and/or or operating agreement between Aqua Utilities, Owner, and the District pursuant to which agreement (A) Owner will construct or cause to be constructed (on behalf of or in the name of the District) wastewater infrastructure improvements to serve the Development; (B) the District will lease the wastewater infrastructure improvements to Aqua Utilities and/or enter into an operating agreement with Aqua Utilities; and (C) Aqua Utilities will operate and maintain the wastewater infrastructure improvements and provide retail wastewater service to Development; and (iii) that certain "Superseding Agreement Regarding Water and Wastewater Utility Service" between Aqua Utilities, Owner, the District and the City executed to be effective December 21, 2005 (City Secretary Contract No. 32899) pursuant to which agreement: (A) Aqua 1:tilities has the right to provide retail wastewater service to the 1)evelopment untfl the Ci exercis'es its right to become the retail wasteviaier provider ir accordance with such agreement, 03) upon becoming the retail provider, the eitv has an option lc., purchase (for a riorrinal amount) the waste -water infrastructure improvements serving the Development and to become the retail provider of wastewater service to the Development; and (C) Aqua Utilities will cooperate with the City's efforts to obtain the CCN and/or any other regulatory- approvals required to provide retail wastewater service to the Development. J. The Development is located in a rapidly growing area of the City'sETJ, and development of the Development will impact the future character of the City. K. The purposes of this Agreement include encouraging innovative and comprehensive master -planning of the Development, providing a level of certainty of regulatory requirements throughout the term of this Agreement, and providing assurances that the Development will remain in the City's ETJ for the term of this Agreement, except for any commercial property annexed for limited purposes for the collection of sales and use tax. L. The Parties have the authority to enter into this Agreement pursuant to Section 212.172 of the Local Government Code. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, and conditions hereinafter set forth, the Parties agree as follows: ARTICLE I DEFINITIONS "Agreement" means this Development Agreement between the City and Owner. "Aqua Utilities" means Aqua Utilities, Inc., formerly known as AquaSource Utility, Inc, a Texas corporation. "Assignee" means a successor to Owner as defined in Sections 9.02(b) and 9.03 of this Agreement. "Builder" means a person or entity that constructs, alters, or repairs improvements (other than Infrastructure), specifically including without limitation Structures, within any part of the Development. "Building Codes" means the following City codes in effect on the Effective Date, including any amendments thereto that are in effect on the Effective Date, except as modified by Section 2.14: 2003 International Building Code, Ordinance Nos. 15948 and 16162 Sections 7-46 through 7-49 of the City Code; 2003 International Redential Code. ()rdinance No 15949, Sections 7-61 through 7- !he 1.7,t7, (1ide, till) '2002 NatIonal Electrical Code. Ordinance Nos. I .7-‘:994, I 6028 and 16165_ Sections Ill through I -4 of the City Code; 2003 International Plumbing Code and -2003 International Fuel Gas Code, Ordinance crj5i and 4 ';ections :;N: Code, (v) 2003 International Mechanical Code, Ordinance Nos. 15950 and 16163, Sections 7- 166 through 7-169 of the City Code; and The following chapters/sections of the 2003 International Fire Code, (Ordinance Nos. 16027 and 16252, Sections 13-1 and 13-2 of the City Code, and excluding all other chapters and sections: Chapter 1 (Administration), excluding Sections 104.10 (Fire Investigations), 104.10.1 (Assistance from Other Agencies), and 104.11 (Authority at Fires and Other Emergencies), Section 105.1.2, Item #1 (Operational Permits), and all sections related to Item #1, and Section 105.6 (Required Operational Permits); a. Chapter 2 (Definitions); b. Chapter 5 (Fire Service Features), excluding Section 506 (Key Boxes) and Section 509 (Fire Command Center); c. Chapter 6 (Building Services and Systems); d. Chapter 7 (Fire Resistance Rated Construction); e. Chapter 8 (Interior Finish, Decorative Materials and Furnishings), Section 806 only; Chapter 9 (Fire Protection System); Chapter 22 (Service Stations and Repair Garages), excluding Section 2205 (Operational Requirements); g. h. Chapter 23 (High -Piled Combustible Storage), excluding Section 2305 (Housekeeping and Maintenance); i. Chapter 45 (Referenced Standards); and Appendix I (Installation of Fire Service Features, Fire Protection Systems and Tanks). (vii) 7'003 Tntemational Energy Conservation Code (Ordin- No. l',“452), Sections 7-41 Oirc,!.igh 44or Lztv Lode in) 1 he following sections (.4 the Environmental Protection .and Compliance Code Ordinance No. 12274): (a) Article I. Divisions 1-3 (Administration and Enforcement). Sections 12.5-100 Ihrt,Iii.:11 12 5-1.7'3 of ',he (-Iv Code, (b) Article II (Air Quality), Sections 12.5-200 through 12.5-211 of the City Code; and (c) Article III (Stormwater Protection), Sections 12.5-300 through 12.5-321 of the City Code. (ix) The following sections of the City Code relating to the review of construction plans for food establishments, day care centers, and public swimming pools: (a) Sections 16-114(a), (b), and (c) and Section 16-115 (Food Establishments), Ordinance No. 12553; (b) Sections 16-421, 16-428, and 16-437 (Day Care Centers), Ordinance No. 11209; and (c) Sections 16-456, 16-458, 16-460(b)(1) and (f)(3), and 16-462(a), (b), (c), and (d) (Public Swimming Pools), Ordinance No. 12156. (x) The Sign Code, as hereinafter defined. "Building Permit" means a written certification issued pursuant to Section 2.16 of this Agreement that plans and specifications for the construction of a Structure are in substantial compliance with the Building Codes and with the applicable provisions of Article II of this Agreement and requiring that the Structure be constructed in compliance with such regulations. "CCN" means a certificate of convenience and necessity or similar permit issued by the TCEQ authorizing a specified entity to be the retail water or sewer provider in a specified area. "Certificate of Substantial Completion" means a written certification issued pursuant to Section 2.17 of this Agreement that a Structure has been constructed in substantial compliance with the Building Codes and with the applicable provisions of Article II of this Agreement. "Certified Inspector" means an independent, certified, and state -licensed inspector who has been approved by the Development Director, the District, and Owner and who has agreed in writing to be bound by Sections 2.16, 2.17, 2.19 and 2.20 and applicable definitions in Article I of this Agreement. "CFA Policy." means the City's "Policy for the Installation of Community Facilities" as amended March 20 :001 i.!vi & G-! '1! 81 ) and Ai effect the Fffectr.e 1)ate, including any amendments ire n eieLt in •he f: ife,:tive Date. --(TirC means the C;tv of Fort Worth. F home -rule municlpaity located in [arrant, Demon and Wise Counties, Texas. "City Code" means the Code of the City. "City Council" means the City Council of the City. "City Facility" means a facility reasonably related to the provision of a municipal service by the City. "City Manager" means the City Manager of the City. "City Review Fees" means: (i) the fees and charges applicable to the City's preliminary and final plat review and approval process according to the fee schedule adopted by the City Council and in effect on the date of submittal of each plat application; and (ii) fees and charges applicable to the review and approval of plans relating to the construction of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of submittal of such plans. "Cluster" means one -family homes on lots clustered around a common access road or cul-de-sac. "Commercial Tracts" means Tracts 1 and 14 shown on the Development Plan. "Community Facilities Tracts" means Tracts 4 and 7 shown on the Development Plan. "Consent Agreement" means the Agreement Concerning Creation and Operation of City of Fort Worth Municipal Utility District No. 1 of Denton County by and among the City, the District and Owner, which was approved by the City Council on December 13, 2005 (City Secretary Contract No. 32896, M & C - 21197) and executed as of December 21, 2005. "Consent Resolution" means Resolution No. 3299-12-2005approved by the City Council on December 13, 2005, consenting to the creation of the District. "Contractor" means a person or entity that constructs, alters, or repairs Infrastructure required to serve the Development, whether located within or outside the Development. "County" means Denton County, Texas. "County Review Fees" means fees and charges applicable to the review and approval of plans relating to the construction of detention and flood control structures and connections to County Roads according to the fee schedule adopted by the Commissioners Court and in effect on the date of submittal of such plans. -Count,i Road" means any road located ‘Nithin the County but not :vithin the District or a 1TiniCipailTy De yelument 11 means that certain 43 1 :03-acre tract located in Denton County. ieas as depicted in Exhibit A and described in Exhibit B. "Development Director" means the Director of the City's Development Department. "Development Permit" means to apply and be granted a development permit for every buildable lot within the District in accordance with the Regulations for Floodplain Management in Denton County. "Development Plan" means Exhibit C attached to this Agreement identifying various tracts within the Development , including a description of the uses permitted within each tract, which tracts are described in Exhibit D. "District" means City of Fort Worth Municipal Utility District No. 1 of Denton County, to be renamed in accordance with Article X of the Consent Agreement, created over the Development by the District Legislation. "District Confirmation Date" means the date on which the Board of Directors of the District canvasses the results of the election held within the District confirming the creation of the District. "District Legislation" means Act of May 25, 2005, 79th Legislature, Regular Session, Chapter 1330, Special District Local Laws Code, Chapter 8129, effective September I, 2005 creating the District. "Effective Date" means the date this Agreement is fully executed by the City and Owner. "ETJ" means the extraterritorial jurisdiction of a city as defined by the Local Government Code, as amended, with the City's ETJ being an unincorporated area presently extending five miles from the City's corporate limits, excluding other incorporated municipalities and their respective ETJs. "Gas Drilling Ordinance" means the City's "Gas Drilling Ordinance," Ordinance No. 14880, in effect on the Effective Date, including any amendments in effect on the Effective Date. "Governing Regulations" means the following (and only the following) that are in effect on the Effective Date, including any amendments thereto that are in effect on the Effective Date, except as modified by Section 2.14: Subdivision Regulations; (ii) CFA Policy; (.60 AU C:tv fire protection requirements for water line sizing, number of connections, fnirzl.m urn',A.ateprQssurt,:, and nwp_ber offire hsojrarlfs. AU C:ty standards for design, location, -construction, operation and maintenance of water and wastewater infrastructure and expressly including, without limitation, the Policy and Procedure for Processing Water and Wastewater Projects for Design and Construction (1999) and General Contract Documents And SiNec-ifications for Water Department Proiefsl 1 (v) Utility location standards; Transportation & Public Works Department, 2005 Pavement Design Standards Manual; Public Works Department Storm Drainage Criteria and Design Manual; (viii) City's Standard Specifications for Street and Storm Drain Construction; (ix) Transportation and Public Works Department Traffic Engineering Design Standards and Policy Guidelines; (x) Roadway Standards and Master Thoroughfare Plan approved by the City Council on February 19, 2002; (xi) Denton County standards for the construction of drainage and stormwater improvements contained in Denton County Subdivision Rules and Regulations (September, 2003), Section VIII, IX and XI. Denton County Regulations for Floodplain Management; (xiii) Gas Drilling Ordinance; ( ) Building Codes; and (xv) Special Regulations. "Infrastructure" means all water, wastewater, drainage, roadway and other infrastructure improvements installed or constructed to serve the Development, whether located within or outside the Development. "Infrastructure Inspection Fees" means the fees applicable to the inspection and testing of Infrastructure according to the fee schedule adopted by the City Council and in effect on the date of the inspection. "Infrastructure Inspection Fees - Denton County" means the fees applicable to the inspection and csting of all detention and flood control structures and connections to County Roads :xi the i'cie st2hedije adopted :•y the t on1MISSioners Court an,' in ;:tfect on the ..14te Inspectons iosk- means a freestanding presentation station In a public p1ae for displaying sta interactive information on products, events, directions or locations Or rze Retail Store- means a ilrire for the retail cafe of merchandise with a footprint evceet-ling tj:27 Crr store, antique shop, appliance sales or supply store, new or used clothing store, new or used furniture store, greenhouse or plant nursery, grocery store, or facility for general retail sales. A large retail store that sells to members only or that also offers merchandise at wholesale is not excluded from this definition. "Lender" means a person or entity that receives a collateral assignment, pledge, security interest, lien, or other encumbrance of or in all or any part of the Development or in any Owner's or Assignee's rights under this Agreement to secure repayment of a debt or performance of an obligation by such Owner or Assignee. "Local Government Code" means the Texas Local Government Code, as amended. "Lot Owner" means any "end -buyer of a fully developed and improved lot" within the Development as such phrase is used in Section 212.172(f) of the Local Government Code. A Lot Owner is neither an Owner nor a Party and is bound by this Agreement in accordance with Section 9.04. "Mixed -Use Tracts" means Tracts 3 and 5 shown on the Development Plan. "Non -Owner Assignee" is defined in Section 9.02(c) of this Agreement. "Notice" means notice as defined in Section 9.01 of this Agreement. "One -Family Residential Tracts" mean Tracts 6, 8, 9, 10, 11, 12 and 13 shown on the Development Plan. "Open Space" means areas that are open to the sky, unpaved and at least six feet wide, provided, however, rooftop terraces and other common spaces within Tracts 3 and 5 that are at least six feet wide and outdoor paved areas designed and used for active recreation shall also be considered open space. "Owner" means, individually and collectively, Aperion Communities, LLLP, Eladio Properties, LLLP and Drooy Properties, LLLP, Arizona limited liability limited partnerships. The term "Owner" also includes any Assignee permitted by this Agreement, but does not include a Lot Owner. "Party" means, individually, the City, Owner, or Owner's successors and assigns (including any Assignee) as permitted by this Agreement. l'-!e-ans the *:01:trs1ng seUlons it bnrct it the City Code itt effect as of the _Effective Date, except to the extent the Stizn Code is Inconsistent with Section 2.02(3), in which case Section 2.02(3) prevails: ( ) Section A02.3 (Maintenance) Rcpairs) (iii) Section A04.5(a)(Unsafe Sign or Sign Structure) (iv) Section 3.01 (Construction and Maintenance, General) (v) Section 3.04 (Electrical) ( ) Section 3.06 (Maintenance) (vii Section 4.01.1 (Encroachments; Requirements) Sections 4.02.1 and 4.02.2 (Traffic Hazards) Section 4.03 (Prohibited Signs) (x) Section 5.02.2 (Construction of Off -Premises Signs Prohibited in Extraterritorial Jurisdiction) "Sign, Monument" means a permanent sign with at least seventy-five percent (75%) of the structure's width in contact with the ground. "Sign. Off -Premises" means a sign that advertises businesses, commodities, activities, services or persons that are not usually available or present upon the premises upon which such sign is located, or that directs persons to any location not on the premises. Any sign with more than ten percent (10%) of the sign devoted to such use shall be deemed to be an off -premises sign. For purposes of this definition, "premises" means a platted lot. "Simi. On -Premises" means a sign that advertises the business name, owner and/or commodities, activities or services offered on the premises where such sign is located and where at least ninety percent (90%) of the sign is devoted to the advertisement of such business name, owner, commodities, activities or services. . For purposes of this definition, "premises" means a platted lot. "Significant Industrial Discharge" means any discharge of industrial waste that meets at least one of the following criteria: (1) the average discharge rate is greater than 50,000 gallons per day; or (2) biochemical oxygen demand (i.e., the quantity of oxygen used in the biochemical oxidation of organic matter under standard laboratory procedure in five days at 20 degrees Centigrade, ey..pressied in 'milligrams per liter) and or suspended olids concentrations exceed 250 rngil, or (3) e tails i.':thin an industsial ,,i,Jtegory regu!ated 'v National Pretreatment Standards as pr,:yr.nuizated by the United States Environmental Protection Avsnt,iy-. -Snecial Regular.]tns" rreans regulations concerning. street, --of-way and sidewalk width, block length and minimum street centerline off -sets described in Exhibit E attached to this Agreement frv,rr, t r.* -"Strategic Partnership Agreement" means the Strategic Partnership Agreement attached as Exhibit E to the Consent Agreement to be executed by the City and the District providing for the limited purpose annexation of portions of the Development designated for commercial uses for the sole purpose of imposing a sales and use tax, pursuant to Section 43.0751 of the Local Government Code. "Structure" means any permanent building or structure that is intended for human occupancy and any other structure (including signs) over four (4) feet in height, except for fences, which shall not be considered to be Structures unless six (6) feet in height or greater. "Subdivision Regulations" means the City's Subdivision Ordinance No. 7234 and Plan Commission Rules and Regulations in effect on the Effective Date, including any amendments thereto in effect on the Effective Date. "TCEQ" means the Texas Commission on Environmental Quality or its successor state agency. "Townhouse/Cluster Tract" means Tract 2 shown on the Development Plan. "Tradition" means the proposed master -planned community containing approximately 2,660 acres that may include residential, commercial, and recreational uses as generally depicted for informational purposes only in Exhibit A. "Zoning Ordinance" means Ordinance No. 13896, together with any amendments thereto that are in effect on the Effective Date, codified as Appendix "A" to the City Code. ARTICLE II DEVELOPMENT REGULATIONS 2.01 Applicable Regulations. The Development shall be developed solely in compliance with: (1) this Agreement including, but not limited to, the Development Plan and the Governing Regulations; (2) ordinances that the City is required to adopt by state or federal laws or regulations that impose requirements applicable to the Development (whether such laws or regulations are in effect on the Effective Date or enacted after the Effective Date); provided, however, if such state or federal laws or regulations allow the City to grant exemptions to such laws or regulations for which the Development qualifies, then the Development shall be exempt from such laws and regulations to the extent permitted by law, and the City shall take all action necessary to evidence such exemptions upon a showing made by Owner that the Development qualifies for such exemption; and (3) state or federal laws or regulations that impose requircinerti applicable to the Development (whether such laws or regulations are in effect on the Fffeci-,e Date or enacted after the Effecti‘e Due iowever .rih or federal tezulaticins allow the rity to grant exemptions to such laws or tekr_:lations for \Ouch the Development qualifies. then the Development shall he exempt from such laws and regulations to the extent permitted by law, and the City shall take all action necessary to evidence such exemptions upon a showing made by Owner that the Development qualifies for such exemption. Notwithstanding the foregoing, however, nothing in this Section 2.01 ,-!z.1y, to -,-;aittl that .he described in the preceding clauses "(2)" and "(3)" adopted after the Effective Date (i) do not apply to the Development based on the "vested rights" of Owner, whether such rights arise under Chapter 43, as amended, or Chapter 245, as amended, Local Government Code, or under any other existing or future common-law or statutory rights, or (ii) constitute an illegal exaction or a "taking" without compensation. Nothing in this Section 2.01 constitutes a waiver of the City's right to rebut or defend against any such claim by Owner. 2.02 Permitted Uses and Development Regulations. All property within the Development will be developed in accordance with the following requirements: 1. Permitted Uses. Uses are permitted in accordance with the chart attached as Exhibit F to this Agreement. In addition, accessory uses that are customarily incidental to any main use on a lot are permitted. The categories of uses listed in Exhibit F correspond to the tracts shown on the Development Plan attached as Exhibit C and described in Exhibit D, as follows: Tract 1 Commercial Tract 2 Townhouse/Cluster Tract 3 Mixed -Use Tract 4 Community Facilities Tract 5 Mixed -Use Tract 6 One -Family Residential: 5,000 square foot minimum lot size Tract 7 Community Facilities: Reserved for City Facility (see Article VII) Tract 8 One -Family Residential: 6,000 square foot minimum lot size Tract 9 One -Family Residential: 7,500 square foot minimum lot size Tract 10 One -Family Residential: 10,000 square foot minimum lot size Tract 11 One -Family Residential: 6,000 square foot minimum lot size Tract 12 One -Family Residential: 7,500 square foot minimum lot size Tract 13 One -Family Residential: 5,000 square foot minimum lot size Tract 14 Commercial 2. Off -Street Parking and Loading. (a) Except as otherwise provided in this Section 2.02, the following uses shall have the minimum number of off-street parking spaces stated in the table below. Parking for non-residential uses shall not exceed 125% of the minimum number of required off- street parking spaces. For any permitted use in the Development not expressly listed below, the parking requirements for the most similar use shall apply. 12,igr2 ": 2 | USE / RESIDENTIAL Multifamily Single family and townhouse PUBLIC AND CIVIC Medical clinic, health services, lacility, assisted living facility Place of worship School, elementary and Junior high (public or private) School, high school (public or private) COMMERCIAL Large retail store Commercial business, retail sales and service (other than big box retail) Private club, cocktail lounge Office, professional building Restaurant, cafeteria Theater, auditorium, place of public assembly ,Walkup business REQUIREMENT 1 space per bedroom plus 1space per %50 square feet of common area, offices and recreation (less laundry rooms and storage). Two spaces may bwbandmnifassigned bothe same unlit and restricted from use for storage. 2spaces per dwelling unit, located behind the front building line. Numore than one garage and one carport nvpoMonochwnwshall bwallowed per dwelling unit unasingle residential lot unkm the odditona|garages or ! podm machereo are an integral part o{the main residential structure with the same mmMineand driveway mothe residential structure. 1space per doctor plus 1space per 4employees plus 4spaces per 10OO square feet of gross floor area 1space per 4seats insanctuary mrworship area inOne-Family Residential Tracts and Townhouse/Cluster Tract 1space per 5seats insanctuary nr worship area inall other tracts 1space per 1Gstudents 1 space per 175students ouw 1 space per 5stadium seats (may be double counted) Aminimum ofone parking space per 250mquare feet of gross floor area or fraction thereof shall beprovided. Additional parking may beprovided, with amaximum ofone space per 2OOsquare feet ofgross floor area ovfraction thwmm[ 4 spaces per 1000 square feet 1 space per bedroom unit plus 1 space per 4patron seats inrooms open hm public plus 5spaces per 100square feet of display/ballroom area 1space per guest room msuite plus 1space per 4seats plus 5spaces per 1O0Osquare feet ofballroom available twnonresidents plus 1space per 4 employees 2.5spaces per 10OOsquare feet nfgross floor area 1 space per 10Osquare feet 1 space per 4seats inmain auditorium plus 6spaces per 1U0Osquare feet nfballroom/similar area plus 1space per 4employees 4spaces per 1000square feet '�/ �I��d �rk� ��m shall lie a mmiM�n(�� �� � »d� �� |8 [uct m brn�l�� Paz��cl �ar�io� s�uccx sbui �� u cn�n�cnuoz ofci�h4 \8/ [cex m vodthfect in length, (c) Maneuvering space shall hclocated oo privatepcoperty, /d] For Frmc|s ', and ',. Uhe fo|)/`w�ngmdJid.rnul porkiourrqoirC.nnCnf.S V7 (1) For mixed -use buildings and projects, the total parking requirement shall be the sum of the individual requirements for all uses. A joint use parking agreement, if executed according to the standards set forth below, would allow a reduction in the total requirement for a mixed -use building or project. (2) The required parking for any use may be located off -site, provided that such parking is located within 500 feet of the subject site. (3) Adjacent on -street parking may be applied toward the minimum parking requirements, but shall not reduce the pertinent maximum parking limitations. (4) Joint use parking facilities are permitted. Joint use of required parking spaces may occur where two or more uses on the same site or on separate sites are able to share the same parking spaces because their parking demands occur at different times. Joint use of required parking spaces is allowed if the following documentation is submitted with the building permit application: (A) The names and addresses of the uses and of the owners or tenants that are sharing the parking; (B) The location and number of parking spaces that are being shared; (C) An analysis showing that the peak parking demands for the different uses occur at different times, and that the parking area will supply at least the minimum number of required spaces for each use during its respective peak parking times; and, (D) A legal instrument such as an easement or deed restriction that guarantees access to the joint parking for all uses. (5) Surface parking shall not be permitted between a building front and the street. (6) Sir 3. Signs. Signs .hal parking is prohibited in side yards. ristructed nd maintained In aci:ordance with the Sign (b) Off -Premises Signs are prohihaed unless expressly permitted by this Section 2.02(3). fic) The following signs are permitted within all tracts in the Developine i (2) Temporary public interest signs, including portable signs and banners, announcing activities or events, subject to the following requirements: (3) (A) Signs shall be a maximum size of 60 square feet; (B) No temporary sign shall be located within 100 feet of another temporary sign; (C) Temporary signs shall be maintained for no more than 30 days; (D) Temporary signs may not be erected on a platted lot more than twice in a calendar year. Warning, security and directional signs for parking or vehicle access; (4) Government signs, including without limitation informational, directional and traffic signs; (5) Political signs erected in accordance with state law; (6) Window signs displaying commercial messages, provided no sign may exceed 25% of the glass area. "Window signs" include signs displayed on the exterior side of the window and signs displayed within ten (10) feet of the interior side of the window that are visible from outside the building. (7) Nameplate and street address signs not exceeding one square foot in area; (8) One temporary non -illuminated real estate sign advertising the sale or lease of real property on which the sign is located. Such sign shall not exceed eight (8) square feet in area in any One -Family Residential Tract or Townhouse/Cluster Tract or 60 square feet in area and eight (8) feet in height on any other tract; and (9) Other non-commercial signs as permitted by Owner. A imAxirrnirii it ix iy-,-,,),1;iosks are pernlitted withtil the De%-eloprnent along and vis-ihle _not necessarily- adiacent l'ark\va)- as: sho‘kr. on ',he i)eeiprnen Pitn. (.'--)rIterit S 'muted iol Name and logos of the Tradition project; (2) Names and logos of builders within the Tradition project; (3) Information concerning non -business destinations within the Tradition project; or (4) Any combination of the foregoing. No kiosk may exceed eight (8) feet in height and five (5) feet in width. (e) Subdivision entry signs are permitted at each main entrance to a residential subdivision. These signs may be located on private property or in parkways, medians, or common areas. Content is limited to the name and logo of the subdivision or any combination thereof. All signs must be monument signs, and may not exceed eight (8) feet in height and 16 feet in width. (f) One multi -tenant sign is permitted anywhere within Tract 14. The sign may not exceed 40 feet in height above the perpendicular driving grade of State Highway 114 or 80 feet in height, whichever is less. The maximum width of the sign may not exceed 24 feet. Twenty-five percent (25%) of the width of the sign structure must be in contact with the ground. Content is limited as follows: (1) Name, trade name, logo (or any combination thereof) of any owner, tenant, business, or occupant of property within Tract 14;; (2) Identification of any property within Tract 14; (3) Accommodations, services, or activities offered or conducted within Tract 14; (4) Products sold or leased within Tract 14; (5) Sale, lease, development, or construction of property within Tract 14; or (6) Any combination of the foregoing. 14: Sign Type And Tract Monument Pylon Sign (g) The following detached On -Premise Signs are permitted in Tracts 1, 3, 5 and Business Structure Structure Listing Maximum Maximum Height Width Single or 8 feet 16 feet multi tenants located within the business complex Single or 25 feet 16 feet multi tenants located within the business complex Location on property 0' setback to the right of way line; one foot setback from adjacent property lines for each foot in height Maximum height of 8 feet at the right of way line with one foot setback from right of way line for each additional foot in height; one foot setback from adjacent property lines for each foot in height Minimum ground contact 75% of the sign structure's width must be in contact with the ground 50% of the sign structure's width must be in contact with the ground Advertising message area on the sign structure shall not exceed the street frontage of the platted lot on which the sign is located (one square foot of message area for each foot of frontage) or 1.5 times the right-of-way width, whichever is less, up to a maximum of 75% of the sign structure. Areas that do not include advertising message must be unilluminated and constructed with materials similar to the building associated with the sign. (h) Signs erected pursuant to Subsections (f) and (g) shall be at least 100 feet apart. (I) Attached on -premise signs are permitted in Tracts 1, 3 5 and 15 as long as the ;:uirulati‘ e area of all attached on-prerruse signs on a building facade does not c8ceed ten percent :he area ;_t the facadeFaade sequal to the t‘iiiiding length irries building heiht, prov;ded. however for purposes of such calculation, building height shall be a maximum Of I 5 feet despite the fact that the -actual building height may exceed 15 feet, Doors and windows shall he included in the calculation of the facade area. The length of an attached sign may not exceed 75% of the length of the building to which it is attached. •:•`'L! ! ory Ft 110011 rEX (j) Any sign authorized to contain commercial copy may contain noncommercial copy in lieu of commercial copy. 4. Outdoor Storaee or Display — Large Retail Stores . Outdoor storage and display by Large Retail Stores is permitted in Tracts 1, 3, 5, and 14 subject to the following restrictions: (a) No merchandise displayed outdoors may be stacked to exceed six (6) feet in height (except Christmas trees displayed in vertical position). (b) No single item may exceed 12 feet in height. (c) Merchandise may be displayed and carts may be stored within 20 feet from the front wall of the building. (d) A clearly delineated pedestrian walkway at least four (4) feet in width shall be provided contiguous to the 20-foot display and cart storage area to provide unimpeded pedestrian access to the building. An unobstructed walkway must be provided between the curb, fire lane, maneuvering aisle or parking space and any stored and/or displayed merchandise. (e) Stored merchandise, goods, or products shall not obstruct visibility of motor vehicle traffic lanes. (f) An area the width of the customer entrance and exit door(s) plus 15 feet on either side of the door(s) shall be maintained clear of merchandise and carts to allow unimpeded pedestrian access to the building. (g) Areas for customer loading of merchandise shall be clearly delineated and shall not be located in front of any customer entrance or exit door(s) or within 15 feet of either side of the door(s). (h) Outdoor storage, display and sales of plumbing fixtures and large household appliances, including without limitation hot tubs, washers, dryers, refrigerators, dishwashers and trash compactors, is prohibited. (i) No area used for the outside storage or display of merchandise shall be located within 25 feet of the rear or side of a One -Family Residential Tract or Townhouse/Cluster Tract. No area designated !or off-street parkine may be used If rt outside storage ;.,r display of merchandise (except Christmas trees). (k) Areas devoted to permanent outdoor storage shall be screened by a solid wall that is a minimum of eight (8) feet in height consisting of the same materials as the principal building. 5. Outdoor Storaee and Display — Other Commercial Uses. Outdoor storage and display by commercial uses, with the exception of Large Retail Stores, is permitted in Tracts 1, 3, 5, and 14 subject to the following restrictions: (a) The following items may be displayed and/or stored outside the main building subject to the conditions contained in this Section 2.02: (1) Bagged grass seed; (2) Bagged fertilizer; (3) Bagged mulch; (4) Bagged bark chips; (5) Bagged play sand; (6) Bagged potting soil; (7) Bundled firewood; (8) Cut Christmas trees; and (9) A maximum of ten (10) portable boxes, bins or other such containers, not to exceed 96-gallon capacity each, for the purpose of collecting aluminum cans, glass, grocery bags or plastic bottles. (b) Outside storage and/or display of the above listed items is subject to the following conditions: (1) No merchandise may be stored or stacked to exceed four (4) feet in height (except Christmas trees displayed in vertical position). (2) No merchandise may extend more than five (5) feet from the front wall of the building. (3) A four -foot wide unobstructed walkway must be provided between the curb, fire lane, maneuvering aisle or parking space and any stored and/or displayed merchandise No stored merchandise, gods or products maN, he situated z,ueh that visibility of motor vehicle traffic lanes is obstructed. (5) No area used for the outside storage or display of merchandise shall be located within 25 feet of the rear or side of a One -Family Residential Tract or j_cy,k-nhoise,Custer I (6) No area designated for off-street parking may be used for outside storage or display of merchandise (except Christmas trees). 6. Open Space and Parkland. A minimum of 63 acres of Open Space shall be provided as shown on the Development Plan. Such Open Space shall include the following park facilities, at a minimum: (1) A community park with a minimum area of 5.5 acres with sports fields and gazebo; (2) A district park with a minimum area of 2.3 acres; and (3) At least seven (7) pocket parks, each with a minimum area of .8-acres. 2.03 Tracts 1. 14 — Commercial. Tracts 1 and 14 as shown on the Development Plan will be developed as follows: I Front Yard Rear Yard Side Yard Interior lot Corner lot Height None required. 10 feet minimum unless adjacent to residential use, where 15 feet minimum required 5 feet minimum adjacent to One -Family Residential Tract or Townhouse/Cluster Tract, none otherwise. If provided, side yard must be 3 feet minimum. None required unless through lot, then 10 feet minimum required 3 stories or 45 feet maximum. 2.04 Tract 2 — Townhouse/Cluster. Tract 2 as shown on the Development Plan will be developed as follows: Units per Acre Units per Bldg. Front Yard Side Yard I Height Bldg. Separation Maximum number of 12 units per gross acre on average 10 maximum 10 feet minimum 10 feet minimum adjacent to street, otherwise no setback is required; for corner lots, porches may be located in the side yard adjacent to a street 35 feet maximum 10 feet minimum 2.05 Tract 3. 57 Mixed Use, Tracts 3 and 5 as shown on the Development Plan will he developed as follows: Front Yard Side Yard Rear Yard Maximum Height 4 feenmu. ti t;eT ma:s u-rt,urn \e setback unkss Or required by the Building Codes, or cc) an abutting proper with an erc;sting building has windows facing to the side, in whic-h case a minimum I 0-foot separation between the existing building and new building is required 5 feet minimum 45 feet, or 3 stories, whichever is less, except that the maximum height shall he 60 'et9r 5 s7ones, ,.4.-hichever if i;.!re-s!dellt!al uses cc::nsttttoe 20 percent ,)r -! Maximum Residential Units Per Acre Entrances gross floor area. 40 units per gross acre, except that a maximum of 60 units per gross acre are permitted if the project includes office, eating and entertainment, and/or retail sales and services uses that constitute at least 10 percent of gross floor area. A principal building must have its main entrance from a public sidewalk or plaza 2.06 Tracts 4, 7 - Community Facilities. Tracts 4 and 7 as shown on the Development Plan will be developed as follows. Lot Width Front Yard Rear Yard Side Yard Adjacent to residential use Across street from a side yard in a residential tract Height 50 feet minimum 20 feet minimum 5 feet minimum reduced to 0 feet where adjacent to an alley at least 10 feet wide 5 feet minimum 10 feet minimum 35 feet maximum 2.07. Tracts 6, 13 - One -Family Residential 5.000. Tracts 6 and 13 as shown on the Development Plan will be developed as follows: Lot Area Lot Width Lot Coverage Front Yard Rear Yard Side Yard Interior lot Corner lot Height 2.08 Tracts 8, Development Plan will Lot Area Lot Width Lot C olerage Front Yard Rear Yard Side Yard Interior lot Corner lot iloght 5,000 square feet minimum 50 feet minimum at building line, 60 feet minimum for corner lots 50 percent maximum 15 feet minimum, 10 feet for porches 5 feet minimum 5 feet minimum 10 feet minimum adjacent to side street and 5 feet minimum for interior lot line; porches may be located in the side yard adjacent to a street 35 feet maximum 11 - One -Family Residential 6.000. Tracts 8 and 11 as shown on the be developed as follows: 6,000 square feet minimum 6.0 feet plinirrlyzn 31 budding :ine, 7(:!fet mnmirn for ;:orner iozs -3 feet min: M UTT1, JfeC frit porches .5 feet minuriuin 5 teet mmmu 10 feet minimum adjacent to side street and 5 feet minimum for interior lot line: ma%kp1,„:)catel the side ard 3:iiacent 3 SiTtTI 2.09 Tracts 9, 12 — One -Family Residential 7.500. Tracts 9 and 12 as shown on the Development Plan will be developed as follows: Lot Area I Lot Width I Lot Coverage Front Yard Rear Yard Side Yard Interior lot Corner lot Height I 7.500 square feet minimum 75 feet minimum at building line, 85 feet minimum for corner lots 45% percent maximum 20 feet minimum, 15 feet for porches 5 feet minimum 5 feet minimum 10 feet minimum adjacent to side street and 5 feet minimum for interior lot line; porches may be located in the side yard adjacent to a street I 35 feet maximum 2.10 Tract 10 — One -Family Residential 10.000. Tract 10 as shown on the Development Plan will be developed as follows: Lot Area Lot Width Lot Coverage Front Yard Rear Yard Side Yard Interior lot Corner lot I Height 10,000 square feet minimum 90 feet minimum at building line, 100 feet minimum for corner lots 40% maximum 25 feet minimum, 20 feet for porches 10 feet minimum 5 feet minimum 10 feet minimum adjacent to side street, 5 feet minimum for interior lot line; porches may be located in the side yard adjacent to a street 35 feet maximum 2.11 Exclusive Reciuirements. The requirements set forth in Sections 2.02 through 2.10 of this Agreement are exclusive with regard to the subject matter of the sections. For example, Section 2.02(1) sets forth the only off-street parking and loading requirements that apply to the Development. The Development Director (with the consent of Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP) may administratively approve minor revisions to Sections 2.02 through 2.10 of this Agreement. A "minor revision" means the following: (a) an increase in the height of structures of five (5) percent or less; (b) a setback reduction of ten (10) percent or less; (c) an increase in ground coverage by a structure of five (5) percent or less; (d) a reduction in off-street parking of five (5) percent or less fe) an increase in the number, height or area of signs of live (5) percent or ind1:f) an im,JreaNe in outdoor sturage or d!splav area of five f_ percent or iess 2 12 Amendment of Development Plan, The Development Plan is incorporated as part of this Agreement, however, the interior boundaries of the tracts shown on the Development Plan (including the boundaries of the Open Space) may be adjusted, from time to time, as provided by this Section 2.12. In no event shall the exterior boundaries of the Development be adjusted. 0,..,ners t 1e :property- affected by any botindary change, •A-lth t_he prior ',yr-it-ten ci.,:asent Lt P. he rcro 22 tracts so long as the cumulative effect of all adjustments does not change the area within any tract by more than ten (10) percent (based on the areas that existed on the Effective Date) and does not reduce Open Space or parkland to less than the requirements set out in Section 2.03(6). Owners of the property affected by any boundary change, with the prior written consent of Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and the written approval of the Development Director, shall have the right, concurrently with the filing of any preliminary plat, to further adjust the boundaries of the tracts so long as the cumulative effect of all adjustments does not change the area within any tract by more than 15% (based on the areas that existed on the Effective Date) and does not reduce Open Space or parkland to less than the requirements set out in Section 2.03(6). All other changes to the Development Plan shall require the consent of Owners of the property affected by the change, the prior written consent of Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, and the approval of the City Council. If the interior boundaries of the tracts shown on the Development Plan are adjusted pursuant to this Section 2.12, the amended Development Plan and revised legal descriptions for the affected tracts will be attached to this Agreement as Exhibit C and Exhibit D. respectively, and the City will cause the amended exhibits to be attached to the official version of this Agreement on file in the City Secretary's Office. Owner will cause the amended Agreement to be recorded in the Real Property Records of Denton County, Texas, in accordance with Section 9.04. 2.13 Plat Approval. Subdivision of the Development or any portion thereof shall require approval of plats by the City's Plan Commission. The conveyance by metes and bounds of any portion of the Development to any person for the purpose of qualifying such person to be a member of the board of directors of the District shall not be considered a subdivision of land requiring a plat or otherwise requiring the approval of the City; provided, however, no Structure shall be constructed on any portion of the Development conveyed for such purpose unless and until a plat of such portion has been approved by the City's Plan Commission. Subdivision of the Development shall not require the approval by the City's Plan Commission of a "Concept Plan" as defined in the Subdivision Regulations. 2.14 Modification of Governing Regulations. (a) If a preliminary plat for the entire 431.303 acres comprising the Development is approved by the City's Plan Commission before January 1, 2007, the development of all portions of the Development for which the Plan Commission approves final plats shall be in accordance with the Governing Regulations, as defined in Article I. (b) if a preliminary plat for the entire 431,303 acres comprising the Development is apprn ed by the C;tv's Plan Corninision between Jarraan '200,7 and September 7007, the Of.?Veltuig Regulations that are o elect on JianaarY I, 210', including amendments in effect on January I. 2007. Shall apply to development of all portions of the Development for v1/4hich a final plat is approved by the Plan Commission. and the definition of 'fioverrang Regulations" shall be deemed to be amended accordingly, fe) If a preliminary plat for all or any portion of The Dexelopment is approved by the Hap (c nc oo -.±!" Tlf;e1 f0 'he that are :_71 the date of submittal of the preliminary plat shall apply to development of all portions of the Development for which a final plat is approved by the Plan Commission, and the definition of "Governing Regulations" shall be deemed to be amended accordingly. 2.15 Water Wells. No water wells may be drilled within the Development for the purpose of providing potable water; however, wells may be drilled for the purpose of providing irrigation water. All water wells will be permitted through the Denton County Department of Environmental Services. 2.16 Building Permits. No Structure shall be constructed on the Development without a Building Permit issued to the Builder by a Certified Inspector hired and paid for by the Builder. Except for model homes, no Building Permit shall be issued for a Structure unless located on a lot for which a final plat has been recorded. Building permits may be issued for model homes prior to the recordation of final plats for the lots if the Infrastructure to serve the lots has been completed (including fire protection); however, no model home may be sold to an end -user homeowner until a final plat has been recorded. If requested by the District, Building Permits shall be issued through the administrative control of the District pursuant to procedures adopted by the District, provided such procedures are not inconsistent with this Agreement, and each Builder and each Certified Inspector agrees to be bound by such procedures. 2.17 Certificates of Substantial Completion. Except for model homes, no Structure shall be occupied within the Development until a Certificate of Substantial Completion has been issued to the Builder by a Certified Inspector hired and paid for by the Builder. Model homes may be occupied for the sole purpose of sales and marketing; however, no model home may be occupied by an end -user homeowner until a Certificate of Substantial Completion has been issued. If requested by the District, each Certificate of Substantial Completion shall be issued through the administrative control of the District pursuant to procedures adopted by the District, provided such procedures are not inconsistent with this Agreement, and each Builder and each Certified Inspector agrees to be bound by such procedures. 2.18 Builder Status Reports. Each Builder shall maintain a permanent record of all Building Permits and Certificates of Substantial Completion issued to the Builder, which records shall be available for inspection and copying by the City, the District, and Owner during normal business hours. In addition, each Builder shall provide weekly written status reports to the District and monthly written status reports to the Development Director identifying the addresses of Structures for which Building Permits and Certificates of Substantial Completion were issued to the Builder during the preceding week or month, respectively. 2, I rtirlifiect inspector Kports, [ad) Certified inspector shall maintain a permanent record of ail Building Permits and Certificates of Substantial Completion issued by .suLh Certified Inspector, which records shall be available for inspection and copying by the City, the District, and Owner during normal business hours, in addition, each Certified Inspector shall provide weekly written status reports to the District and monthly written status reports to the Development Director identifying the addresses of Structures for which Building Permits and CeTinticates 4 SlibsTautial Cornplerli,m v‘ere issued during the -preceding \keek i'agt 24 2.20 Inspection Rights. The City. Owner, and the District shall have the right, but not the obligation, to inspect, from time to time, any Structure under construction to determine substantial compliance with the Building Codes and with Sections 2.01 through 2.10 of this Agreement and to "red -tag" any Structure for non-compliance. If any inspection conducted pursuant to this Section 2.20 results in the "red -tagging" of a Structure, and if the Builder fails to correct the non-compliance within a reasonable time period to the satisfaction of the Party that red -tagged the Structure and the Certified Inspector, any of the City, Owner, and the District will be entitled to enforce compliance and to prevent the occupancy of the Structure by the issuance through the Certified Inspector of a "stop -work order" (or through the Party that red - tagged the Structure if the Certified Inspector refuses to issue a "stop -work order") until the non- compliance is corrected to the reasonable satisfaction of the Certified Inspector and the Party that red -tagged the Structure. All costs and expenses paid or incurred by the City, Owner, or the District in exercising their rights under this Section 2.20 shall be paid by the Builder. Substantial compliance of all Structures with the requirements of the Building Codes and Article II of this Agreement shall be the responsibility of the Builder. Notwithstanding the foregoing, if the Builder of the non -complying Structure is not also the Owner of the underlying property, then such Owner will also be responsible for correcting such non-compliance and paying any costs and expenses paid or incurred by the City or the District in exercising their rights under this Section 2.20. Nothing in this Agreement is intended to create any liability of the City or the District to inspect or otherwise determine whether Structures are constructed in accordance with this Agreement. 2.21 Contracts with Builders. If a Builder is not an Owner, then the Owner who contracts with such Builder shall incorporate the requirements of this Article II into a written construction contract with the Builder. All contracts with such non -Owner Builders shall provide that the City is a third -party beneficiary of, and may enforce, the contracts against the Builder. 2.22 Prohibited Uses. No portion of the Development shall be used in a manner that produces a Significant Industrial Discharge. 2.23 Temporary Manufactured Housing. A maximum of five temporary HUD - certified manufactured homes shall be permitted on the Development at any given time for occupancy by qualified voters that are necessary for the creation and administration of the District. Owner will apply for and be granted a Development Permit through the County in accordance with the development permit guidelines and application process for all temporary manufactured housing. At this time Owner will be issued a 911 address for the property in question. Owner will notify the City of the make, model, HUT) number, and 911 address of each !),,Ime within 15 da s aftei it is .‘cctipcd. All manufactured homes will be remcd from the Devcli:Tment wi:hin :80 days after he District Confirmation Date, Placement of manufactured homes on the Development for such purpose shall not require a Building Permit or Certificate of Substantial Completion; not be considered a subdivision of land requiring a plat or other approval of the City; and shall not otherwise be subject to the Governing Regulations or the requirements of Sections 2.02 through 2.10 of this Agreement; provided, however, utilities shall be provided to the homes in accordance with all applicable regulations of Denton County, rg 2.24 Conflicts. In the event of a conflict between the Special Regulations and any other provisions of this Agreement, the Special Regulations shall control. 2.25 Landscape Standards. Within 180 days after the Effective Date, Owner shall cause to be recorded against the Development mandatory deed restrictions that include, among other provisions, minimum landscape standards for commercial and residential development. The landscape standards recorded against the Development shall meet or exceed the material landscape standards that are applicable to comparable development within the City based on the Zoning Ordinance in effect on the Effective Date, specifically including, without limitation, the material landscape standards for Large Retail Stores contained in Section 5.133 of the Zoning Ordinance. Owner shall provide a draft copy of the proposed deed restrictions to the City at least 60 days prior to recordation and the City shall have 30 days during which to review and provide written comments to such restrictions. Owner shall use reasonable efforts to incorporate the City's comments prior to recordation. If the City fails to provide written comments within such 30-day period, the City shall be deemed to have approved the restrictions submitted by Owner. If there is a dispute between Owner and the City as to whether a City standard is "material" or whether the proposed deed restrictions "meet or exceed" a material standard, Owner and the City shall each name a licensed landscape architect (who shall, in turn, select a third), which three architects shall then resolve the dispute as quickly as possible (which resolution shall be binding upon Owner and the City). The cost of the architects shall be shared equally by Owner and the City. 2.26 Enforcement of Environmental Regulations. (a) City. Pursuant to Section 212.172(b)(6) of the Local Government Code, the Parties agree that the City may, but is not obligated or required to, enforce environmental regulations set out in Chapter 12.5 of the City Code that are in effect on the Effective Date, including any amendments in effect on the Effective Date. The Parties also agree to any enforcement authority regarding environmental regulations set forth in the Agreement for Sale of Treated Water, the Wholesale Wastewater Service Agreement, and the Superseding Agreement Regarding Water and Wastewater Utility Service, all as described in the Recitals to this Agreement. (b) County. The Environmental Services Department for Denton County will be responsible for permitting any and all water wells and septic systems within the boundary of the District. All required systems will be installed per the guidelines as outlined by the Environmental Services Department in Denton County. .227 Aproval by Denton County. No Road or Drainas, Maintenance by County Let:n of ;,hjs Ac!,,,,rf.',etnefil by the Partes is subject to approval ot this Agreement ,.)y the Denton Col_.niv Commissioners Court I:pon approval ot this Agreement by the Commi“ioners C,urt, Denton County and the Parties agree that all plan re \ iew. inspection, plat review and approN, al, and all other actions and approvals relating to development of the Development shall be performed solely by the City in accordance with this Agreement, with the exception of any flood control structures, floodplain improvements and connections to County Roads. All roads anti ,JrAin;h2e irrpro ements %4J thin The Development shall !x. maintalned kr, the District ot one or T'age the Development. At the discretion of the Denton County Commissioners Court, a request for maintenance may be made to the District in writing for areas that may directly impact upstream or downstream constituents of Denton County. 2.28 Removal of Certified Inspector. The Development Director may revoke his or her approval of a Certified Inspector who issues a Building Permit or a Certification of Substantial Completion that does not comply with all provisions of this Article II. ARTICLE III CONSTRUCTION AND INSPECTION OF INFRASTRUCTURE 3.01 Infrastructure Standards. All Infrastructure shall be designed and constructed in compliance with: (a) the Governing Regulations; (b) the rules and regulations, if any, of the District; (c) the rules and regulations of TCEQ; and (d) the rules and regulations, if any, of the holder of any CCN for retail water or retail wastewater service to all or any portion of the Development. In the event of any conflict between the Governing Regulations and either the rules or regulations of the District or the rules and regulations of any CCN holder, the Governing Regulations shall control unless otherwise agreed in writing by the Development Director. 3.02 Additional Construction Standards for Water Utility Infrastructure. The water utility Infrastructure serving the Development must be constructed using the same type, or a compatible type, of meters, valves, meter boxes and service lines used by the City for its municipal water system; provided, however, that automated meter reading ("AMR") -compatible may be used. 3.03 Plan Review; Payment of Fees; and Pre -Construction Conference. Construction of Infrastructure shall not commence until the plans and specifications have been reviewed and accepted by the City for compliance with the Governing Regulations; a pre -construction conference has been held by the Contractor, the District's engineer and representatives of the City's Department of Engineering; and the applicable City Review Fees have been paid. At such pre -construction conference, the Department of Engineering shall designate City employees to serve as the project inspector (the "City Inspector") for purposes of Sections 3.05, 3.07 and 3.10 and the project manager. 3.04 Community Facilities Agreements. Construction of Infrastructure shall not commence until a Communities Facilities Agreement has been executed in accordance with the CFA Policy. Notwithstanding the Governing Regulations, the City shall not participate in the cost of construction of any Infrastructure unless the City requires the construction of infrastnicure that exceeds that which is roughly proportionate to the impact of the Development. 1pSpeCtiORS n illifj Part,,, Inspectors Except as otherwise pr(wided in this Section 3,05, mspectors retained the Owner or Contractor and approved by the Coy (which approval -shall not he unreasonably withheld or delayed) shall perform or cause to be performed all inspections and testing of the construction of Infrastructure for compliance with this Article III. The Owner or Contractor, as applicable, shall submit the names, addresses and phone numbers of such inspectors simu:taneously with subrrit/ial of plans in acuoriatiec oath Section 1)-ct'n approved by the City. Owner or Contractor shall cause the inspectors to provide copies of all inspection and testing reports to the City Inspector. All costs of such third party inspectors shall be paid by Owner and Contractor. 3.06 Termination of Third Party Inspectors. The City has the right to terminate any third party inspector retained by the Owner or Contractor pursuant to Section 3.05 if the inspector: (i) fails to properly perform inspections and testing to ensure construction in compliance with this Article III; or (ii) fails to provide copies of inspection and testing reports to the City's Department of Engineering. Upon termination of any third party inspector, the City, at its option, may allow the use of another approved third party inspector or perform all necessary inspections and testing. Should the City elect to perform inspections and testing for compliance with this Article Ill pursuant to this Section 3.06, the City shall perform such inspections and testing in a timely manner (which inspections shall satisfy all applicable requirements of the TCEQ) and the Owner and Contractor shall pay Infrastructure Inspection Fees in accordance with Section 4.02(a). 3.07 Inspections (a) City. The City has the right, but not the obligation, to inspect and test the Infrastructure at any time. Further, the City has the right to participate in a final inspection of all Infrastructure. The Contractor shall notify the City Inspector when Infrastructure is ready for final inspection. If the City Inspector concurs that construction of the Infrastructure is substantially complete, the City Inspector will schedule a final inspection by the City within 30 days. Upon final inspection and correction of any punch list items, written certification by the City Inspector that Infrastructure has been constructed in compliance with the Governing Regulations shall constitute compliance with Sections 3.01(a), 3.02, 3.03, 3.04, 3.05 and 3.09. Notwithstanding anything contained herein, the City shall have the right to charge Infrastructure Inspection Fees for such inspections and testing only if the City performs inspections and testing pursuant to Section 3.06. (b) County. The County will inspect all flood control structures and connections to County Roads. The County Public Works Department will be responsible for conducting these inspections and agrees to do so within a timely manner in accordance with the Denton County Subdivision Rules and Regulations. 3.08 Contracts with Contractors. If a Contractor is not an Owner, then the Owner shall incorporate the requirements of this Article III into a written construction contract with the Contractor. All contracts with such non -Owner Contractors shall provide that the City is a hird-part,, beneficiary of, and may enforce, the contracts against the Contractor 09 Access by Cit.), Employees. Upon prior Nonce by the Cltv, any duly authorized employee of the City hearing proper credentials and identification shall he panted access to any property within the Development as the City may determine necessary for the purpose of inspection and testing of Infrastructure. 11) I)rawings (.)',Nner :and r.eract haii leii.er Tnviar as-hlul! ARTICLE IV DEVELOPMENT FEES 4.01 Review Fees. (a) City Review Fees. Subdivision of the Development and review of construction plans for Infrastructure will be subject to the payment of City Review Fees. City Review Fees shall not exceed the same or similar fees charged for development in other parts of the City's corporate limits or ETJ. (b) County Review Fees. County Review Fees will be applied to the areas as identified in Section 3.07(b). All floodplain, flood control structures and connections to County Roads will be reviewed by the Denton County Department of Public Works. The fees will be in accordance with the County Subdivision Rules and Regulations. 4.02 Infrastructure Inspection Fees. (a) City Infrastructure Inspection Fees. If the City elects to perform Infrastructure inspections in accordance with Section 3.06 of this Agreement, such inspections shall be subject to the payment of Infrastructure Inspection Fees. (b) County Infrastructure Inspection Fees. County inspection of floodplain, flood control structures, and connections to County Roads be subject to Denton County Infrastructure Inspection Fees as called out in the County Subdivision Rules and Regulations. 4.03 Other Development Fees. Development of land within the Development may be subject to fees and charges that are in addition to the City Review Fees and, if applicable under Section 3.06, Infrastructure Inspection Fees. Such additional fees and charges may include, but are not limited to, impact fees and other fees necessitated by and attributable to the Development. The failure of this Agreement to address or identify such additional fees and charges does not constitute a waiver of such fees and charges. ARTICLE V ANNEXATION 5.01 Continuation of ETJ Status. Except as provided in Sections 5.03 and 5.04 of this Agreement, the Development shall remain in the City's ETJ during the term of this Agreement, and the City guarantees the continuation of the ETJ status of the Development during such term. '5A2nnh1r roin!AiiiieNat.ion Except as r-rovided Section i 5,03 and 5,04 of this .Vtreement, the Deyidopment shail he immune from annexation daring the telly, it this Agreement, and the City guarantees immunity from annexation during such time. 5.03 Full Purpose Annexation. During the term of this Agreement, the City shall have the right, but not the obligation, to full -purpose annex all of the Development (c'r a portion of the to re e.x!c%t permitted by on ,?r ittcr he :Nrher LI !he JJ:e f , • Ft WOklu . III II 11011 I !olio! 00000iio 111 inoonolo o o moor Development is complete; or (ii) the dissolution of the District (other than as the result of annexation by the City). Further, the City may annex all or part of the Development at any time after termination of this Agreement in accordance with Article VI. 5.04 Limited Purpose Annexation. Owner agrees that the City shall have the right to annex those portions of the Development that are intended for retail development for the sole and limited purpose for the City to impose its sales and use tax within the boundaries of such retail areas pursuant to Section 43.0751 of the Local Government Code. The terms and conditions upon which such limited purpose annexations may occur are contained in the Strategic Partnership Agreement. 5.05 Incorporation. In furtherance of the purposes of this Agreement, Owner, on behalf of itself and its successors and Assignees, covenants and agrees to the extent allowed by law that, except upon written consent of the City Council, which approval may be withheld or conditioned by the City Council at its sole discretion, they will not: (i) seek or support any effort to incorporate the Development, or any part thereof; or (ii) sign, join in, associate with, or direct to be signed any petition seeking to incorporate any of the Development or to include any of the Development within the boundaries of any other incorporated entity. 5.06 Annexation of Portions of Development. Owner agrees to cooperate with and assist the City in annexing one or more areas in the manner prescribed by law which does not result in the dissolution of the District, each of which may not exceed 525 feet in width at its widest point or such other width limitation subsequently imposed by law, as reasonably necessary for the City to connect areas to the City that are outside the District and that the City intends to annex. Notwithstanding the zoning designation approved for the annexed area, such area can be developed and used in accordance with this Agreement. ARTICLE VI TERM OF AGREEMENT This Agreement is a development agreement authorized by Section 212.172 of the Local Government Code. This Agreement will terminate on the earlier to occur of: (i) fifteen (15) years from the Effective Date; or (ii) full purpose annexation of the Development pursuant to Section 5.03. Further, if creation of the District has not been confn wed at an election conducted on or before November 30, 2006, this Agreement may be terminated by providing Notice to Owner. The term of this Agreement shall not be affected by the annexations permitted by Section 5.06 of this A gicenient or by the limited purpose annexation ant: commercial property pursuant tr, the Stratewc Partnership Agreement, ARTICLE VII DEDICATION OF PROPERTY FOR CITY FACILITY S)t.e_Rfit_tter.‘ttatticin, Ockrier tlicrtitec -csertt,e itbt-t 4 ith the riiitittnar, r-Litt _t,tr .1 • Facility Site is conveyed to the City pursuant to Section 7.02, Owner shall have the right to use the City Facility Site (a) for public or private park or public or private open space purposes (including, but not limited to, hike and bike trails, park benches, landscaping, fountains, sports fields, playgrounds and playground equipment, and paved parking areas and (b) for any other purposes with the prior written consent of the City. After conveyance of the City Facility Site to the City pursuant to Section 7.02, Owner may landscape, irrigate, mow, and maintain the City Facility Site and, with the City's written consent, continue to use the City Facility Site for the foregoing purposes. Owner agrees to mow the City Facility Site and to maintain the City Facility Site, and all improvements constructed or located thereon, in good condition at all times until the City Facility Site is conveyed to the City pursuant to Section 7.02 and thereafter while Owner continues to use the City Facility Site with the City's consent. Owner shall cause all such improvements to be removed at Owner's cost within sixty (60) days after termination of Owner's right to use the City Facility Site in accordance with this Section 7.01. 7.02 Conveyance to City. Owner agrees to convey or cause to be conveyed to the City the City Facility Site by special warranty deed (lien free but otherwise subject to all matters of record that do not materially adversely affect the use of the property) within ninety (90) days after receipt of the City's written request. The City may obtain a survey of the City Facility Site and title insurance at the City's expense. The conveyance documents shall reserve to Owner the right to approve building elevations and exterior construction materials for the City Facility to be constructed on the City Facility Site (which elevations and materials shall be compatible with the elevations and materials of other commercial development within the Development and which approval by Owner shall not be unreasonably withheld or delayed). 7.03 Reverter. The conveyance shall be subject to an automatic reverter of title in favor of the Owner unless prior to the 22nd anniversary of the Effective Date of this Agreement, the City has awarded a contract to construct a City Facility on the City Facility Site, in which case Owner's possibility of reverter shall automatically terminate as of the date on which the City awards the construction contract and regardless of when construction of the City Facility actually commences. This Article VII shall survive the expiration or early termination of this Agreement. ARTICLE VIII BREACH, NOTICE AND REMEDIES 8.01 Notification of Breach. If a Party commits a breach of this Agreement, the non - breaching Party shall give Notice to the breaching Party that describes the breach in reasonable detail. 8.07 ,-.7i,:re_ot Breach I be breahing i'irTo hail commence cunng uc.h breach %NI -thin f-urteen 1-4) calendar days after receipt of q.uch Nonce and shall complete the cure within fourteen (14) calendar days 'rorii the date of commencement of the cure, however, if the breach is not reasonabk susceptible to cure by the breaching Party within such fourteen (14) day period, the non -breaching Party shall not bring any action so long as the breaching Party has commenced to cure the default within such fourteen (14) day period and diligently completes the work within rca,_,i,nab.!e tone .'not to ex-. ecti an add anal thirty (I daN fj;\ ithout tinreasunahle cessati,rt of 8.03 Remedies for Breach. If the breaching Party does not substantially cure such breach within the stated period of time, the non -breaching Party may, in its sole discretion, and without prejudice to any other right under this Agreement, law, or equity, seek any relief available at law or in equity, including, but not limited to, an action under the Uniform Declaratory Judgment Act, specific performance, mandamus and injunctive relief; provided, however, that the non -breaching Party shall not be entitled to monetary damages or to terminate this Agreement, and each Party specifically waives any right such Party has or in the future may have to terminate this Agreement (except for the right of the City to terminate as provided in Article VI of this Agreement). It is understood and agreed that no Party will seek or recover actual, consequential or any other type of monetary damages or awards, including but not limited to attorney's fees, in the event that any Party brings suit under or related to this Agreement. Moreover, Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, are jointly and severally liable for the obligations of Owner when it is a breaching Party under this Agreement, and the City may pursue its remedies for breach against any one or more of them. 8.04 Governmental Powers; Waiver of Immunity. It is understood that by execution of this Agreement the City does not waive or surrender any of its governmental powers, immunities or rights, except as specifically waived pursuant to this Section 8.04. The City waives its governmental immunity from suit and liability only as to any action brought by a Party to pursue the remedies available under this Agreement and only to the extent necessary to pursue such remedies. Nothing in this Section 8.04 shall waive any claims, defenses or immunities that the City has with respect to suits against the City by persons or entities not a party to this Agreement. ARTICLE IX ADDITIONAL PROVISIONS 9.01 Notice. Any notices, certifications, approvals, or other communications required to be given by one Party to another under this Agreement (a "Notice") shall be given in writing addressed to the Party to be notified at the address set forth below and shall be deemed given: (i) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (ii) when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid; (iii) when the Notice is delivered by Federal Express, LIPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; and (iv) five business days after the Notice is sent by FAX ( with electronic confirmation by the sending FAX machine) with a confirming copy sent by -1;ilited -States nail ,,k-it.hin 48 boors after :he rs sent, lf any date or penod pri,vided in this \greernent ends on a Saturday, Sunday, or legal holiday, the applicable period for (-alcidating the notice shall be extended to the first business day following the Saturday. Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below, The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this Section 9.01, To the City: City of Fort Worth, Texas 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: City Manager FAX: (817)392-6134 City of Fort Worth, Texas 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: Development Director FAX: (817) 392-7985 To Owner: Aperion Communities, LLLP 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 Attn: Gary Lane FAX: (480) 951-8414 Eladio Properties, LLLP 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 Attn: Gary Lane FAX: (480) 951-8414 Drooy Properties, LLLP 7835 East Redfield Road, Suite 100 Scottsdale, Arizona 85260 Attn: Gary Lane FAX: (480) 951-8414 9.02 AssiEmment. (a) By Owner to the District. Owner has the right (from time to time after the District Confirmation Date and without the consent of the City) to assign to the District those portions of this Agreement concerning the provision of retail Vkaier andor wastewater serviee to the Developinent and any astructure related thereto. includinir an obli4ation, right. title. or Interest of Owner under Lhis .Aiz-ree_ment Each assiznment shall be in writina in the form attached hereto as Exhibit (;, -shall be executed by Owner and the District and shall obligate the District to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. Owner shall provide a copy of each assignment to all Parties within 15 days after execution. From and after such assignment, the ,ttolety 71) th(7. I) r he perfiqtrttiattRe of a,,tsli.t.ned to the 17t-trt 7'7,i7 I tc obligations and from any liability that results from the District's failure to perform the assigned obligations; provided, however, if a copy of the assignment is not received by the City within 15 days after execution. Owner shall not be released until the City receives such assignment. No assignment by Owner shall release Owner from any liability resulting from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to the District, including a copy of each executed assignment, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. The District shall be considered an "Assignee" for purposes of this Agreement. (b) By Owner to Successor Owners. Owner has the right (from time to time without the consent of the City, but upon written Notice to the City) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to an Assignee that is an owner of any portion of the Development or will become an owner of any portion of the Development within 15 days after the assignment (an "Assignee"). Each assignment shall be in writing in the form attached hereto as Exhibit G. shall be executed by Owner and the Assignee and shall obligate the Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. Owner shall provide a copy of each assignment to all Parties within 15 days after execution. From and after such assignment, the City agrees to look solely to the Assignee for the performance of all obligations assigned to the Assignee and agrees that Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, if a copy of the assignment is not received by the City within 15 days after execution, Owner shall not be released until the City receives such assignment. No assignment by Owner shall release Owner from any liability resulting from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. (c) By Owner to Non -Owners. Subject to the City's prior written approval, Owner has the right, from time to time, to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of Owner under this Agreement, to any person or entity that is not an owner of any portion of the Development (a "Non -Owner Assignee"). Each assignment shall be in writing executed by Owner and the Non -Owner Assignee in the form attached hereto as Exhibit (, and shall obligate the Non -Owner Assignee to be bound by this Agreement o the extent :his Agreement applies or relates to the :.,bligations, rights, title, or interests '71eing ass.gnett A copy of each assignment shall be provided to all Parties within 15 LAYS after execution. It the City approves the Non4-iwner Assignee in writing (which approval shall not be unreasonably withheld or delayed if the Non -Owner Assignee can demonstrate, to the reasonable satisfaction of the City, that the Non -Owner Assignee has the financial ability to perform the assigned obligations), then the City agrees to look solely to the Non -Owner Assignee for the perforn:ance of all obligations lis:igned to the Non,Owner -NssigneeLida:aces !Ttl!-C1) to;7) vtlii Pule 14 obligations. If the City fails or refuses to approve the Non -Owner Assignee, the assignment shall nevertheless be effective; however, the Owner shall continue to be responsible, jointly and severally, with the Non -Owner Assignee for the performance of all obligations assigned. No assignment by Owner shall release Owner from any liability resulting from an act or omission by Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. Owner shall maintain written records of all assignments made by Owner to Non -Owner Assignees, including a copy of each executed assignment and the Non -Owner Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Non -Owner Assignee, shall provide a copy of such records to the requesting person or entity. (d) By the City. The City shall not assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of the City under this Agreement, to any person, entity, or political subdivision without the prior written approval of Owner, which approval shall not be unreasonably withheld or delayed. 9.03 Encumbrance by Owner and Assignees. Owner and Assignees have the right, from time to time, to collaterally assign, pledge, grant a lien or security interest in, or otherwise encumber any of their respective rights, title, or interest under this Agreement for the benefit of their respective Lenders without the consent of, but with prompt written Notice to, the City. The collateral assignment, pledge, grant of lien or security interest, or other encumbrance shall not, however, obligate any Lender to perform any obligations or incur any liability under this Agreement: (a) unless the Lender agrees in writing to perform such obligations or incur such liability; or (b) unless the Lender becomes an Assignee pursuant to this Section 9.03. A Lender becomes an Assignee with respect to any portion of the Development only when: (a) the Lender holds fee simple title to such portion of the Development for more than one year; or (b) holds fee simple title to such portion of the Development and takes any action to develop such portion of the Development (excluding action ordinarily and customarily taken by lenders to protect the value of unimproved land and to prepare such unimproved land for sale to prospective purchasers). Notwithstanding the foregoing, however, this Agreement shall continue to bind the Development and shall survive any transfer, conveyance, or assignment occasioned by the exercise of foreclosure or other rights by a Lender, whether judicial or non -judicial. Any purchaser from or successor owner through a Lender of any portion of the Development shall be bound by this Agreement and shall not be entitled to the rights and benefits of this Agreement with respect to the acquired portion of the Development until all defaults under this Agreement with respect to the acquired portion of the Development have been cured. 9.04 Recordation and Applicabilitv_Jo_Lot Owners. Pursuant to the requirements of SectR,n 1‘;1 2,172R- of the Local Government Code. Owner shall record this Agreement. and all amendments to 't-us .NgTerment, in the Real Property Recordut Denton Count\ lexas, and shall Drovide a file -marked cop), of the reoirded Agreement to the De \ elopment Director within ten 10) days after its execution, This Agreement shall be binding upon the Development, the City, Owner, any Lender that has become an Assignee, and any other Assignee, and their respective successors and assigns. Builders in accordance with Section 2.21 and Contractors in accordance with Section 3.08 for the term of this Agreement. The Parties ,i4Tre is A,!-rternnt !-,enef!!-s and !-urdens rho Devdi_Tment and touk-hes and .:,,,ncems the 1•,k1 -e running with the Development. Notwithstanding the foregoing, this Agreement is not binding upon, and shall not constitute any encumbrance to title as to any Lot Owner except as follows: during the term of this Agreement, each Lot Owner is bound by the following: (i) the applicable definitions contained in Article I of this Agreement; (ii) the Subdivision Regulations; (iii) the Gas Drilling Ordinance; (iv) the Building Codes; (vi) Articles II, IV, V, VI, and VII of this Agreement; and (v) Sections 9.01, 9.04, 9.07 and 9.09 of this Agreement. 9.05 No Waiver. Any failure by a 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. 9.06 Reservation of Rights and Claims. This Agreement constitutes a "permit" as defined in Chapter 245, Texas Local Government Code, as amended, that is deemed filed with the City on the Effective Date. Except as expressly provided in this Agreement, Owner does not, by entering into this Agreement, waive any rights arising under Chapter 245, as amended, or under Chapter 43 of the Local Government Code, as amended, or under any other provision of law. 9.07 Governing Law and Venue. THIS AGREEMENT MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS THEY APPLY TO CONTRACTS PERFORMED WITHIN THE STATE OF TEXAS AND WITHOUT REGARD TO ANY CHOICE OF LAW RULES OR PRINCIPLES TO THE CONTRARY. THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT IS PERFORMABLE IN TARRANT COUNTY, TEXAS, AND HEREBY SUBMIT TO THE JURISDICTION OF THE COURTS OF TARRANT COUNTY, TEXAS, AND HEREBY AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMIT ATION OF ANY DISPUTE ARISING HEREUNDER. 9.08 Performance Requirements; Force Maieure. Time is of the essence in the performance by the Parties of their respective obligations under this Agreement. Whenever performance is required, the Party must use good faith and due diligence to perform and take all necessary measures to perform, but if completion of performance is delayed by reason of acts of God, civil commotion, terrorism, strikes, picketing, casualty, or other similar matter beyond the reasonable control of the Party, then the time for performance w-ill be appropriately extended by tthe amount of delay so caused, and the Pirty dela`e-d shall resume:t p form n- e at the �. r� ���iTkz earliest possible time. 9-1)9 Severabilitv. the provisions of this Agreement are sevcrahle 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 wvaltd, ;iitL 1. or 'iiei ! rt'eable for i'ly rca-:on, and the event of u h inv-<l`dity 'r with respect to such person, entity or circumstance, without invalidating the remainder of this Agreement or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall, to the extent possible, accomplish the intent of the Parties evidenced by the provision so severed. 9.10 Changes in State or Federal Laws. If any state or federal law changes so as to make it impossible for a Party to perform its obligations under this Agreement, the Parties will cooperate to amend this Agreement in such a manner that is most consistent with the original intent of this Agreement as legally possible. 9.11 Additional Documents and Acts. The Parties agree that at any time after execution of this Agreement, they will, upon request of the other Party, execute and/or exchange any other documents necessary to effectuate the terms of this Agreement and perform any further acts or things as the other Party may reasonably request to effectuate the teims of this Agreement. Without limiting the foregoing, the Parties agree to substitute one or more revised Exhibit Ds following approval of a final plat for all or any portion of the Development and to substitute Exhibit C and Exhibit D if the Development Plan is amended pursuant to Section 2.12. 9.12 Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 9.13 Amendment. This Agreement may be amended only with the written consent of the Parties and with the approval of the City Council, except as expressly permitted herein. 9.14 Interpretation. The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. As used in this Agreement, the term "including" means "including without limitation" and the term "days" means calendar days, not business days. Wherever required by the context, the singular shall include the plural, and the plural shall include the singular. Each defined term herein may be used in its singular or plural form whether or not so defined. 9.15 No Third Party Beneficiaries. This Agreement is solely for the benefit of the City and Owner, and neither the City nor Owner intends by any provision of this Agreement to create any rights in any third -party beneficiaries or to confer any benefit or enforceable rights under this Agreement or otherwise upon anyone other than the City and Owner. Notwithstanding the forevirig, the City and Ov.ner intend that the District shall be a third -party benef1dr' f his Agreernent 9,16 ,NuthoritN to Fxecute, [he City warrants that this Agreement has been approNed by the City Council in accordance with all applicable public meeting and public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of the City has been authorized to do C:(' Each (-),,Yrier ,,kzimints that the execution of this Areement sr!uly 3uthoriied in conf(:)rmitv :ar!''I rcrt_ 1, Ie ; 7 organizational documents of each Owner and that the individual executing this Agreement on behalf of such Owner has been authorized to do so. Each Assignee or Lender who becomes a Party to this Agreement represents and warrants that this Agreement has been approved by appropriate action of such Assignee or Lender and that the individual executing this Agreement on behalf of such Assignee or Lender has been authorized to do so. 9.17 Exhibits. All exhibits attached to this Agreement are incorporated as part of this Agreement for the purposes set forth herein, as follows: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Map of Tradition Legal description of the Development Development Plan for the Development Legal descriptions of 14 tracts shown on Development Plan Special Regulations Table of Permitted Uses Assignment and Assumption Agreement 9.18 Takings Impact Assessment. Owner expressly and unconditionally waives and releases the City from any obligation to perform a takings impact assessment under the Texas Private Real Property Rights Act, Texas Government Code Chapter 2007, as it may apply to this Agreement or the Development. 9.19 Conspicuous Provisions. The Parties acknowledge that the provisions of this Agreement set out in bold, CAPITALS (or any combination thereof) satisfy the requirements for the express negligence rule and/or are conspicuous. 9.20 Counterpart Originals. This Agreement may be executed in counterparts, each of which shall be deemed to be an original. ATTEST: CITY OF FORT WORTH Marty Hendrix, City Secretary A PPRO'v LI) AS TO FORM AND LEGAL:11-Y: Assistant City Attorney By: Date: Marc Ott, Assistant City Manager APERION COMMUNITIES, LLLP, an Arizona limited liability limited partnership. By: David P. Maniatis, General Partner Date: ELADIO PROPERTIES, LLLP, an Arizona limited liability limited partnership. By: David P. Maniatis, General Partner Date: DROOY PROPERTIES, LLLP, an Arizona limited liability limited partnership. By: David P. Maniatis, General Partner Date: APPROVED BY DENTON COUNTY COMMISSIONERS COURT By: Title: Date: cTA I nF 1 EXAc COUNTY OF T This instrume by Marc Ott, Assi STAlE OF COUNTY OF 4 acknowledged before me, on the day of , 2005, anager of the City of Fort Worth, Texas on behalf of said City. Notary Public, State of Texas Printed Name: My Commission Expires: This instrument was acknowledged before me on , 2005, by David P. Maniatis, General Partner for Aperion Communities, LLLP, an Arizona limited liability limited partnership, on behalf of said limited partnership. Notary Public in and for the State of Printed Name: My Commission Expires: r.l.r.rr;tr-r`rr STATE OF COUNTY OF This instrument was acknowledged before me on Maniatis, General Partner for Eladio Properties, LLLP, an Arizona limited liability imited partnership, on behalf of said limited partnership. STATE OF COUNTY OF , 2005, by David P. Notary Public in and for the State of Printed Name: My Commission Expires: This instrument was acknowledged before me on , 2005, by David P. Maniatis, General Partner for DROOY Properties, LLLP, an Arizona limited liability limited partnership, on behalf of said limited partnership. Notary Public in and for the State of Printed Name: My Commission Expires: STA 1 E OF 1 EXAS COUNTY OF DENTON This instrument was acknowledged before me, on the by said County. day of , 2005, of Denton County, Texas, on behalf of Notary Public, State of Texas Printed Name: My Commission Expires: A zrPr-, l'Agt 4.2 Exhibit A Depiction of the Development and Tradition ! oinuoryi \ 1 'tot'iv I���I!i'y ,P; 4'i Jw I (,I+,n i4M' ,,'� �uui,ull 1,1111l 'mr l�Vm���N���' Exhibit B Legal Description of the Development BEING a 431.303 acre tract of land comprised of two separate tracts of land in the G. Cardin Survey, Abstract No. 214, situated in Denton County, Texas and being a combination of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 RPRDCT and being more particularly described as follows: TRACT ONE BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00°3236" W along the west line of said Alliance 161 Investments tract and the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of 3701.24 feet to a 3/8" iron pin found; THENCE N 89°39'59" E along the north line of said Alliance 161 Investments tract and the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, a distance of 1826.89 feet to a 1/2" iron pin found, said iron pin also being on the west line of said Aperion Tract One -A; THENCE N 00°22'44" W along the east line of said McIntyre, et al, tract recorded in Volume 2906, Page 363 RPRDCT, and the west line of said Aperion Tract One -A, a distance of 1294.80 feet to a capped 1/2" iron pin set; THENCE S 86°14'27" E, a distance of 222.13 feet to a capped 1/2" iron pin set; THENCE S 52°34'22" E, a distance of 867.86 feet to a capped 1/2" iron pin set; THENCE S 44°08'03" E, a distance of 999.82 feet to a capped 1/2" iron pin set; THENCE S 65°58'36" E, a distance of 1029 92 feet to a capped 1/2" iron pin set; fENcE N 90 'Exy 00 " E. a distance of 773 31 feet to a capped 1,2" iron pm set: said ,,.'apped 1/2" iron pin set also being on the east line of said Aperion Tract One -A and the west line of that tract conveyed to Ferbro Investments, LLC by deed recorded under County Clerk's He No. 97- 0003605 RPRDCT; THENCE S 00°07'20" E along the east line of said Aperion Tract One -A and the west line of raid Ferbro Investments tract, a distance of 857.55 feet to a 1/2" iron pin found, said iron pin being on the northwesterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE S 44°23'02" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract a distance of 2256.14 feet to a 5/8" iron pin found; THENCE N 47°15'51" W along the east line of said Aperion Tract One -A and the northwesterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 24.73 feet to a 5/8" iron pin found; THENCE S 44°27'42" W along the east line of said Aperion Tract One -A and the northwesterly line of vid Atchison, Topeka and Santa Fe Railway Company tract, a distance of 1121.43 feet to a brass monument in concrete found, said brass monument also being on the said north right-of- way line of State Highway No. 114; THENCE S 89°47'36" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No. 114, a distance of 286.33 feet to a brass monument in concrete found; THENCE S 84°30'09" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No. 114, a distance of 703.04 feet to a brass monument in concrete found; THENCE S 89°48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No. 114, a distance of 1249.97 feet to a capped 1/2" iron pin set; THENCE N 00°11'12" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No. 114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89°48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No. 114, a distance of 250.00 feet to a capped 1/2" iron pin set; THENCE S 00°11'12" E along the south line of said Aperion Tract One -A and the north right-of- way line of State Highway No. 114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89°48'48" W along the south line of said Aperion Tract One -A and the north right- of-way line of State Highway No. 114, a distance of 238.28 feet to the Point of Beginning and i_iontaning 16:728,840 sq uare feet or (.4 1 acres of land, more or 'es, Tyg,cric, _347 t'r ,;',t44 TRACT 2 BEGINNING at a brass monument in concrete found, said brass monument also being on the south line of said Aperion Tract One-B, said brass monument also being on the north right-of- way line of State Highway No. 114, said brass monument also being on the west line of a tract conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT THENCE S 89°46'48" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No. 114, a distance of 1072.97 feet to a brass monument in concrete found; THENCE N 86°29'44" W along the south line of said Aperion Tract One-B and the north right- of-way line of State Highway No. 114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; THENCE N 44°26'31" E along the west line of said Aperion Tract One-B and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809.53 feet to a 5/8" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract; THENCE S 00°07'09" E along the east line of said Aperion Tract One-B and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing 2,058,725 square feet or 47.262 acres of land, more or less. Erhibit C Development Plan r}}t}},}."}optnient 1?,,Tetrncztt .09 ItiX11 41./../IC NMI go so Co iromommar'''' • $OO SOO VON IONS. SO' Mid 8 38.870 Ac nact 12 Tract 6 460.290 Ay 20.871 Ac .• 4 M11,F, „ Tract 13 rato1 83.456 Ao 11302Ac Traci 3 „ 30.414 Ac Tract 1 12.246 Ac --r7r-1.-",...7 'OA IWO Al' 40 IA - *MC Oil -*** NC'S OIN ' CON. cl/ 0 //VAC.** 9 ei"7:111:" CA 92612 1"711,71r Tract 14 472132 Ao w vac n on a NE* H. 114 (Variable Width 1,111.00 DrIRLOP011z APBRION COMMUNITEBS, W2 71135 Bast Redfield Rd. 11100 Sconsdals, AZ 0260 (4110) 991-22n IMINIMMOU1111111T014 QOOVWINI __MARSHALL I Cal - - OWMPOPNI 11.8•01•41oms, nmi• 431,303 Acres imam, we no FIXTPAASSUUTOIUAL YURIWICi1014 UTT OF FOOT Timm. DONTUM cuurirT, TEAM 0144er, —, Exhibit D Legal Description of 14 Tracts Tract 1 BEING a 12.245 acre tract of land in the G. Cardinal Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), and being more particularly described as follows: BEGINNING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E3236" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 534.24 feet to a point THENCE N 89E27'24" E, a distance of 337.96 feet to a point; THENCE N 00E32'36" W, a distance of 409.30 feet to a point THENCE N 88E27'04" E, a distance of 110.71 feet to a point, said point also being the Point of Curvature of a circular curve to the right having a radius of 400.00 feet, a central angle of 26E50'42" and being subtended by a chord which bears S 78E07'35" E, 185.70 feet; THENCE along said curve to the right, a distance of 187.41 feet to a point; THENCE S 64E42'14" E tangent to said curve, a distance of 147.91 feet to a point, said point also being the Point of Curvature of a non -tangent circular curve to the left having a radius of 1255.00 feet, a central angle of 15E55'19" and being subtended by a chord which bears S 07E25'03" W, 347.63 feet; THENCE along said curve to the left, a distance of 348.75 feet to a point; THENCE S 00E32'36" E tangent to said curve, a distance of 501.25 feet to a point, said point also being on the said proposed north right-of-way line of State Highway No.114; THENCE S 89E4848" W along the said proposed north right-of-way line of _State Highway No,114, a distance of 226,72 feet to a capped 1/2" iron pin set; THENCE N 00E11'12" W along the said proposed north right-of-way line of State 'ay No,114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE 89E48`48" W along the said proposed north ri 14 e.11 :cf 250 f-30 ff•et 1.4.) 3 c 3 rt:te d - 2 " r rir, set: )v.=,!'trs.prIttvrtt rt'tnn_t-lt -ofway line of State Highway No. Page. t THENCE S 00E1112" E along the said proposed north right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE S 89E4g48" W along the said proposed north right-of-way line of State Highway No.114, a distance of 238.28 feet to the Point of Beginning and containing 533,394 square feet or 12.245 acres of land, more or less. Tract 2 BEING a 11.302 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" W along the said west line of said Affiance 161 Investments tract and the said east line of said McIntyre tract, a distance of 534.24 feet to the Point of Beginning of the herein described tract; THENCE N 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 745.61 feet to a point; THENCE N 89E27'24" E, a distance of 58.46 feet to a point; THENCE N 60E49'43" E, a distance of 68.36 feet to a point; THENCE N 89E27'24" E, a distance of 217.00 feet to a point; THENCE N 00E32'36" W, a distance of 135.00 feet to a point; THENCE N 89E27'24" E, a distance of 32.60 feet to a point, said point also being the Point of Curvature of a circular curve to the right having a radius of 470.00 feet, a central angle of 34E06'03" and being subtended by a chord which bears S 73E29'35" E, 275.62 feet; 'HENCE along said curve to the right, a distance of 279,73 feet to a point; THENCE S 56E263.3" E tangent to --3aid curve, a distance of 341.40 feet to a point, said point also being the Point of Curvature of a non -tangent circular curve to the left having a radius of 1255.00 feet, a central angle of 16E48'33" and being subtended by a chord which bears S -3E46'59" W, 366,87 feet; THENCE along said curve to the left, a distance of 368.19 feet to a point; THENCE N 64E42'14" W, a distance of 147.91 feet to a point, said point also being the Point of Curvature of a circular curve to the left having a radius of 400.00 feet, a central angle of 26E50'42" and being subtended by a chord which bears N 78E07'35" W, 185.70feet; THENCE along said curve to the left, a distance of 187.41 feet to a poin THENCE S 88E 7'04" W tangent to said curve, a distance of 110.71 feet to a point; THENCE S 00E32'36" E, a distance of 409.30 feet to a point; THENCE S 89E27'24" W, a distance of 337.96 feet to the Point of Beginning and containing 492,326 square feet or 11.302 acres of land, more or less. Tract 3 BEING a 30.414 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway No.114, a distance of 238.28 feet to a capped 1/2" iron pin set; THENCE N 00E11'12" W along the said proposed north right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway No.114 , a distance of 250.00 feet to a capped 1/2" iron pin set; THENCE S 1)0E11'12" E along 'he said proposed north right-of-wav line of State Highway No_ 114, a distance of I 5,00 feet to a capped 1:2" iron pm set: 111ENCE N 89E4848" E along the said proposed north rightofway line of State Highway No.114, a distance of 226.72 feet to the Point of Beginning of the herein described tract; THENCE N 00E32'36" W departing the said proposed north right-of-way line of State Highway N',),114 a ),Istance f 507. 2,5 ff!rt .{) cl:"‘Int, aid potIA also 3,eing the Pf"int of Curvat"..!re f3 circular curve to the right having a radius of 1255.00 feet, a central angle of 44E41'36" and being subtended by a chord which bears N 21E48'12" E, 954.33 feet; THENCE along said curve to the right, a distance of 978.96 feet to a point; THENCE N 44E09'00" E tangent to said curve, a distance of 440.50 feet to a point; THENCE S 45E51'00" E, a distance of 173.53 feet to a point, said point also being the Point of Curvature of a circular curve to the left having a radius of 122.50 feet, a central angle of 44E3559" and being subtended by a chord which bears S 68E08'59" E , 92.97feet; THENCE along said curve to the left, a distance of 95.36 feet to a point; THENCE N 89E33'01" E tangent to said curve, a distance of 276.39 feet to a point; THENCE S 00E26'59" E, a distance of 768.50 feet to a point; THENCE S 89E33'01" W, a distance of 208.99 feet to a point; THENCE N 42E37'00" W, a distance of 35.75 feet to a point; THENCE S 89E33'01" W, a distance of 92.01 feet to a point; THENCE S 00E26'59" E, a distance of 476.50 feet to a point; THENCE S 89E33'01" W, a distance of 140.19 feet to a point; THENCE S 00E24'36" E, a distance of 50.00 feet to a point; THENCE S 89E33'01" W, a distance of 60.58 feet to a point; THENCE S 00E32'36" E, a distance of 275.42 feet to a point, said point also being on the proposed north right-of-way line of State Highway No. 114; THENCE S 89E48'48" W along the said proposed north right-of-way line of State Highway No.114, a distance of 630.48 feet to the Point of Beginning and containing 1,324,829 square feet or 30.414 acres of land, more or less. Tract 4 BEING a 4,07 acre tract of land tn the Cardinas Survey„Abstract No. 214, _situated in -Denton County, Texas and 17,eing a portion of that tract conveed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of Raid 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 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of c•sid McIntyre tract, a distance of 1692.60 feet to a point; THENCE N 89E27'24" E departing the said west line of said Alliance 161 Investments tract and the Raid east line of said McIntyre tract, a distance of 1387.64 feet to the Point of Beginning of the herein described tract; THENCE N 44E09'00" E, a distance of 692.11 feet to a point; THENCE S 00E26'59" E, a distance of 649.92 feet to a point; THENCE S 89E33'01" W, a distance of 276.39 feet to a point; said point also being the Point of Curvature of a circular curve to the right having a radius of 122.50 feet, a central angle of 44E35'59" and being subtended by a chord which bears N 68E08'59" W, 92.97 feet; THENCE along caid curve to the right, a distance of 95.36 feet to a point; THENCE N 45E51'00" W tangent to said curve, a distance of 173.53 feet to the Point of Beginning and containing 183,265 square feet or 4.207 acres of land, more or less. Tract 5 BEING a 18.269 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway No.114, a distance of 8.28 feet to a capped 1/2" iron pin set; - S THENCE N 00E11 12" Walong the said proposed north righ- t-of-w;Lri tate. Highway No 114, a distance of 15.00 feet to a capped 1/2" iron pin -;et, THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway NcY114 , a distance of 250.00 feet to a capped 1/2" iron pin set; 11. I Ti2 V_ k„ ;::o f A-fiv i!i!h-t.k3v 1;:-T%-tr.1,_,Tfines11 Aisj. r,t;r1,7-1-.1 No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway No.114, a distance of 226.72 feet to a point; THENCE N 00E32'36" W departing the said proposed north right-of-way line of State Highway No.114, a distance of 501.25 feet to a point, said point also being the Point of Curvature of a circular curve to the right having a radius of 1255.00 feet., a central angle of 32E43'52" and being subtended by a chord which bears N 15E49'20" E, 707.23 feet THENCE along said curve to the right, a distance of 716.94 feet to the Point of Beginning of the herein described tract; THENCE N 56E26'33" W, a distance of 341.40 feet to a point, said point also being the Point of Curvature of a circular curve to the left having a radius of 470.00 feet, a central angle of 34E06'03" and being subtended by a chord which bears N 73E29'35" W, 275.62 feet; THENCE along said curve to the left, a distance of 279.73 feet to a point; THENCE S 89E27'24" W tangent to said curve, a distance of 32.60 feet to a point; THENCE N 00E32'36" W, a distance of 537.12 feet to a point, said point also being the Point of Curvature of a circular curve to the right having a radius of 668.00 feet, a central angle of 45E28'14" and being subtended by a chord which bears N 22E11'31" E, 516.33 feet, THENCE along said curve to the right, a distance of 530.13 feet to a point, THENCE N 43E51'21" E, a distance of 53.48 feet to a point; THENCE S 45E51'00" E, a distance of 1146.77 feet to a point; THENCE S 44E09'00" W, a distance of 440.50 feet to a point, said point also being the Point of Curvature of a circular curve to the left having a radius of 1255.00 feet, a central angle of 11E57'44" and being subtended by a chord which bears S 38E10'08" W, 261.54 feet; THENCE along said curve to the left, a distance of 262.02 feet to the Point of Beginning and containing 795,805 square feet or 18.269 acres of land, more or less. Tract 5 BEING a 200371 acre tract of land in the (L Cardinas .Survey„ Abstract No, 214, ituated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT), and being more particularly described as follows: A'1\(i fit a 3;`,11T+C.L,. 1 ,J14r1 pin T-Orl pin11.k() hen g ,-)r) 'he proposed ru,rth 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 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 1279.85 feet to the Point of Beginning of the herein described tract; THENCE N 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 2122.47 feet to a point; THENCE S 67E39'31" E, a distance of 130.13 feet to a point THENCE S 45E05'09" E, a distance of 646.65 feet to a point; THENCE N 44E55'38" E, a distance of 160.00 feet to a point; THENCE S 45E04'22" E, a distance of 278.50 feet to a point; THENCE S 44E48'36" W, a distance of 488.90 feet to a point, said point also being the Point of Curvature of a circular curve to the left having a radius of 668.00 feet, a central angle of 45E28'14" and being subtended by a chord which bears S 22E11'31" W, 516.33 feet; THENCE along said curve to the left, a distance of 530.13 feet to a point; THENCE S 00E32'36" E tangent to said curve, a distance of 672.12 feet to a point; THENCE S 89E27'24" W, a distance of 217.00 feet to a point; THENCE S 60E49'43" W, a distance of 68.36 feet to a point; THENCE S 89E27'24" W, a distance of 58.46 feet to the Point of Beginning and containing 909,134 square feet or 20.871 acres of land, more or less. Tract 7 BEING a 17.770 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those nacts conveyed to Aperion Communities, LLLP. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 rnvestments tract, said iron pin also being on the east line of a tract conveyed to Plge hi R IX: I T,rv,:loprntn? Aptc:nr.r1 Pa.ge THENCE N 00E32'36" W along the said west line of .aid Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 1692.60 feet to a point; THENCE N 89E27'24" E departing the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 1387.64 feet to the Point of Beginning of the herein described tract; THENCE N 45E51'00" W, a distance of 1146.77 feet to a point; THENCE N 44E55'38" E, a distance of 677.98 feet to a point; THENCE S 45E49'44" E, a distance of 1137.58 feet to a point; THENCE S 44E09'00" W, a distance of 677.50 feet to the Point of Beginning and containing 774,062 square feet or 17.770 acres of land, more or less. Tract 8 BEING a 36.870 acre tract of land in the G. Cardin as Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of said Alliance 161 Investments tract, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 3402.32 feet to the Point of Beginning of the herein described tract; THENCE N 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 298.92 feet to a 1/2" iron pin found; THENCE N 89E39'59" E along the north line of said Alliance 161 Investments tract and a south Iine of 5aid McIntyre tract, a diStarice of 1876_89 feet to a point; THENCE S 00E2659" E, a distance of 1509,76 feet to a point; THENCE S 44E09'00" W, a distance of 14.61 feet to a point; njp;cE. N 5E49'44" \\:, a distance of 1137 5 feet to a point, kr - THENCE S 44E55'38" W, a distance of 242.56 feet to a point; THENCE N 45E04'22" W, a distance of 278.50 feet to a point; THENCE S 44E55'38" W, a distance of 160.00 feet to a point; THENCE N 45E05'09" W, a distance of 646.65 feet to a point; THENCE N 67E39'31" W, a distance of 130.13 feet to the Point of Beginning and containing 1,606,055 square feet or 36.870 acres of land, more or less. Tract 9 BEING a 15.160 acre tract of land in the G. Cardinal Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 RPRDCT, Said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 2184.61 feet to a point; THENCE N 89E27'24" E departing the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 1874.41 feet to the Point of Beginning of the herein described tract; THENCE N 00E26'59" W, a distance of 1355.71 feet to a point, said point also being the Point of Curvature of a non -tangent circular curve to the right having a radius of 720.00 feet, a central angle of 4E05'21" and being subtended by a chord which bears N 87E34'36" E, 51.37 feet; THENCE along said curve to the right, a distance of 51 39 feet to a point; THENCE N 89E37'16" E tangent to said curve, a distance of 685,93 feet to a point, said point also being the Point of Curvature of a non -tangent circular curve to the right having a radius of 1800.00 feet, a central angle of 40E19'11" and being subtended by a chord which bears S 23E59'25" W, 1240.70 feet; coJrytt t_o -the t;got-,tt, of 1 tIR tect to -Crigt THENCE S 44E09'00" W tangent to said curve, a distance of 318.95 feet to the Point of Beginning and containing 660,385 square feet or 15.160 acres of land, more or less. Tract 10 BEING a 23.220 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 RPRDCT, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 3701.24 feet; THENCE N 89E39'48" E along the north line of said Alliance 161 Investments tract and a south line of said McIntyre tract, a distance of 1826.89 feet to the Point of Beginning of the herein described tract; THENCE N 00E22'44" W, a distance of 1294.80 feet to a point THENCE S 86E14'27" E, a distance of 222.13 feet to a point THENCE S 52E34'22" E, a distance of 797.46 feet to a point, said point also being the Point of Curvature of a non -tangent circular curve to the left having a radius of 1565.00 feet, a central angle of 15E36'58" and being subtended by a chord which bears S 07E32'15" W, 425.23 feet; THENCE along said curve to the left, a distance of 426.55 feet to a point; THENCE S 00E16'14" E tangent to said curve, a distance of 392.30 feet to a point, said point also being the Point of Curvature of a circular curve to the right having a radius of 1800.00 feet, a central angle of 4E06'03" and being subtended by a chord which bears S 01E46'48" W, 128.81 feet; THENCE along said curie to the right, a distance of 128,84 feet to a point; 1-11.ENCE S 89E3716' W, a distance of 685,93 feet to a point, said point also being the Point of Curvature of a circular curve to the left having a radius of 720,00 feet, a central angle of 4E0521' and being subtended by a chord which bears S 87E34'36" W, 51.37 feet; FITENCE along said curve to the left, a distance of 51.39 feet, THENCE N 00E26'59" W, a distance of 154.05 feet to a point; THENCE S 89E39'59" W, a distance of 50.00 feet to the Point of Beginning and containing 1,011,458 square feet or 23.220 acres of land, more or less. Tract 11 BEING a 60.972 acre tract of land in the G. Cardinal Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion Tract One-B) and being more particularly described as follows: COMMENCING at a capped 5/8" iron pin found, said iron pin also being on the proposed north right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 RPRDCT, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by deed recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" W along the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 2484.76 feet to a point; THENCE N 89E2T24" E departing the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 2167.41 feet to the Point of Beginning of the herein described tract, said Point of Beginning also being the Point of Curvature of a circular curve to the left having a radius of 1800.00 feet, a central angle of 41E13'12" and being subtended by a chord which bears N 20E20'22" E, 1267.22 feet; THENCE along said curve to the left, a distance of 1294.97 feet to a point; THENCE N 00E16'14" W tangent to said curve, a distance of 392.30 feet to a point, said point also being the Point of Curvature of a circular curve to the right having a radius of 1565.00 feet, a central angle of 15E36'58" and being subtended by a chord which bears N 07E32'15" E, 425.23 feet; THENCE along said curve to the right, a distance of 426.55 feet to a point; THENCE S 52E34'22 a 1st (2f. 70 40 feet to a *nt: THENCE S 44E08'03' E, a distance of 999.82 feet to a point; THENCE S 65E58'36" E, a distance of 455.31 feet to a point; TEfF.Nf.-E ' 44E2:3'02" W, a 1i7tance of 1146..43 feet to a point, said point also being the Point tef it Viii'll!US 222 angle L'tty,i7lt-epTE,t1-it gctr 1":1rti 7E3519" and being subtended by a chord which bears S 40E35'22" W, 29.45 feet; THENCE along said curve to the left, a distance of 29.47 feet to a point; THENCE S 45E3218" E, a distance of 560.55 feet to a point; THENCE S 44E23'02" W, a distance of 147.72 feet to a point; THENCE S 45E36'58" E, a distance of 165.03 feet to a point; THENCE N 44E27'42" E, a distance of 608.50 feet to a point; THENCE S 45E32'18" E, a distance of 964.15 feet to a point; THENCE S 44E23'02" W, a distance of 607.74 feet to a point; THENCE N 45E36'58" W, a distance of 562.54 feet to a point; THENCE S 44E27'42" W, a distance of 157.50 feet to a point; THENCE N 45E32'18" W, a distance of 402.44 feet to a point; THENCE S 44E27'42" W, a distance of 152.50 feet to a point; THENCE N 45E32'18" W, a distance of 107.50 feet to a point; THENCE S 44E27'42" W, a distance of 285.00 feet to a point; THENCE N 45E32'18" W, a distance of 1068.41 feet to the Point of Beginning and containing 2,655,946 square feet or 60.972 acres of land, more or less. Tract 12 BEING a 49.290 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Nancy Talley Reynolds, et al, by deed recorded in Volume 2301, Page 223 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and Aperion tract One-B) and being more particularly described as follows C.-0NiMENCINCI at a capped IS iron pin found, said iron pin also being on the o -,ised north right-of-way line of State Highway No. 114, said iron pin also being on the west line of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 9.58 RPRDC:T, said iron pin also being on the east line of a tract conveyed to Betty Marie McIntyre, et al, by recorded in Volume 2906, Page 363 RPRDCT; THENCE N 00E32'36" W along the said Al1;anct' T.! .6 !:=1v-f.-fitrnenis trai,1 and be said east iine of said NIclatyte tract, a distance of 1822.30 feet to a point; THENCE N 89E27'24" E departing the said west line of said Alliance 161 Investments tract and the said east line of said McIntyre tract, a distance of 4531.61 feet to a point on the westerly right-of-way line of the Atchison, Topeka and Santa Fe Railway Company, said point also being the Point of Beginning of the herein described tract; THENCE N 45E32'18" W, a distance of 964.15 feet to a point; THENCE S 44E2742" W, a distance of 608.50 feet to a point; THENCE N 45E36'58" W, a distance of 165.03 feet to a point; THENCE N 44E23'02" E, a distance of 147.72 feet to a point; THENCE N 45E32'18" W, a distance of 560.55 feet to a point, said point also being the Point of Curvature of a circular curve to the right having a radius of 222.50 feet, a central angle of 7E35'19" and being subtended by a chord which bears N 40E35'22" E, 29.45 feet; THENCE along said curve to the right, a distance of 29.47 feet to a point; THENCE N 44E23'02" E tangent to said curve, a distance of 1146.43 feet to a point; THENCE S 65E58'36" E, a distance of 574.61 feet to a point; THENCE S 90E00'00" E, a distance of 773.31 feet to a point; THENCE S 00E07'20" E, a distance of 857.55 feet to a point; THENCE S 44E23'02" W, a distance of 846.34 feet to the Point of Beginning and containing 2,147,059 square feet or 49.290 acres of land, more or less. Tract 13 BEING a 83.456 acre tract of land in the G. Cardinas Survey, Abstract No. 214, situated in Denton County, Texas and being a portion of that tract conveyed to Alliance 161 Investments by deed recorded in Volume 2778, Page 958 of the Real Property Records of Denton County, Texas (RPRDCT) and a portion of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 RPRDCT (Aperion Tract One -A and .Aperion Tract One-B) and being more particularly described as follows: COMMENCENC.i at a cappedsi8" iron pin found, said iron pm also being on the proposed fort 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; II fENCE N 89E4818" E along the said proposed north right-of-way line of State Highway !4i _,,listance .4 2,-; '3 :*8 feet t4-)1 iri71 vti,prent Av ttc-rn tot Lgt THENCE N 00E11'12" W along the mid proposed north right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway No.114 , a distance of 250.00 feet to a capped 1/2" iron pin set THENCE S 00E1112" E along the said proposed north right-of-way line of State Highway No.114, a distance of 15.00 feet to a capped 1/2" iron pin set; THENCE N 89E48'48" E along the said proposed north right-of-way line of State Highway No.114, a distance of 857.21 feet to the Point of Beginning of the herein described tract; THENCE N 00E32'36" W, a distance of 275.42 feet to a point; THENCE N 89E33'01" E, a distance of 60.58 feet to a point; THENCE N 00E24'36" W, a distance of 50.00 feet to a point; THENCE N 89E33'01" E, a distance of 140.19 feet to a point; THENCE N 00E26'59" W, a distance of 476.50 feet to a point; THENCE N 89E33'01" E, a distance of 92.01 feet to a point; THENCE S 42E37'00" E, a distance of 35.75 feet to a point; THENCE N 89E33'01" E, a distance of 208.99 feet to a point; THENCE N 00E26'59" W, a distance of 1418.42 feet to a point THENCE N 44E09'00" E, a distance of 318.95 feet to a point, said point also being the Point of Curvature of a circular curve to the left having a radius of 1800.00 feet, a central angle of 3E12'02" and being subtended by a chord which bears N 42E32'59" E, 100.53 feet; THENCE along said curve to the left, a distance of 100.55 feet to a point; THENCE S 45E32'18" E, a distance of 1068.41 feet to a point; I -HENCE N 44E2-74F, a Ws - of .:785 C() feet to a point: THENCE S 45E3218" E. a distance of I O750 feet to a point; THENCE N 44E2742" E, a distance of 152.50 feet to a point; S 421 S F. a -lisitance of 402_44 feet to a point: „44,1-:•447:54r447 P-N4z 4 THENCE N 44E2T42" E, a distance of 157.50 feet to a point; THENCE S 45E36'58" E, a distance of 562.54 feet to a point; THENCE S 44E23'02" W, a distance of 802.06 feet to a point; THENCE N 47E15'51" W, a distance of 24.73 feet to a point; THENCE S 44E27'42" W, a distance of 1121.43 feet to a point; THENCE S 89E47'36" W, a distance of 286.33 feet to a point; THENCE S 84E3009" W, a distance of 703.04 feet to a point; THENCE S 89E48'48" W, a distance of 392.76 feet to the Point of Beginning and containing 3,635,339 square feet or 83.456 acres of land, more or less. Tract 14 BEING Tract 2 of those tracts conveyed to Aperion Communities, L.L.L.P. by deed recorded under County Clerk's File No. 2004-11913 of the Real Property Records of Denton County, Texas (RPRDCT) and being more particularly described as follows: BEGINNING at a brass monument in concrete found, said brass monument also being on the south line of said Aperion Tract 2, said brass monument also being on the north right-of-way line of State Highway No. 114, said brass monument also being on the west line of a tract conveyed to Ferbro Investments by deed recorded under County Clerk's File No. 97-0003605 RPRDCT; THENCE S 89E4648" W along the south line of said Aperion Tract 2 and the north right-of-way line of State Highway No.114, a distance of 1072.97 feet to a brass monument in concrete found; THENCE N 86E2944" W along the south line of said Aperion Tract 2 and the north right-of- way line of State Highway No.114, a distance of 900.20 feet to a brass monument in concrete found, said brass monument also being on the southeasterly line of a tract conveyed to The Atchison, Topeka and Santa Fe Railway Company by deed recorded under County Clerk's File No. 93-R0020408 RPRDCT; [HENCE N 44E26'31" E along the west -ine of said Aperion Tract 2 and the southeasterly line of said Atchison, Topeka and Santa Fe Railway Company tract, a distance of 2809,53 feet to a 518" iron pin found, said iron pin also being on the west line of said Ferbro Investments tract, THENCE S 00E07'09" E along the east line of said Aperion Tract 2 and the west line of said Ferbro Investments tract, a distance of 2056.80 feet to the Point of Beginning and containing feet r 47 :62 acres -Aland. more or less rtAr 1.7 ItitActrAt r3el A gt l'ettr.t.trq Exhibit E Special Regulations Street, Right -of -Way, and Sidewalk Widths Any portion of a local residential street that abuts a park with an area of .5 acre or greater shall be a 29-foot back-to-back section in a 42-foot right-of-way. Twenty (20) feet adjacent to the right-of-way shall be reserved for a sidewalk within a public access easement The 7 feet of park area immediately adjacent to the right-of-way shall be reserved for a utility easement The sidewalk in the park area may be meandering or linear. Where 'sidewalks abut residential lots, sidewalks shall be physically connected in accordance with the Americans with Disabilities Act On all residential lots across from park areas subject to this section, a 4-foot wide sidewalk shall be located within a 13-foot wide parkway and shall be separated from the property line by 3 feet. 2. Local residential streets or any portion thereof that are not subject to A(1) shall be a 29- foot back-to-back section, with a pair of 4-foot wide sidewalks separated from the property line by 3 feet within a 13-foot wide parkway, all located in a 55-foot right-of- way. No encroachments shall be allowed in the right-of-way between the sidewalk and property line. Collector residential streets shall be a 37-foot back-to-back section, with a pair of 5-foot wide sidewalks separated from the street by 10-foot wide parkways. All will be located in a 67-foot right-of-way. 4. Minor arterial streets shall contain two 28-foot back-to-back sections, divided by a 51- foot median, with a 9-foot wide parkway all located within a 125-foot right-of-way. An 8-foot wide sidewalk shall meander within a 22.5-foot landscape buffer and public access easement that is adjacent to either side of the 125-foot right-of-way. 5. Alleys shall be 12 feet wide and centered within a 15-foot right-of-way, except that those alleys located adjacent to townhomes or commercial lots that require no minimum rear yard setback shall be 18 feet wide within a 20-foot right-of-way. 6. All other streets shall be constructed in accordance with the requirements of the City of Fort Worth. B. Block Length , 1 The minimum block length shall be 300 feet. 2. The rrlax;inurn 1-.)1c.‹.1( length sh—all be 1,3:0 fee'. C. Minimum Street Centerline Off -Sets The minimum street centerline off -set shall be 100 feet for a street that: (1) is located within a right-of-way that is 67 feet wide or less; and (2) is adjacent to a park with an area of at least 5 acre hut less than 3 acres For all other internal residential streets a minimum 125-foot centerline off -set shall be required. For all streets connecting to a right-of-way greater than 67 feet a street centerline off -set of 150-feet shall be required. i'agr Exhibit F Table of Permitted Uses USES RESIDENTIAL USES Ouster housing Multifamily dwelling (apartment) One dwelling unit when part of a business One -family attarhed dwelling (townhouse, townhouse) One -family detached dwelling PUBLIC AND CIVIC USES Ambulance dispatch station Assisted living facility Blood bank Care facility - Center, community recreation or welfare, government operated or - controlled Center, community recreation or welfare, private or non-profit College or university Couritry club tprn. are) Day care center 6 or uore children or adults) Electric power substation Golf course Golf driving range ; tioprotra t,tme-nt C T M C 0 o e I o I a w : a e m a e a - e b d is F ✓ o - a a e a U I a I s s t i a e e y I I I F y C i 1 c a I s 1 t= 1 CI t ✓ i e s P USES Government office facility Health services facility, including doctor's office or medical clinic Hospice Hospital Kindergarten Museum, library, or fine arts center, government operated or controlled Neighborhood recreation center Nursing home (with full medical services) Park or playground Place of worship School, elementary or secondary (public or private) Stealth telecommunication towers Telecommunication antenna (on structure) Water supply, treatment or storage facility - TEMPORARY USES Batch plant, concrete or asphalt (temporary) Garage or other occasional sale Model home Trailer, (portable) used for sales, construction or storage COMMERCIAL USES .Amusement, indoor Arnt.i_semerft, -..)utdoor CT e I / C IP I P d Ii S e C 0 • e • a 7 I F y C 1 P -P P P P P - P is P P _ i P P 1..}tveloprncnt .Ag7t.-c7-nellt USES Antique shop Appliance, sales, supply or repair Auto parts supply, retail Automotive repair, paint and body shop Bakery Bank, financial institution Bar, tavern, cocktail lounge, club Barber or beauty shop Baseball/softball facility (commercial) Boat rental or sales Book, stationary stores or newsstand Bowling alley Burglar alarm sales or service Business college or commercial school Car wash, full or self service Caterer or wedding service Clothing/wearing apparel sales, new Clothing/wearing apparel sales, used Club, commercial or business Cold storage plant or ice p13Dt Convenience store Copy store or commercial print center Dressmaking, custom, millinery shop Pr:ve tn restaurant nr business )r-,,--:412trent t printing C T M C 0 O o i o a o w 1 • e et a c is e h d a F ✓ o a I c • U i at I s s t I I e e Y I I / F y C a I e • i I I t I e t ✓ i e p p P USES Firewood sales Furniture sales, new (office and residential) in a building Furniture upholstery, refinishing or resale Garage, storage only Gasoline sales General merchandise store Greenhouse or plant nursery Grocery store, meat market Gunsmithin' repairs or sales Health or recreation club Home improvement store Hotel, motel or inn Interior decorating Large retail store (big box retail) Laundry or dry cleaning collection office Laundry, dry cleaning or washaleria Leather goods ilhop Liquor tiir package store. ! Locksmili Lodge or civic club Massage therapy Medical curplies qeliiiptrzert iales !it eraj cin;enrAgp!-errirrt - C T M C 0 O o I o o M w I wi e w I e in - e h d a F ✓ o a a e le U I a I i t t I II e e 7 I I / F y C a I c • I s I t I e t ✓ ( e F ?Age 4 USES Mortuary or funeral borne Museum or cultural facility Newspaper distribution center Offices Optician Parking area or garage, commercial Pharmacy (drug store) Photograph, portrait or camera shop or photo finishing Print centers, commercial, with offset printing Recording studio Restaurant, caf6, cafeteria Retail sales, general Saddle or harness, repair or sales Service station Shoe shine shop Studio, art or photography Swimming pool, commercial Tailor, clothing or apparel shop C T a I I / C I r I U $ C a a 7 F P P P P P P P P Taxidermist shop _ Tier.au.v.-re theater or auditorium Vtbicle sales or rental, including automobiles, rnmorcyc les, boats or mailers Veterinary clinic with indoor kennels lLsiDI:sm L.- USES P P F a A USES Passenger station ±TT IT to „-e-1,;46ITT,TTnt AgTrtTniTni C T M C 0 o e I o a en w z • e • a e • e b d o F r • • a c • V I a I s s t I a e e y I I / F y C a I e a i s 1 t I e t r I e t. 6 Exhibit G ASSIGNMENT AM) ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made and entered into as of the day of , between , a ("Assignor"), and a ("Assignee") (Assignor and Assignee are hereinafter sometimes collectively referred to as the "Parties" and singularly as a "Party"). RECITALS: A. Assignor is the owner of the rights of the Owner under that certain "Development Agreement" (City Secretary Contract No. 32897, M & C — C-21198) (the "Agreement") effective as of December 21, 2005, between Aperion Communities, LLLP, Eladio Properties, LLLP, and Drooy Properties, LLLP, collectively and individually as Owner, and the City of Fort Worth, Texas, as the City, relating to the development of the Development (as described therein), to the extent that the Agreement covers, affects, and relates to the lands described on Exhibit A attached to and made a part hereof of this Assignment for all purposes (the "Transferred Premises"). B. Assignor desires to assign certain of its rights under the Agreement as it relates to the Transferred Premises to Assignee, and Assignee desires to acquire such rights, on and subject to the terms and conditions of this Assignment NOW, THEREFORE, in consideration of the premises, the mutual covenants and obligations set forth herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties hereby agree and act as follows: 1. Certain Defined Terms. Unless indicated otherwise herein, capitalized terms in this Assignment shall have the same respective meanings as are ascribed to them in the Agreement. 2. Assignment. Subject to all of the terms and conditions of this Assignment, Assignor hereby assigns all [or describe specifically assigned rights if partial] of its rights under the Agreement, insofar as the Agreement covers, affects, and relates to the Transferred Premises. 3. Assumption. Assignee hereby assumes all obligations of Assignor and any Iahihty that may result from acts or ::)missions by Assignee under the Agreement as it relates to the Transferred Preauses that may arise or accrue from and after the effective date of this Assignment, and Assignor is hereby released from all such obligations arid liabilities from and after the date of this Assignment; provided, however, this Assignment does not release Assignor from any liability that resulted from an act or omission by Assignor that occurred prior to the effective date of this Assignment unless the City approves the release in writing. 4. Governing Law. THIS ASSIGNMENT MUST BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AS TFITY 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: By: Printed Name: Title: ASSIGNEE: By: Printed Name: Title: SWORN TO AND SUBSCRIBED before me on the day of 2005, by Notary Public, State of Texas STATE OF TEXAS COUNTY OF SWORN TO AND SUBSCRIBED before me on the day of 2005, by Notary Public, State of Texas [Add Acknowledgments] kg7-c7cemt EXHIBIT "A" The Transferred Premises Az-A-rig.pmg7AAT Agrercn1 r' Age I Exhibit E Special Regulations A. Street, Right -of -Way, and Sidewalk Widths Any portion of a local residential street that abuts a park with an area of .5 acre or greater shall be a 29-foot back-to-back section in a 42-foot right-of-way, Twenty (20) feet adjacent to the right-of-way shall be reserved for a sidewalk within a public access easement. The 7 feet of park area immediately adjacent to the right- of-way shall be reserved for a utility easement. The sidewalk in the park area may be meandering or linear. Where sidewalks abut residential lots, sidewalks shall be physically connected in accordance with the Americans with Disabilities Act. On all residential lots across from park areas subject to this section, a 4-foot wide sidewalk shall be located within a 13-foot wide parkway and shall be separated from the property line by 3 feet. 2. Local residential streets or any portion thereof that are not subject to A(1) shall be a 29-foot back-to-back section, with a pair of 4-foot wide sidewalks separated from the property line by 3 feet within a 13-foot wide parkway, all located in a 55-foot right-of-way. No encroachments shall be allowed in the right-of-way between the sidewalk and property line. 3 Collector residential streets shall be a 37-foot back-to-back section, with a pair of 5-foot wide sidewalks separated from the street by 10-foot wide parkways. All will be located in a 67-foot right-of-way. 4. Minor arterial streets shall contain two 28-foot back-to-back sections, divided by a 51-foot median, with a 9-foot wide parkway all located within a 125-foot right- of-way. An 8-foot wide sidewalk shall meander within a 22.5-foot landscape buffer and public access easement that is adjacent to either side of the 125-foot right-of-way. 5. Alleys shall be 12 feet wide and centered within a 15-foot right-of-way, except that those alleys located adjacent to townhomes or commercial lots that require no minimum rear yard setback shall be 18 feet wide within a 20-foot right-of-way. 6. All other streets shall be constructed in accordance with the requirements of the City of Fort Worth. B. Mock 1ngth Pie ':rikrii-mitran Nock 1enzh haU e24..i feet. [he maximum block length shall he 1,:' 0 feet. C. Minimum Street Centerline Off -Sets The minimum street centerline off -set shall be 100 feet for a street that: (1) is located within a right-of-way that is 67 feet wide or less: and (2) is adjacent to a park with an area of at least .5 acre but less than 3 acres. For all other internal residential streets a minimum 125-foot centerline off -set shall be required. For all streets connecting to a right-of-way greater than 67 feet a street centerline off -set of 150-feet shall be required. Exhibit F Strategic Partnership Agreement