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HomeMy WebLinkAboutContract 42118 I�I► T 4 CITY SECRETARY CONTRACT NO. BUY-OUT OPTION CONTRACT FOR BROOKFIELD DEVELOPMENT This Buy-Out Option Contract ("Contract") is entered into by and between the City of Fort Worth, Texas (the "City"), a home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas, acting by and through its duly authorized Assistant City Manager; Brookfield Acquisitions, L.P., a Texas limited partnership ("Owner"); Aqua Utilities, Inc., a Texas corporation doing business as Aqua Texas, Inc. ("Aqua Texas"); and South Denton County Water Control and Improvement District No. 1 (the "District"). RECITALS A. The Parties to this Contract will also execute that certain `Brookfield Water and Wastewater Utility Service Agreement", City Secretary Contract No. (the "Utility Agreement"). B. The Utility Agreement governs the provision of water and wastewater utility service to the mixed-use, master-planned community to be known as `Brookfield" situated on approximately 231.579 acres in Denton County, Texas, as shown on Exhibit A and more particularly described in Exhibit B attached to this Agreement (the "Development"), which Development lies entirely within the City's extraterritorial jurisdiction ("ETJ"). C. Article VII of the Utility Agreement provides that the Parties will enter into this Contract to effectuate the future transfer of retail water and/or wastewater service rights for the Development to the City at the City's option and under the conditions set forth in that agreement. NOW THEREFORE, for and in consideration of the mutual agree conditions hereinafter set forth, the Parties contract and agree as follows: OFFICIAL RECORD ARTICLE I CITY SECRETARY SELLER AND PURCHASER FT.WORTH,TX 6.12. 1.01 "Effective Date" means the effective date of this Contract as defined in Section 1.02 "Purchaser"means the City. 1.03 "Party"means, individually, the City, Owner, District or Aqua Texas, and any permitted successors and assigns. 1.04 "Seller" means the District, Aqua Texas, or Owner, and each of their permitted successors and assigns, to the extent that each of those Parties or such successors or assigns owns all or any interest in the Property, as defined in Section 2.02, at the time the Option is exercised under this Contract. Brookfield Buy-Out Option Contract Page 1199540-I �8-"I _'-1 1 AG",'.) 15 1 N r � 1.05 Other Defined Terms. Unless otherwise defined below, capitalized terms in this Contract shall have the same respective meanings as are ascribed to them in the Utility Agreement. ARTICLE II PROPERTY, GRANT AND EXERCISE OF OPTION 2.01 Grant of Option. Subject to the terms and conditions set forth in this Contract, Seller GRANTS to Purchaser an Option to purchase and accept from Seller, for the Purchase Price, all of Seller's right, title and interest in and to the Property in the Brookfield Development, as it may now exist, or be acquired or constructed by Seller at any time during the Option Period (the "Option") and consisting of the following: a. all water distribution facilities, including meters, above ground tanks, pump stations and other equipment, fixtures, improvements or appurtenances used to provide water service to the Development, and located inside the Development (collectively, "Water Facilities"); b. all wastewater collection facilities, including meters, lift stations, and other equipment, fixtures, improvements or appurtenances used to provide wastewater service to the Development, and located inside the Development (collectively, "Wastewater Facilities"); C. all easements and rights-of-way inside the Development associated with the Water Facilities or Wastewater Facilities (the "Easements")• d. any tract of land within the Development owned by Seller and in use for the operation of the Water Facilities or Wastewater Facilities (the "Land"); e. account records and information for existing customers served by the Water Facilities and Wastewater Facilities (the "Account Information"); and f. surveys, plans and specifications in Seller's possession or control that relate to the Water Facilities or Wastewater Facilities (the "Documents"). 2.02 Property. The items listed in Section 2.01 above are collectively called the "PropertX " 2.03 Exercise of Option. Unless the Parties agree in writing to an earlier date, Purchaser may exercise the Option to purchase the Property at any time (a) after seventeen (17) years from the date of the first connection within the Development to the City's water system, or (b) at an earlier date if agreed in writing by the District and by Aqua Texas; but in any event Purchaser must exercise the Option (if at all) on or before thirty (30) years from the Effective Date of this Contract ("Option Period"). The Option, if exercised, must be exercised Brookfield Buy-Out option Contract Page 2 1199540-1 simultaneously for both the Water and the Wastewater Facilities and the Land, Easements, Account Information and Documents related thereto. 2.04 Exercise Notice. Whenever Purchaser desires to exercise the Option, Purchaser must provide Notice to Seller during the Option Period of its desire to exercise the Option ("Exercise Notice"). The date on which Purchaser sends the Exercise Notice is called the "Option Exercise Date." 2.05 Information to Purchaser. Within thirty (30) days following the Option Exercise Date, Seller shall provide to Purchaser true and complete copies of all written information that Seller possesses (other than privileged communications or attorney work-product) regarding the Property, including but not limited to: environmental studies and reports; any permits required for the Water Facilities and Wastewater Facilities; all agreements granting or conveying the Easements; the Documents; and a complete and itemized inventory of any of the Property that is not described in or shown on the Documents. 2.06 Prohibited Encumbrance. Seller may not enter into any agreement to sell, transfer, mortgage, lease, or grant any preferential right to purchase (including but not limited to any option, right of first refusal, or right of first negotiation) with respect to, or otherwise encumber all or any portion of, the Property before Closing ("Prohibited Encumbrance"), unless such Prohibited Encumbrance is cured and removed at or before Closing. 2.07 Memorandum of Option. Seller and Purchaser shall execute and record, in the form attached as Exhibit C to this Contract, a "Memorandum of Buy-Out Option Contract" in the Real Property Records of Denton County, Texas within thirty (30) days after the Effective Date of this Contract. ARTICLE III PURCHASE PRICE AND OPTION CONSIDERATION 3.01 Purchase Price. When the Option is exercised pursuant to this Contract, the consideration ("Purchase Price") for the entirety of the Property purchased pursuant to the Option is TEN DOLLARS ($10.00). 3.02 Time of Payment. The Purchase Price is payable in cash at the Closing. 3.03 Consideration. As consideration for Seller's holding the Property available for purchase during the Option Period, Purchaser has paid Seller $100 ("Independent Option Consideration"), which Seller may retain, even if this Contract is terminated. The Independent Option Consideration does not apply to the Purchase Price. ARTICLE IV SURVEY, INSPECTION AND TITLE COMMITMENT 4.01 Survey during= Option Period. From time to time during the Option Period. Purchaser shall have the right to obtain, at Purchaser's expense, a current, on-the-ground land Brookfield Bud-Oul Option Contract Page 3 1199540-1 title survey ("Survey") of all or any portion of the Property made by a duly licensed surveyor reasonably acceptable to the Seller. 4.02 Inspection duringthe Option Period. From time to time during the Option Period, Purchaser shall have the right to obtain, at Purchaser's expense, an inspection, including an appraisal of real and personal property ("Ins ection"), of all or any portion of the Property, for purposes of assessing the physical and operational condition of the Property. 4.03 Title Examination duringthe he Option Period. During the Option Period, Purchaser shall have the right to obtain, at Purchaser's expense, an examination of any or all of the real property records related to the Land and the Easements ("Title Commitment"), including any and all instruments constituting an exception or restriction upon the title or easement rights of Seller. 4.04 Approval Period and Title. If Purchaser chooses to have a Survey, Inspection or Title Commitment of all or any portion of the Property during the Option Period, Purchaser may, after it has delivered its Exercise Notice, deliver to Seller a Notice of its written objections to anything contained therein. Seller shall, in good faith, attempt to satisfy such objections before Closing; but Seller shall not be required to incur any cost to do so, except with respect to any Prohibited Encumbrance, which must be removed or cured before Closing. For all objections except the Prohibited Encumbrances, if Seller is unable to satisfy such other objections on or before the Closing Date, or if, for any reason, Seller is otherwise unable to convey title in accordance with Section 5.02(b) below, then Purchaser, as its sole and exclusive remedy hereunder may (a) waive such objections and accept the Property in its condition at the time of Closing, with such title to the Property as Seller is able to convey; (b) elect to exclude from the purchase any portion of the Property that it reasonably deems to be affected by its objections and accept such title to the remainder of the Property as Seller is able to convey; or (c) withdraw the Exercise Notice in its entirety, and its corresponding exercise of the Option, but preserve its right to exercise the Option at a later date within the Option Period. The Purchaser may enforce by specific performance the Seller's obligation under Section 5.05 to remove any Prohibited Encumbrance. ARTICLE V CLOSING 5.01 Time of Closing. The closing ("Closing") of the sale of the Property by Seller to Purchaser will occur on or before ninety (90) days after the Option Exercise Date, or at such other time or place as the Parties may mutually determine ("Closing Date"). 5.02 Requirements of Seller. For all of the Property that is the subject of the Exercise Notice, unless excluded by Purchaser pursuant to Section 4.04, Seller shall deliver or cause to be delivered to Purchaser at Closing all of the following: (a) a Bill of Sale and Assignment in substantially the same form as that attached as Exhibit D to this Contract, fully executed and acknowledged by each Seller as its interests may appear, conveying, transferring, and assigning to Purchaser all of Seller's right, title, and interest in and to the Water Facilities, the Wastewater Facilities, the Account Information, and the Documents, (b) a Special Warranty Deed executed and acknowledged by each Seller as its interests may appear, conveying to Purchaser good and Brookfield Buy-Out Option Contract Page 4 1199540-1 indefeasible fee simple title to the Land and subject to all matters of record; (c) an Assignment of Easements, executed and acknowledged by each Seller as its interests may appear, conveying, transferring, and assigning to Purchaser all of Seller's right, title, and interest in and to the Easements; (d) evidence reasonably satisfactory to Purchaser that the person(s) executing the Closing documents on behalf of Seller has full right, power, and authority to do so; and (e) any other document reasonably necessary to consummate the transaction. All conveyances made in connection with this Agreement shall be made "AS IS, WHERE IS, WITH ALL FAULTS" and such language shall appear in the conveyance. Each Party shall sign only those documents conveying property in which such Party has an ownership interest. 5.03 Requirements of Purchaser. Purchaser shall deliver or cause to be delivered to Seller at Closing all of the following: (a) immediately available funds in an amount equal to the Purchase Price; and (b) evidence reasonably satisfactory to Seller the person executing any Closing documents on behalf of Purchaser has full right, power, and authority to do so. 5.04 Termination of Leases. Upon completion of the Closing, Seller shall terminate, as of the Closing Date, any and all leases and operating agreements between Aqua Texas and the District or the Owner covering any portion of the Property purchased. 5.05 Purchaser's Remedies. If Seller fails or refuses to sell the Property at the Closing, then Purchaser, at its sole option, is entitled to (i) enforce specific performance of Seller's obligations under this Contract; or (ii) withdraw its Exercise Notice and its corresponding exercise of the Option, but preserve its right to exercise the Option at a later date within the Option Period; or (iii) exercise any other right or remedy available to Purchaser at law or in equity. ARTICLE VI MISCELLANEOUS 6.01 Form of Easement within the Development. Before granting any Easement to the District or Aqua Texas, Owner shall submit to Purchaser for its review and approval (which approval by Purchaser shall not be unreasonably withheld) Owner's proposed form of Easement for water and wastewater lines and related facilities and appurtenances. The Easement form must provide that the underlying land owner of the servient tenement consents in advance to any future assignment of such Easement by Seller to Purchaser. After Purchaser has approved the form of water and wastewater Easement, Purchaser's prior written consent will not be required for any new Easement that Seller enters into under the approved forms. Nevertheless, Seller must send to Purchaser copies of each fully executed and recorded Easement within thirty (30) days after such Easement is executed. 6.02 Other Forms. In case of a dispute as to the form of any document required by this Contract, unless otherwise required by the Utility Agreement, the current form prepared by the State Bar of Texas shall be conclusively deemed reasonable. 6.03 Notice. Any notices. approvals, or other communications required to be given by one Party to another under this Contract (a "Notice") shall be given in writing addressed to the Brookfield Buy-Out Option contract Page 5 1199540-1 Party to be notified at the address set forth below and shall be deemed given: (a) when the Notice is delivered in person to the person to whose attention the Notice is addressed; (b) when received if the Notice is deposited in the United States Mail, certified or registered mail, return receipt requested, postage prepaid; (c) when the Notice is delivered by Federal Express, UPS, or another nationally recognized courier service with evidence of delivery signed by any person at the delivery address; or (d) five business days after the Notice is sent by FAX (with electronic confirmation by the sending FAX machine) with a confirming copy sent by United States mail within 48 hours after the FAX is sent. If any date or period provided in this Contract ends on a Saturday, Sunday, or legal holiday, the applicable period for calculating the Notice shall be extended to the first business day following the Saturday, Sunday, or legal holiday. For the purpose of giving any Notice, the addresses of the Parties are set forth below. The Parties may change the information set forth below by sending Notice of such changes to the other Party as provided in this Section 6.03. To the City: City of Fort Worth, Texas Attn: City Secretary 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-6196 City of Fort Worth, Texas Attn: City Manager 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-6134 City of Fort Worth, Texas Attn: Water Director 1000 Throckmorton Street Fort Worth, Texas 76102 FAX: (817) 392-2398 To Aqua Texas: Aqua Utilities, Inc. dba Aqua Texas, Inc. Attn: Vice-President 1106 Clayton Lane, Ste. 40OW Austin, Texas 78723 FAX: (512) 263-5624 Aqua Utilities, Inc. dba Aqua Texas, Inc. Attn: Chief Legal Officer 762 West Lancaster Ave. Bryn Mawr. Pennsylvania 19010 Brookfield BUN-Out Option Contract Pagc 6 1199540-1 FAX: (610) 520-9127 To the District: South Denton County WCID No. 1 c/o: Crawford & Jordan, LLP Attn: Christopher Jordan 19 Briar Hollow Lane, Suite 245 Houston, Texas 77027 FAX: (713) 621-3909 To Owner: Brookfield Acquisitions, L.P. Attn: Ross Calhoun 1221 I.H. 35E, Suite 200 Carrollton, Texas 75006 FAX: (469) 892-7202 6.04 City Consent and Approval. In any provision of this Contract that provides for the consent or approval of the City staff or City Council, such consent or approval may be withheld or conditioned by the staff or City Council at its discretion, provided that such action is not arbitrary or unreasonable. 6.05 Binding Effect and Assi nment. This Contract, and the Option granted herein, shall inure to the benefit of and bind the Parties hereto and their respective heirs, representatives, successors and assigns. Assignment of this Contract is permitted only under the same terms, and to the same extent as assignment of the Utility Agreement. Further, this Contract must be assigned at the same time and to the same entity as the Utility Agreement. 6.06 Amendment. This Contract may be amended only with the written consent of all Parties and with approval of the governing bodies of the City and the District. 6.07 Severability. The provisions of this Contract are severable and, in the event any word, phrase, clause, sentence, paragraph, section, or other provision of this Contract, or the application thereof to any person or circumstance, shall ever be held or determined to be invalid, illegal, or unenforceable for any reason, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the Parties as expressed in this Contract, then such provision shall be deemed severed from this Contract with respect to such person, entity or circumstance, without invalidating the remainder of this Contract or the application of such provision to other persons, entities or circumstances, and a new provision shall be deemed substituted in lieu of the provision so severed which new provision shall, to the extent possible, accomplish the intent of the Parties as evidenced by the provision so severed. Brookfield 13u)-Out Option Contract Page 7 1199540-t 6.08 Interpretation. The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Contract and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Contract or any amendments or exhibits hereto. As used in this Contract, the term "including" means "including without limitation" and the term "days" means calendar days, not business days. Wherever required by the context, the singular shall include the plural, and the plural shall include the singular. Each defined term herein may be used in its singular or plural form whether or not so defined. 6.09 Survival. Any portion of this Contract not otherwise consummated at the Closing will survive the Closing of this transaction as a continuing agreement by and between the Parties. 6.10 Counterpart Originals. This Contract may be executed in multiple counterparts, each of which shall be deemed to be an original. 6.11 Incorporation of Exhibits by Reference. All exhibits attached to this Contract are incorporated into this Contract by reference for the purposes set forth herein, as follows: Exhibit A Map showing the Brookfield Development Exhibit B Legal description of the Brookfield Development Exhibit C Memorandum of Buy-Out Option Contract Exhibit D Bill of Sale and Assignment 6.12 Effective Date. The Effective Date of this Contract is January 25, 2011. \ ATTEST: CITY OF FORT WORTH Marty Hendr By: Acr�'�o op ��� ` a }'►Ct a i„ h City Secretary p d o0 00� 0�o o� � (print name) ONo° odd Title: ` lfjia'if r�11 ��1G�� G' d o0 0�c� Date: J 0 0 APPROVED AS TOoo �ogpa LEGALITY: Lll C� '.rt:iori zatioa Assistant 0 ity Attorney OFFICIAL RECORD l3rookficld 13u\-0ut Option Contract CITY SECRETARY Yagc K 1199540-1 FT. WORTH, TX ATTEST: AQUA UTILITIES, INC. dba AQU TEXAS, /j// INC4RobeL. am B Corporate Secretary Laughman, Preside Date: January 13, 2011 BROOKFIELD ACQUISITIONS, L.P., a Texas limited partnership By:MMM Ventures, LLC, a Texas limited liability company Its: General Partner By: 2M Ventures, LLC, a Delaware limited liability company Its: Manager By: Mehrdad Moayedi Title:Governing Person Date: SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 By. (print nafne) Title: Date: OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Brookfield Buy-Out Option Contract Page 9 1199540-1 Exhibit A Map Showing the Brookfield Development - � I- - I � I o I � I � , i S. �OUNTY LIN�'�. M r= f - . i i I io M y s I,xhlbit A to 13uy-Out Option Contract Pagc I Exhibit B Legal Description of the Brookfield Development BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being all of a tract of land described as Tract 1 and 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a concrete monument with a 1/2 inch iron rod found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 1,026.70 feet to a 1/2 inch iron rod with a yellow plastic cap stamped 'DAA" set at the Southeast corner of a tract of land described in Deed to Willow Bend 114, recorded in Document Number 2005-8893, Deed Records, Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 2,518.47 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439" found at the Northeast corner of Lot 13, Block A of WILLOW SPRINGS SUBDIVISION, an Addition to Denton County, Texas according to the Plat thereof recorded in Cabinet D, Page 317, Plat Records, Denton County, Texas; THENCE South 89 degrees 59 minutes 13 seconds West, along the North line of said Lot 13, a distance of 13.26 feet to a 1 inch iron rod found at the Southeast corner of a tract of land described in Deed to Robert B. Logan, recorded in Volume 515, Page 92, Deed Records, Denton County, Texas; THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch iron rod found at the Northwest corner of said Tract 1; THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3,160.54 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the Northeast corner of said Tract 1; THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753.84 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the most Easterly Southeast corner of said Tract 1; THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2,150.81 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at an inner ell corner of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West, a distance of 1,322.76 feet to the POINT OF BEGINNING and containing 231.579 acres of land, more or less. Lxhibit 13 to BuN-Out Option Contract Pagc Exhibit C Memorandum of Buy-Out Option Contract STATE OF TEXAS § § KNOW ALL BY THESE PRESENTS: COUNTY OF DENTON § This Memorandum of Buy-Out Option Contract ("Memorandum") is effective as of 2009, by and among the City of Fort Worth, Texas, a home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas, acting by and through its duly authorized Assistant City Manager ("Purchaser"); Brookfield Acquisitions, L.P., a Texas limited partnership ("Owner"); Aqua Utilities, Inc., a Texas corporation doing business as Aqua Texas, Inc. ("Aqua Texas"); and the South Denton County Water Control and Improvement District No. 1 (the "District") (collectively, "Seller"). A. Under that certain Buy-Out Option Contract for Brookfield Development dated as of ' 2009 ("Contract"), Seller has granted Purchaser the option ("O tion") to purchase certain land, improvements, easements, account records, plans, and other associated property ("PropertX") related to the provision of water and wastewater utility service to, and located within, that certain real property development known as "Brookfield" consisting of 231.579 acres of land in Denton County, Texas, as more particularly described on EXHICBIT "A" attached hereto ("Development"). The period during which Purchaser may exercise the Option begins at several possible points in time and ends thirty (30) years after the effective date of the Contract ("Option Period"). Purchaser's exercise of the Option is governed by the terms and conditions of the Contract. B. Seller and Purchaser are executing, acknowledging, and recording this Memorandum to provide public notice of the existence of the Contract and of the Option that exists in Purchaser's favor to purchase the Property in the Development under the terms and conditions of the Contract. C. Seller and Purchaser do not intend by this Memorandum — and nothing in this Memorandum may be deemed—to alter, amend or otherwise affect the terms or conditions of the Contract. Exhibit C to Bu)-Out Option Contract Pagc I EFFECTIVE as of the date set forth above. ATTEST: CITY OF FORT WORTH By: Marty Hendrix City Secretary (print name) Title: Date: APPROVED AS TO FORM AND LEGALITY: Assistant City Attorney ATTEST: AQUA UTILITIES, INC. dba AQUA TEXAS, INC. By: Corporate Secretary (print name) Title: Date: BROOKFIELD ACQUISITIONS, L.P., a Texas limited partnership By:MMM Ventures, LLC, a Texas limited liability company Its: General Partner By: 2M Ventures, LLC, a Delaware limited liability company Its: Manager By: Mehrdad Moayedi Title:Governing Person Date: Exhibit C to BUN-Out Option Contract Pagc 2 SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 By: (print name) Title: Date: tahibit C to Ilu�-Out Option Contract hags STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of THE CITY OF FORT WORTH, a municipal corporation, on behalf of said City, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy-Out Option Contract, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said City. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 20 Notary Public, State of Texas STATE OF TEXAS § COUNTY OF § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of AQUA UTILITIES, INC. d/b/a AQUA TEXAS, INC., a corporation, on behalf of said corporation, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy-Out Option Contract, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 20 Notary Public, State of Texas I;xhibit C to Bm-Out Option Contract Page 4 STATE OF TEXAS § COUNTY OF § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared as of SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, on behalf of said District, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy- Out Option Contract, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said District. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of 20 Notary Public, State of Texas STATE OF § COUNTY OF § BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally appeared Mehrdad Moayedi, Governing Person of 2M Ventures, LLC, a Delaware limited liability company, Manager of MMM Ventures, LLC, a Texas limited liability company, in its capacity as General Partner of Brookfield Acquisitions, L.P., a Texas limited partnership, known to me to be the person and officer whose name is subscribed to the foregoing Memorandum of Buy-Out Option Contract, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 20 Notary Public, State of Lxhihit C to BUN-Out Option ConU`ict Page 5 Exhibit A to Memorandum of Buy-Out Option Contract Legal Description of the Development BEING a tract of land located in the WILLIAM C. HALLMARK SURVEY, ABSTRACT NO. 518, Denton County, Texas and being all of a tract of land described as Tract 1 and 2 in Deed to Brookfield Acquisitions, L.P., recorded in Document Number 2007-45036, Deed Records, Denton County, Texas and being more particularly described as follows: BEGINNING at a concrete monument with a 1/2 inch iron rod found in the North right-of-way line of State Highway No. 114, a 100 foot right-of-way, at the Southeast corner of said Tract 2; THENCE North 89 degrees 31 minutes 05 seconds West, along said North right-of-way line, a distance of 1,026.70 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "DAA" set at the Southeast corner of a tract of land described in Deed to Willow Bend 114, recorded in Document Number 2005-8893, Deed Records, Denton County, Texas; THENCE North 00 degrees 19 minutes 46 seconds East, a distance of 2,518.47 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "5439" found at the Northeast corner of Lot 13, Block A of WILLOW SPRINGS SUBDIVISION, an Addition to Denton County, Texas according to the Plat thereof recorded in Cabinet D, Page 317, Plat Records, Denton County, Texas; THENCE South 89 degrees 59 minutes 13 seconds West, along the North line of said Lot 13, a distance of 13.26 feet to a 1 inch iron rod found at the Southeast corner of a tract of land described in Deed to Robert B. Logan, recorded in Volume 515, Page 92, Deed Records, Denton County, Texas; THENCE North 00 degrees 14 minutes 58 seconds East, a distance of 1,563.70 feet to a 3/8 inch iron rod found at the Northwest corner of said Tract 1; THENCE South 89 degrees 28 minutes 37 seconds East, a distance of 3,160.54 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the Northeast corner of said Tract 1; THENCE South 00 degrees 15 minutes 25 seconds East, a distance of 2,753.84 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at the most Easterly Southeast corner of said Tract 1; THENCE North 89 degrees 36 minutes 34 seconds West, a distance of 2,150.81 feet to a 1/2 inch iron rod with a yellow plastic cap stamped "EC&D" found at an inner ell corner of said Tract 1; THENCE South 00 degrees 08 minutes 43 seconds West, a distance of 1,322.76 feet to the POINT OF BEGINNING and containing 231.579 acres of land, more or less. I`xhibit C to BUN-Out Oplion('0I111'2lCt Page 6 Exhibit D BILL OF SALE AND ASSIGNMENT THIS BILL OF SALE AND ASSIGNMENT ("Assignment"), effective for all purposes as of (the "Effective Date"), is from Brookfield Acquisitions, L.P., a Texas limited partnership; Aqua Utilities, Inc., a Texas corporation doing business as Aqua Texas, Inc.; and South Denton County Water Control and Improvement District No. 1, or any district resulting from the conversion or division of such district (individually and collectively, "Assignor") and is to the City of Fort Worth, Texas, a home-rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas, ("Assignee"). Concurrently with this Assignment, the Assignor, as Seller, and Assignee, as Purchaser are executing a Special Warranty Deed transferring any tract of land owned by Assignor and in use for the operation of the Water or Wastewater Facilities (the "Land") described in Exhibit A to Assignee. It is the desire of Assignor to hereby ASSIGN, TRANSFER and CONVEY to Assignee all fixtures, fittings, appliances, apparatus, equipment, machinery and other items of personal property, affixed or attached to, or placed or situated upon, the Land and any and all other facilities, rights, contracts, documents, or appurtenances as more fully described below. FOR AND IN CONSIDERATION of the sum of Ten Dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, Assignor hereby GRANTS, BARGAINS, SELLS, TRANSFERS, ASSIGNS and CONVEYS unto Assignee all of the following assets (collectively, the "Assets," including, without limitation, the specific items listed on Exhibit B): a. all water distribution facilities, including meters, above ground tanks, pump stations and other equipment, fixtures, improvements or appurtenances used to provide water service to the 231.579-acre mixed use, master-planned community known as Brookfield (the "Development"), and located inside the Development (collectively, "Water Facilities"); b. all wastewater collection facilities, including meters, lift stations, and other equipment, fixtures, improvements or appurtenances used to provide wastewater service to the Development, and located inside the Development (collectively, "Wastewater Facilities"); C. account records and information for existing customers served by the Wastewater Facilities and Water Facilities (the "Account Information"); d. surveys, plans and specifications in Seller's possession or control that relate to the Water Facilities or Wastewater Facilities (the "Documents"); and Lxhihit l)to BLJ)-out Option Contract Pagc I e. any and all other incidental rights, leases, contractual rights, or otherwise related to the Water Facilities, Wastewater Facilities, Account Information, or Documents (the "Contractual Rights"). ON AND SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS: 1. Warranty of Title. Assignor severally agrees to warrant and defend title to the Assets unto Assignee, its successors and assigns forever, as against the claims and demands of all persons claiming or to claim the same or any part thereof. 2. Counterpart Execution. Assignor and Assignee may execute this Assignment in multiple counterparts, each of which shall constitute an original hereof, and the execution and delivery of any one of such counterparts by any signatory party shall have the same force and effect and shall be binding upon such signatory to the same extent as if the same counterpart were executed by all of the signatory parties. TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its successors and assigns, forever. [THIS SPACE INTENTIONALLY LEFT BLANK/ SIGNATURES ON FOLLOWING PAGE] Exhibit I)to 13u�-Out Option Contract Page 2 IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed on this day of 20_. ASSIGNOR: ATTEST: AQUA UTILITIES, INC. dba AQUA TEXAS, INC. By: Corporate Secretary (print name) Title: BROOKFIELD ACQUISITIONS,L.P., a Texas limited partnership By:MMM Ventures, LLC, a Texas limited liability company Its: General Partner By: 2M Ventures, LLC, a Delaware limited liability company Its: Manager By: Mehrdad Moayedi Title:Governing Person SOUTH DENTON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 By: (print name) Title: I:xhihit D to Buti-Out Option Contract Nage 3 ASSIGNEE: ATTEST: THE CITY OF FORT WORTH, a Texas home-rule municipal corporation of Tarrant, Denton, and Wise Counties Printed Name: By: City Secretary Name: APPROVED AS TO FORM Title: AND LEGALITY: Date: Assistant City Attorney Lvhibit 1)to BUN-Out Option Contract Page 4 EXHIBIT A The Land [insert legal description and map] I:xhinit I)to Buy-Out Option Contract Pagc 5 EXHIBIT B The Assets I;zhihit D to Buy--Out Option Contract Page 6 M&C Review Pagel of 2 Official site of the City of Fort Worth,Texas FoR�W�oR�rH CITY COUNCIL AGENDA COUNCIL ACTION: Approved on 1/25/2011 DATE: 1/25/2011 REFERENCE NO.: C-24720 LOG NAME: 60BROOKFIELD CODE: C TYPE: NOW PUBLIC CONSENT HEARING: NO SUBJECT: Authorize the Execution of the Strategic Partnership Agreement, Development Agreement, Agreement Concerning Operation of South Denton County Water Control and Improvement District No. 1 and Agreements Concerning Water and Wastewater Utility Service for the Brookfield Development Located Contiguous to State Highway 114 in the Extraterritorial Jurisdiction of the City of Fort Worth RECOMMENDATION: It is recommended that the City Council authorize the City Manager or a designee to execute the following agreements: 1. Strategic Partnership Agreement between the City and South Denton County Water Control and Improvement District No. 1; 2. Development Agreement between the City and Brookfield Acquisitions, L.P.; 3. Agreement Concerning Operation of the District between the City and the South Denton County Water Control and Improvement District No. 1 4. Water and Wastewater Utility Service Agreement between the City, South Denton County Water Control and Improvement District No. 1, Brookfield Acquisition L.P., and Aqua Utilities, Inc.; 5. Wholesale Water Service Agreement between the City and Aqua Utilities, Inc.; 6. Buy-Out Option Contract between the City, Aqua Utilities, Inc., Brookfield Acquisition L.P., South Denton County Water Control and Improvement District No. 1 7. Wholesale Wastewater Service Agreement between the City and Aqua Utilities, Inc. DISCUSSION: Brookfield owns and intends to develop approximately 231 acres in Fort Worth's extraterritorial jurisdiction as a mixed use development (the Development). The property fronts on State Highway 114 and is in Aqua Utilities, Inc.'s, water certificate of convenience and necessity (CCN). The property is in South Denton County Water Control and Improvement District (District) created by order of the Texas Commission on Environmental Quality dated April 19, 2007. The City Council consented to creation of the District by adoption of Resolution No.3157-01-2005 on January 4, 2005. The District and Brookfield have requested the City to consent to the issuance of bonds by the District to fund roads to serve the Development and have asked the City to provide water service to the Development in order to provide fire protection for residents. As consideration for approval of the documents listed above, Brookfield will extend 4.3 miles of 24-inch and 30-inch off-site water mains and 4.7 miles of 24 inch off-site sewer mains to connect the Development to the City's water and wastewater systems. The facilities will be constructed to City standards and will be over-sized at http://apps.cfwnet.org/council_packet/mc_review.asp?ID=14623&councildate=1/25/2011 8/12/2011 M&C Review Page 2 of 2 Brookfield's expense, to serve other proposed developments in the area, subject to reimbursement pursuant to City policies. The Development will also be subject to City land use and development regulations. The documents, which are available for public inspection and copying in the City Secretary's Office, can be summarized as follows: The Strategic Partnership Agreement authorizes the City to annex property within the Development designated for retail development for the limited purpose of imposing sales and use tax. The agreement provides that the City and the District will divide the sales tax proceeds equally for the first 19 years. The City's share will increase to 75 percent commencing in year 20. The Development Agreement provides for the enforcement of municipal building codes and establishes land use and development regulations for the Development. The Agreement Concerning Operation of the District establishes conditions for operation of the District, including conditions on issuance of bonds and requirements to provide information concerning the District to the City. The four remaining agreements identified as items 4 through 7 above relate to utility service for the Development. Aqua Utilities, Inc., (Aqua Utilities) will provide the retail water and wastewater service to customers within the Development. Aqua Utilities will provide wholesale water and wastewater agreement for the first 190 residences constructed in the Development. Commencing with the 191 st residence constructed, the City will sell treated water service and wastewater service to Aqua Utilities on a wholesale basis. The City has the option to purchase the water and wastewater facilities in the Development from Aqua Utilities for $10, and to obtain the CCN for the Development and become the retail water and wastewater provider for the Development at any time after 17 years after the Development is connected to Fort Worth's water system. The Infrastructure and Transportation Committee received a presentation concerning the Development on October 12, 2010 and recommended approval of the documents. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: S. Frank Crumb (8207) Additional Information Contact: Paul Bounds (8567) ATTACHMENTS 6013rookfield WCID-FWSD ITC 10-7-2010.ppt http://apps.cfwnet.org/council_packet/mc_review.asp?ID=14623&councildate=l/25/2011 8/12/2011