Vistas of C 1stP-AG 950328 (3)The City* Wi~h ~ ~eau~iful ~:u'~ur*e
CITY COUNCIL MEETING:
AGENDA REQUEST FORM
March 28, 1995
ITEM #
ITEM CAPTION:
Consideration and approval of a pro rata agreement between the City of Coppell, Vista Property
and Coppeil 200 Joint Venture and authorizing the Mayor to sign.
SUBMITTED BY: Kenneth M. Griffin, P.E.
TITLE: Assistant City Manager/City Engineer INITIALS
STAFF COMMENTS:
See attached memo.
STAFF RECOMMENDATION Approval ~ Denial
EXPLANATION:
Staff recommends approval of the pro r~a agreement with a 20 year time ~ame and the waver
ofthe2% insp~tion
BUDGET AMT.$
FINANCIAL COMMENTS:
AMT. EST.$ +/- BUD:$
FINANCIAL REVIEW:
CITY MANAGER REVIEW:
Agenda Request Form - Revised 1/94
MEMORANDUM
To'
From:
RE:
D ate:
Mayor and City Council
Kenneth M. Griffin, P.E., Assistant City Manager/City Engineer~q
Consideration and approval of a pro rata agreement between the City of Coppell,
Vista Property and Coppell 200 Joint Venture and authorizing the Mayor to sign.
March 20, 1995
For sometime now City staff has been working with representatives of Vista Properties and their
engineer and attorney to work out a pro rata reimbursement agreement for the development of
a lift station and sewer line improvements to allow the development of what is commonly known
as Vista Ridge and Coppell 200 Joint Venture properties. The improvements will also benefit
property generally west of the Coppell 200 Joint Venture property (see map on benefitted area).
In essence, the agreement allows for Vista Properties to hire an engineer, Carter and Burgess,
to design the lift station and force main that will connect the new lift station into the existing
DeForest Road lift station. At some later date, there will be an additional pro rata agreement
that would allow for the construction of sewer lines on the north side of Denton Creek from
Denton Tap Road to the proposed lift station east of MacArthur Blvd. However, this particular
pro rata agreement only covers the lift station and the force main to connect the two lift stations.
The agreement has been reviewed by our attorneys and the comments by the attorneys have been
incorporated into the pro rata reimbursement agreement. The approval of the agreement will
necessitate one variance to the Subdivision Ordinance and one waiver of fees. The Subdivision
Ordinance allows for pro rata agreements for 10 years only. The owners of the property have
requested a 20 year period for the agreement. Because of the amount of land and the complexity
of the land development, the City offers no objections to the 20-year time period for the pro rata
agreement and recommends that Council approve the variance to the Subdivision Ordinance.
The second request is for a waiver of the 2 % inspection fees for the lift station and the force
main. Because this is part of the City's Master Plan and is being designed and funded by a
private entity at no cost to the City, then the City would offer no objections to the waiver of the
inspection fees. Obviously, I will still have an inspector checking the job site during
construction.
Staff recommends approval of the pro rata agreement with a 20 year time frame and the waiver
of the 2 % inspection fee. Staff will be available at the Council meeting to answer any questions.
SANITARY SEWER PRO-RATA REIMBURSEMENT AGREEMENT
This ~ Pro -Rata Reimbursement Agreement (the "Agi.e, glae~") is executed
between the CITY OF COPPELL, TEXAS (the "City_"), VISTA PARTNERS, a Nevada general
partnership ("Vista"), and COPPELL 200 JOINT VENTURE, a Texas joint venture CJV") to be
effective the ~ day of ,1995.
WItEREAS, Vista, JV, and other persons or entities own, in the aggregate, approximately
505 acres of real property that are located within the corporate limits of the City and that are
delineated on F_,lhihit2~ (and hereinafter referred to) as the ~~";
WHEREAS, Vista owns, or for the limited purposes of this Agreement represents the
owners of, approximately 213 acres within the ~ ~ Area, which 213 acres are
delineated un-- Exhibit~ . "A~ (and hereinafter referred to) as the "Vista Property";_ _
WHEREAS, JV owns approximately 170 acres within the ~ ~ Area,
which 170 acres are delineated on ~ (and hereinafter referred to) as the "JV Property";
WHEREAS, other individuals or entities not parties to this Agreement own approximately
122 acres within the ~ ~ Area, which 122 acres are (delineated) on ~
(and hereinafter referred to) as the "l~emaining Property";
WHEREAS, development of all property within the ~ ~ Area will require
the design and consmaction of certain infrastructure improvements including, but not limited to, (i)
a sanitary sewer lift station (with an ultimate capacity of approximately 3.0 million gallons per day;
the "Ultimate Lift Station") that will be located east of Macarthur Boulevard and north of Denton
Creek on property owned by Vista, and (ii) a 12 inch force main (the "Ultimate Force Main") that
will be located in the right-of-way of Macarthur Boulevard and that will connect the Ultimate Lift
Station to the existing DeForest Lift Sm~-~
WHEREAS, the Ultim. gte~i_ _f _[~_'i_ tion and Ultimate Force Main will be located as
generally shown on ~ attached hereto;
WHEREAS, Vista, JV, and the City each acknowledges and agrees that the Ultimate Lift
Station and Ultimate Force Main will directly, immediately, and uniformly (on a per-acre basis)
benefit all property within the ~ ~ Area;
WHEREAS, Vista, JV, and the City each acknowledges and agrees that all property within
the ~ ~ Area will benefit fi.om the construction of the Ultimate Lift Station and
Ultimate Force Main, the mount of which benefit will substantially exceed the Total Project Costs
(hereinafter defined) for such improvements;
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PAGE 1
WHEREAS, Vista, JV, and the City agree that near term development of property within
the ~ Benefited Area justifies the immediate design and construction of(i) the initial phase
of the Ultimate Lift Station (consisting of the Ultimate Lift Station box sU'ucture with a "knock out"
divider wall and one or more pumps capable of providing an initial capacity of approximately 1.0
million gallons per day (the "Initial Phase Lift Station") and (ii) the Ultimate Force Main. The
Initial Phase Lift Station and the Ultimate Force Main shall hereinafter be referred to as the "phase I
]Ifl,q.~o..Y.~ed~". The improvements necessary to upgrade the capacity of the Initial Phase Lift:
Station to the capacity of Ultimate Lift Station (i.e., fi.om 1.0 million to 3.0 million gallons per day)
shall hereinafter be referred to as the "Phase II Improvements";
WHEREAS, the City desires that Vista and JV design and construct the Phase I
Improvements upon the terms and conditions set forth in this Agreement;
WHEREAS, Vista and JV are willing to design and construct the Phase I Improvements
upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, Vista, JV, and the City agree as follows:
De~,;iun of Pha~e I Improvements. Vista and JV (collectively, "~"), at
Developer's sole cost and expense, will cause Carter & Burgess, Inc., 7950 Elmbrook Drive,
Suite 250, Dallas, Texas 75247-4961, to design the Phase I Improvements. Except as
hereinafter provided, such design shall be in accordance with the City's ordinary and
customary requirements applicable to public works construction projects and shall be
subject to final approval by the City (which approval shall not unreasonably be withheld or
delayed). The City agrees to use all reasonable efforts to review and approve Developer's
plans and specifications for the Phase I Improvements in a timely manner.
Construction of Phase I Improvements. Developer, at its initial sole cost and expense,
will cause the Phase I Improvements to be constructed, subject to reimbursement as set
forth in paragraphs 14, 15, and 16 hereof. Except as hereina~er provided, such construction
shall be in accordance with the City's ordinary and customary requirements applicable to
public works construction projects and shall be subject to final approval and acceptance by
the City (which approval and acceptance shall not unreasonably be withheld or delayed).
The construction schedule for the Phase I Improvements will be established by Developer.
The City agrees to use all reasonable efforts to review, inspect, and approve construction of
the Phase I Improvements in a timely manner. The City acknowledges and agrees that
Developer shall not be required to competitively bid any of the contracts that will be
required to construct the Phase I Improvements.
~LF. dlJI~. The costs to design and construct the Phase I Improvements (the "Phase I
Costs") are estimated on ~ attached hereto. The costs to design and construct
the Phase II Improvements (the "PJla,~C~") are estimated on ~ attached
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PAGE 2
hereto. The stun of the Phase I Costs and the Phase II Costs shall hereinafter be referred to
as the "Total Project Costs".
Cost Sharing: Payment of Costs: Disbursement of Funds. Vista shall pay 55.614%
(213 divided by 383) of the actual Phase I Costs. JV shall pay 44.386% L[211_ItJ_~~
383) of the actual Phase I Costs. Vista and JV shall escrow (the "Construction Escrow")
thei; respective portion of the estimated Phase I Costs within ~ days after this
Agreement has been formally and finally approved by the City Council of the City and has
been duly executed 1~ an authorized representative of the City. Vista and JV will deposit
additional funds (in proportion to the percentages set forth in this paragraph 4) in the
Construction Escrow if necessary to pay the actual Phase I Costs (such additional deposits
to be made within a reasonable time, not to exceed 30 days, after either Vista or JV
reasonably determines that the balance in the Construction Escrow is insufficient to pay the
actual Phase I Costs and gives the other party written notice of such deficiency together
with reasonable evidence of the nature, category, and amount of such deficiency).
Disbursements from the Construction Escrow shall require the approval of both Vista and
JV (which approvals shall not unreasonably be withheld or delayed). The balance, if any,
remaining in the Construction Escrow upon completion and acceptance by the City of the
Phase I Improvements shall be returned to Vista and JV in proportion to the percentages set
forth in this paragraph 4.
Insurance and Bonds. Developer agrees to provide or cause to be provided .t0 the Ci_ty all
insurance policies and payment, performance, and/or maintenance bonds ordinarily and
customarily required by City policy and applicable to public works construction projects.
1N0 City_ Cost Participation: Waiver of Review. Approval. and/or Inspection Fees. The
City shall not be obligated to participate in any of the Phase I Costs. In addition, the City
agrees that it will not charge Developer (and the City hereby expressly waives) any fees or
charges associated with the City's (i) review and/or approval of any designs, drawings,
plans, or specifications for the Phase I Improvements or (ii) review, inspection, approval,
and/or acceptance of the Phase I Improvements.
Calculation/Imposition of Sanitary, Sewer Pro-Rata Charges. The City agrees to
calculate and impose a-by ordinance a sanitary_ sewer pro-rata charge per acre on all
property within the tgom~ttt~ ~ Area in an amount equal to the estimated Total
Project Costs divided by the number of acres within the ~ ~ Area (subject
to adjustment when the actual Total Project Costs are known).
Collection of Sanitary. Sewer Pro-Rata Charges. Subject to the pre-payment provisions
hereinafter set forth, a ~tllilgry_.~,~ pro-rata charge (equal to the above-defined pro-rata
charge per acre multiplied times the number of acres; the "Pro-Rata Charge") shall be
collected from each owner of property within the ~ Benefited Area at the time such
property is final platted (or at the time a building permit is issued if the property is already
platted). The Pro-Rata Charge shall be calculated based on the area of the property being
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PAGE 3
11.
12.
final platted or, if the property is already platted, based on the area of the lot on which is
located the building or structure for which a building permit is being issued.
Pro-Rata Prepayment by Vista. Upon completion and acceptance by the City of the
Phase I Improvements, Vista shall be deemed to have prepaid its Pro-Rata Charges in an
amount equal to the portion of the Phase I Costs paid or incurred by Vista. Vista's Pro-Rata
Charge prepayments shall inure to the benefit of Vista and successor owners of the Vista
Property on an equal, per-acre basis and may be transferred or assigned to such successor
owners without the consent of the City. No transfer or assignment shall be effective,
however, unless written notice thereof has been given to the City, including the name and
address of the transferee or assignee and a description of the property sold to such transferee
or assignee.
Pro-Rata Prepayment by JV. Upon completion and acceptance by the City of the Phase I
Improvements, JV shall be deemed to have prepaid its Pro-Rata Charges in an amount equal
to the portion of the Phase I Costs paid or incurred by JV. JV's Pro-Rata prepayments shall
inure to the benefit of JV and successor owners of the JV Property on an equal, per-acre
basis and may be transferred or assigned to such successor owners without the consent of
the City. No transfer or assignment shall be effective, however, unless written notice
thereof has been given to the City, including the name and address of the transferee or
assignee and a description of the property sold to such transferee or assignee.
Reservation of Capacity_. Upon completion and acceptance by the City of the Phase I
Improvements, and upon the condition that Vista has paid 55.614% of the Phase I Costs, the
City agrees that Vista shall be entitled to 42.178% ff213 divided bv 505: the "Vista
Capacity") of the capacity of the Initial Phase Lit~ Station. Upon completion and
acceptance by the City of the Phase I Improvements, and upon the condition that JV has
paid 44.386% of the Phase I Costs, the City agrees that JV shall be entitled to 33.663%
((170 divided by 505: the "~") of capacity of the Initial Phase Lii~ Station. The
remaining 24.159% ((.122 divided by 505: the "Remaining Capaci _ty") of the capacity of the
Initial Phase Lit~ Station shall be reserved for development of the Remaining Property. If
either Vista or JV pays any portion of the other party's share of the Phase I Costs and such
payment (together with interest thereon at the rate of 18% per annum until fully reimbursed)
is not fully reimbursed within 30 days following written demand for reimbursement, the
reserved capacity of the party making such payment shall be proportionately increased (e.g.,
if Vista were to pay one-half of JV's share of the Phase I Costs, then Vista's reserved
capacity in the Initial Phase Lit~ Station would be increased to 59.010%).
Impact/Connection Fees. Notwithstanding anything in this Agreement to the contrary, all
property within the ~ ~ Area shall continue to be liable for Water and
Sewer Impact Fees (to reimburse the City for the costs of its Capital Improvement Projects
excluding, however, the Phase I Improvements~, and the Phase II Improvementg,_._-~'~ -.., ....
~,+, ......-,~t~,.a;~+:~..~ +., +r,~ r~c~+ ~ ;o e+~+:.,..~ and for ordinary and customary
"hook-up" or "connection" fees. Nothing contained in this paragraph 12 shill relieve,
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PAGE 4
impair, or otherwise affect the obligation of an owner of property within the ~
~ Area to pay the Pro-Rata Charge as required by this Agreement.
t4. Vista Reimbursable. Vista shall be entitled to reimbursement (the "Vista
l]&il~hllraa~") from the Segregated Account (hereinafter defmed) for the amount by which
(a) the sum of (i) Phase I Costs paid or incurred by Vista plus (ii) Vista Funded Shortfalls
(hereinafter defined) exceeds (b) 42.178% of the estimated Total Project Costs (subject to
adjustment when the actual Total Project Costs are known).
14.
JV Reimbursement. JV shall be entitled to reimbursement (the "J~ Reimbursable" from
the Segregated Account for the amount by which (a) the sum of (i) Phase I Costs paid or
incurred by JV plus (ii) JV Funded Shortfalls (hereinafter defined) exceeds (b) 33.663% of
the estimated Total Project Costs (subject to adjustment when the actual Total Project Costs
are known).
~6 15.
Creation of S _egregated Trust Account. For a period of 20 years after the Phase I
Improvements are completed and accepted by thc City, all Pro-Rata Charges and Third
Party Funded Shortfalls (hereinafter defined) collected by or paid to the City and any
voluntary City Contributions (hereinafter defined) will be placed in a segregated, trust
account (the "$~egated Account") to be used solely (and in the priority) as follows:
FIRST, payment of Phase II Costs;
~ff~Q]~, repayment of the Vista Reimbursable and JV Reimbursable (on a pari
pasu basis in proportion to the respective amounts of such reimbursables); and
Cor any other purpose approved by the City, including repayment of all or
any portion of any Third Party Funded Shortfall.
Any balance remaining in the Segregated Account at the end of the 20-year period may be
used by the City for any purpose.
Additional Capacity_ for Vista Development. If development of the Vista Property
requires capacity in the Initial Phase Lit~ Station that exceeds the Vista Capacity, upon
written notice from Vista the City will promptly either (i) make available to Vista a portion
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PAGE
of the Remaining Capacity or (ii) make available the funds in the Segregated Account to
design and construct the Phase II Improvements upon the condition that Vista will pay the
mount, if any, by which the actual Phase II Costs exceed the funds in such account (the
"Vista Funded Shortfall").
-18 17.
Additional Capacity_ for JV Development. If development of the JV Property requires
capacity in the Initial Phase Lift Station that exceeds the JV Capacity, upon written notice
from JV the City will promptly either (i) make available to JV a portion of the Remaining
Capacity or (ii) make available the funds in the Segregated Account to design and construct
the Phase II Improvements upon the condition that JV will pay the mount, if any, by which
the actual Phase II Costs exceed the funds in such account (the "JV Funded Shortfall").
Capacity_ for Development of the Remaining Property_. If development of the
Remaining Property requires capacity in the Initial Phase Lift Station that exceeds the
Remaining Capacity then available, the City will promptly make available the funds in the
Segregated Account to design and construct the Phase II Improvements and, unless the City
elects to participate in the cost of such improvements (a "Ci _ty Contribution"), the owner of
the property to be developed will pay the amount, if any, by which the actual Phase II Costs
exceed the funds in such account (the "Third Party_ Funded Shortfall"). The City will not
repay all or any part of a Third Party Funded Shortfall unless and until the Vista
Reimbursable and JV Reimbursable have been repaid in full.
..... ~,.,~ ..... ° 19. Acknowledmnent of Benefit. Each of Vista and JV hereby
acknowledges and agrees that the Vista Property and the JV Property, respectively, will
benefit from the design and construction of the improvements described in this Agreement
and that the amount of such benefit substantially exceeds the Pro-Rata Charge that will be
imposed upon their respective properties. Each of Vista and JV hereby waives any
requirement for an appraisal or other evidence of such benefit to their respective properties.
Future Owners Bound. Vista, JV, and the City intend that the benefits and burdens
created by this Agreement shall be a right appurtenant to all property within the ~
Benefit~ Area and that all current and future owners of such property shall be bound by the
provisions hereof. Each of Vista and JV agree that a copy of this Agreement will be
provided to any purchaser of all or any portion of the Vista Property or the .IV Property,
respectively.
i~l.YgJ:llhil~. If any provision of this Agreement is determined to unenforceable for any
reason, the remainder of this Agreement shall be reformed, to the maximum extent possible,
to reflect the overall intent of the parties.
.Attorney's Fees. If any party hereto to shall file suit to enforce this Agreement, the
prevailing party shall be entitled to recover all reasonable costs and expenses (including
attorney's fees and court costs) incurred in connection therewith.
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PAGE 6
Authority_. Each party represents and warrants that it has the full authority to execute this
Agreement and perform and be bound by all the terms and conditions hereof. Each party
further represents and warrants that the individual executing this Agreement of its behalf
has the full power and authority to do so.
Notices. Any notice required or contemplated by this Agreement shall be in writing and
shall be deemed given (i) three business days after deposited in the United States Mail,
postage prepaid, Certified or Registered delivery, remm receipt requested, (ii) when
received by fax or other form of electronic transmittal, or (iii) when delivered by
commercial delivery service with written evidence of receipt. Such notices shall be
addressed as follows:
IF TO VISTA: Vista Partners
Atto: F. Charles Emery II and Dennis Winzeler
5950 Berkshire Lane, Suite 400
Dallas, Texas 75225
Phone: 214/360-1526
Fax: 214/360-1507
IF TO JF:
Coppel1200 Joint Venture
Atto: Ron L. Fraze
101 W. Renner Road, Suite 170
Richardson, Texas 75082
Phone: 214/ -
Fax: 214/ -
IF TO CITY:
The City of Coppell, Texas
Attn:
Fax: 214/
,p.O. Box 478
Co?~..?ll. Texas 75019
~Phone: 214/462-02_99
Total Agreement. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and superseded all prior oral or written understandings
or agreements. This Agreement cannot be amended except by a written amendment signed
by all ag the parties hereto.
A,~llalillJli~. The rights and obligations of the parties hereto may be assigned by the
parties without the consent of the other parties provided such assignments are in writing,
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PAGE 7
specifically set forth the rights and obligations being assigned, and bind the assignee to be
bound by this Agreement.
LIST OF EXHIBITS:
~- Delineation of g~Watt~ ~ Area, Vista Property, JV Property, and
Remaining Property ~ Er~2b'.'t "W' Lz~nwt'.'zn of Ultimate Lift
Station and Ultimate Force Main.
lgxhibit "C""B" - Estimated Phase I Costs
Exhibit "D""C" Estimated Phase II Costs
THE CITY OF COPPELL. TEXAS
By:
Title:
Date:
APPROVED AS TO FORM AND LEGALITY
City Attorney
Date:
VISTA PARTNERS
By: Vista Mortgage & Realty, Inc,
Managing General Partner
By:
F. Charles Emery H
Title: Executive Vice President
Date:
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PAGE 8
COPPELL 200 JOINT VENTURE
By:
Ron L. Fraze
Title: Managing Venturer
Date:
COPPELL 200 JOINT VENTURE
By:
Title: Venturer
By:
Title:
Date:
ACKNOWLEDGMENT
THE STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME. the undersi~ened authori~, on this day personally appeared
of Coo~ell. Texas, a municipal co .moration, known to me to be the persoc~
whose name is subscribed to th~'foreeoin~e instrument, and acknowled.eed to me that he executed
the same for the purpo, ses and consid[ration therein expressed, in the capaciW therein stated and as
the act and deed of said municipal co ,rporation,
Notary Public in and for
r
the State of Texas
My Commission Expires:
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PAGE 9
ACKNOWLEDGMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME. the undersiened authori _ty. on this dav versonallv anneared F. Charles Emery,
II. Executive Vice President of Vis~ta Mortgage & Realm. Ir[c~. Man~i~,e'l~eneral Partner of Vista
Properties. a Nev_ad~ .eeneral parmership, known to me to be the person whose name is subscribea
to t~e foregoin? instmment, and acknowledged to me that he executed the same for the purpo_ ses
and consideration therein expressed, in the capaci~ therein stated and as the act and deed of saici
QIVEN under my hand and seal of office this
dav of March. 1995.
r
Iqotary Public in and for
the State of Texas
Commission Expires:
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PAGE 10
ACKNOWLEDGMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
13EFORE ME. the undersiened aHthoritv, on this dav personally anoeared Ron L Fraze.
Mana~inq Venturer of Cop?ll 200 Joint Venture. a Texas joint venture, known to me to be the
~rsot~ w~hose name is subscribed to the fore.eoing instrument, and acknowledged to me that he
~xecuted the same for the purposes and consideration therein expressed, in the capaci~ therein
stated and as the act and deed of said joint venture.
GIVEN under my hand and seal of office this
dav of March. 1995.
T
Notary Public in and for
the State of Texas
My Commission Expires:
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PAGE 11
ACKNOWLEDGMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME. the undersized authori _ty. on this da_v ~rsonally app~d
of , ~ wnturer of Cop~l1200 Joint Venture. a
Texas Joint venture, known to me to be the ~rson whose name is subscribed to the foregoine
instnunent, and acknowledeed to me that he executed the same for the t~urooses and consideration
therein expressed, in the capaci .ty therein stated and as the act and deed of said)oint venture.
GIVEN under my hand and seal of office this
dav of March. 1995.
Notary Public in and for
the State of Texas
My Commission Expires:
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PAGE 12