HomeMy WebLinkAbout024782 - Settlements - Contract - Hillwood Development Corporation04-05-99 40-56 RCVD gg^ECTETARY
CAPITAL COST CONTRACT
This Capital Cost Contract (the "Contract") is executed between the City of Fort
Worth, Texas, a Texas home-rule municipality ("Fort Worth"), and Hillwood
Development Corporation, a Texas corporation ("Hillwood"), to be effective December
31, 1998, as part of a settlement agreement in connection with that certain lawsuit styled
Town of Westlake, Texas v. City of Fort Worth, Texas, et al., Cause
No. 02-98-00047-CV in the 17th Judicial District Court of Tarrant County, Texas.
WHEREAS, The Town of Westlake ("Westlake"), a Type B general-law
municipality, includes property located in both Tarrant and Denton Counties (which
property is generally shown on the attached Exhibit A); and
WHEREAS, Westlake includes the approximately 2,315-acre property owned by
affiliates of Hillwood and generally known as the Circle T Ranch (the "Ranch") (which
property is also generally shown on the attached Exhibit A); and
WHEREAS, Westlake, in order to provide potable water adequate to supply the
current and future needs of Westlake, including the Ranch, entered into a Contract for
Water Service with Fort Worth dated Mqrch ^*4999 (the "Water Contract"); and
WHEREAS, on September 29, 1998, the City Council of Fort Worth adopted
Resolution #2457 (the "Resolution"), a copy of which is attached hereto as Exhibit B and
incorporated herein for all purposes, pursuant to which the Fort Worth City Manager and
the Fort Worth City Attorney were authorized to enter into a Memorandum of
Understanding concerning the conditions under which Fort Worth would execute a Water
Contract with Westlake; and
CIWWMY
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Capital Cost Contract FINAL 3-12-99
007510.00019:0402442.07
WHEREAS, on September 29, 1998, Fort Worth (acting through its City
Manager, Bob Terrell) and Hill wood (acting through Michael Berry) executed a
Memorandum of Understanding (the "Memorandum"), a copy of which is attached hereto
as Exhibit C and incorporated herein for all purposes, which provides (i) that Fort Worth
will enter into a Water Contract with Westlake and (ii) that Hillwood will fund certain
capital costs which Fort Worth has incurred or will incur in association with Fort Worth's
obligation to provide water under the Water Contract; and
WHEREAS, the Memorandum contemplated that Fort Worth and Hillwood
would enter into this Contract to evidence their respective obligations under the
Memorandum; and
WHEREAS, Fort Worth and Hillwood desire to settle the above-referenced
lawsuit and to enter into this Contract to evidence their respective obligations under the
Memorandum.
NOW THEREFORE, in consideration of the obligations of the parties as set
forth in the Resolution, the Memorandum, and this Contract, the parties agree as follows:
1. Uniform Wholesale Water Contract: Fort Worth executed a Water Contract
with Westlake on Nf^rdh <^#H999. A copy of the Water Contract is attached as
Exhibit D and made a part hereof for all purposes. Subject to the provisions of the Texas
Open Records Act regarding the protective content of certain information, Fort Worth
agrees to provide to Hillwood during the term of the Water Contract (and all extensions
and renewals thereof): (i) notice of any alleged default by Westlake (and notice of any act
or omission that, with the passage of time or giving of notice would constitute a default
by Westlake) and a reasonable opportunity to cure such default; (ii) notice of any alleged
default by Fort Worth (and notice of any act or omission that, with the passage of time or
giving of notice would constitute a default by Fort Worth); (iii) at least 30 days' advanced
notice of any proposed amendment or modification to the Water Contract (together with a
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Capital Cost Contract FINAL 3-12-99
007510.00019:0402442.07
complete copy of such proposed amendment or modification); (iv) when executed, copies
of any extensions, renewals, amendments or modifications to the Water Contract; and
(v) copies of all material correspondence (excluding water bills) between Fort Worth and
Westlake regarding the Water Contract. Notwithstanding the foregoing, Fort Worth's
failure to provide any notice or documents required hereunder shall not relieve Hillwood
of any obligation contained herein.
2. Prepayment of Impact Fees:
(a) Hill wood delivered a payment (check number 71840 dated February 12,
1999) to Fort Worth in the amount of $2,000,000.00; which payment shall be deemed a
pre-payment of (and "credit" against) future impact fees that may be payable under the
Water Contract with respect to development of the Ranch or any other property purchased
by Hillwood in Westlake. Such pre-payment or "credit" may be assigned by Hillwood, in
whole or in part, to any future owner, lessee, or developer (or any of their respective
lenders) of any part of the Ranch or any other property purchased by Hillwood in
Westlake. Hillwood shall give written notice of any such assignment to Fort Worth and
Westlake.
(b) Under the terms of the Water Contract, Westlake will be responsible for
collecting impact fees for new connections within Westlake's service area. Upon the
collection of such fees, Westlake shall refund such impact fees directly to Hillwood (or
its assignees) and notify Fort Worth that the amount of such refund shall be applied
against (and shall reduce) the $2,000,000.00 credit described above. It will be Hillwood's
responsibility to assure itself that Westlake appropriately applies the pre-paid credit for
Hillwood connections. Fort Worth assumes no responsibility for the appropriate or
accurate accounting between Westlake and Hillwood for the pre-paid impact fees.
3. Installment Payments for Water System Improvements: Fort Worth agrees to
make the necessary improvements to its water system to provide the additional capacity
to serve Westlake in accordance with this Contract and the Water Contract, unless such
improvements are thg subject of written agreements executed prior to this Contract
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Capital Cost Contract FINAL 3-12-99
007510.00019:0402442.07
between Hillwood and Fort Worth, in which event, such other written agreements shall
control. In consideration for such improvements and settlement of the above styled law
suit, Hillwood agrees to pay to Fort Worth the amounts set forth on Exhibit E. Such
payment obligations shall terminate in the event Fort Worth terminates the Water
Contract for any reason other than a default by Westlake or elects not to offer Westlake
substantially the same contract that it offers all of its other wholesale customers.
4. Assignment: Hillwood shall have the right to assign, in whole or in part, its
obligations under this Contract; provided, however, such assignment shall not release
Hillwood from such assigned obligations unless Fort Worth approves such release, which
approval shall not be unreasonably withheld or delayed.
5. Notices: Any notices required or contemplated under this Contract shall be in
writing and may be given (i) by certified or registered mail, return receipt requested;
(ii) by FAX with evidence of transmittal; (iii) by commercial delivery service, with
evidence of delivery; or (iv) by any other method with evidence of delivery. Such notices
shall be deemed given when actually received or, in the case of certified or registered
mail, not later than three days after deposited with the US Postal Service. Notice shall be
given to the addresses set forth below (which addresses may be changed by giving written
notice in accordance with this paragraph).
Hillwood Development Corporation
Attn: Michael Berry
13600 Heritage Parkway, Suite 200
Fort Worth, Texas 76177
Phone: (817) 224-6000
FAX: (817) 224-6060
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Capital Cost Contract FINAL 3-12-99
007510.00019:0402442.07
With a copy to:
Hughes & Luce, L.L.P.
Attn: Dwight A. Shupe
1717 Main Street, Suite 2800
Dallas, Texas 75201
Phone: (214) 939-5468
FAX: (214) 939-5849
City of Fort Worth, Texas
Attn: Director, Water Department
1000 Throckmorton
Fort Worth, Texas 76102
Phone: (817) 871-8207
FAX: (817) 871-8195
With a copy to:
City of Fort Worth
Attn: City Manager
1000 Throckmorton
Fort Worth, Texas 76102
Phone: (817)871-6111
FAX: (817) 871-6134
6. Entire Agreement: This Contract (together with the Water Contract, as amended
from time to time) set forth the entire understanding of the parties with respect to the
obligation of Fort Worth to make the necessary improvements to its water system to
provide additional capacity to serve Westlake and with respect to the obligations of
Hillwood to make payments to Fort Worth in consideration for such water system
improvements.
HILL WOOD DEVELOPMENT CORPORATION
By: p QescM___________
Title: 5 g,, V eg pf
Date: 3-12-BS___________________
PAGES
Capital Cost Contract FINAL 3-12-99
007510.00019:0402442.07
By:
THE CIJY OF I>ORT WORTH, TEXAS
Approved as to Form and Legality
Assistant City Attorney
oria Pearson, City Secretary
Date: 4^'
Contract Authori
Date
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Capital Cost Contract FINAL 3-12-99
007510.00019:0402442.07
EXHIBIT A
DESCRIPTION OF CORPORATE LIMITS OF WESTLAKE
[INCLUDING CIRCLE T RANCH]
Exhibit A - PAGE 1
007510.00019:0402442.07
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EXHIBIT B
RESOLUTION #2457
Exhibit B - PAGE 1
007510.00019:0402442.07
A Resolution
AUTHORIZING THE CITY MANAGER AND THE CITY’S
ATTORNEYS TO SIGN A SETTLEMENT AGREEMENT AND
RELATED DOCUMENTS THAT INCLUDE THE NEGOTIATED
TERMS AND CONDITIONS WITH HILLWOOD DEVELOPMENT
CORPORATION, THE CITY OF WESTLAKE AND OTHERS
CONCERNING THE SETTLEMENT OF LITIGATION RELATED
TO THE CIRCLE T RANCH AND OTHER EXTRATERRITORIAL
JURISDICTION ISSUES
WHEREAS, the City Council of the City of Fort Worth desires to settle
certain litigation involving the City of Fort Worth, various Hillwood entities, the
Town of Westlake and other parties, such litigation being more specifically
described in Exhibit “1” which is attached hereto; and
WHEREAS, Hillwood Development Corporation has made specific
proposals to the City Council to settle such litigation; and
WHEREAS, the City Council desires to authorize the settlement of such
litigation as hereinafter provided;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF FORT WORTH, TEXAS:
1. That the City Council hereby authorizes the City Manager, the City Attorney,
and the attorneys representing the City in such litigation, to execute any and
all documents necessary to settle the litigation in substantial compliance with
the terms and conditions set forth in the following documents:
a) A “Settlement Agreement” that is attached hereto, marked Exhibit “1” and
made a part hereof by reference.
b) An “Agreement to Provide Fort Worth Opportunity Center” that is attached
hereto, marked Exhibit “2” and made a part hereof by reference.
2. That as further consideration for such settlement, Hillwood Development
Corporation shall do the following:
a) Convey to the City, at no cost, a tract of land containing approximately 3
acres located at the northeast corner of the proposed extension of Beach
Street and S.H. 170 in the City of Fort Worth, such tract to be used as a
site for a fire station and/or other public purposes;
LtvaJ~l lTLxJ- —~uAi
CITY OF FORT WORTH
b) Enter into a Memorandum of Understanding with the City concerning the
conditions under which the City will agree to execute a Uniform Wholesale
Water Contract with the Town of Westlake, such Memorandum of
Understanding being attached hereto, marked Exhibit “3” and made a part
hereof by reference;
c) Reimburse the City of Fort Worth for its expenses, including its reasonable
attorney’s fees, incurred in connection with the litigation described in
Exhibit “1” to which the City of Fort Worth was a party.
That the City Council hereby authorizes the City Manager and the City’s
attorneys to execute any and all documents necessary to implement the
provisions of Paragraph 2 of this Resolution.
3. That the proposed settlement is subject to the execution of final documents
acceptable to the City Manager, the City Attorney and the City’s attorneys in
the litigation, and the City of Fort Worth will not be legally bound until such
final documents have been executed.
Adopted this^^fay of September, 1998
Mayor
CITY OF FORT WORTH
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SETTLEMENT AGREEMENT (FT. WQRTHXERSIQN)
THIRD
DRAFTe
1. The.Pailigs
This Settlement Agreement, Including <pll exhibits hereto, (the
"Settlement Agreement") is made by and between the Town of Westlake,
Texas ("Westlake"); the City of Fort Worth, Texas ("Fort Worth"); AIL In
vestment, L.P., Millwood Development Corporation, Hillwood/Willow Bend,
Ltd,; Hlllwood/822, Ltd., Hillwood/1088, Ltd., Lakeway Land, Ltd. and Lake
way Property Company, Ltd. (collectively, "Millwood"); Scott Bradley
("Bradley"); Dale White ("White"); Al Olen f'Olen"); Howard Dudley
("Dudley"); Jerry Moore ("Moore"); Carroll Huntress ("Huntress"); and
the State of Texas by and through Tim Curry, Criminal District Attorney of >
Tarrant County ("State of Texas").
2. The Lawsuits
The following lawsuits are subject to this Settlement Agreement as
provided herein:
(a) Cause No. 17-169048-97 entitled Town of Westlake, Texas
vs. City of Fort Worth, Texas, et al., filed In the 17th Judicial District Court,
Tarrant County, Texas. Fort Worth and Hillwood, as Intervenor, have ap
pealed, and Westlake has cross-appealed, a Judgment In this suit by the trial
court in favor of Westlake to the Second Court of Appeals under Case No.
02-98-00047-CV (collectively, the "Fort Worth Lawsuit"),
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(b) Cause No. 17-168763-97 entitled Scott Bradley vs. Carroll
Huntress, et al,, pending in the 17th Judicial District Court, Tarrant County,
Texas (the "Huntress Lawsuit").
3. Resolutions of Lawsuits
The parties have conducted settlement negotiations in these matters
and wish to compromise and settle and to hereby resolve their differences
without Incurring the uncertainties and additional costs incumbent In the
Lawsuits.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, It is hereby agreed as follows:
(a) The Fort Worth Lawsuit
1, Westlake, Fort Worth and Hill wood consent, agree to
the entry of, and direct their respective counsel to submit on their behalf to
the Second Court of Appeals In Cause No, 02-98-00047-CV, an "Agreed Or
der of Dismissal and Remand” of the pending appeal in the Fort Worth Law-
suit In the form attached hereto as Exhibit "A" to be filed with the Court of
Appeals upon full execution of this Settlement Agreement.
2. Upon remand of the Fort Worth Sult to the 17th Ju
dicial District Court as described in 51(a)i above, Westlake, Fort Worth and
Millwood consent, agree to the entry of, and direct their respective counsel
to submit on their behalf, a "Reformed Judgment* to the 17th Judicial Dis
trict Court, Tarrant County, Texas for entry In the form attached hereto as
Exhibit "B".
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3. Fort Worth and Hillwood hereby release any rights
they may claim that the property described In Exhibit "C" Is in the extra-
territorial jurisdiction of Fort Worth.
(b) The Huntress Lawsuit
Bradley shall Instruct and direct his counsel to submit on
his behalf, an "Order of Nonsuit* In the Huntress Lawsuit In the form at
tached. hereto as Exhibit "D" on the Effective Date of this Settlement
Agreement. The parties agree to take all actions necessary to have the
Court enter such non-suit and agree to refrain from further discovery or
other proceedings in the Huntress Lawsuit pending entry of the Order of
Nonsuit.
»
4. The Releases and Covenants Not to Sue
Releases
W In consideration of the premises, mutual promises and covenants
contained herein, Westlake, Bradley, Fort Worth, Hlllwood and release and
forever discharge each other (other than as expressly reserved in this docu
ment), jointly and severally, each and all of them, of and from any and all
debts, liabilities, claims, controversies, causes of action and demands of
every kind and character whatsoever that they may now have against each
other, civil or criminal, currently existing and arising out of any events or
dealings between said parties, their predecessors, successors, assigns, af
filiates, elected and appointed officials, employees, consultants, agents and
legal representatives prior to the.execution of this Settlement Agreement In-
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eluding but not limited to the issues, claims, counterclaims, defenses and al
legations which were raised or could have been raised In the Fort Worth
Lawsuit or the Huntress Lawsuit. It Is expressly agreed and understood that
this release does not extend to White, Dudley, ’Oien, Moore and Huntress
who are addressed in 514(b) below and does not In any way affect the ability
of the parties to assert or defend all claims, defenses and causes of action
stated against the parties currently in the Quo Warranto Proceeding, South-,
lake.. Lawsuit and Roanoke Lawsuit (except HHIwood) based on the actions
described In 114(c) below.
(b) Westlake, Fort Worth, HHIwood, Bradley, White, Dudley, Hunt
ress, Moore and Oien release and forever discharge each other and their
predecessors, successors, assigns, affiliates, elected officials, employees,
consultants, agents and legal representatives jointly and severally, each and
all of them (other than as expressly reserved herein), of and from any and
all debts, liabilities, claims, controversies, causes of action and demands of
every kind and character whatsoever that they may now have against each
other, civil or criminal, currently existing and arising out of any events or
dealings between said parties prior to the execution of this Settlement
Agreement except that Westlake and Bradley expressly reserve all claims or
defenses that may be asserted in the Quo Warranto Proceeding, the South
lake Lawsuit, the Roanoke Lawsuit or any quo warranto actions deriving from
the same facts as these cases In challenging the validity of the actions of
White, Dudley, Huntress, Moore and Oien, whether acting In their individual
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or official capacities, related to the purported dlsannexation of Westlake
lands or the purported removal of Bradley as mayor of Westlake.
(c) Bradley, Dale White and the State of Texas reserve the right to
»
assert and prosecute, against the current parties to that case, all claims
made in Cause No. 97-1135 (the "Quo Warranto Proceeding") currently
pending before the Texas Supreme Court; Westlake reserves its rights to as
sert and prosecute all of Its claims (Including without limitation all chal
lenges, whether claims or defenses, to the validity of the actions of Dale
White, Al Olen, Jerry Moore, Carroll Huntress and Howard Dudley (the
"Former Aldermen") and former town officials), against the current parties
to that case, in Cause No. 17-169049-97 entitled The Town of Westfake vs.
The City of Southlake currently pending In the 17th Judicial District Court
Tarrant County, Texas (the "Southlake Lawsuit"); and Westlake reserves
Its rights to assert and prosecute all of its claims (Including without limitation
«
all challenges, whether claims or defenses, to the validity of the actions of
Dale White, the Former Aidermen and the former town officials), against the
current parties to that case'(except Hillwood), tn Cause No. 97-50150-367
entitled City of ROanoke and Hill wood Development Corporation, Hill- .
wood/Willow Bend, Ltd., Hlllwood/822, Ltd., Hlllwood/1088, Ltd., Lakeway
Land, Ltd. end Lakeway Property Company, Ltd. vs. Town of Westlake cur
rently pending in the 367th Judicial District Court, Denton County, Texas and
Cause No. 97-40344-362 entitled Town of Westlake vs. City of Roanoke
(collectively, the "Roanoke Lawsuit"), all such rights being hereby re-
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served to those parties and not being affected by this release. All parties
acknowledge that neither Scott Bradley nor any other party to this Agree
ment, makes any admission regarding the validity of the purported removal
of Bradley as Mayor of Westlake on April 1997; arfd neither Scott Bradley nor
Westlake are precluded by anything herein from asserting the Invalidity of
such removal In any pending litigation involving the City of Southlake, the
Town of Roanoke, or in the Quo Warranto Proceeding.
Covenant Not to Sue
(d) In exchange for the releases contained In 114(b), Millwood, Fort
Worth, Bradley and Westlake, and their predecessors, assigns, successors,
affiliates, elected officials, employees, consultants, agents and legal repre
sentatives agree that none of them shall assert or pursue against White,
Olen, Dudley, Moore or Huntress any current or future suits, actions or legal
claims of any kind based on the conduct made the basis of claim In the Fort
Worth Sult or the Huntress Lawsuit or any other conduct, act or omission oc
curring prior to this Agreement (subject to the reservations In U4(c)_above).
Indemnification
W Each party executing this Agreement will Indemnify and hold
harmless any other party which it has either released or covenanted not to
sue in this Agreement from any liabilities, costs, and expenses (including
reasonable attorneys* fees) Incurred by such other party as a result of any
suit or claim based on a claim which was released or for which a covenant
not to sue was executed which is commenced, joined or prosecuted by such
party against such other party after the effective date hereof. In addition,
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Westlake will Indemnify and hold harmless White, Dudley, Oien, Moore and
Huntress from any liabilities, costs and expenses (including reasonable at
torneys' fees) relating to any suit or claim made against them (whether
currently or In the future) by Westlake, Bradley of any Citizen of the Town of
Westlake In the Southlake Lawsuit, the Roanoke Lawsuit or any quo war
ranto proceeding deriving from the same facts as these cases.
Additional Releases
(O In addition to releasing and discharging each other pursuant to
Sections 4(a) and (b) of this Settlement Agreement, the parties to this Set
tlement Agreement also release and forever discharge the following of and
from any and all debts, liabilities, claims, controversies, causes of actions
and demands of every kind and character whatsoever to the same extent
that said parties release each other pursuant to this Settlement Agreement:
(i) Fort Worth; (II) Public Strategies, Inc.; (Ill) the predecessors, successors,
assigns, affiliates, elected and appointed officials, employees, consultants,
agents and legal representatives of all parties to this Settlement Agreement
(Including, without limitation, Goins, Underkofler, Crawford & Langdon;
Hughes & Luce; Kelly, Hart &. Hallman; Luce & Williams; Paul Isham; Frellich,
Morgan, Leitner & Carlisle; Terry Morgan &. Associates; Cooper & Scully;
Naman, Howell & Smith; Haynes & Boone; Philips, Hopkins, Eames & Cobb;
and Little, Pedersen, Fankhauser & Cox). This paragraph does not apply to
White, Moore, Dudley, Oien and Huntress who are addressed in paragraphs
4(b), 4(c) and 4(d) hereof.
_____ \ _________
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5. Hillwood Consideration to Fort Worth
Attached hereto as Exhibit "E" are documents that outline the addi
tional agreements between Fort Worth and Hillwood as part of this settle
ment.
6. Other Litigation
The Town of Westlake will not voluntarily resolve any pending litigation
with the City of Roanoke or City of Southlake in a manner which results in
any land which was purportedly dlsannexed from Westlake Tn May, 1997,
being within the corporate limits of the City of Roanoke or the City of South
lake (except potentially land that was the subject of dispute before May,
1997).
7. Quo Warranto Costs
White, Bradley and the State of Texas hereby agree that none of them
will attempt to execute on or pursue collection of any costs and attorneys'
fees levied against the other by the trial court, appellate court or Supreme
Court in the Quo Warranto Proceeding. This Agreement expressly reserves,
and Is made without waiver of, any and all other rights the parties may have
In the Quo Warranto Proceeding.
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s. Other Representations of the Parties
. (a) This Settlement Agreement is purely and simply a compromise to
avoid expending further time and expense in this matter and does not con
stitute an admission of liability by any of the parties.
(b) Each party represents and warrants to all other parties hereto
that such party has not assigned or conveyed any interest or right in and to
any of the claims or causes of action covered by this Settlement Agreement
or intended to be covered by this Settlement Agreement and that all such
claims are owned by the respective parties.
(c) No term or provision of this Settlement Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument
In writing signed by the party against whom the enforcement of the change,
waiver, discharge or termination is sought. This Agreement and the exhibits
referred to herein contain the full, final, and exclusive statement of the «
agreement between the parties. This Agreement and the covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, each party and each party's respective affiliates, related entities, succes
sors and assigns.
Cd) This Settlement Agreement shall be governed by and construed
In accordance with the laws of the State of Texas and any action for the en
forcement of this Agreement shall be brought In Tarrant County, Texas.
(e) The undersigned parties further state that they are fully compe
tent and authorized to enter Into this Settlement Agreement, that they have
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carefully read the foregoing Settlement Agreement and know the contents
thereof, and that they, have executed this Settlement Agreement of their
own free will for the purposes and considerations stated herein.
(f) The parties further warrant and represent that, where necessary,
all corporate, municipal and governmental consents required for any party to
execute this Settlement Agreement have been obtained.
(g) Prior to the execution of this Agreement by each such party,
such party has fully Informed themselves as to the terms, contents, provi-
■
sions and effects of this Agreement, and all facts and conditions sufficient
and necessary to the decision to execute this Agreement.
(h) No promise or representation of any kind has been made to that
party or his representative by any other party or his representative except
as expressly set forth In this Agreement and as made in any agreements
executed contemporaneously with this Agreement.
< >
• (I) Such party is not relying on any oral understandings, oral repre
sentations, or oral agreements of any kind or on any other matter not ex
pressly stated in this Agreement and any such reliance would be unintended
by the other parties and otherwise unreasonable and unjustifiable.
(j) This Agreement shall remain in all respects effective and not
subject to termination, modification or rescission by any difference In facts or
circumstances hereafter occurring, becoming known or becoming known
differently.
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(k) This Agreement constitutes a valid, binding, and enforceable ob
ligation of that party, Its terms are lawful and fair, and It constitutes an equi
table settlement of their differences.
(I) The parties hereto further acknowledge that they have had the
opportunity to seek independent legal counsel, to advise them of their rights
under this Settlement Agreement and that no party has relied upon the ad
vice of counsel for any other party In entering Into this Settlement Agree
ment.
9. If any party to this Agreement brings suit to enforce any right or obli
gation under this Agreement, the prevailing party shall be entitled to recover
Its expenses, including reasonable attorneys' fees, incurred In connection
with that action.
10. In all Instances In which a party to this Agreement is required under
this Agreement to do any act at a particular time or within a particular period
of time, time is of the essence in the performance of such act. -
11. Each party represents that such party has substantial experience In
negotiating contracts and has obtained any advice of counsel which that
party wished to obtain, that this Agreement is the product of negotiations
among the parties, and that, therefore, no party to this Agreement shall be
charged with having promulgated this. Agreement.
SEt Page 11
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SEP. 29. 1 998 3:17PM KELLY, HART & HALLMAN 817 8789280 NO. 0245 P. 14
12. This Agreement may be executed In multiple counterparts, each of
which, shall be deemed an original for all purposes, and all of which together
shall constitute one Instrument.
820z£T0'd 009f££----eeZGaLBATST 01 S£s9T 9SST—62—d3S
SEP. 29. 1 998 3:1 7PM KELLY, HART & HALLMAN 8 17 8789280 NO. 0245 P. 15
TOWN OF WESTLAKE, TEXAS
By:.
Its:
CITY OF FORT WORTH, TEXAS
By:.
Its:
AIL INVESTMENT, L.P.,
HILLWOOD DEVELOPMENT CORPORATION,
HILLWOOD/WILLOW BEND, LTD.,
HILLWOOD/822, LTD., HILLWOOD/IOBB,
LTD., LAKEWAY LAND, LTD. and LAKEWAY
PROPERTY COMPANY, LTD.
By:________________________________
Its:_i______________________________
SCOTT BRADLEY ~
DALE WHITE
AL QIEN
JERRY MOORE
“strrUEHEtrrtGAEEM&fT/Pf. orfHTH
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SEP. 29. 1 998 3:17PM KELLY, HART & HALLMAN 8 1 7 8789280 NO. 0245 P. 16
HOWARD DUDLEY
*
S
CARROLL HUNTRESS ’
THE STATE OF TEXAS ’
By: Tim Curry, District Attorney,
Tarrant County
820/£T0’d 009P1S----082682^2381 01 UOdd S£:9T B66T—B2—d3S
SEP. 29. 1998 3:1 7PM KELLY, HART & HALLMAN 8 17 8789280 NO. 0245 P. 17
EXHIBIT "A"
AGREED ORDER OF DISMISSAL AND REMAND
FORT WORTH SUIT
BZ0Z9T0 'd 009t’i£—09868181X81 01 WOdd 9£:9T S66T-88-J3S
SEP. 29. 1998 3:17PM KELLY, HART & HALLMAN 817 8789280 NO. 0245 P. 18
NO. 02-98-00047-CV
SECOND COURT OF APPEALS DISTRICT OF TEXAS
THE CITY OF FORT WORTH, TEXAS, HILLWOOD
DEVELOPMENT CORPORATION, HILLWOOD/WILLOW s
BEND. LTD., HILLWOOD/822, LTD., EHLLWOOD/1088,
LTD., LAKEWAY LAND, LTD. and LAKEWAY PROPERTY
COMPANY, LTD.,
Appellants/Cross-Appellces,
V.
TOWN OF WESTLAKE, TEXAS,
Appellec/Cross-Appellant.
I ■■ ■■ ■ I ll ■■ ■wnil 1 Will I
On Appeal From The 17th Judicial District Court
Tarrant County, Texas
(Cause No. 17-169048-97) •
AGREED ORDER OF DISMISSAL AND REMAND
On this the day of September, 1998 came on to be heard Appellee The Town of
Westlake, Texas (“Westlake”), Appellant the City of Fort Worth, Texas (“Fort Worth”) and
Appellants Millwood Development Corporation, Hillwood/Willow Bend, Ltd., Hillwood/822,
Ltd., Hillwood/1088, Ltd., Lakeway Land, Ltd. and Lakeway Property Company, Ltd.
(“Hillwood”), by and through their respective attorneys of record and announced to the Court
that they have fully settled and compromised all disputes between them arising out of this lawsuit
and requested that this Court dismiss this appeal and remand the case to the 17th Judicial District
Court, Tanant County, Texas for entry of a reformed judgment in accordance with the parties’
agreement The Court, having considered the settlement between Westlake, Fort Worth and
"5^ Exhibit “a" . ------------------kst
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SEP. 29. 1 998 3:17PM KELLY, HART & HALLMAN 8 1 7 8789280 NO. 0245 P. 19
*
f
Hillwood and being fully advised in the premises, hereby makes the following judgments, orders
and decrees; it is therefore
ORDERED, ADJUDGED AND DECREED that this appeal is dismissed and the case
is remanded to the 17th Judicial District Court, Tarrant Coiinty, Texas for entry of a reformed
judgment in accordar»y» with the agreement of the parties; it is further
ORDERED, ADJUDGED AND DECREED that the parties shall be responsible Jpr
their own costs and attorneys’ fees for this appeal; it is further
ORDERED, ADJUDGED AND DECREED that all relief not expressly granted herein
is denied.
Signed this_____day of September, 1998.
APPROVED AS TO FORM AND SUBSTANCE;
E. Eldridge Goins, Jr.
James W. Morris, Jr.
Jeffrey S. Wlgder '
GOINS, UNDERKOFLER, CRAWFORD
& LANGDON
a Registered Limited Liability Partnership
1601 Elm Street, Suite 3300
Dallas, Texas 75201
(214) 969-5454; (214) 969-5902 (Fax)
Attorneys for Appellee
THE TOWN OF WESTLAKE, TEXAS
rfOAixo anoak jud isWto exhibit-A’
820/8T0'd 009PA2----08Z68AeiTST 01 ucad 9£:9T 8GGT-82-d3S
SEP. 29. 1998 3:1 8PM KELLY, HART & HALLMAN 8 1 7 8789Z8U iw. UZ4S r. £U
Donald E. Herrmann
Dee J. Kelly, Jr.
KELLY, HART & HALLMAN
201 Main St., Suite 2500
Fort Worth, Texas 76102
(817) 332-2500; (817) 878-9280 (Fax)
Attorneys for Appellant
CITY OF FORT WORTH, TEXAS
David Bryant
HUGHES & LUCE
1.717 Main St, Suite 2800
Dallas, Texas 75201
(214) 939-5500; (214) 939-6100 (Fax)
Attorneys for Appellants
HILLWOOD DEVELOPMENT CORPORATION,
BILLWOOD/wnXOW BEND, LTD.,
HILLWOOD/822, LTD., HILLWOOD/1088,
LTD., LAKEWAY LAND, LTD. and
LAKEWAY PROPERTY COMPANY, LTD.
-----Kxi«Brr-A;“----------—--------------------------------WF?
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SEP. 29, 1998. 3:18PM KELLY, HART & HALLMAN 817 8789280 NO, 0245 P. 21
EXHIBIT "B"
REFORMED JUDGMENT
FORT WORTH SUIT
820/020‘d 009><L£----08268A8iT8T 01 WOHd <L£:9T 866T-82-d3S
SEP. 29. 1998 3:18PM KELLY, HART & HALLMAN 817 878928U wu. UZ4D r. LL
NO. 17 169048-97
TOWN OF WESTLAKE, TEXAS,
Plaintiff,
VS.
CITY OF FORT WORTH, TEXAS,
Defendant,
and
HILLWOOD DEVELOPMENT
CORPORATION, HILLWOOD/
WILLOW BEND, LTD., HILLWOOD/
822, LTD., HILLWOOD/1088, LTD.
LAKEWAY LAND, LTD. and
LAKEWAY PROPERTY COMPANY,
LTD.,
Intervenors.
§ IN THE DISTRICT COURT
§
S
§
§
§
§
§
§
§
§ TARRANT COUNTY, TEXAS
9
§
§
§
5
§
§
§
§ ’
§ 17TH JUDICIAL DISTRICT
REFORMED JUDGMENT
On this the day of September, 1998 came on to be heard Plaintiff
The Town of Westlake, Texas (“Westlake**), Defendant the City of Fort Worth,
Texas (“Fort Worth*) and Intervenors Hillwood Development Corporation,
Hillwood/Willow Bend, Ltd;-,-Hillwood/822, Ltd., Hillwood/1088, Ltd., Lakeway
Land, Ltd. and Lakeway Property Company, Ltd. (“HLllwood”), by and through
their respective attorneys of record and announced to the Court that they have
fully settled and compromised all disputes between them arising out of this
lawsuit and requested that the Court vacate the judgment entered in this mat
ter on February 13, 1998 and enter this final judgment in accordance with the
parties’ settlement agreement; it is therefore
' ■ • WXHTH'rr'^B" ——
850x120"d 009t>i£-----08E68ASM8T 01 woad 1£:9T e66T-e2-cGS
SEP. 29. 1998 3:18PM KELLY, HART & HALLMAN 8 17 8789280 NO. 0245 P. 23
I
ORDERED, ADJUDGED AND DECREED that the Judgment entered in
this.case on February 13, 1998 is hereby vacated; it is further
ORDERED, ADJUDGED AND DECREED that purported disannexations
and releases of extraterritorial jurisdiction of the property described in Exhibit
“A* are .null and void ab initio-, it is further
ORDERED, ADJUDGED' AND DECREED that all property described-in
Exhibit “A” is and at all times since May 2, 1997 has been within the corpo
rate limits of Westlake; it is further ■
ORDERED, ADJUDGED AND DECREED that all claims and defenses.
%
asserted in this case other than those related to the adjudication herein that
the property described in Exhibit "A" is in the corporate limits of Westlake, are
dismissed without prejudice to refiling the same; it is further
ORDERED* ADJUDGED AND DECREED that the parties shall be re
sponsible for their own costs and attorneys* fees; and it is further
ORDERED, ADJUDGED AND DECREED that this judgment is nonap-
pealable. All relief not expressly granted herein is denied.
Signed this day of September, 1998.
JUDGE PRESIDING
exhibit *b
820zeZ0-d 009W£----08268^04X81 01 UOMd 8£:9T 966T-82-83S
SEP. 29. 1998 3:18PM KELLY, HART & HALLMAN 8 17 8789280 NO. U24b P. L4
APPROVED AS TO FORM AND SUBSTANCE:
E. Eldridge Goins, Jr.
James W. Morris, Jr.
Jeffrey S. Wigder
GOINS, UNDERKOFLER, CRAWFORD
&LANGDON
a Registered Limited Liability Partnership
1601 Elm Street, Suite 3300
Dallas, Texas 75201
(214) 969-5454; (214) 969-5902 (Fax)'
Attorneys for Plaintiff
TOWN OF WESTLAKE, TEXAS
Donald E. Herrmann
Dee J. Kelly, Jr.
KELLY* HART & HALLMAN *
201 Main St., Suite 2500
Fort Worth, Texas 76102
(817) 332-2500; (817) 878-9280 (Fax)
Attorneys for Defendant
CITY OF FORT WORTH, TEXAS
David Bryant
HUGHES & LUCE
1717 Main St., Suite 2800
Dallas, Texas 75201
(214) 939-5500; (214) 939-6100 (Fax)
Attorneys for Intervenors
HILLWOOD DEVELOPMENT CORPORATION,
huxwood/wuxow bend, ltd.,
HXLLWOOD/832, LTD., HELLWOOD/1088,
LTD., LAKEWAY LAND, LTD. and
LAKEWAY PROPERTY COMPANY,TETD.
EJdttibrr“>~
B20/£20*d eeat'd.s:—BssseieitaT oi idoad S£:9T SfeST-eS-cSS
SEP. 29. 1998 3:19PM KELLY, HART L HALLMAN 81 7 8789280 NO. 024b R. 2b
EXHIBIT "C"
LEGAL DESCRIPTION OF
DISANNEXED LAND SUBJECT
OF FORT WORTH SUIT
820zf20-d 009t’l£----08268101161 01 UOMd B£:9T 8661-02-835
SEP. 29. 1 998 3:19PM KELLY, HART & HALLMAN 81 7 8789280 NO. 0245 P. 26
EXHIBIT
ORDER OF NONSUIT
HUNTRESS SUIT
eg0z£20-d 009t»i£----09260101181 01 HOdd 6£:9T 8G6T-82-cl3S
SEP. 29. 1 998 3:1 9PM KELLY, HART & HALLMAN 817 8789280 NO. 0245 P. 27
NO. 17-168763*97
SCOTT BRADLEY,
Plaintiff,
VS.
CARROLL HUNTRESS, HOWARD
DUDLEY, JERRY MOORE and
AL OIEN,
Defendants.
§ XN THE DISTRICT COURT
.§ ' •
§
§ 4
§
§ TARRANT COUNTY, TEXAS
§
§
§
§
§ 17TH DISTRICT COURT
ORDER OF NQN+SUXT
On this the day of September, 1998 came on to be heard
Plaintiff Scott Bradley ("Bradley"), by and through his attorneys of record
and announced to the Court that he wishes to non-suit his claims In this case
without prejudice to the refiling of same and requested that the Court enter
this order. The Court, having considered the settlement and being fully ad
vised in the premises, hereby makes the following judgments, orders and
decrees; it is therefore
ORDERED, ADJUDGED AND DECREED that ail claims stated by
Plaintiff In this case are hereby non-suited without prejudice to the refiling of
same; it is further
ORDERED, ADJUDGED AND DECREED that the parties shall be re
sponsible for their own costs and attorneys' fees; it is further
ORDERED, ADJUDGED AND DECREED that all relief not expressly
granted herein Is denied.
fkmtUTTfeu i
820/920'd 009f6£----08268184X81 01 uoad 6£:9T 86ST-82-d3S
SEP. 29. 1998 3:1 9PM KELLY, HART & HALLMAN 817 8789Z8U NU UZ48 r. Zb
Signed this day of September, 1998.
JUDGE PRESIDING
onoaitar>to^surr-2^i.ta^a»fs EXHIBIT "D**Po^ci
620x120'0 009fl£----0826B1OAT0T 01 uoad 6£:9T 866T-02-d3S
KELLY, HART & HALLMAN 817 8/89Z8U NU. U24b r. £3O_SEP. 29. 1998 3:19PM tX.<J *_fl
EXHIBIT "E"
HILLWOOD CONSIDERATION
TO FORT WORTH
[TO BE SUPPLIED BY HUGHES & LUCE]
020X020’d 009><L£----08268i0Z.TBT 0±IdOdd 6£:9T 86ST-02-d3S
09/18/88 12:01 FAX 817 224 6060 HILLWOOD DEVELOPMENT ifil 002
AGREEMENT to provide
FORT WORTH OPPORTUNITY CENTER
This AGREEMENT TO PROVIDE FORT WORTH OPPORTUNITY CENTER
(this "Agreement") is entered into by the City of Fort Worth, Texas (the "City") and
Hillwood Development Corporation, a Texas corporation ("Hillwood") to be effective the
__day of September, 1998.
WHEREAS, the City, together with Hillwood and other private-sector corporate
employers, desires to create a new training and life skills development facility that will
enhance career opportunities for residents of the City through programming and activities
generally described on the attached Exhibit A, which facility will be known as tire Fort
Worth Opportunity Center (the "Center"); and
»
WHEREAS, the City and Hillwood desire that tire Center will provide a
meaningful linkage between Fort Worth region employers and the unemployed, the
under-employed and those seeking new opportunities from all segments of the
community who are committed to developing or enhancing marketable work skills,
thereby enabling an ever-increasing number of workers to enter the workplace or to
upgrade work skills in order to take advantage of enhanced employment opportunities;
and
WHEREAS, the City and Hillwood desire that the Center will be developed,
operated and funded by a broad base of regional employers utilizing private funds; and
WHEREAS, Hillwood desires to continue to promote the economic viability of
the City by creating the Center upon the terms and conditions set forth in this Agreement;
and
Page 1
09/18/88 14:56 FAX 817 224 6060 H1LLW0QD DEVELOPMENT ifi] ooz
WHEREAS, the City endorses the creation of and supports the Center as
provided in this Agreement:
NOW THEREFORE, for and in consideration of the mutual benefits to be
derived from the Center, Hillwood and the City agree as follows:
1. Opportunity Center Entity: Hillwood, at its expense, will form an
internal Revenue Code § 501(c)(3) entity (the "Opportunity Center Entity") that will own
and operate the Center pursuant to articles of incorporation and by-laws similar to those
attached hereto as Exhibit B. It is contemplated that the Opportunity Center Entity will
be governed by a nine-member board of directors, consisting of six members representing
the private sector entities providing financial support for the Center and three members
from the general community. Initial members of the board of directors will be asked to
commit to serve for a minimum of three years. Hillwood wifi provide one of its
employees to serve on the board of directors. It is contemplated that the Opportunity
Center Entity will organize an advisory committee consisting of human resources
directors of several diverse regional employers, which committee will have the
responsibility of establishing and consulting on an on-going basis regarding an operations
and training format for the Center and standards of performance that reasonably can be
expected to be achieved as a means of measuring the long-term success of the Center.
2. Site Acquisition:
(a) Hillwood, through its affiliate, Hillwood Investment Corporation, has
contracted to purchase the real property and improvements commonly known as the
former "Anderson Labs" facility, containing approximately 3.6 acres of land and a
building of approximately 66,000 square feet, and being more particularly described on
the attached Exhibit C (the "Anderson Site"). The purchase price for the Anderson site is
approximately $600,000. Hillwood has completed a satisfactory preliminary due
diligence investigation of the Anderson Site except for environmental assessments
currently underway. If the environmental assessments do not reveal any environmental
conditions on the Anderson Site that will require material environmental remediation,
Page 2
09/18/98 12:01 FAX 817 224 6060 HILLWOOD DEVELOPMENT i&j uu4
Hillwood will (i) purchase the Anderson Site as promptly as reasonably possible (subject
to performance of the seller under the contract) in accordance with such purchase
contract, and (ii) will convey the Anderson Site, for no consideration and free and clear of
all monetary liens (other than the lien for current taxes), to the Opportunity Center Entity.
(b) Hillwood acknowledges that the Anderson Site may not be large enough to
accommodate the future needs of the Center, if the Center is successful in meeting
financial and training goals. Consequently, Hillwood shall provide for the Opportunity
Center Entity the opportunity, through a separate agreement, to acquire the approximately
seven-acre site adjacent to the Anderson Site generally shown on the attached Exhibit D.
(c) If the environmental assessments of the Anderson Site are not satisfactory
to the City and Hillwood, or if Hillwood is unable to close its purchase of the Anderson
Site due to the default of the seller under the contract, Hillwood and the City will identify
a mutually acceptable and reasonably comparable alternate site for the Center (the
"Alternate Site"), and Hillwood will acquire the Alternate Site (assuming an
environmental condition acceptable to the City and Hillwood and performance by the
seller thereof) and will convey the Alternate Site to the Opportunity Center Entity in lieu
of the Anderson Site. The level of financial commitments of Hillwood set forth in this
agreement would apply likewise to the Alternate Site.
3. Initial Improvements: If the Anderson Site is acquired, Hillwood, at its
cost, will refurbish, furnish and equip the existing building as the initial phase of the
project, substantially in accordance with the scope description and capital budget
reflected on the attached Exhibit E. The cost of the initial phase improvements is
estimated to be approximately 5800,000. Hillwood will complete such work with due
diligence, with an estimated completion date of August, 1999.
Page 3
09/18/98 12:02 FAX 817 224 6060 H1LLW00D PEYELUFMEM ifij 00a
4. Other Hillwood Commitments:
(a) Planning and Construction Management: Hillwood, will be responsible
for the initial master planning and management of the construction of the initial phase
improvements. Hillwood shall not charge any fee for such services.
(b) Executive Director: Hillwood, will engage a national search firm to
identify the most highly qualified candidate to be employed by the Opportunity Center
Entity as the executive director for the Center. Hillwood will pay the placement fees
charged by such search firm.
(c) Financial Support: Hillwood will coordinate the endeavor to obtain a
broad-based private sector financial support to establish an endowment fund sufficient to
provide funding for the operation of the Center on a long-term basis. The five-year target
for the endowment fund is $5,000,000. Hillwood’s management of this endowment
campaign will allow the Center’s executive director to focus primarily on the successful
development and management of the operations of the Center rather than on significant
> 1 J fund raising. Hillwood will contribute $100,000 toward this endowment fund. It is
contemplated that tire private sector employers utilizing the services of the Center will
pay appropriate fees to the Opportunity Center Entity, with the goal that ultimately those
fees, together with the earnings from the endowment fund, will be sufficient to fund the
on-going costs of operating the Center.
(d) Operation and Administration: Attached hereto as Exhibit F is a 5-year
<■> -> •-> ■ annual operating budget for the Center (the "Operating Budget") . Hillwood, for a period . ' ■ './ <- |
?r' of five years after the opening of the Center, will fund the difference between (i)
‘ '■' '‘‘ 1 operating revenues of the Center and endowment fund revenues, and (ii) the actual
operating costs of the Center, up to the budgeted costs amounts reflected in the Operating
Budget. It is anticipated that at the end of the fifth year of operations, the Center’s board
of directors, after conferring with the City and Hillwood, will evaluate the success of the
Center and determine whether or not the Center’s prospect for future success is viable,
and if so, develop a strategic business plan for the next five years. If the board
Page 4
09/18/98 12:02 FAX 817 224 6060 hillwood DEVELOPMENT 006
determines that the Center should continue operations, and the endowment fund, at that
time, has not reached the above stated five-year target amount at the end of such five-year
period, Hillwood, at its election, either will fund the shortfall in such endowment fund or
continue to fund operating shortfalls (pursuant to a second five-year budget reasonably
approved by Hillwood) up to an aggregate amount after such fifth year of $1,000,000. It
is contemplated that the Center’s board of directors, following such initial five-year
operation period, after conferring with the City and Hillwood, will conduct annual
reviews of the Center’s operations and results in order to determine whether or not to
continue the operation of the Center.
(e) Training: During the first five years of operation of the Center, Hillwood
will coordinate the relationships between the Center and institutions (referred in the
attached Exhibit A) that will provide the training and employment placement assistance
for prospective employees utilizing the Center in order to develop training programs that
will be complimentary to programs operated by similar organizations.
♦
(f) Publicity: Hillwood will publicize the Center and its programs to large
employers within the region.
♦
5. City Commitments: The City shall provide such general support as
reasonably possible to enhance the opportunities for success of the Center, it being
understood that the City is not making any commitments in this Agreement to furnish any
financial support of the Center. Specifically, the City will incorporate into its overall
economic development strategies support of the Center’s activities and funding by those
seeking to participate in economic development incentive programs sponsored by the
City.
6. Miscellaneous:
(a) This Agreement shall be governed by the laws of the State of Texas, may
not be amended except pursuant to a document signed by both the City and Hillwood,
Page 5
H1LEW00D DEVELOPMENT09/18/98 12:02 FAX 817 224 6060
and. may not be assigned by either party without the consent of the other party. Venue for
any litigation pertaining to this Agreement will be in Tarrant County, Texas.
(b) This Agreement is being executed as part of the consideration to the City
relative to the settlement of the pending jurisdictional dispute with the town of Westlake,
Texas.
EXECUTED TO BE EFFECTIVE AS OF THE DATE FIRST ABOVE WRITTEN
Hillwood Development Corporation
By: __________________ __ __
Title: ___________ __
The City of Fort Worth, Texas
By: _________________ ___ ___
Title: __ ________________
Page 6
09/18/98 12:02 FAX 817 224 8060 HlLLttUUD UhVbbUrMJbM
EXHIBIT A
FORT WORTH OPPORTUNITY CENTER
Concept:
Hillwood Development Corporation will act as the master planner and developer of a
state-of-the-art training and life skills development facility on the southeast side of Fort
Worth through the development of a greenfield project and the rehabilitation of an
existing facility. While Fort Worth has experienced remarkable economic growth, not all
segments of its population have shared in that prosperity. The training and life skills
campus, called the Fort Worth Opportunity Center, will insure that those citizens of Fort
Worth are prepared for the jobs of the 21’1 Century and have the opportunity to achieve
economic self-sufficiency and productive careers.
Drawing on the experience of the Alliance Opportunity Center, the new Fort Worth
Opportunity Center will combine the efforts of both the private and public sector. The
Fort Worth Opportunity Center will connect corporations with employment needs and
inner city job candidates. The Opportunity Center will provide on-site training in areas
such as computer skills, materials handling, semiconductor manufacturing, child care and
other customized programs to meet the needs of candidates and employers. Additionally,
the Opportunity Center will offer personal development courses in areas such as personal
finance in order to assist the candidates in balancing the challenges of managing a career
and a family.
Project Description:
The first phase of the Fort Worth Opportunity Center will be comprised of a multi
purpose building that will house the following:
• Administrative Offices
• Information Center
• Classroom Space
■ Computer Lab
• Manufacturing Training Lab
Future phases of the campus development may include:
• Child Development Center
• Personal Development Center
• Simulated Assembly / Manufacturing Space
• Interim / Permanent Housing
FWOC - CONCEPT - EXHIBIT A
09/18/98 1Z:O3 FAA 817 ZZ4 buou HlLLhUUD UEVELOmW 44J u±u
EXHIBIT A
Services Provided:
• Training Education and Assessment
* T.inking Employers and Job Candidates
• Information Services
• Prenatal and Childhood Development Services
• Transportation
Example Program Participant:
The Fort Worth Opportunity Center will specifically target services and training for those
individuals in the Fort Worth community who are considered to be in high risk categories
or are considered to be under-served at the current time. The Opportunity Center will
provide on-site a full range of services to the community through its partnerships with
service and training providers.
A typical participant would either be contacted directly by outreach efforts of the center
and its partners or come into the information center on campus. After an introduction of
services and training opportunities, time will be spent identifying the client’s goals and
needs. Training candidates will be matched with job openings and training programs
associated with those openings. In addition, trainees'’ personal issues will be addressed.
Goals include;
• Linking participants with compensation and benefits while they are learning
• Providing job placement prior to training completion
■ Providing education services to participants aimed at creating stronger families and
addressing early childhood development issues
• Addressing participants’ housing and transportation needs
FWOC - CONCEP T - EXHIBIT A
4>J Uli
oy/18/ys 12:U4 £AA SJ.7 ZZ4 mu HlLCniJUP Uh.YELUrMh.lM
EXHIBIT B
ARTICLES OF INCORPORATION
OF
FORT WORTH OPPORTUNITY CENTER
I, the undersigned natural person, being of the age of eighteen (18) years or more, acting
as incorporator of a corporation pursuant to section. 3.01 of the Texas Non-Profit Corporation
Act, do hereby adopt the following Articles of Incorporation for such corporation.
ARTICLE ONE
The name of the corporation is FORT WORTH OPPORTUNITY CENTER.
ARTICLE TWO
The corporation is a non-profit corporation.
ARTICLE THREE
The Corporation is to have perpetual existence.
ARTICLE FOUR
1. The Corporation is organized and shall be operated exclusively for charitable
purposes (which shall be deemed to include religious, charitable, scientific, literary or
educational purposes, or the prevention of cruelty to children or animals, within the meaning of
those terms as used in section 501(c)(3) of the Internal Revenue Code or the corresponding
provisions of any subsequent federal tax law (the “Code”) and under the laws of the state of
Texas); and, subject to such limitations and conditions as are or may be prescribed by law, to
exercise such other powers which now or hereafter may be conferred by law upon a corporation
organized for the purposes hereinabove set forth, or necessary or incidental to the powers so
conferred, or conducive to the attainment of the above-stated purposes of the Corporation.
2. Notwithstanding any other provision of these Articles of Incorporation, the
Corporation shall neither have nor exercise any power, nor shall it engage directly or indirectly in
any activity, that would invalidate its status as a corporation (a) which is exempt from federal
income taxation as an organization described in section 501(c)(3) of the Code, or
(b) contributions to which are deductible from taxable income under section 170(c)(2) of the
Code.
007500.00100:0375374.01
EXHIBIT B
3. In furtherance of its purposes as aforesaid, the Corporation shall have all of the
powers enumerated in Article 2.02 of the Texas Non-Profit Corporation Act.
ARTICLE FIVE
The street address of the initial registered office of the Corporation is
________ ____________________, and the name of its initial registered agent at such
address is■
ARTICLE SIX
1. The number of directors and the method of their appointment shall be determined
by the Bylaws of the Corporation, and shall be subject to change from time to time as the Bylaws
may be amended. The number of directors shall never be less than three (3).
2. The number of directors constituting the initial Board of Directors of the
Corporation is (), and the names and addresses of the persons who are to serve
as the initial directors are:
Name Address
3. • The members of the Board of Directors shall serve without compensation, and no
member of the Board of Directors shall receive any pecuniary benefit from the Corporation
except reimbursement for actual expenses incurred in connection with the business of the
Corporation and indemnification in the manner and to the extent provided in Article Twelve and
the Bylaws of the Corporation.
4. The Corporation shall indemnify its directors to the fullest extent provided by law.
ARTICLE SEVEN
The name and street address of the incorporator are:
Name Address
ARTICLE EIGHT
The Corporation shall have no members.
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ARTICLE NINE
The initial Bylaws of the Corporation shall be adopted by the Board of Directors, and the
power to alter, amend or repeal the Bylaws or adopt new Bylaws shall be vested in the Board of
Directors.
ARTICLE TEN
Anything in these Articles of Incorporation to the contrary notwithstanding, all or any
part of these Articles of Incorporation may be amended from time to time only upon the
affirmative vote of a majority of the directors present at any meeting at which there is a quorum;
provided, however, that no amendment will be made which will cause the Corporation to cease
to be an organization described in section 501(c)(3) of the Code.
ARTICLE ELE VEN
1. The Corporation is not organized for pecuniary profit, nor shall it have any power
to issue certificates of stock or declare dividends., The balance, if any, of all money and other
assets received by the Corporation from its operations, after the payment in full of all debts and
obligations of the Corporation of whatever kind and nature, shall be used and distributed
exclusively for carrying out only the purposes of the Corporation as particularly set forth in
Article Four.
«
2. The directors of the Corporation shall comply with the notice requirements
contained in section 508(a) of the Code.
3. No part of the net earnings of the Corporation shall inure or be payable to or for
the benefit of any private individual, including the Corporation’s directors and officers, except
that the Corporation shall be authorized and empowered to pay reasonable compensation for
services rendered, to make payments and distributions in furtherance of the purposes set forth in
Article Four, and to indemnify officers and directors as provided in Article Twelve and in the
Bylaws of the Corporation.
4. No substantial part of the activities of the Corporation shall consist of carrying on
propaganda, or otherwise attempting to influence legislation; nor shall it in any manner or to any
extent participate in, or intervene in (including the publishing or distributing of statements), any
political campaign on behalf of any candidate for public office; nor shall the Corporation engage
in any activities that are unlawful under applicable federal, state or local laws.
5. The Corporation shall not operate for the primary purpose of carrying on a trade
or business for profit.
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6. Upon the dissolution of the Corporation, assets shall be distributed for one or
more exempt purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, or
the corresponding section of any future federal tax code, or shall be distributed to the federal
government, or to a state or local government, for a public purpose. Any such assets not so
disposed of shall be disposed of by a court of competent jurisdiction of the county in which the
principal office of the Corporation is then located, exclusively for such purposes or to such
organization or organizations, as said court shall determine, which are organized and operated
exclusively for such purposes.
7. A contribution or gift made by a corporation to the Corporation shall be used by
the Corporation for charitable purposes solely within the United States or its possessions.
8. The Corporation shall distribute its income for each taxable year at such time and
in such manner as not to become subject to the tax on undistributed income imposed by section
4942 of the Internal Revenue Code.
9. The Corporation shall not engage in any act of self-dealing as defined in section
4941(d) of the Internal Revenue Code.
10. The Corporation shall not retain any excess business holdings as defined in
section 4943(c) of the Internal Revenue Code.
11. The Corporation shall not make any investments in such manner as to subject it to
•ax under section 4944 of the Internal Revenue Code.
12. The Corporation shall not make any taxable expenditures as defined in section
4945(d) of the Internal Revenue Code.
ARTICLE TWE LVE
1. No director of the Corporation shall be liable to the Corporation or its other
directors for monetary damages (other than taxes, penalties and expenses of correction as
described in Treas. Reg. § 53.4941(d)-2(f)(3)) for an act or omission in the director’s capacity as
a director, except that this article docs not eliminate or limit the liability of a director to the
extent the director is found liable for an act or omission which is:
A. a breach of the director’s duty of loyalty to the Corporation or its directors;
B. an act or omission not in good faith that constitutes a breach of duty of the
director to the Corporation or an act or omission that involves intentional misconduct or a
knowing violation of the law;
C. a transaction from which the director receives an improper benefit, whether or not
the benefit resulted from an action taken within the scope of the director’s office; or
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D. an act or omission for which the liability of a director is expressly provided by an
applicable statute.
2. The Corporation shall indemnify a person who was, is or is threatened to be made
a named defendant or respondent in a proceeding because the person was or is a director of the
Corporation to the fullest extent allowed by, and in accordance with, the terms and provisions of
section 2.22A of the Texas Non-Profit Corporation Act (as amended and in effect from time to
time), including, but not limited to, the indemnifications provided by Sections B, H, I, J and K
thereof. For purposes of this paragraph 2 of this Article Twelve, “director” shall mean any
person who is or was a director of the Corporation and any person who, while a director of the
Corporation, is or was serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or
domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan
or other enterprise.
3. This Article Twelve shall be deemed to incorporate by reference any future
amendments to applicable law that further limit or eliminate the personal liability of directors, or
provide for the indemnification of directors by the Corporation-
4. Any repeal or modification of all or part of this Article Twelve by the directors of
the Corporation shall not adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.,
IN WITNESS WHEREOF, I have hereunto set my hand, this day of ,
1998.
FORT WORTH OPPORTUNITY CENTER
By: _________________.
_ _____ ___________, Incorporator
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BYLAWS
OF
FORT WORTH OPPORTUNITY CENTER
ARTICLE I
Offices
Section 1. The registered office shall be located in the City of Fort Worth, County of
Tarrant, State of Texas.
Section 2. The corporation may also have offices at such other places, either within
or without the State of Texas, as the board of directors may from time to time determine or as the
business of the corporation may require.
ARTICLE II
Directors
Section 1. The affairs of the corporation shall be managed by the board of directors
in accordance with these bylaws, the Texas Non-Profit Corporation Act (the “Act”) and the
corporation’s articles of incorporation, as amended from time to time.
Section 2. The number of directors of the corporation shall be at least three (3), or
such other number as determined from time to time by resolution of the board of directors or as
stated in the corporation ’s articles of incorporation. The directors shall be appointed as provided
in Section 3 of this Article, and each director appointed shall hold office for_____
(____) years and until his successor is elected and qualified. Each director shall serve until the
end of his or her term of office or, if earlier, until his or her death, resignation, retirement,
disqualification or removal from office. Directors need not be residents of the State of Texas.
The number of directors may be increased or decreased from time to time, but no decrease shall
have tire effect of shortening the term of any incumbent director.
Section 3.
(a) Vacancies in the board of directors shall exist if either of the following events
occurs: (1) a director dies, resigns or is removed from office; or (2) the authorized number of
directors is increased; or (3) a director’s term of office ends in accordance with Section 2 of this
Article. The board of directors may declare vacant the office of a director in any of the following
cases: (a) if such director is adjudged incompetent by an order of court, if a guardian or other
personal representative of such director is appointed by a court, or if two licensed doctors of
medicine each affirm in a written instrument signed by such doctor that he or she has examined
such director, and has concluded, based upon such examination, that such director is unable to
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discharge his or her duties as director; (b) if such director is finally convicted of a felony; or (c) if
within sixty (60) days after notice of such director’s appointment, he or she does not accept the
office either in writing or by attending a meeting of the board of directors.
(b) Any vacancy occurring in a position on the board of directors shall be filled by a
majority of the remaining directors then serving.
(c) If the board of directors accepts the resignation of a director tendered to take
effect at a future time other than the time at which his or her term would otherwise expire, the
successor to such director may be selected in accordance with above paragraph (b), to take office
when the resignation becomes effective. A director appointed to fill a vacancy that exists for any
reason other than the end of his or her successor’s term of office in accordance with Section 2 of
this Article shall be appointed to the unexpired term of his or her predecessor in office.
(d) Any director may be removed, with or without cause, at any time by the
affirmative vote of two-thirds of the authorized number of directors.
Meetings of the Board of Directors
Section 4. Meetings of the board of directors, regular or special, may be held either
within or without the State of Texas. Any regular or special meeting is valid, wherever held, if
held on written consent of all members of the’board of directors given cither before or after the
meeting and filed with the secretary of the corporation.
Section 5. A regular annual meeting of the board of directors shall be held on the first
Monday of of each year at such place as shall be fixed by notice from the
chairman of the board, and no notice of such meeting shall be necessary to the newly appointed
directors in order legally to constitute the meeting, provided a quorum shall be present. In the
event of the failure to fix the time and place of such regular annual meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and place so fixed, the
meeting may be held at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be specified in a written
waiver signed by all of the directors.
Section 6. Except as otherwise provided in Section 5 of this Article, regular meetings
of the board of directors may be held without notice at such time and at such place as shall from
time to time be determined by the board of directors.
Section 7. Special meetings of the board of directors may be called by the president
and shall be called by the secretary on the written request of at least two (2) directors. Written
notice of special meetings of the board of directors shall be given personally, or sent by mail or
by other form of written communication, to each director at least five (5) days before the date of
the meeting. Except as set forth in Article VI hereof, neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the board of directors need be specified in the
notice or waiver of notice of such meeting.
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Section 8. A majority of the authorized number of directors shall constitute a quorum
for the transaction of business, and the act of the majority of the directors present at a meeting
duly held at which a quorum is present shall be the act of the board of directors, unless a greater
number is required by law or the articles of incorporation or as otherwise set forth in these
bylaws. Each director present at a meeting will be deemed to have assented to any action taken
at the meeting, unless his or her dissent to the action is entered in the minutes of the meeting, or
unless the director shall file his or her written dissent thereto with the secretary of the meeting or
shall forward such dissent by certified mail to the secretary of the corporation immediately after
such meeting. If a quorum shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. At such adjourned meeting at
which a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified and called.
Section 9- Any action required or permitted to be taken at a meeting of the board of
directors or any committee thereof may be taken without a meeting if a consent in writing,
setting forth the action taken, is signed by all of the members of the board of directors or the
committee, as the case may be, and such consent shall have the same force and effect as a
unanimous vote at a meeting. Subject to the provisions required herein for notice of meetings,
members of the board of directors or of any committee designated by the board of directors may
participate in and hold a meeting of such board or committee by means of conference by
telephone or similar communications equipment such that all persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this Section 9 shall constitute
presence in person at such meeting, except where a person participates in a meeting for the
express purpose of objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
Committees of Directors
Section 10. The board of directors, by resolution adopted by a majority of the full
board, may designate from among its members one or more committees, each of which, to the
extent provided in such resolution, shall have and may exercise all of the authority of the board
of directors, except that no such committee shall have the authority of the board of directors in
reference to: amending the articles of incorporation; approving a plan of merger or a plan of
consolidation with another corporation; authorizing the sale, lease or exchange of all or
substantially all of the property and assets of the corporation otherwise than in the usual and
regular course of its business; authorizing a voluntary dissolution of the corporation or a
revocation thereof; adopting a plan for the distribution of the assets of the corporation; amending,
altering or repealing the bylaws of the corporation or adopting new bylaws of the corporation;
filling vacancies in the board of directors or any such committee; filling any directorship to be
filled by reason of an increase in the number of directors; electing or removing officers of the
corporation or members of any such committee; fixing the compensation of any member of such
committee; altering or repealing any resolution of the board of directors that, by its terms,
provides that it shall not be so amendable or rcpealable; or taking any action outside the scope of
authority delegated to it by the board of directors. Vacancies in the membership of any such
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committee shall be filled by the board of directors at a regular or special meeting thereof. Any
such committee shall keep regular minutes of its proceedings and report the same to the board of
directors when required. The designation of a committee of the board of directors and the
delegation thereto of authority shall not operate to relieve the board of directors, or any member
thereof, of any responsibility imposed by law. Each director shall be deemed to have assented to
any action of a committee, unless he or she shall, within seven (7) days after receiving actual or
constructive notice of such action, deliver his or her written dissent thereto to the secretary of the
corporation. Members of any such committee shall serve at the pleasure of the board of directors.
Compensation of Directors
Section 11. The directors may be paid their expenses, if any, of attendance at each
meeting of the board of directors. Directors as such shall not receive any compensation for their
services, but nothing herein shall be construed to preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members of special or
standing committees may be paid their expenses, if any, of attendance at committee meetings.
Chairman of the Board
Section 12. The board of directors may, in its discretion, choose a chairman of the
board who shall preside at meetings of the directors and shall be an ex officio member of all
standing committees. The chairman of the board shall have such other powers and shall perform
such other duties as shall be designated by the board of directors. The chairman of the board
shall be a member of the board of directors, but no other officers of the corporation need be a
director. The chairman of the board shall serve until his or her successor is chosen and qualified,
but may be removed at any time by the affirmative vote of a majority of the board of directors.
1 ARTICLE III
Notices and Requests
Section 1. Notices and requests to directors or officers shall be in writing and
delivered personally or by telecopy or mailed to the directors or officers at their addresses
appearing on the books of the corporation. Notice or request by mail shall be deemed to be given
and received when deposited in the United States mail, addressed to the addressee at his or her
address as it appears on the records of the corporation, with adequate postage thereon prepaid;
notice or request by personal delivery or telecopy shall be deemed to be given and received at the
time when same shall be actually received by the person to whom addressed. Notices and
requests to directors and officers may also be given by telegram, and shall be deemed delivered
when same shall be deposited at a telegraph office for transmission and all appropriate fees
therefor have been paid.
Section 2. Whenever any notice is required to be given to any director under the
provisions of any statute or of the articles of incorporation or of these bylaws, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether before or after the time
stated therein, shall be equivalent to the giving of such notice.
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Section 3. Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE IV
Officers
Section 1- The officers of the corporation shall consist of a president and a secretary
and may also consist of one or more vice-presidents, a treasurer and such other officers as may
be elected or appointed by the board of directors. Any two or more offices may be held by the
same person, except the offices of president and secretary.
Section 2. The board of directors, at its annual meeting, shall choose a president and
a secretary and may choose one or more vice-presidents, a treasurer and such other officers as it
deems appropriate, none of whom need be a member of the board of directors.
Section 3. Such other officers and assistant officers and agents as may be deemed
necessary may be elected or appointed by the board of directors to hold office for such period,
have such authority and perform such duties as are provided by the bylaws or as the board of
directors may determine.
Section 4. The salaries of all officers and agents of the corporation shall be fixed
from time to time by the board of directors.
Section 5 . Each officer of the corporation shall hold office until he or she shall resign
or shall be removed or otherwise disqualified to serve, or his or her successor shall be chosen and
qualified. Any officer or agent may be removed by the board of directors, with or without cause,
whenever in its judgment the best interest of the corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person so removed. Any
vacancy occurring in any office of the corporation by death, resignation, removal or otherwise
shall be filled by the board of directors.
The President
Section 6. The president shall be the chief executive officer of the corporation, shall
have general and active management of the business of the corporation and shall see that all
orders and resolutions of the board of directors are carried into effect. In the absence of the
chairman of the board or in the event the board of directors shall not have designated a chairman
of the board, the president shall preside at meetings of the board of directors.
Section 7. The president shall execute bonds, mortgages and other contracts, except
where the execution thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
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The Vice Presidents
Section 8. The vice presidents, in the order of their seniority, or otherwise, as
determined by the board of directors, shall, in the absence or disability of the president, perform
the duties and exercise the powers of the president. They shall perform such other duties and
have such other powers as the board of directors shall prescribe.
The Secretary and Assistant Secretaries
Section 9. The secretary shall attend all meetings of the board of directors and record
all tire proceedings of the meetings of the board of directors in a book to be kept for that purpose
and shall perform like duties for the standing committees, when required. The secretary shall
give, or cause to be given, notice of special meetings of tire board of directors, and shall perform
such other duties as may be prescribed by the board of directors or president, under whose
supervision the secretary shall serve.
Section 10. The assistant secretaries, in the order of their seniority, or if there be none,
the treasurer, acting as assistant secretary, or otherwise, as determined by the board of directors,
shall, in the absence or disability of the secretary, perform the duties and exercise the powers of
the secretary. They shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
The Treasurer and Assistant Treasurers
Section 11. The treasurer shall have custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the corporation in such depositories as may be designated by the board of directors.
Section 12. The treasurer shall disburse the funds of the corporation as may be ordered
by the board of directors, talcing proper vouchers for such disbursements, and shall render to the
president and the board of directors at its regular meetings or when the board of directors so
requires an account of all his or her transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, the treasurer shall give the
corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
board of directors for the performance of the duties of his or her office and for the
restoration to the corporation, in case of the treasurer’s death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of whatever kind in the
treasurer’s possession or under his or her control belonging to the corporation.
faithfi.il
Section 14. The assistant treasurers, in the order of their seniority, or otherwise, as
determined by the board of directors, or the secretary acting as assistant treasurer shall, in the
absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer.
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They shall perform such, other duties and have such other powers as the board of directors may
from time to time prescribe.
ARTICLE V
General Provisions
Section 1. The board of directors may authorize and the corporation may make
distributions, subject to any restrictions in the articles of incorporation and limitations set forth in
the Act. Except as otherwise specifically provided herein, the board of directors shall make no
distribution that inures to the benefit of any disqualified person (within the meaning of Section
4946(a) of the Internal Revenue Code of 1986, as amended (the “Code”)).
Section 2. The board of directors may by resolution create a reserve or reserves out of
surplus or designate or allocate any and all of its surplus in any manner for any proper purpose or
purposes, and may increase, decrease or abolish any such reserve in the same manner.
Section 3. The board of directors may accept on behalf of the corporation any
contribution, gift, bequest or devise for the genera] purposes or for any special purpose of the
corporation. The board of directors may make gills and give charitable contributions that are not
prohibited by statute, these bylaws, the articles of incorporation and any requirements for
maintaining the corporation’s federal and state tax status.
Section 4. The board of directors may authorize any officer or officers, or agent or
agents of the corporation, in addition torihe officers so authorized by these bylaws, to enter into
any contract or execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific instances, including,
without limitation, contracts for administrative and other services in furtherance of the exempt
purposes of the corporation.
Section 5. All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness issued in the name of or payable to the corporation shall be signed or
endorsed by such officer or officers or such other person or persons as the board of directors may
from time to time designate.
Section 6. All funds of the corporation shall be deposited from time to time to the
credit of the corporation in such banks, trust companies or other depositories as the board of
directors may select.
Section 7. The fiscal year of the corporation shall be fixed by resolution of the board
of directors.
Section 8. The corporate seal, if any, shall have inscribed thereon the name of the
corporation, and be in a form approved by the board of directors. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
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Section 9. The corporation shall keep correct and complete books and records of
account and shall also keep at the registered or principal office of the corporation a record giving
the names and addresses of the directors entitled to vote. All books and records of the
corporation may be inspected by any director, or his or her agent, accountant or attorney, for any
proper purpose at any reasonable time.
ARTICLE VI
Amendment of Bylaws
Section 1. The board of directors may amend or repeal these bylaws, or adopt new
bylaws at any regular meeting of the board of directors or at any special meeting of the board of
directors if notice of such amendment, repeal or adoption of new bylaws is contained in the
notice of such meeting. No amendment may be made to these bylaws which would alter the
corporation’s purposes as stated in the articles of incorporation, as amended from time to time, or
which would cause any benefit, other than reasonable compensation as determined under Section
12 of Article II or Section 4 of Article IV, to inure to any person who has a personal or private
interest in the activities of the corporation.
ARTICLE VII
Indemnification of Officers and Directors
♦
Section 1. As utilized in this Article, the following terms shall have the meanings
indicated:
(1) “Corporation” includes any domestic or foreign predecessor entity of the
corporation in a merger, consolidation or other transaction in which the liabilities of the
predecessor are transferred to the corporation by operation of law and in any other transaction in
which the corporation assumes the liabilities of the predecessor but docs, not specifically exclude
liabilities that are the subject matter of this Article.
(2) “Director” means any person who is or was a director of the corporation and any
person who, while a director of the corporation, is or was serving at the request of the corporation
as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise.
(3 ) “Expenses” include court costs and attorneys’ fees.
(4) “Official capacity” means: (i) when used with respect to a director, the office of
director in the corporation, and (ii) when used with respect to a person other than a director, the
elective or appointive office in the corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the corporation, but
notwithstanding any provision hereof to the contrary, “official capacity” as defined in both
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(i) and (ii) above does not include service for any other foreign or domestic corporation or any
partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise.
(5) “Proceeding” means any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in
such an action, suit or proceeding and any inquiry or investigation that could lead to such an
action, suit or proceeding.
Section 2. The corporation shall indemnify a person who was, is or is threatened to
be made a named defendant or respondent in a proceeding because the person is or was a director
only if it is determined in accordance with Section 6 of this Article that the person:
(1) conducted himself or herself in good faith; (2) reasonably believed: (a) in the case of conduct
in his or her official capacity as a director of the corporation, that his or her conduct was in the
corporation’s best interests, and (b) in all other cases, that his or her conduct was at least not
opposed to the corporation’s best interests; and (3) in the case of any criminal proceeding, had no
reasonable cause to believe that his or her conduct was unlawful.
Section 3. A director shall not be indemnified by the corporation as provided in
Section 2 of this Article for obligations resulting from a proceeding: (1) in which the director is
found liable on the basis that personal benefit was improperly received by him or her, whether or
not the benefit resulted from an action taken in the person’s official capacity; or (2) in which the
person is found liable to tire corporation, except to the extent permitted in Section 5 of this
Article.
Section 4. The termination of a proceeding by judgment, order, settlement or
conviction or on a plea of nolo contendere or its equivalent is not of itself determinative that the
person did not meet the requirements set forth in Section 2 of this Article. A person shall be
deemed to have been found liable in respect of any claim, issue or matter only after the person
shall have been so adjudged by a court of competent jurisdiction after exhaustion of all appeals
therefrom.
Section 5. A person may be indemnified by the corporation as provided in Section 2
of this Article against judgments, penalties (including excise and similar taxes), fines, settlements
and reasonable expenses actually incurred by the person in connection with tire proceeding; but if
the person is found liable to the corporation or is found liable on the basis that personal benefit
was improperly received by the person, the indemnification (1) is limited to reasonable expenses
actually incurred by the person in connection with the proceeding, and (2) shall not be made in
respect of any proceeding in which the person shall have been found liable for willful or
intentional misconduct in the performance of his or her duty to the corporation.
Section 6. A determination of indemnification under Section 2 of this Article must be
made: (1) by a majority vote of a quorum consisting of directors who at the time of the vote are
not named defendants or respondents in the proceeding; (2) if such a quorum cannot be obtained,
by a majority vote of a committee of the board of directors, designated to act in the matter by a
majority vote of all directors, consisting solely of two or more directors who at the time of the
vote are not named defendants or respondents in the proceeding; or (3) by special legal counsel
9
007500.00100:0375382.01
U»/XO/ao i i . u o r a a o UUQU
EXHIBIT B
selected by the board of directors or a committee of the board of directors by vote as set forth in
subsection (1) or (2) of this Section 6, or, if such a quorum cannot be obtained and such a
committee cannot be established, by a majority vote of all directors.
Section 7. Authorization of indemnification and determination as to reasonableness
of expenses must be made in the same manner as the determination that indemnification is
permissible, except that if the determination that indemnification is permissible is made by
special legal counsel, authorization of indemnification and determination as to reasonableness of
expenses must be made in the manner specified by subsection (3) of Section 6 of this Article for
the selection of special legal counsel. Notwithstanding the preceding sentence, a provision
contained in the articles of incorporation, the bylaws, a resolution of directors or an agreement
that makes mandatory the indemnification described in Section 2 of this Article shall be deemed
to constitute authorization of indemnification in the manner required herein, even though such
provision may not have been adopted or authorized in the same manner as the determination that
indemnification is permissible.
Section 8. The corporation shall indemnify a director against reasonable expenses
incurred by such director in connection with a proceeding in which he or she is a named
defendant or respondent because he or she is or was a director if the director has been wholly
successful; on the merits or otherwise, in the defense of the proceeding.
Section 9. If, upon application of a director, a court of competent jurisdiction
determines, after giving any notice the court considers necessary, that the director is fairly and
reasonably entitled to indemnification in view of all the relevant circumstances, whether or not
he or she has met the requirements set forth in Section 2 of this Article or has been found liable
in the circumstances described in Section 3 of this Article, the corporation shall indemnify the
director to such further extent as the court shall determine; but if the person is found liable to the
corporation or is found liable on the basis that personal benefit was improperly received by the
person, the indemnification shall be limited to reasonable expenses actually incurred by the
person in connection with the proceeding.
Section 10. Reasonable expenses incurred by a director who was, is or is threatened to
be made a named defendant or respondent in a proceeding may be paid or reimbursed by the
coiporation in advance of the final disposition of the proceeding and without the determination
specified in Section 6 of this Article or the authorization or determination specified in Section 7
of this Article, after the corporation receives a written affirmation by the director of the director’s
good faith belief that he or she has met the standard of conduct necessary for indemnification
under this Article and a written undertaking by or on behalf of the director to repay the amount
paid or reimbursed if it is ultimately determined that the director has not met that standard or it is
ultimately determined that indemnification of tire director against expenses incurred by him or
her in connection with that proceeding is prohibited by Section 5 of this Article. A provision
contained in the articles of incorporation, these bylaws, a resolution of the directors or an
agreement that makes mandatory the payment or reimbursement permitted under this Section
shall be deemed to constitute authorization of that payment or reimbursement.
10
007500.00100:03753X2.01
Utf/±0/do 14 . VO o u o u
EXHIBITS
Section 11. The written undertaking required by Section 10 of this Article must be an
unlimited general obligation of the director but need not be secured. It may be accepted without
reference to financial ability to make repayment.
Section 12. Notwithstanding any other provision of this Article, the corporation may
pay or reimburse expenses incurred by a director in connection with his or her appearance as a
witness or other participation in a proceeding at a time when the director is not a named
defendant or respondent in the proceeding.
Section 13. An officer of the corporation shall be indemnified by the corporation as
and to the same extent provided by Sections 8 and 9 of this Article for a director and is entitled to
seek indemnification under those Sections to the same extent as a director. The corporation may
indemnify and advance expenses to an officer, employee or agent of the corporation to the same
extent that it may indemnify and advance expenses to directors under this Article.
Section 14. The corporation may indemnify and advance expenses to persons who are
not or were not officers, employees or agents of the corporation but who are or were serving at
the request of the corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other enterprise to the same
extent that it may indemnify and advance expenses to directors under this Article.
Section 15. The corporation may indemnify and advance expenses to an officer,
employee, agent or person identified in Section 14 of this Article and who is not a director to
such further extent, consistent with law, as may be provided by the articles of incorporation,
these bylaws, general or specific action of the board of directors or contract or as permitted or
required by common law.
Section 16. The corporation may purchase and maintain insurance or another
arrangement on behalf of any person who is or was a director, officer, employee or agent of the
corporation or who is or was serving at the request of the corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or
domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan
or other enterprise, against any liability asserted against him or her and incurred by him or her in
such a capacity or arising out of his or her status as such a person, whether or not the corporation
would have the power to indemnify the person against that liability under this Article. Without
limiting the power of the corporation to procure or maintain any kind of insurance or other
arrangement, the corporation may, for the benefit of persons indemnified by the corporation:
(1) create a trust fund; (2) establish any form of self-insurance; (3) secure its indemnity
obligations by grant of a security interest or other lien on the assets of the corporation; or (4)
establish a letter of credit, guaranty or surety arrangement. The insurance or other arrangement
may be procured, maintained or established within the corporation or with any insurer or other
person deemed appropriate by tire board of directors, regardless of whether all or part of the stock
or other securities of the insurer or other person are owned in whole or part by the corporation. In
the absence of fraud, the judgment of the board of directors as to the terms and conditions of the
insurance or other arrangement and the identity of the insurer or other person participating in an
11
007500.00100:0375382.01
ua/ia/as 1^:09 FAX dii m b u 6 u filLLHUUL) VEVfcluUrJLEaNl 40 U I
EXHIBIT B
arrangement shall be conclusive, and the insurance or arrangement shall not be voidable and shall
not subject the directors approving the insurance or arrangement to Eability, on any ground,
regardless of whether directors participating in the approval are beneficiaries of the insurance or
arrangement.
Section 17. For purposes of this Article, the corporation is deemed to have requested a
director to serve an employee benefit plan whenever the performance by the director of his or her
duties to the corporation also imposes duties on or otherwise involves services by the director to
the plan or participants or beneficiaries of the plan. Excise taxes assessed on a director with
respect to an employee benefit plan pursuant to applicable law are deemed fines. Action taken or
omitted by the director with respect to an employee benefit plan in the performance of his or her
duties or for a purpose reasonably believed by the director to be in the interest of the participants
and beneficiaries of the plan is deemed to be for a purpose which is not opposed to the best
interests of the corporation.
Section 18. The coverage of any liability insurance purchased by the corporation
pursuant to Article VII, Section 16 may include coverage for the indemnifiable expenses
described elsewhere in Article VII, as well as judgments, fines, settlements, penalties, taxes and
expenses of correction, including such expenses as may be related to taxes, penalties and
expenses of correction imposed under Chapter 42 of the Code. However, if coverage for
judgments, fines, settlements, penalties, taxes and expenses of correction is included in any
Eability insurance so purchased by the corporation, the corporation shall request the insurance
carrier from whom such insurance is purchased to furnish the corporation with the portion of any
insurance premium payable that is attributable to such coverage for judgments, fines, settlements,
penalties, taxes and expenses of correction. That portion of such premium as is so designated by
the insurance carrier shall be allocated pro rata among the directors, officers and employees of
the corporation, as well as any other party actually included within such coverage pursuant to the
provisions of Section 16 hereof, and included, where applicable, in tire compensation paid to
each such director, officer, employee or other party by the corporation.
Section 19. No purchase of insurance, indemnification or other action contemplated or
allowed by this Article shall be construed to allow or permit any such purchase, indemnification
or action, except as such is within any limitations placed on the corporation as a tax exempt
organization under the provisions of the Code, the laws of the State of Texas, the Act, or any
other applicable rule or regulation.
WE, THE UNDERSIGNED, DO HEREBY CERTIFY that the foregoing are the Bylaws
of FORT WORTH OPPORTUNITY CENTER, as adopted by a written consent of directors
effective as of the day of , 1998.
12
007500.00100:0375382.01
EXHIBIT B
UQU
13
007500.00100:0375382.01
u»/xo/yo x x:. u » r aa o x / ^4 ouou
EXHIBIT C
Legal Description
Block 1 of ANDERSON LABORATORY ADDITION (INDUSTRIAL PARK), a
subdivision of blocks “A” and "C”, Carver Plaza, First Increment, to the City of Fort
Worth, Tarrant County, Texas, according to the Plat thereof recorded in Volume 388-139,
Page 50, Plat Records, Tarrant County, Texas.
RAMEY AVt JE
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A
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FITZHUGH STREET
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of jlo/ na x x . ± u r A.A. o x i x. x x ouou nxLLnuuv vraLLunm^x Hid
EXHIBITE
FORT WOR TH OPPORTUNITY CENTER
CAPITAL BUDGET
Total
Architectural/MEP Design $50,000
Civil Engineering 8,000
Landscape Design 3,000
Geotechnical 2,000
Testing & Inspection 3,000
Legal/ConSulting 20,000
Marketing & Promotion 1,500
Sitework and pavement repairs (Replace 20000 sf concrete pavement)75,000
Replace concrete slab on grade areas (2OO0 sf @ $4.50)9,000
Seal warehouse floors (14187 st @ 50.80)4.965
Additional warehouse lighling-High bay fixtures 4,000
Paint warehouse walls (9300 sf @ $0.80)7,440
Building Shell (GOOOsf @ $35.00)210,000
Demolition and Facade Renovation 60,000
Landscaping 60,000
New Fencing 2090 If @ $18.00 37,620
Additional Pavement Repair (40% of remaining area)115.000
Contingency 25,000
Closing Cost & Title Fees 25,000
Interim Financing Costs 45,000
Total Building Cost __765,525
Furnishings,Fixtures and Equipment ’ __25,000
Property Acquisition Cost __600,000
Total Project Cost
<
1390,525
File: FW Opp Center. Date: 09/18/1998; Time: 12:42 PM
uy/ia/aa i z : 1 u t aa a a / z z 4 tiotjo HILLWOOD DEVELOPMENT
EXHIBIT F
FORT WORTH OPPORTUNITY CENTER
PROJECTED BUDGET
Year J Year 2 Year 3 Year 4 Year 5
DIRECT COSTS |
contract Labor 20,000 20,600 21,218 21,855 22,510
EQUIPMENT RENTAL 3,000 3,090 3.183 3.278 3.377
RENTAL EXPENSE 1 I I I 1
TICAM 3,500 3,605 3,713 3,825 3,939
utilities 3,000 3.090 3,183 3.278 3.377
SECURITY 30,000 30,900 31,827 32,782 33,765
TELEPHONE 2,376 2,447 2.521 2.596 2,674
SALARIES
EXECUTIVE DIRECTOR 75,000 77,250 79,568 81,955 84.413
EXECUTIVE ASSISTANT 32,240 33,207 34,203 35,230 36,286
FICa 6,880 7,086 7,299 7,518 7,744
UNEMPLOYMENT 180 185 191 197 203
HEALTH INSURANCE 11,596 11,944 12,302 12,671 13.051
WORKER’S COMPENSATION 685 706 727 749 771
SUPPLIES
OFFICE SUPPLIES 4,800 4,944 5,092 5,245 5,402
POSTAGE 600 618 637 656 675
O'1"''R SUPPLIES 6,000 6,180 6,365 6,556 6.753
Cv JDIaL EXPENSE l,«00 1,854 1,910 1,967 2,026
PRINTING 2,Z00 2.472 2.546 2.623 2,701
STUDENT SUPPUES 7,200 7,416 7.638 7.868 8,104
EQUIPMENT REPAIRS 6,0(10 6,180 6,365 6,556 6,753
MISCELLANEOUS |
STAFF TRAVEL: IN-TOWN 1,000 1,030 1,061 1,093 1,126
STAFF TRAVEL: OUT-OF-TOWN 7,250 7.468 7.692 7.922 8,160
DUES AND MEMBERSHIPS 1,100 1,133 1,167 1,202 1,238
ENTRANCE FEES 2-500 2J75 2.652 2,732 2,814
INDIRECT COSTS 5,555 5.722 5.893 6,070 6,252
CAPITAL OUTLAYS 1
MAJOR EQUIPMENT AND PROPERTY 8,970 92139 9JI6 9.802 10,096
OFFICE EQUIPMENT 5,400 __________5,562 ________5,729 5,901 ___________6.078
% Change CPI CPI CPI CPI
'' .249,033 ?:$”4>' •' ’isifcsMfc $J i‘>64,lj»9 272,125 $ . 280,289
File: FWOC - BUDGET; Date; 908/98; Time: 11:41AM 7 HILL WOOD DEVELOPMENT CORPORATION
HILLWOOD
DEVELOPMENT CORPORATION
September 29, 1998
Mr. Bob Terrell
City Manager
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Re: Memorandum of Understanding between Hillwood Development Corporation (“Hillwood”) and the
City of Fort Worth (“Fort Worth”) concerning the conditions to a Uniform Wholesale Water
Contract for Water Services between the Town of Westlake (“Westlake”) and Fort Worth.
Dear Mr. Terrell:
This letter sets forth the general terms and conditions under which Fort Worth will enter into a Wholesale
Water Contract with Westlake. These terms and conditions are set out below.
»
1. Wholesale Water Contract. Fort Worth will enter into a Uniform Wholesale Water
Contract (the “Contract”) with Westlake.
2. Financial Obligations. Hillwood will fund the following capital costs which Fort Worth
has incurred or will incur in association with its obligation to provide water to Westlake
under the Contract (estimated to be $10,100,000). The financial obligations include the
following:
‘A. Prepayment of Impact Fees: A payment of $2,000,000 will be made to Fort Worth
by Hillwood upon execution of the Contract, which contract will be enter into on or
before January 1, 1999. This payment represents a prepayment by Hillwood of
future Impact Fees to be charged under the terms of the Contract and in connection
with the development of the Circle T Ranch. Hillwood or its assigns will receive a
credited for future impact fees due under the Contract.
B. Water Facility Cost: Forth Worth will make the necessary improvements to its
water system to provide the additional capacity to service the Town of Westlake.
Fort Worth and Hillwood will enter into a Capital Cost Contract (“CCA”) to fund
these costs. In addition to the $2,000,000 payment set out in 2A. above, the balance
of the cost ($8,100,000) will be funded as follows:
Years 1 - 5
Years 6-25
Years 26 -30
$298,885
$645,374
$346,489
13600 Heritage Parkway • Suite 200 . Fort V
Fort Worth • Dallas • /Xtlanta
pOCC • Fax (817) 224-6060 • www.hillwwxl.coni
Austin • Kansas City • Irvine • La Jolla • Maui • Abu Dhabi
Letter to Mr. Bob Terrell
Memorandum of Understanding - Uniform Wholesale Water Contract for Water Services
September 28, 1998 Page 2 of 2
If this letter accurately expresses our mutual understanding, please execute it in the spaces provided below.
Sincerely,
Hillwood Development Corporation
City of Fort Worth
By:Date
EXHIBIT C
MEMORANDUM OF UNDERSTANDING
Exhibit C - PAGE 1
007510.00019:0402442.07
HILLWOOD
DEVELOPMENT CORPORATION
September 29,1998
Mr. Bob Terrell
City Manager
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Re: Memorandum of Understanding between Hillwood Development Corporation (“Hillwood”) and the
City of Fort Worth (“Fort Worth”) concerning the conditions to a Uniform Wholesale Water
Contract for Water Services between the Town of Westlake (“Westlake”) and Fort Worth.
Dear Mr. Terrell:
This letter sets forth the general terms and conditions under which Fort Worth will enter into a Wholesale
Water Contract with Westlake. These terms and conditions are set out below.
1. Wholesale Water Contract. Fort Worth will enter into a Uniform Wholesale Water
Contract (the “Contract”) with Westlake.
2. Financial Obligations. Hillwood will fund the following capital costs which Fort Worth
has incurred or will incur in association with its obligation to provide water to Westlake
under the Contract (estimated to be $10,100,000). The financial obligations include the
following:
A. Prepayment of Impact Fees: A payment of $2,000,000 will be made to Fort Worth
by Hillwood upon execution of the Contract, which contract will be enter into on or
before January 1, 1999. This payment represents a prepayment by Hillwood of
future Impact Fees to be charged under the terms of the Contract and in connection
with the development of the Circle T Ranch. Hillwood or its assigns will receive a
credited for future impact fees due under the Contract.
B. Water Facility Cost: Forth Worth will make the necessary improvements to its
water system to provide the additional capacity to service the Town of Westlake.
Fort Worth and Hillwood will enter into a Capital Cost Contract (“CCA”) to fund
these costs. In addition to the $2,000,000 payment set out in 2A. above, the balance
of the cost ($8,100,000) will be funded as follows:
Years 1 - 5
Years 6-25
Years 26 -30
$298,885
$645,374
$346,489
13600 Heritage Parkway • Suite 200 • Fort Worth, Texas 76177 • (817) 224-6000 • Fax (817) 224-6060 • www.hillwood.com
Fort Worth • Dallas • Atlanta • Austin • Kansas Citv • Irvine • La folia • Maui • Abu Dhabi
Letter to Mr. Bob Terrell
Memorandum of Understanding-Uniform Wholesale Water Contract for Water Services
September 28, 1998 Page 2 of 2
If this letter accurately expresses our mutual understanding, please execute it in the spaces provided below.
Sincerely,
Hillwood Development Corporation
City of Fort Worth
EXHIBIT D
FORM OF UNIFORM WHOLESALE WATER CONTRACT
Exhibit D - PAGE 1
007510.00019:0402442.07
CONTRACT FOR WATER SERVICE BETWEEN
THE CITY OF FORT WORTH, TEXAS, AND
TOWN OF WESTLAKE, TEXAS
STATE OF TEXAS §
COUNTY OF TARRANT §
This contract and agreement is made and entered into this the ___ day of
February, 1999, by and between the City of Fort Worth, a municipal corporation located in
Tarrant and Denton Counties, Texas, acting by and through Mike Groomer, its duly
authorized Assistant City Manager, hereinafter called "Fort Worth," and the Town of
Westlake, located in Tarrant County, Texas, acting by and through Scott Bradley, its duly
authorized Mayor, hereinafter called "Customer."
WHEREAS, Fort Worth has provided at its own expense, and now owns, operates
and maintains facilities for processing and distributing a large supply of surface water,
and at the present time is qualified to furnish and deliver potable water, both within and
without the corporate boundaries of Fort Worth; and,
WHEREAS, Customer has provided at its own expense and now owns, operates
and maintains a distribution system; and furnishes water service to the customers within
its boundaries, and,
WHEREAS, Customer does not have and cannot provide economically and within
a reasonable period of time, any other source of water supply, fully adequate to meet its
present and/or future needs or potential emergency needs; and,
WHEREAS, it is deemed to be in the best interest of both Fort Worth and
Customer that said parties do enter into a mutually satisfactory agreement by means of
which Customer may obtain from Fort Worth a supply of potable water at a reasonable
rate; and,
WHEREAS, by the execution of this contract, neither Fort Worth nor Customer will
surrender any of its rights to the ownership and operation of its present water production
and distribution facilities; and,
WHEREAS, Customer desires to contract for the purchase of potable water and
Fort Worth desires to sell potable water to Customer; and
WHEREAS, Section 402.001 of the Texas Local Government Code and Chapter
791 of the Texas Government Code authorize Fort Worth and Customer to enter into this
agreement;
NOW, THEREFORE, KNOW ALL BY THESE PRESENTS:
That, for and in consideration of the mutual covenants, promises and agreements
contained herein, Fort Worth and Customer do hereby covenant and agree as follows:
1.
Definitions
1.1 "Annual Consumption" is the total quantity of water purchased under the
terms of this contract by Customer during the fiscal year of Fort Worth as determined by
the difference in the annual October meter readings.
1.2 "Average Daily Use" is the total Annual Consumption divided by 365 days.
1.3 "Treatment, Pumping and Transmission Charge" is 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.
1.4 "Customer System" is all necessary Customer mains and distribution
facilities on the Customer's side of the meter from and beyond the point of delivery of
potable water by Fort Worth.
1.5 "Delivery Facility" is any facility necessary for the transmission of water from
the Fort Worth System that is on the Customer's side of the point of delivery that is
constructed specifically to allow Fort Worth to serve Customer.
1.6 "Director" is the Director of the City of Fort Worth Water Department or his
designee.
1.7 "Fiscal Year" is the fiscal year of Fort Worth from October 1 through
September 30.
1.8 "Fort Worth System" is the Fort Worth water treatment and distribution
system.
1.9 "General Benefit Facilities" are water facilities that provide utility services
and benefits common to all customers which include water treatment facilities, metering
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 2
facilities, control systems and appurtenances, storage facilities, pumping facilities and all
major mains that are sixteen inches (16") and greater in diameter.
1.10 "MGD" is million gallons per day.
1.11 "Maximum Day Demand" is the maximum quantity of water used by
Customer during one calendar day of the Fiscal Year of Fort Worth.
1.12 "Maximum Hour Demand" or "Peak Hour Rate" is the quantity of water used
by Customer during the one hour of the year that more water passed through the meter or
meters serving the Customer than during any other hour of the Fiscal Year of Fort Worth
multiplied by 24 hours.
1.13 "Rate of Use Charge" is the fixed 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.
1.14 "Raw Water Charge" represents the rate for 1,000 gallons charged by the
Tarrant Regional Water District to Fort Worth for raw water to be sold to the Customer
plus eight percent (8%) of said rate, representing Fort Worth system losses of four
percent (4%), and the street rental charge of four percent (4%).
1.15 "Wholesale System Access Fee" is a capital contribution funding or
recouping the costs of General Benefit Facilities capital improvements or General Benefit
Facilities facility expansions necessitated by and attributable to new development.
1.16 "System Cost" is the operating expense and capital related cost incurred by
Fort Worth pursuant to the provision of water treatment and transmission to the wholesale
class of water customers. Such costs are to be collected by Fort Worth as a component
of the annual cost of providing wholesale water service.
1.17 "Volume Charge" represents the combined treatment, pumping and
transmission charge and the raw water charge in effect for the current Fiscal Year.
1.18 "Capital improvements" means any of the following facilities which provide
utility services and benefits common to all customers and that have a life expectancy of
three or more years, whether such capital improvements are located within the
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 3
jurisdictional limits of Fort Worth or Customer: water treatment facilities, metering facilities,
control systems and appurtenances, storage facilities, pumping facilities and all mains
that are sixteen inches (16") and greater in diameter.
1.19 "Facility Expansion" is the expansion of the capacity of an existing facility
that serves the same function as an otherwise necessary new capital improvement, in
order that the existing facility may serve new development. The term does not include the
repair, maintenance, modernization, or an expansion of an existing facility to better serve
existing development.
2.
Terms and Conditions
2.1 Fort Worth agrees to furnish and sell to Customer potable water of potable
quality meeting all applicable governmental standards, delivered under the normal
operating pressure prevailing in the Fort Worth System at the point or points of delivery
mutually agreed upon. Customer agrees to accept delivery under the conditions of this
agreement and to pay for the same in accordance with the terms herein.
2.2 In accordance with the terms of Fort Worth City Secretary Contract No.
12720 between Fort Worth, City of Arlington, City of Mansfield, Trinity River Authority and
the Tarrant County Water Control and Improvement District No. 1, now known as the
Tarrant Regional Water District, this contract shall be deemed subordinate in all respects
to the water requirements of the above contracting parties as specified in Section 3 of that
contract.
2.3 If Fort Worth shall ration the use of water throughout its corporate limits or
issue water conservation measures or restrict the use of water in any way, Customer
agrees to institute and apply the same rationing, conservation measures, or restrictions to
the use of water by the customers of Customer for so long as any part of the total water
supply of the Customer is being furnished by Fort Worth. Fort Worth agrees to consult
with the Water System Advisory Committee in the development of any conservation or
rationing plans that may be necessary to address operational constraints whether or not
same are required by any state or federal regulatory agency, or are deemed advisable by
the Water System Advisory Committee to manage long term System Costs, except where
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 4
emergency conditions may dictate short-term conservation or rationing requirements as
may be determined by the Director to meet all necessary water demands.
3.
Location and Maintenance of Measuring Devices
3.1 All water furnished under this agreement by Fort Worth shall be measured
by one or more suitable meters equipped with continuous flow, chart-recording devices,
and telemetering equipment connected with the Fort Worth control center. All meters,
recording devices, telemetering equipment and appurtenances shall be approved and
installed by Fort Worth. Customer shall pay for the meter vault and all metering
equipment, including telemetering equipment to the Fort Worth control center, and
appurtenances, plus the installation cost thereof. Fort Worth shall pay all costs
associated with the operation and maintenance of said equipment and shall pay for the
replacement of said equipment as necessary. Such costs, as well as charges for the
telelink line and microwave transmitter and the power to operate same, shall be a System
Cost.
3.2 The point or points of delivery of potable water by Fort Worth shall be the
meter vault connection to Customer's side of the meter, and all necessary mains and
distribution facilities from and beyond said point shall be the responsibility of Customer.
The location of each meter shall be mutually agreed upon in writing by and between the
parties hereto, and the meter or meters shall not be moved or relocated except by mutual
consent in writing by the parties hereto.
3.3 For the cost of each additional Customer connection to the Fort Worth
System, Customer will pay an amount not less than that which would be paid by a
developer to Fort Worth under its then existing connection and line extension policy, or an
amount agreed upon mutually by Fort Worth, Customer, and the Water System Advisory
Committee.
3.4 Either party, at its own expense, may install a check meter to check or
measure the volume of water passing the master meter, provided that, if such check
meter is installed, the same rules and regulations relative to its operation, maintenance
and reading shall apply as to the master meter being tested.
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 5
4.
Meters
4.1 Fort Worth shall routinely test for accuracy, and service and calibrate if
necessary, the master meter(s) 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
Customer. Customer shall have access to the metering 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 Fort Worth, or other mutually
approved third party calibration agent, in the presence of representatives of Customer
and Fort Worth, if so requested by Customer. Notification of any proposed test shall be
provided to the Customer at least seventy-two (72) hours prior to such test being
conducted and Customer may observe such test, if so desired.
4.2 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. All meters will be properly sealed, and the seals shall not be broken
unless representatives of both parties have been notified and given a reasonable
opportunity to be present.
4.3 If any meter used to determine the flow of potable water to Customer 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 such meter is
out of service or out of repair shall be estimated and agreed upon by the parties hereto
upon the basis of the best data available. The basis for estimating such flow includes, but
is not limited to, extrapolation of past patterns of flow for said metering station under
similar conditions. In the event that the parties hereto cannot agree on the extrapolated
estimate of water volume delivered, agreement on the flow volume will be determined by
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third party arbitration, as hereinafter provided.
5.
Meter Reading and Billing
5.1 Fort Worth will read all meters provided for herein at monthly intervals, and
the parties to this agreement shall have free access to read these respective meters daily,
if either party so desires. It shall be the duty of the parties to give immediate notice, each
to the other, should any meter be found not functioning properly, and, upon such notice;
repairs to such meter shall be made promptly.
5.2 All readings of meters will be entered in ink upon bound journals maintained
by Fort Worth. Customer shall have access to such records during reasonable business
hours and shall be furnished with monthly readings for each point of delivery metering
facility.
5.3 If Customer has more than one point of connection to the Fort Worth
System the sum of all meter readings and rates of flow shall be used for the purpose of
calculating the water Volume Charge and the Rate of Use Charge.
5.4 A review of water usage amounts by Customer 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 Customer with the October billing.
5.5 Fort Worth shall render bills for water service to Customer monthly. All such
bills shall be due and payable by Customer 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 Fort Worth shall first be applied to the past-due charges, if
any, and thereafter to the current charges.
5.6 If Customer disputes a bill and is unable to resolve the difference informally,
Customer shall notify the Director in writing. If the Director and Customer are unable to
resolve the disputed bill, agreement on the bill will be determined by third party arbitration,
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as hereinafter provided. Dispute of a bill shall not be 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. In the event that a billing adjustment is agreed upon or established
by arbitration the amount found to be incorrect will be credited to Customer's account
together with an interest charge often percent (10%) per annum calculated from the date
payment of the disputed bill was received.
6.
Rates
6.1 Method of Rate Determination
6.1.1 Wholesale water rates will be based upon a cost-of-service rate study
performed by independent utility rate consultants as provided for in Section 6.1.4 hereof.
The independent utility rate consultant shall be selected by the Director from a list of five
qualified firms submitted to the Director by the Water System Advisory Committee. The
cost of any such study 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.
6.1.2 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
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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 Fort
Worth Water Department during reasonable business hours upon request by Customer.
6.1.3 Fort Worth 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 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 (1-1/2%).
6.1.4 For the Fiscal Years beginning October 1, 1999, 2002, 2005 and 2008, a
detailed wholesale water rate study will be performed by an independent utility rate
consultant selected by the Director in conformance with Section 6.1.1 herein. The rate
consultant so selected will utilize the same methodology used in the immediate previous
rate study. In the interim Fiscal Years between detailed rate studies, Fort Worth will
adjust wholesale water rates annually, 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.
6.1.5 Changes in the wholesale water rate methodology will be allowed if
recommended by a majority vote of the Water System Advisory Committee and approved
by the Fort Worth City Council. For purposes of this section, a majority is defined as any
combination of Fort Worth wholesale customers that took more than fifty percent (50%) of
the wholesale water delivered by Fort Worth during the immediate past Fiscal Year.
6.2 Rates to be used
6.2.1 The charges for the initial period of this contract shall be from the date of its
execution through September 30, 1999, and have been computed as follows:
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The Treatment, Pumping and Transmission Charge shall be $0.4169 per 1,000
gallons withdrawn by Customer.
The raw water charge shall be $0.6656 per 1,000 gallons for Customers inside
the Tarrant Regional Water District and $0.7336 for Customer's outside
the District.
The annual charge per MGD of Maximum Day Demand in excess of
Average Daily Use shall be $80,056 per MGD, and Maximum Hour Demand
in excess of the Maximum Day Demand shall be $0.00 per MGD.
The service charge shall be $25.00 per month per meter.
6.2.2 The amount charged for raw water shall be increased or decreased when
the raw water cost paid by Fort Worth for water available for treatment and sale to
Customer is increased or decreased as determined by the Tarrant Regional Water District
in accordance with Fort Worth City Secretary Contract No. 12720, and adjusted for
system losses and street rental.
6.2.3 The parties hereto agree that services obtained pursuant to this contract
are essential and necessary to the operation of Customer's waterworks facilities and that
all payments made by Customer hereunder shall constitute reasonable and necessary
operating expenses of Customer's waterworks and wastewater systems within the
meaning of Article 1113, Vernon's Annotated Texas Statutes, and the provisions of any
and all ordinances of Customer authorizing the issuance of any revenue bonds of
Customer which are payable from its waterworks and wastewater systems.
6.2.4 Customer agrees, throughout the term of this agreement, to fix and collect
such rates and charges for water service to be supplied as will produce revenues in an
amount equal to at least (i) all of operation and maintenance expenses of such system,
including specifically its payments under this agreement; 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 outstanding, including the amounts required
to pay all principal of and interest on such bonds and other obligations.
6.2.5 Customer understands that Fort Worth City Council has the right to annually
revise the rates charged to cover all reasonable, actual, and expected costs. Revision of
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rates shall be pursuant to the provisions set forth in this contract. Fort Worth shall give
Customer a minimum of six (6) months notice of intent to revise rates. Fort Worth will
furnish members of the Water Advisory Committee a draft copy of the cost-of-service
study of the proposed rates sixty (60) days prior to Fort Worth submitting a rate increase
request to its City Council. Within thirty (30) days of receiving the draft study, the
Committee will submit its written comments on the draft study to Fort Worth, and Fort
Worth will respond to these comments as soon thereafter as possible. If the Committee
has not provided its written comments within said period, the Committee is deemed to
have accepted the proposed rates contained in the draft study, and Customer agrees that
it will be bound by the rates as approved by the Fort Worth City Council. The rates
approved by the Fort Worth City Council shall be the rates to be used in this contract for
the succeeding Fiscal Year.
7.
Payment for Water
Payment of charges to Fort Worth for water used by Customer shall be made as
follows:
7.1 The annual payment will be the charges computed based on all water
delivered by Fort Worth to Customer during the current Fiscal Year using rates provided
herein. 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:
1) 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
2) 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
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3) Twelve thousand dollars ($12,000).
7.2 The rate at which Customer withdraws water from the Fort Worth System
shall be regulated by rate-of-flow controllers, pumps, or other approved methods. The
rate of withdrawal shall be controlled so that the maximum rate shall not exceed 1.35
times the Maximum Day Demand experienced during the previous year unless Customer
has notified the Director in writing at least (6) months prior to the date of the anticipated
increase in the Maximum Day Demand. The Director shall be furnished with all pertinent
information regarding the proposed increase in maximum rate of withdrawal. The Director
may waive all notice requirements if, in his sole opinion, said notice is not necessary to
protect the interest of Fort Worth.
7.3 Except as provided for in section 8 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.
7.4 The total annual payment for water by Customer shall be related to the
annual and peak volumes used by Customer during the Fiscal Year, as determined by
meters, 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 Customer not being in Tarrant Regional
Water District and water being withdrawn at one metering station, and the Volume
Charge and Rate of Use Charges in effect until September 30,1999.
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Monthly
Usage Volume Rate of Use Service
Month Consumption Charges Charges Charges Total
Oct 1,000,000 $1,150.50 $767.20 $25 $1,942.70
Nov 1,000,000 1,150.50 767.20 $25 $1,942.70
Dec 1,000,000 1,150.50 767.20 $25 $1,942.70
Jan 1,000,000 1,150.50 767.20 $25 $1,942.70
Feb 1,000,000 1,150.50 767.20 $25 $1,942.70
Mar 2,000,000 2,301.00 767.20 $25 $3,093.20
Apr 3,000,000 3,451.50 767.20 $25 $4,243.70
May 3,000,000 3,451.50 767.20 $25 $4,243.70
Jun 3,000,000 3,451.50 767.20 $25 $4,243.70
Jul 3,000,000 3,451.50 767.20 $25 $4,243.70
Aug 4,000,000 4,602.00 767.20 $25 $5,394.20
23,000,000 $26,461.50 $8,439.24 $275 $35,175.74
Sep 3,000,000 3,451.50 3,088.82 $25 6,565.32
26,000,000 $29,913.00 $11,528.06 $300 $41,741.06
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 prioryear
Maximum Hour Demand for the prioryear
Maximum Day Demand above Average Daily Use
Maximum Hour Demand above Maximum Day Demand
= 60,000 gallons
= 175,000 gallons
= 480,000 gallons
= 115,000 gallons
= 305,000 gallons
Monthly Excess Maximum Day and Hour Payment Calculation
.115 mg X $80,056 $ 9,206.44 (Maximum day)
.305 mg X $0 0.00 (Maximum hour)
Total $9,206.44
Monthly Rate of Use Payment (Total Divided by 12)= $767.20
A. The annual payment calculation will be computed on the basis of the
current year maximum usage rates or the average of the maximum usage
rates of the most recent three Fiscal Years, whichever is greater. In
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Example A, the current year exceeds the average of the most recent three
Fiscal Years.
Current Year Rate Of Use Calculation
Current Year Rate Of Use Calculation
Average Daily Use for the year
Maximum Day Demand for the current year
Maximum Hour Demand for the current year
Maximum Day Demand above Average Daily Use
Maximum Hour Demand above Maximum Day Demand
= 70,312 gallons
= 215,000 gallons
= 545,000 gallons
= 144,688 gallons
= 330,000 gallons
Fiscal Year Average of Most Recent Three Years
CURRENT
FY
FY
1998
FY
1997
Maximum Day Demand
above Average Daily Use 144,688 115,000 128,766
Maximum Hour Demand
above Maximum Day Demand 330,000 305,000 320,000
Three year average of Maximum Day Demand
above Average Daily Use 129,485
Three year average of Maximum Hour Demand
above Maximum Day Demand 318,333
Customer's annual payment will be based on the greater of the current year maximum
usage rates or the average of the maximum usage rates of the most recent three Fiscal
Years.
Annual Payment Calculation
(Based on Current Year Data)
FY '99 Rates
26,000 X$ 1.1505
.1447 mg X $80,056
.3300 mg X $0
12X$25 X1
Total Annual Payment
Previous Billings for
October through August Usage
$29,913.00
11,584.10
0.00
300.00
$41,797.10
35,175.74
October Billing for September
Usage $ 6,621.36
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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 year
Maximum Day Demand for the current year
Maximum Hour Demand for the current year
Maximum Day Demand above Average Daily Use
Maximum Hour Demand above Maximum Day Demand
= 70,312 gallons
= 215,000 gallons
= 545,000 gallons
= 144,688 gallons
= 330,000 gallons
Fiscal Year Average of Most Recent Three Years
CURRENT FY FY
FY 1998 1997
Maximum Day Demand
above Average Daily Use 144,688 115,000 178,234
Maximum Hour Demand
above Maximum Day Demand 330,000 305,000 361,000
Three year average of Maximum Day Demand
above Average Daily Use 145,974
Three year average of Maximum Hour Demand
above Maximum Day Demand 332,000
Customer's annual payment will be based on the greater of the
current Fiscal Year maximum usage rates or the average of the
maximum usage rates of the most recent three Fiscal Years.
Annual Payment Calculation FY '99 Rates
(Based on average of most recent three years)
Previous Billings for
October through August Usage 35,175.74
October Billing for September
Usage $ 6,725.44
26,000 X $1.1505 $29,913.00
.1460 mg X $80,056 11,688.18
.3320 mg X $0 0.00
12X$25 X 1 300.00
Total Annual Payment $41,901.18
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8.
Effective date of contract
8.1 The effective date of this contract for all purposes will be the date that
Customer firsts withdraws water from the Fort Worth System.
9.
Life of contract
9.1 This contract shall expire on December 31, 2010. It may be renewed on
terms mutually agreeable to the parties hereto.
10.
Rights-of-way
10.1 Customer shall grant, without charge to Fort Worth, such easements and
rights-of-way along public highways or other property owned by Customer, as requested
by Fort Worth, in order to construct or maintain mains or facilities within the service area
of Customer to provide water to Customer and to other areas. Upon notice from
Customer and at Fort Worth's expense, Fort Worth will move such water mains or
facilities located in such street rights-of-way, or other property owned by Customer when
reasonably necessary to the performance of essential governmental duties by Customer.
Fort Worth shall grant, without charge to Customer, such easements and rights-of-way
along public highways or other property owned by Fort Worth, as requested by Customer,
in order to construct and maintain water mains or facilities within Fort Worth to provide
water to Customer. Upon notice from Fort Worth and at Customer's expense, Customer
will move such water mains or facilities when located in such street rights-of-way or other
property owned by Fort Worth when reasonably necessary to performance of essential
governmental duties by Fort Worth. All work done by or on behalf of Fort Worth under
this paragraph will be performed in accordance with specifications equal to those applying
to work of a similar nature performed within Fort Worth, but neither party hereto will be
required to restore the other's property to a condition exceeding its original condition,
unless otherwise mutually agreed in writing. Fort Worth and Customer agree to
coordinate the location of the mains and/or facilities in the other's easements and
rights-of-way in order to prevent further conflicts insofar as is reasonably practicable.
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11.
Texas Natural Resource and Conservation Commission Approval
11.1 The Customer System shall be approved by Texas Natural Resource and
Conservation Commission (TNRCC) during the life of this contract. If at any time the
Customer System is not approved by the TNRCC, or if Customer does not have an active
cross-connection control program, there shall not be any direct physical connection
between the Fort Worth System and the Customer System unless an approved backflow
prevention device has been provided and installed and this installation has been
approved by the TNRCC. All expenses to provide and install backflow prevention
device(s) will be borne by Customer.
12.
Resale of Water
12.1 Customer agrees that it will not share facilities for water system use with
any other governmental or corporate entity outside of the certificated area of Customer,
commonly known and referred to as its service area, without the express written consent
of Fort Worth, which consent shall not be unreasonably withheld. Fort Worth neither
recognizes nor approves any existing agreements entered into by Customer with other
governmental or corporate entities outside its service area.
12.2 Customer agrees that it will not enter into any resale or transportation
agreement other than as a part of its normal offering and supply of water to existing and
future subscribers to its water system without the recommendation of the Water System
Advisory committee and express written consent of Fort Worth.
13.
Sanitary Sewer Facilities
13.1 Customer agrees that it will require all of its customers who are provided
water from the Fort Worth system to have adequate sanitary sewage facilities meeting
state health department requirements.
14.
Additional Parties
14.1 Fort Worth will use its best efforts to provide an adequate water supply for
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all of its customers. Prior to the approval of additional wholesale customers, Fort Worth
will provide reasonable assurances that the projected five-year water demands of the
then-existing wholesale customers so served and the proposed additional customer can
be adequately fulfilled. Fort Worth will consult with the Water System Advisory
Committee prior to contracting with additional parties.
15.
Water System Advisory Committee
15.1 Customer's governing body shall annually appoint a representative to be a
voting member of the Water System Advisory Committee, whose purpose shall be to
consult with and advise Fort Worth, through the Director, on matters pertaining to
conservation, wholesale planning, improvements, grants, wholesale rate studies,
administration, budgets, and additional wholesale customers, whether same be wholesale
customers of Customer or Fort Worth. The Committee may establish bylaws governing
the election of officers, meeting dates and other matters pertinent to its functioning.
16.
System Access Fees
16.1 On a quarterly basis, Customer agrees to pay to Fort Worth a Wholesale
System Access Fee for each new or enlarged connection for water service made within
Customer's service area served by the General Benefit Facilities of the Fort Worth Water
System. The Wholesale System Access Fee to the Customer for each such connection
shall be based upon the size of water meter and shall be equal to the Wholesale System
Access Fee collected for the same size water meter made within the jurisdiction of Fort
Worth. The calculation of said Wholesale System Access Fee shall be consistent with all
applicable state and federal regulations, including Chapter 395, Texas Local Government
Code, or any amendment or successor statute thereto, and shall include only those costs
associated with General Benefit Facilities expansions and capital improvements
necessary to provide service to new development. Nothing within this contract shall be
deemed to prevent either Fort Worth or Customer from charging their own retail
customers impact fees in excess of the Wholesale System Access Fee provided for
herein.
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16.2 Fort Worth agrees that all moneys remitted to it pursuant to this Section will
be placed in a separate interest bearing account to pay only for the cost of constructing
capital improvements or facility expansions as permitted by Chapter 395, Texas Local
Government Code, or any amendment thereto, or by any successor statute thereto, and
will not be used for operation and maintenance expenses. Once expended, such funds
and all interest earned thereon will be considered a "contribution" for rate setting
purposes only.
16.3 Customer shall provide to Fort Worth such information that relates to the
making of new and/or enlarged connections within its jurisdiction as may be requested by
the Director, including but not limited to building permits, with each quarterly payment
required in this section.
16.4 Neither Fort Worth nor Customer shall waive any impact fee due from new
or enlarged connections to its respective system within its jurisdiction. However, either
Fort Worth or Customer may pay such impact fee into the fund required for paying for the
capital improvements.
16.5 The Water System Advisory Committee created pursuant to Section 15
hereof shall select five (5) of its members to a subcommittee to be known as the
Customer Impact Fee Committee (CIFC). Every three years, beginning June 2001, Fort
Worth will update the land use assumptions and capital improvements plan upon which
the Wholesale System Access Fees are based. In June 2001 and every three years
thereafter, the CIFC shall submit a list of five qualified engineers or planning consultants
to the Director. The Director shall select a consultant from such list to assist Fort Worth in
developing land use assumptions, identifying capital improvements, and formulating
capital improvement plans and access fees. The consultant shall be responsible to Fort
Worth and its citizen's advisory committee, but shall also report to the CIFC. The cost of
the consultant shall be deemed a System Cost. In the event the CIFC fails to submit a list
of five consultants to Fort Worth, Fort Worth shall select a consultant to perform in the
manner described herein.
16.6 Fort Worth agrees that only those capital improvements as defined in
section 1.18 hereof shall be included in the capital improvements plan for the purpose of
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determining Wholesale System Access Fees; provided however, Fort Worth may include
other capital improvements for the purpose of determining impact fees to its own retail
customers. Fort Worth shall not be required to include all capital improvements in any
capital improvements plan. The CIFC shall be responsible for working with Fort Worth
and its consultant to determine the capital improvements to be included in the calculation
of any Wholesale System Access Fees. The CIFC shall recommend to the Water System
Advisory Committee which capital improvements should be included in the calculation of
any Wholesale System Access Fees. The CIFC shall also meet with Fort Worth's citizen
advisory committee as such citizen's advisory committee reviews and considers land use
assumptions, the capital improvements plan and impact fees.
16.7 Prior to the adoption of any land use assumptions, capital improvements, or
access fees by Fort Worth, the CIFC shall be furnished a copy of the proposed land use
assumptions, capital improvement plan or access fees at least 30 days prior to any
scheduled hearing thereon. Any revised access fee adopted pursuant to such updated
capital improvements plan shall not take effect for a period of at least ninety (90) days
after adoption by Fort Worth.
16.8 Each year Fort Worth shall provide to the Wholesale Water Advisory
Committee an audited financial statement of the Fort Worth Water Department's records.
16.9 Fort Worth and Customer agree that the methodology for the calculation of
Wholesale System Access Fees required herein shall be consistent with the methodology
prescribed by Chapter 395, Texas Local Government Code, or any amendment or
successor statute thereto. In the event that such statutory methodology is amended or
replaced by a new statute, the Wholesale Water Advisory Committee may engage legal
counsel to work with Fort Worth to propose amendments to this contract to conform it to
such amendment or new statute. The reasonable cost of such legal counsel shall be a
System Cost.
17.
Termination
17.1 This agreement may be terminated in whole or in part by the mutual
consent of Customer and Fort Worth. Notwithstanding anything contained herein to the
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contrary, any material breach by either party hereto to perform any of the duties or the
obligations assumed by such party hereunder or to faithfully keep and perform any of the
terms, conditions and provisions hereof shall be cause for termination of this agreement
by either party in the manner set forth in this paragraph. Fort Worth shall deliver to
Customer ninety (90) days prior written notice of its intention to so terminate this
agreement if Customer fails to cure or adjust such material breach, including in such
notice a reasonable description of the breach. If within said ninety (90) days Customer
shall fail or refuse to cure such material breach to the satisfaction of Fort Worth, then and
in such event, Fort Worth shall have the right, with six months additional advance written
notice to Customer and without any liability whatsoever on the part of Fort Worth, to
declare this agreement terminated. In the event of termination of this agreement, all
rights, powers, and privileges of Customer hereunder shall cease and terminate and
Customer shall make no claim of any kind whatsoever against Fort Worth, its agents or
representatives, by reason of such termination or any act incident thereto, provided Fort
Worth acted reasonably and such termination was not unreasonable, arbitrary and
capricious. Fort Worth shall advise Customer in writing immediately upon acceptance of
the cure of any breach.
17.2 In the event Fort Worth shall ration the use of water throughout its corporate
limits or issue water conservation measures or restrict the use of water in any way as
provided for in Section 2.3 hereof, and Customer fails or refuses to institute and apply the
same rationing, conservation, or restrictions to the use of the water by the customers of
Customer, Customer shall be in breach of this agreement. The notice provisions as
contained in Section 17.1 hereof shall not apply and the Director, in his sole discretion,
shall, in writing, set such time in which the Customer shall cure said breach. If Customer
fails or refuses to cure said breach within the stated time, then and in such event, after six
(6) months written notice provided to Customer and without any liability whatsoever on
the part of Fort Worth, Fort Worth shall have the right to declare this agreement
terminated. In event of termination of this agreement, all rights, powers, and privileges of
Customer hereunder shall cease and Customer shall make no claim of any kind
whatsoever against Fort Worth, its agents, or representatives, by reason of such
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termination or any act incident thereto, provided Fort Worth acted reasonably and such
termination was not unreasonable, arbitrary and capricious.
17.3 Irrespective of whether or not a breach hereof is a material breach or a
non-material breach, and irrespective of any cure of such breach, a second breach of the
same nature violating any term or condition herein shall entitle Fort Worth, after six (6)
months written notice provided to Customer and without any liability whatsoever on the
part of Fort Worth, to declare this agreement terminated. In event of termination of this
agreement, all rights, powers, and privileges of Customer hereunder shall cease and
Customer shall make no claim of any kind whatsoever against Fort Worth, its agents, or
representatives, by reason of such termination or any act incident thereto, provided Fort
Worth acted reasonably and such termination was not unreasonable, arbitrary and
capricious.
17.4 The following breach, default or failure to perform a duty or obligation shall
be considered to be a material breach:
a. Failure to adopt and enforce any resolution or conservation measure
or rationing required to be adopted and enforced herein;
b. Failure to make any payment of any bill, charge or fee as provided
for in this agreement;
c. Making any connection to the Fort Worth System at any point except
as provided in Section 3.2 hereof;
d. Failure to correct any potentially hazardous connection in
accordance with Section 11 after reasonable written notice.
e. Failure to provide Fort Worth ingress and egress for purposes of
operation and maintenance of any metering facility;
f. Failure to provide Fort Worth rights-of-way as required herein.
17.5 In the event of any other non-material breach, default or failure to perform
duties under this agreement, Fort Worth shall deliver to Customer sixty (60) days advance
written notice of such default. If Customer fails to cure such breach, default or failure,
then Fort Worth shall give Customer written notice of such failure to cure and may
surcharge Customer Five Thousand Dollars ($5,000) per month until such time as
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WHOLESALE TREATED WATER CONTRACT
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Customer cures such non-material breach.
17.6 Any failure by Fort Worth to so terminate this agreement or the acceptance
by Fort Worth of any benefits under this agreement for any period of time after such
material breach, default or failure by Customer shall not be determined to be a waiver by
Fort Worth of any rights to terminate this agreement for any subsequent material breach,
default or failure.
17.7 Any failure by Customer to so terminate this agreement or the acceptance
by Customer of any benefits under this agreement for any period of time after such
material breach, default or failure by Fort Worth shall not be determined to be a waiver by
Customer of any rights to terminate this agreement for any subsequent material breach,
default or failure.
18.
Ownership and Liability
18.1 No provision of this agreement shall be construed to create any type of joint
or equity ownership of any property, any partnership or joint venture, nor shall same
create any other rights or liabilities and Customer payments (whether past, presenter
future) shall not be construed as granting Customer partial ownership of, pre-paid
capacity in, or equity in the Fort Worth System.
18.2 Liabilities for damages arising from the proper treatment, transportation and
delivery for all water provided hereunder shall remain with Fort Worth to the point of
delivery and, upon passing through the meter, liability for such damages shall pass to the
Customer, save and except that Fort Worth's sole responsibility is to provide to Customer
water of a quality which meets state and federal drinking water standards. Each party
hereto agrees to save and hold the other party harmless from all claims, demands, and
causes of action which may be asserted by anyone on account of the quality,
transportation and delivery while water is in the control of such party. This covenant is
not made for the benefit of any third party. Fort Worth takes the responsibility as between
parties hereto for the proper treatment, quality, transportation, and delivery of all such
water provided by it to the point of delivery.
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WHOLESALE TREATED WATER CONTRACT
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18.3 Contracts made and entered into by either Customer or Fort Worth for the
construction, reconstruction or repair of any Delivery Facility shall include the
requirement that the independent contractor(s) must provide adequate insurance
protecting both the Customer and Fort Worth as co-insureds. Such contract must also
provide that the independent contractor(s) covenant to indemnify, hold harmless and
defend both the Customer and Fort Worth against any and all suits or claims for damages
of any nature arising out of the performance of such contract.
19.
Force Majeure
19.1 If by any reason of force majeure either party hereto shall be rendered
unable, wholly or in part, to carry out its obligations under this agreement, other than the
obligation of the Customer to make payments required under the terms hereof, then if
such parties shall give notice and full particulars of such force majeure in writing to the
other party within a reasonable time after the 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 countinuance of the inability then claimed, but for
no longer period, and such party shall endeavor to remove or overcome such inability with
all reasonable dispatch.
19.2 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,
hurricanes, storms, floods, washouts, droughts, arrests, restraints of government and
people, civil disturbances, explosions, breakage or accidents to machinery, pipelines or
canals, partial or entire failure of water supply, and inability on the part of Fort Worth to
deliver water hereunder or the Customer to receive water hereunder on account of any
other cause not reasonably in the control of the party claiming such inability.
20.
Notices
20.1 Any notice, communication, request, reply or advice herein provided or
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 24
permitted to be given, made or accepted by either party to the other party must be in
writing to:
If to the City of Fort Worth:
Water Director
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
If to Customer:
Mayor
Town of Westlake
3 Village Circle
Westlake, Texas 76262
The parties hereto shall indicate in writing any change that may occur in such respective
addresses from time to time.
21.
Inspection and Audit
21.1 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.
22.
Miscellaneous
22.1 Fort Worth and Customer agree that if Fort Worth should enter into any
future contract for supplying potable water to any municipality under more favorable terms
or conditions than set forth herein, this contract shall be amended to provide the same
terms and conditions with respect to the sale of potable water to Customer.
22.2 During a temporary emergency condition 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, it may be necessary that water be
withdrawn from the Fort Worth System at a rate of usage in excess of that required for the
usual peak requirements of Customer. It is agreed that extra Rate of Use Charges that
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 25
would normally be applicable shall not apply for such bona fide emergency withdrawals
provided that Fort Worth is notified in writing within 48 hours of the occurrence of an
emergency condition. In any event, the volume and Rate of Use Charges for all water
delivered shall be due and payable as described elsewhere herein.
22.3 At the request of the Director, Customer agrees to furnish water to areas
and premises situated adjacent to the boundary of Customer and within the boundaries of
Fort Worth. The metered quantity of water used in this area each month by Fort Worth
shall be the total of all individual customer meter readings. At the option of Customer or
Fort Worth, a master meter may be installed where practicable at the expense of Fort
Worth to meter all water used by Fort Worth under the terms of this section.
22.4 The metered quantity of water furnished by Customer to Fort Worth shall be
deducted from the total quantity of water withdrawn from the Fort Worth System by the
Customer before the charge for water service to Customer is computed in accordance
with the payment computations set forth and based on the Volume Charge described
herein and the quantity of water so withdrawn from the Fort Worth System.
22.5 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.
22.6 Customer agrees to abide by any changes in this agreement made
necessary by any new, amended, or revised state or federal regulation.
22.7 Upon prior notice by Fort Worth, any duly authorized employee of Fort
Worth bearing proper credentials and identification shall notify Customer of need for
access to any premises located within Customer's service area or served by Customer 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 contract.
Customer may elect to accompany the Fort Worth representative. To the extent
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 26
permitted by law, Fort Worth agrees to indemnify Customer for any damage or injury to
person or property caused by the negligence of such duly authorized employee while
such employee is in the course and scope of his employment.
22.8 Whenever any disputed matter herein is to be specifically determined by the
use of an arbitrator, the following procedure is to be followed. The party requesting that
the dispute be settled by arbitration shall serve on the other party a request in writing that
such matter be handled by arbitration. Customer and Director shall mutually agree in
writing on the selection of an impartial arbitrator. Such agreement shall be made within
ten (10) days from the date that the request for arbitration is received. If an agreement is
not reached on the selection of the impartial arbitrator on or before the tenth (10th) day
after the date that notice is received, the Director shall immediately request a list of seven
qualified neutral arbitrators from the American Arbitration Association or the Federal
Mediation and Conciliation Service, or either's successor in function. The Customer and
Director may mutually agree on one of the seven arbitrators on the list. If they do not
agree within five (5) working days after the receipt of the list, Customer and Director shall
alternate striking a name from the list and the name remaining shall be the impartial
arbitrator. Customer and Director shall mutually agree on a date for the arbitration
hearing. The decision of the arbitrator shall be final, and judgment may be entered upon
it in accordance with applicable law in any court having jurisdiction thereof. All costs of
arbitration shall be considered a System Cost.
22.9 If requested by the Director, Customer shall provide quarterly the following
data:
A. Actual number of customer accounts consuming directly or indirectly from
the Customer System within its service area;
B. Classification of domestic and non-domestic accounts within its service area
by number and percentage of accounts consuming directly or indirectly from
Customer System within its service area;
C. Customer 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;
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 27
D. Additional data which may assist Fort Worth and/or Customer in developing
methodology for cost of service studies, planning studies for analyzing
federal grants, and System Access Fees; provided, however, that neither
party shall request data that will require either party to incur unreasonable
expenses in providing such data.
22.10 Customer may not assign this agreement without the prior written consent
of Fort Worth. Fort Worth may not assign this agreement without the prior written consent
of Customer; provided, however, in the event Fort Worth is designated as a regional
water authority or agency by a duly authorized regulatory body, or if Fort Worth should
elect to contract with or this contract to a regional water authority to provide all or part of
the services covered by this agreement, the participants hereto agree that any such
regional water authority may, by way of assignment of this agreement, assume and
receive the same obligations and responsibilities, the same benefits as Fort Worth;
further, Customer hereby grants to Fort Worth the specific right to assign this agreement
to such regional water authority.
23.
Additional Terms
23.1 No waiver by either 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.
23.2 In addition to any other remedy as may be provided by law, this agreement
shall be specifically enforceable by the parties hereto. Venue for any action shall be in
Tarrant County, Texas.
23.3 It is agreed that, in the event any term or provision herein contained is held
to be invalid by any court of competent jurisdiction, the invalidity of such term or provision
shall in no way affect any other term or provision contained herein; further, this agreement
shall then continue as if such invalid term or provision had not been contained herein.
23.4 Prior to July 31, 2001 Customer shall construct or shall cause to be
constructed those water system improvements highlighted in green on Attachment “A”,
made a part hereof for all purposes. Should any development other than the Fidelity
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 28
development or the golf course occur, Customer shall cause said water system
improvements to be constructed on or before December 31, 2000. Prior to the completion
of the water system improvements being completed as contemplated herein, Customer
shall restrict the provision of treated water to that area highlighted in blue on Exhibit A,
with the further restriction that treated water may be furnished to the area highlighted in
yellow for irrigation purposes only. Failure to complete such improvements or the
providing of treated water in a manner which violates this section shall be a material
breach of this contract entitling Fort Worth to terminate this Contract.
23.5 Fort Worth acknowledges that Customer is currently negotiating with Trophy
Club Municipal Utility District (“TCMUD”) for a point of connection (“Connection”) to the
TCMUD’s 21” water line located in the vicinity of State Highway 114 and Customer’s
corporate limits. Customer acknowledges that Fort Worth’s consent to the Connection is
required. Fort Worth will not unreasonably withhold consent to the Connection. Upon
agreement being reached between TCMUD and Customer, and such agreement being
approved by Fort Worth, Customer may use such Connection as its primary source of
potable water from the Fort Worth System. Such primary use shall cease as of the
completion of the water system improvements describe in paragraph 23.4 above.
23.6 City has credited the sum of $2,000,000 to Customer’s Wholesale System
Access Fee account. As Wholesale System Access Fees become due as provided for in
Section 16, Fort Worth will debit Customer’s Wholesale System Access Fee account until
the entire credit balance has been used.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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WHOLESALE TREATED WATER CONTRACT
PAGE 29
IN TESTIMONY WHEREOF, after proper action by the respective governing bodies of the
parties hereto, we have caused these presents to be executed in quadruplicate copies,
each of which is considered to be an original and the seals of the respective parties to be
hereto affixed on the date above written.
ATTEST:CITY OF FORT WORTH
Gloria Pearson
City Secretary
APPROVED AS TO FORM
AND LEGALITY:
Assistant City Attorney
ATTEST:
Ginger Crosswy, Town Secretary
APPROVED AS TO FORM
AND LEGALITY
Paul Isham
Town Attorney
Mike Groomer
Assistant City Manager
APPROVAL RECOMMENDED:
Lee C. Bradley, Jr., Director
Fort Worth Water Department
TOWN OF WESTLAKE
Scott Bradley, Mayor
TOWN OF WESTLAKE
WHOLESALE TREATED WATER CONTRACT
PAGE 30
EXHIBIT E
SCHEDULE OF HILLWOOD PAYMENTS
[ON OR BEFORE]
PAYMENT DATE PAYMENT AMOUNT
December 31,1999 $298,885.00
December 31, 2000 $298,885.00
December 31, 2001 $298,885.00
December 31, 2002 $298,885.00
December 31, 2003 $298,885.00
December 31, 2004 $645,374.00
December 31, 2005 $645,374.00
December 31, 2006 $645,374.00
December 31, 2007 $645,374.00
December 31, 2008 $645,374.00
December 31, 2009 $645,374.00
December 31, 2010 $645,374.00
December 31, 2011 $645,374.00
December 31, 2012 $645,374.00
December 31, 2013 $645,374.00
December 31, 2014 $645,374.00
December 31, 2015 $645,374.00
December 31, 2016 $645,374.00
December 31, 2017 $645,374.00
December 31, 2018 $645,374.00
December 31, 2019 $645,374.00
December 31, 2020 $645,374.00
December 31, 2021 $645,374.00
December 31, 2022 $645,374.00
December 31, 2023 $645,374.00
December 31, 2024 $346,489.00
December 31, 2025 $346,489.00
December 31, 2026 $346,489.00
December 31, 2027 $346,489.00
December 31, 2028 $346,489.00
Exhibit E - PAGE 1
007510.00019:0402442.07
EXHIBIT E
SCHEDULE OF HILL WOOD PAYMENTS
PAYMENT AMOUNTPAYMENT DATE
[ON OR BEFORE]
December 31, 1999 $298,885.00
December 31, 2000 $298,885.00
December 31, 2001 $298,885.00
December 31, 2002 $298,885.00
December 31, 2003 $298,885.00
December 31, 2004 $645,374.00
December 31, 2005 $645,374.00
December 31, 2006 $645,374.00
December 31, 2007 $645,374.00
December 31, 2008 $645,374.00
December 31, 2009 $645,374.00
December 31, 2010 $645,374.00
December 31, 2011 $645,374.00
December 31, 2012 $645,374.00
December 31, 2013 $645,374.00
December 31, 2014 $645,374.00
December 31, 2015 $645,374.00
December 31, 2016 $645,374.00
December 31, 2017 $645,374.00
December 31, 2018 $645,374.00
December 31, 2019 $645,374.00
December 31, 2020 $645,374.00
December 31, 2021 $645,374.00
December 31, 2022 $645,374.00
December 31, 2023 $645,374.00
December 31, 2024 $346,489.00
December 31, 2025 $346,489.00
December 31, 2026 $346,489.00
December 31, 2027 $346,489.00
December 31, 2028 $346,489.00
Exhibit E - PAGE 1
007510.00019:0402442.07